A response to his objection to Shaykh Ali Hasan and his claim that it is permissible to seek judgment from a specific person, citing the story of Abu Shurayh as evidence.
Machine translationRead the Arabic original
The questioner : There is an objection here, which is an objection to Shaykh Ali regarding the issue of implementing the hudud (fixed punishments). Shaykh Ali says that if a group of people agree among themselves to implement the hudud, it is invalid by the consensus of the Muslim community. He says, rather, that it is permissible for people to seek judgment from a man qualified for the judiciary with their consent, unlike the judge of the imam whose 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: It was narrated by al-Nasa'i. And the story of 'Umar seeking judgment...
The Shaykh : Wait a moment.
The questioner : Yes
The Shaykh : My brother, before a person cites a case as evidence, he must visualize it 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 taking place in the presence of 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 do not say "by what Allah has revealed" because the reality today is a mixed ruling, but there is a ruler who rules, some of whose rulings conform to the Shari'ah and some contradict it. So we are asking now: is the point of disagreement between these people and the brother you mentioned that it is permissible to establish a person to implement the hudud under that ruling's system and without the permission of that ruler? Or is it in the absence of such a ruler? Is there a detailed distinction for this issue? The answer is no.
The questioner : No.
The Shaykh : Okay, if we are asking what the relationship is between this evidence and the situation where there is a ruler whose ruling we say contradicts the Shari'ah in many of its rulings? If a man appoints himself to judge between people on his own, as we said earlier regarding the self-appointed leader of the alleged group, who appoints himself and begins 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 the space to implement the Shari'ah hudud?
The questioner : No.
The Shaykh : Of course not. If the issue is not in the form we are discussing now, which is an individual ruling and implementing the Shari'ah hudud under the system of a tyrannical, arrogant ruler—describe him however you wish—but we know necessarily that he cannot implement the Shari'ah hudud, and... we see, unfortunately, it is clearer than we need to speak about. If you saw a man cursing Allah and His Messenger, you cannot strike 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. So what about a man who intentionally and deliberately killed a Muslim, and this one who appointed himself for judgment takes him and kills him? What will he do with him? The fitnah (trial/discord) will increase. I think this man who is responding to him is present, and praise be to Allah, and he is able to clarify what he has from what I mentioned or what I did not mention.
Do you have something?
Al-Halabi: Praise be to Allah... the certain news...
The Shaykh : May Allah bless 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 were a group, as I said earlier, in the open desert, with no authority and no ruler, then the ruling of Abu al-Hukm applies here. He was given this kunya (nickname) because he was obeyed by his people; he was obeyed by his people. So if he did not rule with a ruling, there was no one to oppose him, and no great fitnah and corruption in the earth would result from behind his ruling.
And the Shari'ah principles teach us that a Muslim is sometimes compelled to contradict the Shari'ah ruling in order to repel the greater harm with the lesser harm...
"Indeed, Allah is the Judge, so why were you named Abu al-Hukm?" 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, "How good that is! Who is the eldest of your children?" He said, "Shurayh." He said, "Then you are Abu Shurayh."
إن الله هو الحكم فلم تكنى أبا الحكم ؟ قال إن قومي إذا اختلفوا في شيء أتوني فحكمت بينهم ورضي علي الفريقان قال ما أحسن هذا فمن أكبر ولدك قال شريح قال فأنت أبو شريحThe Shaykh : Wait a moment.
The questioner : Yes
The Shaykh : My brother, before a person cites a case as evidence, he must visualize it 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 taking place in the presence of 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 do not say "by what Allah has revealed" because the reality today is a mixed ruling, but there is a ruler who rules, some of whose rulings conform to the Shari'ah and some contradict it. So we are asking now: is the point of disagreement between these people and the brother you mentioned that it is permissible to establish a person to implement the hudud under that ruling's system and without the permission of that ruler? Or is it in the absence of such a ruler? Is there a detailed distinction for this issue? The answer is no.
The questioner : No.
The Shaykh : Okay, if we are asking what the relationship is between this evidence and the situation where there is a ruler whose ruling we say contradicts the Shari'ah in many of its rulings? If a man appoints himself to judge between people on his own, as we said earlier regarding the self-appointed leader of the alleged group, who appoints himself and begins 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 the space to implement the Shari'ah hudud?
The questioner : No.
The Shaykh : Of course not. If the issue is not in the form we are discussing now, which is an individual ruling and implementing the Shari'ah hudud under the system of a tyrannical, arrogant ruler—describe him however you wish—but we know necessarily that he cannot implement the Shari'ah hudud, and... we see, unfortunately, it is clearer than we need to speak about. If you saw a man cursing Allah and His Messenger, you cannot strike 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. So what about a man who intentionally and deliberately killed a Muslim, and this one who appointed himself for judgment takes him and kills him? What will he do with him? The fitnah (trial/discord) will increase. I think this man who is responding to him is present, and praise be to Allah, and he is able to clarify what he has from what I mentioned or what I did not mention.
Do you have something?
Al-Halabi: Praise be to Allah... the certain news...
The Shaykh : May Allah bless 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 were a group, as I said earlier, in the open desert, with no authority and no ruler, then the ruling of Abu al-Hukm applies here. He was given this kunya (nickname) because he was obeyed by his people; he was obeyed by his people. So if he did not rule with a ruling, there was no one to oppose him, and no great fitnah and corruption in the earth would result from behind his ruling.
And the Shari'ah principles teach us that a Muslim is sometimes compelled to contradict the Shari'ah ruling in order to repel the greater harm with the lesser harm...