The Fundamental Difference Between Applying Punishments and Establishing Sharia
Peace be upon you and the mercy of God, dear brothers. We often hear that a certain jihadist group does not apply Sharia, while another group does. When we ask, "What do you mean by applying Sharia?" it turns out that the intended meaning is the application of punishments, such as cutting the hand of a thief.
Here, we clarify - dear brothers - that the application of punishments is not the same as applying Sharia. Sometimes, applying Sharia may involve "prohibiting" the application of a punishment, making its application in such a case an act contrary to Sharia.
Establishing Sharia and Applying Punishments
We have previously explained that the more accurate phrase than "applying Sharia" is "establishing Sharia." Therefore, we will use it in the rest of the discussion. We have also explained that all Muslims are obligated to establish Sharia to the best of their ability, whether they hold a position of authority or are subjects, whether they have the means to do so or not.
However, the one specifically tasked with applying punishments and entrusted with their execution is the Muslim ruler who governs a land for Muslims with established sovereignty, not individual Muslims. The application of punishments can only be carried out through force and authority, as Ibn Taymiyyah stated in his fatwas.
Evidence Requiring the Ruler and Authority
This is because the Prophet, peace be upon him, said: "Avoid applying punishments among yourselves. Whatever reaches me of a punishment, it becomes obligatory." (A hadith authenticated by Al-Albani and deemed good by others). That is, if a person commits an act that warrants a punishment such as theft, adultery, or drinking alcohol, it is upon the Muslim community not to bring it to the ruler, but to conceal the act and reform the perpetrator. However, if the matter reaches the ruler or his deputy, it becomes obligatory for him to apply the punishment.
This indicates that the Muslim community without a ruler is not the one addressed with the application of punishments, nor is it obligatory upon them. If it were obligatory, the Prophet, peace be upon him, would not have differentiated between the two scenarios, nor would it have been permissible for the Muslim community to exempt someone who deserves a punishment without the ruler's knowledge.
This is also indicated by the hadith of Safwan bin Umayyah, who brought a thief who stole his cloak to the Prophet, peace be upon him. The Prophet ordered the cutting of the thief's hand, and Safwan said, "I did not intend this, O Messenger of God, and it is charity upon him." The Prophet, peace be upon him, said, "Why did you not do this before bringing him to me?" If the application of punishments were obligatory upon individual Muslims, it would not have been permissible for Safwan to exempt the thief from punishment.
The Reality of the Syrian Arena and the Application of Punishments
Therefore, dear brothers, the one addressed with the application of punishments is the ruler chosen by the Muslims through consultation and agreement in a land for Muslims with established sovereignty; the ruler or his deputy such as judges and governors.
Is this the case in Syria? In the lands where various fighting groups are present, do the Muslims have an established and stable sovereignty, and have they accepted a ruler for themselves? Or is the situation one of repelling an advancing enemy and an attempt to restore Muslim sovereignty, while the land remains a land of war, movement, and retreat?
If we say it is a land of war - and this is the apparent case - and Muslim sovereignty is still lost, not to mention that they would grant it to a ruler they agree upon, then the application of punishments in this case is not from Sharia. In the hadith authenticated by Al-Albani: "Do not cut off hands during raids." That is, the application of punishments in this case is contrary to the command of the Prophet, peace be upon him, and an act contrary to Sharia; because the land is a land of raids, and the one addressed with the application of punishments (the ruler) is not present in this land. The leaders of the fighting groups are not the "ruler" entrusted with the application of punishments, so the punishment in this case was not originally obligatory upon the fighting groups for us to say that they have applied it or suspended it.
The Difference Between Legal Suspension and Democratic Rejection
It may be said at this point: What is the difference between this view and the proponents of democratic calls who reject the application of punishments and make the criminal system a matter of human choice?
The answer is that these people did not acknowledge the sovereignty of Sharia from the beginning, but rather ruled with human desires and opinions instead of Sharia. Their ruling is a ruling from "outside Sharia" under the pretext that the situation does not suit its establishment. Whereas what we are talking about is a ruling from "within Sharia" itself. The utmost use of reason in this case is to ask: "What does Sharia command in this situation so that we may comply and thus be establishing it?"
If our ijtihad leads us to the conclusion that Sharia prohibits the application of punishments (in these circumstances), we do not apply them, in compliance with Sharia. The situation may appear similar in both cases, as punishments are not applied, but the great difference is that the proponents of democracy did not apply them as a suspension of Sharia and a judgment of humans, while those who act according to what we have explained do not apply punishments in compliance with Sharia, which their ijtihad has led them to believe prohibits their application in this case. It is a difference between referring to humans and referring to the Lord of humans, glorified and exalted be He.
Jurisprudential Issues and Ijtihad in Contemporary Cases
Is this issue a matter of disagreement? Is it permissible for fighting groups to apply punishments? And what is the extent of authority and stability of sovereignty that allows or obligates that? And if we do not apply the punishment, how do we prevent theft, adultery, and drinking alcohol? Is it through ta'zir? And what kind of ta'zir do we use?
These are all jurisprudential questions that allow for disagreement, but the important thing is to understand that they are jurisprudential issues, not that the one who does not apply the punishment based on what has been presented is suspending Sharia and thus we accuse him in his creed and religion. No, the one who has exerted ijtihad based on what has been presented and did not apply the punishments, it is not said about him that he did not apply Sharia completely, but rather he does not apply the punishments and is thereby "establishing Sharia" from this perspective. And if his ijtihad leads him to not apply the punishments and he does apply them, it is not said about him that he is now applying Sharia completely, but rather he has suspended Sharia from this perspective because he has acted contrary to what is commanded for such a case.
Discussing the Model of the "Islamic State"
Someone may say: Well, is not the "Islamic State in Iraq and Syria" in a better condition since it applies Sharia completely? We return to say: It applies punishments, and the application of punishments is not the same as establishing Sharia. And the application of punishments is not intended for its own sake, but rather it is intended insofar as it is commanded by Sharia.
Let us assume that the conditions for the application of punishments in an Islamic state are met in a certain case, that money was stolen from a guarded place and reached the required amount, and there was no doubt about the thief; in this case, we would not blame you for the application of the punishment itself, but our discussion with you would be: Are you an Islamic state that is possible, and is your ruler the legal ruler entrusted with the application of the punishment or not?
If it is established that these conditions are met with you, we would not blame you for the application of the punishment, and if the opposite is established, the application of the punishment would be a branch of a corrupt root. Therefore, it is not fair to say: "Among the faults of the state group is that they claim to be a state and a ruler, and among their faults is that they apply the punishment," because we would have made the application of the punishment an additional mistake, whereas if their state and ruler are valid, the application would not be a mistake but an obligation. Therefore, we discuss the root upon which they have built the application of the punishment.
Advice and Call for Justice
We also call upon "The Group of the State" to be just with the other factions that adhere to the sovereignty of Islamic law but have not implemented the hudud punishments based on the ijtihad we have outlined. Do not let their failure to implement the hudud be an obstacle to the implementation of Islamic law, for it is a branch of a root, which is that these factions do not claim to have an imamate with established authority and an imam chosen by the Muslims.
If you wish, then discuss this root, not the branches that stem from it, such as the non-implementation of the hudud. And it should not be said that the implementation of Islamic law by these factions diminishes your implementation. It is not just that people are called to abandon it on the pretext that it does not apply the hudud, while you do apply it.
The discussion revolves around: which factions implement Islamic law? And this includes, first and foremost, in the case of Syria: repelling the aggressive disbeliever, and accepting the referral of all matters to the law of Allah the Most High, whether in disputes between them and the people, or between them and other factions, both righteous and wicked, and their commitment to this principle for themselves and their leaders before enforcing it on the people.
May Allah the Most High know best. Peace be upon you and the mercy of Allah.