The response to his objection to Shaykh "Ali al-Halabi" and his claim that it is permissible to seek judgment from any person, and his argument for this using the story of Abu al-Hakam.
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The questioner : There is an objection here, which is an objection to Shaykh Ali regarding the issue of implementing the hudud (fixed punishments). He says that Shaykh Ali states: If people agree among themselves to implement the hudud, it is invalid by the consensus of the Ummah. He says: Rather, it is permissible for people to seek judgment from a qualified judge with their consent, unlike the judge of the Imam, and his rulings are binding on them. The evidence is what Abu Shurayh narrated that the Messenger of Allah (peace and blessings be upon him) said to him: Sunan an-Nasa'i 5387Hasan (Darussalam). He said: My people, when they differ over something, come to me and I judge between them, and both parties are pleased with me. He said: . He said: Shurayh. He said: . Al-Nasa'i narrated it.
And the story of 'Umar seeking judgment.
The Shaykh : Stop for a moment.
The questioner: Yes.
The Shaykh : My brother, before a person argues with a case, it must be visualized properly: Is the issue about seeking judgment from a specific person in a situation where there are people in the open desert, with no ruler and no established system? Or is the discussion about a situation where there is a ruler and an established system?
Please proceed.
Or is the discussion about a situation where there is an established system and a ruler who rules? I am not saying now that he rules by what Allah has revealed, because the reality is that there is mixed rule today, but there is a ruler who rules, some of it in accordance with the Shari'ah and some of it contrary to the Shari'ah. So we are asking now: Is the point of disagreement between these people and the brother you referred to that it is permissible to establish a person who implements the hudud under that ruling system and without the permission of this ruler, or in the absence of such a ruler? Is there a detailed distinction for this issue here? The answer is: No.
The questioner: No.
The Shaykh : Okay; so we are asking: What is the relation of this evidence to the case where there is a ruler who rules with his rule? We say: It is contrary to the Shari'ah in many of its rulings. So if a man appointed himself to judge between people on his own, as we said earlier regarding the so-called leader of the group; he appointed himself and began to apply the Shari'ah rulings; what will this ruler, who is an individual from among his people, do with this man? Will he allow him to implement the Shari'ah hudud?
The questioner: No.
The Shaykh : Of course not. So the issue is not in this picture we are discussing now, where an individual rules and implements the Shari'ah hudud under the system of a tyrannical, oppressive ruler—describe him as you wish—but we know necessarily that he cannot implement the Shari'ah hudud. And our reality—unfortunately—is clearer than we need to speak about. If you saw a man cursing Allah and His Messenger, you cannot hit him with a stick in your hand, because the ruler does not support the Shari'ah ruling here and does not defend the Shari'ah rulings. What about a man who killed a Muslim intentionally and deliberately, and this one who was appointed to judgment takes him and kills him? What will he do with him? The fitnah (trial/discord) will increase. I think this man who is being responded to is present, and praise be to Allah, and he can clarify what he has from what I mentioned or what I did not mention.
Do you have anything?
Al-Halabi : "With the Juhaynah is the certain news."
The Shaykh : May Allah reward you.
Al-Halabi : May Allah preserve you.
The Shaykh : These people, my brother, have no knowledge; they do not distinguish between one situation and another. If there was a group, as I said earlier, in the open, and there was no authority, and there was no ruler; here the ruling of Abu al-Hakam, who was given this kunya (nickname), applies; because he is obeyed in his tribe, obeyed in his tribe; there is no one who opposes him if he rules with a ruling, and there is no great fitnah and corruption in the land resulting from his ruling.
And the legal principles teach us that a Muslim is sometimes forced to contravene the Shari'ah ruling in order to avert the greater harm with the lesser harm.
Allah is Al-Hakam (the Judge) and judgment is His. Why are you known as Abu Al-Hakam?
إن الله هو الحَكَم ، فلم تكنَّى أبا الحكم ؟How good this is! So who is your eldest son?
ما أحسن هذا ! فمَن أكبر ولدك ؟So you are Abu Shurayh.
فأنتَ أبو شريحAnd the story of 'Umar seeking judgment.
The Shaykh : Stop for a moment.
The questioner: Yes.
The Shaykh : My brother, before a person argues with a case, it must be visualized properly: Is the issue about seeking judgment from a specific person in a situation where there are people in the open desert, with no ruler and no established system? Or is the discussion about a situation where there is a ruler and an established system?
Please proceed.
Or is the discussion about a situation where there is an established system and a ruler who rules? I am not saying now that he rules by what Allah has revealed, because the reality is that there is mixed rule today, but there is a ruler who rules, some of it in accordance with the Shari'ah and some of it contrary to the Shari'ah. So we are asking now: Is the point of disagreement between these people and the brother you referred to that it is permissible to establish a person who implements the hudud under that ruling system and without the permission of this ruler, or in the absence of such a ruler? Is there a detailed distinction for this issue here? The answer is: No.
The questioner: No.
The Shaykh : Okay; so we are asking: What is the relation of this evidence to the case where there is a ruler who rules with his rule? We say: It is contrary to the Shari'ah in many of its rulings. So if a man appointed himself to judge between people on his own, as we said earlier regarding the so-called leader of the group; he appointed himself and began to apply the Shari'ah rulings; what will this ruler, who is an individual from among his people, do with this man? Will he allow him to implement the Shari'ah hudud?
The questioner: No.
The Shaykh : Of course not. So the issue is not in this picture we are discussing now, where an individual rules and implements the Shari'ah hudud under the system of a tyrannical, oppressive ruler—describe him as you wish—but we know necessarily that he cannot implement the Shari'ah hudud. And our reality—unfortunately—is clearer than we need to speak about. If you saw a man cursing Allah and His Messenger, you cannot hit him with a stick in your hand, because the ruler does not support the Shari'ah ruling here and does not defend the Shari'ah rulings. What about a man who killed a Muslim intentionally and deliberately, and this one who was appointed to judgment takes him and kills him? What will he do with him? The fitnah (trial/discord) will increase. I think this man who is being responded to is present, and praise be to Allah, and he can clarify what he has from what I mentioned or what I did not mention.
Do you have anything?
Al-Halabi : "With the Juhaynah is the certain news."
The Shaykh : May Allah reward you.
Al-Halabi : May Allah preserve you.
The Shaykh : These people, my brother, have no knowledge; they do not distinguish between one situation and another. If there was a group, as I said earlier, in the open, and there was no authority, and there was no ruler; here the ruling of Abu al-Hakam, who was given this kunya (nickname), applies; because he is obeyed in his tribe, obeyed in his tribe; there is no one who opposes him if he rules with a ruling, and there is no great fitnah and corruption in the land resulting from his ruling.
And the legal principles teach us that a Muslim is sometimes forced to contravene the Shari'ah ruling in order to avert the greater harm with the lesser harm.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.