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Ideological Questions

Ideological Questions (82)

Answer to the Question: The Land Title Deed and Its Benefit To Umm Musab Al Jaabari (Translated)

Assalaam Alaikum wa Rahmatullah wa Barakatahu,

I would like to raise a question in relation to land, which is: What is the difference between the land in which the title and benefit is for the individual, and the land in which benefits are for the individual and its title for the state? May Allah reward you.


Answers to Questions 1. Land of Sawad of Iraq 2. What is obliged on the Kaffir in the Ushriyia Land To: Abu Abdullah Al-Halabi

May Allah grant you His forgiveness and good health,

I have two questions, the first one: It is known that Omar Ibn Al-Khattab (ra) kept the land of Iraq and refused to distribute it to the fighters, the question is: Is this an Ijtihad of Omar Ibn Al-khattab (ra) which others may hold a different Shariah opinion, or is it a consensus of the companions which is prohibited to differ with?


Ameer Q & A: Discretionary Penalty (At-Ta’zir): Its Details and Rulings

 بسم الله الرحمن الرحيم
Series of Questions Addressed to Scholar Sheikh Ata Bin Khalil Abu Al-Rashtah
Ameer of Hizb ut Tahrir through his Fiqhi Facebook Page
Answer to the Question

Discretionary Penalty (At-Ta’zir): Its Details and Rulings


Assalamu alaikum, bless you our Sheikh and Ameer and may we blessed with you, the Answer had the following sentence: “As it has legalized discretionary penalty and showed the details of its rulings and its types”, so what are these details of its rulings and types?


Your question is about a text that came from an answered question dated 02/01/2015, being:

“As for the discretionary penalties, which are punishments on sins that the Shari’ didn’t specify for them any set punishment, but it was left to be decided by the Imam or the judge… they are rules of the method, and since the Shari’ didn’t specify the punishment, this doesn’t mean at all that it has not placed the method of executing the Shariah rulings when punishing those who do not commit to them discretionally, as it has legalized discretionary penalties and showed the details of its rulings and its types… and it left to the Imam only to choose among the types of punishments which the Shari’ specified, and in the magnitude which he sees appropriate to the status of the sin and situation of the sinner. This means that the Shari’ showed how to apply these rulings in order to carry on with the punishment upon those who don’t commit to it, but the magnitude of this punishment and its type… this is what the Shari’ has left to the Imam or his vice president.” End

We have not provided much detail in the mentioned answered question to avoid a lengthy answer… even in the answer to your question, it is not preferred to be lengthy in details since the research about discretionary penalty is vast and extensive, and the topic is mentioned in full in our book, The System of Punishment (Nizam Al Uqubaat),… but I will mention part of it:

  1. Discretionary penalty differs from the Hudud and felonies, as Hudud and felonies are punishments specified and identified by The Legislator (swt), and it is necessary and it is not allowed to replace it, add to it, nor subtract from it. As for discretionary penalty, it is a punishment unidentified in specific, and it is not specifically necessary. In addition, Hudud and felonies do not accept pardons, nor being dropped by the ruler except by The Owner of Haqq (swt) in felonies and this is different in discretionary penalties, as it accepts pardon and being dropped.
  2. The Shari’ has specified the types of discretionary penalties that the judge is allowed to punish with, and that is based on clear Shariah texts, and it is not allowed to punish with anything else, as the punishment is an action that definitely needs evidence for its allowance. It cannot be said that there should be evidence to stop him from punishing with specific punishments, it cannot be said because originally there is no punishment, so punishing with a specific punishment needs evidence. As for the origins of no punishment it is a general evidence made for the dignity of the person, and not harm him, since deciding a specific punishment on him needs evidence to allow its decision, and if there is no evidence for its allowance, then it is not allowed to decide upon it.

It cannot be said that discretionary penalty has made the ruler absolute without any restrictions, being able to choose the penalty as per his discretion; this cannot be said, since whatever was made for the ruler is to estimate the magnitude of the punishment, and nothing else was made for him. This is because the Shaari’ (swt) has interfered to specify its types, that is specifying the types of punishments that can be punished with, so the judge became restricted with these punishments. This means that having the Shaari’ (swt) specifying the types of punishments has restricted the judge with them, so he is not allowed to punish with anything otherwise, and he can choose from among them what he sees appropriate. Upon them, the ruler has to comply with the Shariah rules when he’s deciding a discretionary penalty, so he cannot punish except with punishments which the Shaari’ (swt) has brought upon.

  1. The Shari’ has forbidden certain punishments and allowed certain punishments which need to be followed in discretionary penalties. It is forbidden to burn in fire, as punishing with burning in fire is not allowed, and it has been narrated by Bukhari from a Hadith from Abu Hurairah: «وَإِنَّ النَّارَ لاَ يُعَذِّبُ بِهَا إِلَّا اللَّهُ»“It is the fire that no one can punish with except Allah”, and Bukhari narrated from Akrama that the Prophet (saw) said: «لاَ تُعَذِّبُوا بِعَذَابِ اللَّهِ»“Do not punish with Allah’s punishment” which means burning with fire. Also, Abu Daoud narrated in his Sunan on the account of Abu Masoud from the Prophet (saw) that he said: «إِنَّهُ لَا يَنْبَغِي أَنْ يُعَذِّبَ بِالنَّارِ إِلَّا رَبُّ النَّارِ» “It should not be to punish with fire except the Lord of fire”. All this explicitly shows the forbiddance of punishing with burning in fire, and tagged along with it whatever is similar to it, inclusive whatever has the ability to burn such as electricity.
  2. The Shari’ has allowed punishments in discretionary penalty that are not allowed to rule with anything other, and this is shown clearly and I will mention some of them:
  3. The punishment of killing: The Khalifah is allowed to reach in the discretionary penalty to the rule of killing in the huge crimes which are not inclusive in the crimes of Hudud, such as the crime of calling for an area to separate from the body of the Islamic state, as it appears in the honorable Hadith: «مَنْ أَتَاكُمْ وَأَمْرُكُمْ جَمِيعٌ عَلَى رَجُلٍ وَاحِدٍ، يُرِيدُ أَنْ يَشُقَّ عَصَاكُمْ، أَوْ يُفَرِّقَ جَمَاعَتَكُمْ، فَاقْتُلُوهُ»“Whoever comes to you and tells you to gather over one man, wants you to separate, or disperse your groups, kill him” narrated by Muslim from ‘Ajrafah. This means that the Khalifah is allowed to reach in the discretionary penalty to the rule of killing.
  4. Whipping: It is the hitting with a whip or anything similar… however, the discretionary penalty of hitting and whipping are not allowed to exceed ten hits or ten whips. This has appeared clearly in the texts of the Hadith, where Bukhari narrates from Abdul Rahman bin Jaber from what he heard from the Prophet (saw) who said: «لاَ عُقُوبَةَ فَوْقَ عَشْرِ ضَرَبَاتٍ إِلَّا فِي حَدٍّ مِنْ حُدُودِ اللَّهِ» “No punishment over ten hits except in a Hadd from the Hudud of Allah.” So, if the ruling was whipping, then it is not allowed to exceed ten whips…
  5. Fines are accepted as discretionary penalties for some sins, as texts have mentioned this such as what Abu Daoud extracted in his Sunan upon the account of Abu Hurairah who said: The Prophet (saw) said: «ضَالَّةُ الْإِبِلِ الْمَكْتُومَةُ غَرَامَتُهَا وَمِثْلُهَا مَعَهَا»“The punishment for the hidden lost camel is to return it and to add another one”, which means that the person who has the lost camel and hides it from its owner must return it to its owner and is fined by giving the owner another camel. Also, there is a discretionary penalty to the person who withholds from paying Zakat which is taking a portion of his money. This all shows that the Prophet (saw) commanded the punishment of paying a fine as part of a discretionary penalty.
  6. Imprisonment is allowed as a discretionary penalty, and the Shraiah compliant imprisonment is delaying a person and stopping him from acting as he wishes, and that is in a country, or in a house, or in a masjid, or in a prison prepped for punishment or anything else. The evidence for that imprisonment is a punishment is one of the Shariah compliant punishment is derived from what At-Tirmidhi narrated from Bahz bin Hakim from his father from his grandfather: «أَنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ حَبَسَ رَجُلًا فِي تُهْمَةٍ ثُمَّ خَلَّى عَنْهُ»“That the Prophet (saw) imprisoned a man in an allegation then he let him go.”

Imprisonment in the days of the Prophet (saw) was in the house, or in the masjid, and it was the same in the days of Abu Bakr (rA), as there was no prison prepped for the enemies. In the days of Umar (rA), he bought a house from Safwan bin Umayyah for four thousand Dirhams and made it a prison. Umar (rA) imprisoned Al-Hateea for satire, and imprisoned Sabeegh for asking about Adh-Dhariyat, Al-Mursalat, An-Nazeeaat and their likes… the length of imprisonment should be specified as imprisonment for life isn’t allowed in Shariah, and so the period of imprisonment should be specified upon a certain person.

Imprisonment is detention, not labor, as labor is something other than imprisonment, and so if a person was ruled to be imprisoned, then he should not work, since the word imprison doesn’t hold the connotation of labor. However, is it allowed to rule with imprisonment and labor, or keep it only to rule with imprisonment? The answer to this is that there is no Shariah text to have the punishment to be labor, neither harsh labor nor non-harsh, and that is why it not a punishment, and imprisonment is limited to the meaning of detention.

  1. Advise: That is by having the judge advising the offfender via frightening him with the punishment of Allah (swt), and the evidence for that is what Allah (swt) says: ﴿واللاتي تخافون نشوزهن فعظوهن “As to those women on whose part you see ill-conduct, admonish them” [An-Nisa: 34]

These are some of the types of the discretionary penalties which the Shariah has provided evidence for allowing the ruler to punish with, and the ruler is not allowed to punish with a type unless there is a text from the Shariah that allows this type.

I hope that this is satisfactory.

Your brother

Ata Bin Khalil Abu Al-Rashtah

The link of the answer from the Ameer’s Facebook page:


Answer to the Question: Judging Between Non-Muslims in the Islamic State

Can you please explain why the Prophet (saw) gave exception to the Arab Polytheists from the Kuffar of Yemen to remain in their religion? Can we consider this exception regarding the Arab Polytheists a restriction to what is general as what is mentioned in the book, The Islamic State, (Arabic version, 7th edition, page 144; English version, page 139): "These people will be left alone and there is no interference with their beliefs or their worship" the two categories are the people of the Book and the Polytheists? And also a restriction to what is mentioned in Introduction to the Constitution of the Islamic State, Article 27, Section B, or is this exception is specific to that generation only?


Answer to the Question Borrowing from Foreign Countries

borrowing from foreign countries and international financial institutions, where it is mentioned in the book The Funds in the Khilafah "Caliphate" State that it is prohibited by the Shariah because borrowing from them cannot happen except via usurious interest and conditions... The question is: When can the borrowing be permitted, and what are the conditions which makes it prohibited? Is there a difference if these countries are in treaty or in warship?


Answer to the Question: The Meaning of "Competence" in the Conditions of the Khaleefah

the competence under Item VII of the conditions of the Khaleefah, then explained the competence and elaborated until it reached the following statement: "Also it is not a contracting condition for the Khilafah "Caliphate" that the Khaleefah must be brave, or the people of good vision to manage the affair of the community and to conduct its interest". Question: is this not considered competence?


Regarding the Leasing of As-Saniya and Ruling on Farming

1-  Can we say that the Manat of the ruling (the land) changes in the case of As-Saniya, since it has become a land that include facilities that are a part of it and it is not a bare land? 2-  If a land is not specified for farming production such as producing decoration flowers or plant (nurseries) or for farming animals will the Manat of the ruling also changes? 3-  Is leasing of land allowed in the above situations?


Answer to Question: 1- Imitation (Taqleed) and Leaving the Opinion of One Scholar (Mujtahid) for Another Mujtahid 2- Achieving more than One Value from One Action

1. The word "Mutlaqan" (at all) here, does not comply with our understanding that when we realise a mistake we do not leave it and go to the right opinion; how is it the case then if I follow a mujtahid and then discover later that he is a hypocrite wrongdoer (fasiq) do I remain as a follower to him? And if I discover that this mujtahid that I follow has a weak opinion, do I continue in following him? If for example I realise that I followed him in a prohibited issue that is based on a very weak hadeeth... do I continue following what I took from him?

2. In the book The System of Islam, it also mentions that the mujtahid is allowed to leave his opinion for the benefit of the Muslims. Same as what took place with Othman (ra) during his Bay'ah.  I would like to see a narration of the story, when looking for it I did not see a correction for it, instead what I found is that it is unacceptable. Are there other correct narrations? Can you please provide evidence from the consensus of the companions to permit imitation in opinion?

3. Can one action achieve more than one value or not, for instance if you study a specific discipline and your aim is to please Allah and also a material gain.

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