The Important Difference Between Applying Punishments and "Applying Sharia"
Peace be upon you and the mercy of Allah.
The Difference Between Applying Hudud and Applying Sharia
Dear brothers, we often hear that a certain jihadi 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 hudud, such as cutting the hand of a thief, for example. Here, we clarify to our brothers that the application of hudud is not the same as the application of Sharia, but sometimes the application of Sharia prohibits the application of hudud, so that its application is contrary to Sharia.
We have previously explained that the more accurate phrase than "applying Sharia" is "establishing Sharia," so we will use it in the rest of the speech. And we explained then that all Muslims are obliged to establish Sharia as much as they can, in the presence of empowerment and in its absence, whether they hold a position of rule or are ruled.
The Role of the Imam in Establishing Hudud
However, the one specifically tasked with applying the hudud and entrusted with their execution is the Muslim Imam who rules a land for the Muslims with a stable sovereignty, not individual Muslims. The establishment of hudud is only possible with power and leadership, as Ibn Taymiyyah said in his fatwas. This is because the Prophet, peace be upon him, said: "Avoid the application of hudud among yourselves. Whatever reaches me of a hudud has become obligatory." The hadith was authenticated by Al-Albani and others considered it good.
This means that if a man commits an act that warrants a hudud, such as theft, adultery, or drinking alcohol, it is upon the Muslim community not to bring him to the Imam and to cover up for the perpetrator and rectify his situation. However, if the matter reaches the Imam or his deputy, then it becomes obligatory upon him to establish the hudud. This indicates that the Muslim community without an Imam is not the one addressed with the establishment of the hudud, and it is not obligatory upon them. If it were obligatory upon them, the Prophet, peace be upon him, would not have made a distinction between the two cases, and it would not have been permissible for the Muslim community to exempt someone who committed a hudud without the Imam's knowledge from its establishment.
This is also indicated by the hadith of Safwan bin Umayyah, who brought a thief who stole his garment to the Prophet, peace be upon him, and the Prophet ordered the cutting of his hand. Safwan said, "I did not intend this, O Messenger of Allah," and it was upon him as charity. Therefore, brothers, the one addressed with the establishment of the hudud is the Imam whom the Muslims have chosen with consent and consultation in a land for the Muslims with a stable sovereignty, or his deputy such as judges and governors.
The Case of Syria and the Establishment of Hudud
Is this the case in Syria, in the land where various fighting groups are present? Do the Muslims have a stable and established sovereignty, and have they accepted an Imam for themselves? Or is the situation one of repelling an advancing enemy and an attempt to restore Muslim sovereignty from the disbeliever, and the land is still a land of war, of coming and going?
If we say that it is a land of war, and this is the apparent case, and the sovereignty of the Muslims is still usurped, let alone that they give it to an Imam whom they agree upon, then the establishment of the hudud in this case is not from the Sharia. And in the hadith which was authenticated by Al-Albani and others considered it good: "Do not cut off hands in the invasion." That is, the establishment of the hudud in this case is contrary to the command of the Prophet, peace be upon him, and acting contrary to the Sharia, because the land is a land of invasion and the one addressed with the establishment of the hudud, who is the Imam, is not present in this land. Therefore, the leaders of the fighting groups are not the Imam entrusted with the establishment of the hudud. The hudud in this case were not originally obligatory upon the fighting groups for us to say that they have established the hudud or suspended it.
Response to Objections and Comparison with Democratic Calls
At this point, it may be said: What is the difference between this statement and the proponents of democratic calls who reject the application of hudud and make the penal system a matter of human choice? The answer is that these people did not acknowledge the sovereignty of Sharia in the first place, but they ruled with human desires and opinions instead of Sharia, so their ruling is a ruling from outside the Sharia on the pretext that the situation does not suit the establishment of Sharia. Whereas what we are talking about is a ruling from within the Sharia itself, and the utmost use of reason in this case is to raise the question.
The picture may be similar in both cases and the hudud are not established, but the big difference is that the proponents of democracy did not establish it as a suspension of the Sharia and a judgment for humans. While those who act according to what we have explained do not establish the hudud out of commitment to the command of the Sharia, which led their ijtihad to that it prevents the establishment of the hudud 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 Disagreement Therein
Is the matter controversial? Is it permissible for fighting groups to establish hudud? And what is the extent of empowerment and the stability of sovereignty that allows or obliges that? And if we do not establish the hudud, 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 accept disagreement.
However, it is important to understand that these are jurisprudential issues, not that the one who did not establish the hudud based on what has been presented is suspending the Sharia and therefore we accuse him in his creed and religion. No, the one who has exerted effort based on what has been presented and did not apply the hudud should not be said to have not applied the Sharia completely from this aspect, but he does not apply the hudud and thus he is establishing the Sharia from this aspect even if his ijtihad led him not to establish the hudud. And if he established it, it should not be said that he is now applying the Sharia completely, but he may have suspended the Sharia from this aspect because he acted contrary to what it commands in such a case.
Critique of the Position of the "Islamic State" (ISIS)
Someone may say: Well, is the Islamic State in Iraq and Syria not in a better condition since it applies Sharia completely? We return and say: It applies the hudud, and the application of the hudud and the establishment of Sharia are not the same thing. However, there is a suspicion for the thief, so we will not blame you for the establishment of the hudud itself, but our discussion with you will be: Are you an Islamic state that is possible and is your Imam the legal Imam entrusted with the establishment of the hudud or not? If it is proven that these conditions are met in you, we will not blame you for the establishment of the hudud, and if the opposite is proven, the establishment of the hudud is a branch of a corrupt root.
Therefore, it is not fair to say that one of the flaws of the state group is that they claim a state and an Imam, and one of their flaws is also that they establish the hudud. Because by that, we say that we have made the establishment of the hudud an additional mistake, whereas if their state and Imam are correct, its establishment is not a mistake but an obligation. Therefore, we only discuss the root upon which they have built the establishment of the hudud.
A Call for Fairness Among Factions
We also call upon the state group to be fair to the other factions that adhere to the sovereignty of Sharia and have not established the hudud based on the ijtihad that we have explained, and not to make their non-establishment of the hudud a suspension of Sharia, for it is a branch of a root, which is that these factions do not claim a possible imamate with a stable sovereignty and an Imam chosen by the Muslims. If you wish, discuss them in this root, not in what has branched out from it, which is the non-establishment of the hudud.
And it should not be said that the establishment of Sharia by these factions diminishes your establishment, and it is not just to call people to abandon it on the pretext that it does not apply the hudud while you do. Rather, the discussion revolves around which factions are more upright with Sharia, which includes first and foremost in the case of Syria repelling the advancing disbeliever and accepting the referral in all matters to the Sharia of Allah, glorified and exalted be He, whether in disputes between them and the people or between them and the other factions, righteous and wicked, and their standing by it upon themselves and their leaders before standing by it upon the people.
May Allah, the Most High, know best. Peace be upon you and the mercy of Allah.