Al-Ahkam As-Sultaniyyah: The Laws of Islamic Governance

Page no:1Al-Ahkam As-Sultaniyyah
The Laws of Islamic Governance
Translated by: Asadullah Yate
Abu'l Hasan 'Ali ibn Muhammad Al-Mawardi

Page no:2 Contents
©146 AN/196 CE Ta-Ha Pablohen Lad. Second edition published in January 2023
Published by:
Ta-Ha Publishers Ltd, UK W: www.thapublisher.com Email suppon@rahapublishers.com
All rights reserved. No part of this publication may be reproduced, stored in ayeval wees, or trammited in any form or by any meam, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publishers, except for passages for review purposes.
Tulad by: De. Asadullah Yate
Edited by Abdanamad Clarke
Cover & Book Designed by: Shakir Abdulcadir opensquares.uk
A catalogue recond of this book is available from the British Library ISBN-13: 9781 84200 1776
Printed and bound by: Mega Print, Türkiye
Foreword Introduction
Chapter 1. The Contract of Ima
Chapter 2. The Appointment of Wazi
9
33
Chapter 4
Chapter 3. The Establishment of Aminate in a Country The Amite of hal
43
51
Chapter 5.
Wan Waged in the Public Interest within Dar al-Jam
Chapter 6. The Administration of the Judiciary Chapter 7. The Court of Redress for Grievances, Injustices and Misdeeds
Chapter 8. The Nigh-Judiciary for those of Noble Lineage Chapter 9. The Imamate of the Prayers
Chapter 10. The Administration of the Hay
Chapter 11. The Administration of the Zakah
Chapter 12. The Division of Bocey and Plunder Chapter 13. The Imposition of the Jizpah and Khang Taxes Chapter 14. Differences in Judicial Practice in Different Regions Chapter 15. The Reviving of Abandoned or 'Dead' Land
and Water Resources
Chapter 16. Reserves (Hina) and Places of Communal Use Chapter 17. Laws Governing Grants of Land and Concesions Chapter 18. The Establishment of the Div and its Rules Chapter 19. The Laws Governing Crime and Wrongoing Chapter 20. The Laws Govering Public Order (Hisha
Glossary
Index
77
107
133
139
149
157
173
193
211
233
243
249
261
285
311
337
347

Page no:3Fourth, is forbidden to cut down any tree which Allah hus caed gow but it is not forbidden to cut those planted by manc nor is it forbidde crifice domesticated animal or to let them feed on pasture. Compensat pament me be paid for those trees which one is prohibited from cutting cow for a large tree, a sheep for a small one; a branch from either of them m be compensated for proportionally and planting a replacement for a cutte
does not exempt the person responsible from paying compensation Fh, no penen from amongst those who oppose Islam, be they protected by treaty, may enter the Haram-irrespective of whether they wis be midest or are passing by- and this is the teaching of ash-Shab's, may Al have mercy on him, and most of the fagala. Abu Hanifah, however, pem their entry as long as they do not take up residence although the woods of A may He be exalted, "The mushrikus are filthy and they are not to com close to the Haram mosque, after this year" (Qur'an 9:28) prohibit di If a mask does enter, then he is given a discretionary punishment, if he d it without permission although it is not permitted to have him killed; if he be entered with permission, then the discretionary punishment is not infiel on him, and the person who gave the permission is blamed and he is given a discretionary punishment if his rank demands it, and the mushrik is expelled and gunneed safe passage. If the meshnik wants to enter the Haram to become Muslim there, he is prevented from this until he has become a Muslim befor entering if a molik dies in the Haram, it is forbidden to bury him therein and he is buried in the territory outside it; if he has been buried in the Haram, be transfered to the territory outside it unless the body has decomposed, in which case he is left there, as were the dead of the Jahiliyyah time.
It is permitted to allow them to enter other mosques as long as they do not wish to waste this opportunity by eating or sleeping there, in which case they are refused permission. Malik, however, says that they are not permitted to enter under any circumstances.
***
As for the Hijaz, al-Asma'i has said that this name (meaning barrier) refers to its acting as a barrier between Najd and Tihamah, while Ibn Kalbi says th is called so because of the mountains that enclose it. Apart from the H within it, it is different from the other territories in four ways: First, the man may not reside in it, be they dinis or people of Abu Hash, however, permits it although 'Ubaidullah ibn 'Abd-alih
dut the last thing to be confirmed by the Messenger, may the peace and blessing Mod has narrated that Aishah, may Allah be pleased with her u of Allah be upon him, was that, "Two der will not exist together in the A pesina Umar ibn al-Khattab, may Allah be pleased with him, expelled
122-ph-The Laws of Islamic Goverance
from the Hijar, but accorded traden and artisans three days, after which they were expelled. This practice became current and established itself as low; the As were prevented from taking up midence in the Hiar, but they could enter it as long as they did not stay in any place for more than three days at the end of this term, they were sent to another place, where they could stay for other three days, but if they stayed for more than this, then they were give dscretionary punishment, unless they had a valid excuse
Second, their corpses may not be buried theer, and they are transferred ebewhere if this happens- as their burial would imply their continued presence and that they had become residents-unless the distance involved is too great and they would decompose, in which case it is permitted to leave them buried in cases of necessity.
Third, the Madinah of the Messenger in the Hijaz, may the peace and blessings of Allah be upon him, aho has a Haram which is inviolate territory within special boundary marks: it is forbidden to hunt in it or to cut down ins trees, just as in the Haram of Makkah. Abu Hanifah, however, permits all this and treats it as a town like any other - although in the above-mentioned hadith of Abu Hurairah, there is proof that the Haram of Madinah is inviolate. If someone kills its game or cuts down one of its trees, it is said by some that be must be stripped of his clothes in compensation, and by other, that he be given a discretionary punishment.
Fourth, the land of the Hijaz may be divided in two ways by virtue of the special fact that the Messenger of Allah himself, may the peace and blessings of Allah be upon him, conquered it
i. This part refers to the Prophet's sadaqat-wealth, which he was entitled to take in two ways: the first, a fifth of the ku derived from the fey and the booty; and the second, four-fifths of the fry accorded by Allah to His Messenger from what had been acquired by the Muslims while not mounted on horses or camels (ie. without fight). Thus from what came to him from these two entitlements, he gave a small portion to some of his Companions, and retained the rest for his own expenses, and for the needs of the Muslims. When he died, however, may the peace and blessings of Allah be upon him, the people differed as to the naling in this matter some considered that it was inherited from him, and that as such should
be divided amongst the inheritors, just like any other property, others, however, considered that it should be made over to the man, who in effect had taken over responsibility from him for the defence of the territories of Islam and the jihad against the enemy; the majority of the fake, however, say that this kind of wealth has an inviolate character, and that it is to be pot to special use, that is, spent on various public need
Besides his sadaqat-wealth there is the e-land which is not subject to the khasaj as it is either property taken as booty, or left to the original owners in
The DS of the Regions on 223

Page no:4Judicial investigation of wrongs or abuses is concerned with leading those who have committed wrongs to just behaviour by instilling fear in them, and with dissuading litigants from undue obstinacy in their disputes by instilling a feeling of respect. Thus among the qualities demanded of the judicial investigator is that he be of imposing stature, that he ensures action follows his words, that he commands great respect, is manifestly correct in his keeping within moral bounds, restrained in his appetites, and possessed of great scrupulousnes he needs to have the strength of the law-enforcement officers, and the firmness of the gadi in their judicial tasks and to combine the qualities of these two types of person, so that by the majesty of his bearing he is able to execute any command with respect to both parties. If he is among those who have control over the generality of affairs, like ministers and amins, he does not need to have a specific appointment to this office, since the general nature of his authority gives him jurisdiction in this if, however, he is not of those to whom general jurisdiction has been delegated, he does need to be appointed and entrusted with this specific task, as long, that is, as all the above-mentioned qualities are to be found in him. Such a task should be assigned, in the case of general jurisdiction over cases of redress and abuse, to those who may be chosen as hereditary successors, or ministers authorised by delegation, or amin of provinces; if, however, this office is restricted to carrying out whatever the gadis are incapable of carrying out and to the execution of whatever their power does not permit them to execute, then a person below this rank in influence and importance may be chosen, as long as he is blameless regarding his respect for the truth, and greed does not fill him with such longing that he accepts bribes. The Messenger of Allah, muy the peace and blessings of Allah be upon him, investigated the dispute about irrigation between az-Zubayr ibn al-Awwam, may Allah be pleased with him, and a man from the Ansar. He

Page no:5l-Ahkam As-Sultaniyyah is both the single most comprehensive account of the workings of Islamic governance and equally a highly influential theoretical outline of the nature of that governance. It is also as if it were a snapshot of the inner workings of Abbasid power at its height. Woven throughout it are accounts of the first community of Islam and the judgements of the early scholars of the salaf which are the book's lifeblood and its light.
Abu'l Hasan al-Mawardi (d. 450AH) was a practising Qadi whose excellent judgement earned him the soubriquet 'The Most Judicious of Qadis'. Given that the role of the Qadi far exceeds that of 'judge', the author was well-placed to describe the workings of power from within. Along with that, his excellence as a scholar allowed him to produce a work which is one of the undoubted classics of Islam.
Dr Asadullah Yate gained his PhD from Cambridge with his dissertation on Ibn Rushd as Jurist.
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