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A. O. OMOTOSHO A CRITICAL ANALYSIS OF THE LEGAL POWER OF ULU AL-AMR AS

INDICATED IN Q4.59

http://findpdf.net/pdf-viewer/A-CRITICAL-ANALYSIS-OF-THE-LEGAL-POWER-OF-ULU-ALAMR.html

BY

A. O. OMOTOSHO*

INTRODUCTION

Udus Law Journal Vol. 1 No. 2., 2000. Pg. 61 73.

O Ye who believe! Obey God and obey

the Apostle and those charged with

authority among you

The above verse is one of the legal verses in the Quran. The message of the

verse lies in the Center of Islamic Law and indeed any legal system, in the sense

that law is all about Law and order (obedience) and Islamic law is not an

exception. Though the source of law and order may vary from one legal system to

another.

The verse contains a command that obedience be given at three levels: (a) Allah

(b) His Prophets: and (c) those charged with authority otherwise known as ulu al

amr or Sultan in Islamic term. The last of the three ulu al-amr is the focus of this

paper.

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Ever since the arrival of Islamic law, there is not any dispute among the Muslim

jurists on the authority of Allah (S. W. T.) in the legal context. This is because the

faith of each and every Muslim rests on the premises that He (Allah) commands

absolute and unquestionable authority.

However, the case of the last two (i. e. the Prophet and the ulu al amr) is not the

same for two reasons: (a) The two also derive their authority from Allah and that

has limited it. (b). The two do not enjoy the same level of authority in the sense that

the first of the two (the Prophets) enjoys much more divine backing than the last on

(ulu al-amr). Hence, the need to define the limit and the nature of authority of ulu

al-amr.

That need has always been there, though not very serious attention has been

paid to it particularly in the legal works where such is required.

Rather, it is in the work of tafsir that some scholars tried to examine the limits and

the nature of power of those charged with authority (ulu al amr).

The need to carry out a full research on the issue is becoming more and more

paramount in view of our recent experiences in which some Muslims scholars and

political authorities are trying to arrogate to themselves the power that in the end

may not be within their limits.

The main objectives of this paper is to re-examine the basis reference on the

issue along with the opinions of the Muslim scholars and at the end reconcile their

arguments. It is hoped that the paper will have broadened our understanding of this

basic aspect of Islamic jurisprudence by throwing some light into the way Islamic

jurisprudence operates.

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Al-Baydawi (d.685AH) later put forward another definition which reflects the first

two that were attributed to al-ShafiI and al-Qurtubi respectively. According to al-

Bayadawi, ulu al-amr means governors during the lifetime of the Prophet and afterhim,

including the Khulafa, judges and leaders of the Apostles Army8. These are the

most

popular definations given to ulu al-amr which in one way or the other refer to the

same

meaning and the same objectives of the Quran. They still enjoy support of later

scholars9.

There are many other definitions which one can consider only as personal simply

because they lack the popularity found in the four above and also because they

seem to

represent one doctrine or the other. One of such definitions came from Ikrima (d.

105AH) who maintained that ulu al-amr refers to Abu Bakr and Umar. The Shiite

also

interpret ulu al-amr as meaning Aliyu b. Talib and the protected Imams10.

Examination of these definitions is necessary because from them one grasps the

extent of authority and obedience each one of them should receive. For example,

those

who defined ulu al-amr as meaning Abu Bakr and Umar or Aliyu or protected Imans

as the Shiite have put it, imply that after the death of every one of them obedience

to

ulu al-amr will no longer be required, whereas if it means the leader of Apostle;

Army.

Governors and the people of intellect as it had elsewhere been defined. Obedience

to

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their command will continue even after their own particular deaths as other people

will

succeed them. Except that the Shiites hold the view that the protected Iman will be

operating in hiding and that their authority will remain11.

LEGAL POWER OF ULU AL-AMR

Discussion on the command of people charged with authority (ulu al-amr) is

unlike that of the Prophet. Apart from Q4:59 cited above, there are about eight

other

prophetic traditions which also emphasis the legal power of a legitimate leader and

the

obligation of the follower to obey him.

However, the general impression created by most of these references is that

obedience

to people charged with authority is total and unquestionable.

Even the only Quranic reference on the issue does not directly qualify its

instruction to

obey them. This seeming absence of a clearly spelt out detail has been the major

factor

responsible for the continuation of debate on the nature and the limit of obedience

a

leader should receive and when that becomes necessary. For this reason, Muslim

scholars are divided on the issue. While some of them see the power of those

charged

with authority (ulu al-amr) as a limited one and therefore object to absolute

obedience,

others hold the view that with available Quranic evidence and hadith of the Prophet

in

support of their rights, they deserve full and unquestionable obedience.

Their difference seems to have emanated from their understanding of the

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available references Quran and Hadith alike. Both Q4: 59 and at least six out of

the

available hadith do ask the faithful to obey his leader without any condition

attached.

So, some of the jurists rely on this and therefore insist that obedience to the

instruction

of the ulu al-amr is absolute.

On the other hand, others acknowledge the exception contained in few other

traditions which made obedience to the leader subject to the legality of his action.

Al ShafiI, one of those who maintained that obedience to those charged with

authority (ulu al-amr) was a limited one did not mention any of the traditions that

made

obedience to the leader conditional. He asserts that obedience to those charged

with

authority is not unconditional. He seems to take cognizance of the clause in the

Quranic verse. If you should quarrel about anything refer it to God and the

Apostle12 which does not give the final say to those charged with authority are

in

effect equal to the people ordered to obey them; as a sign of limitation of their

power.

Because according to him in the event of a dispute they have no final say, instead

both

of them were told to refer their differences to God and His Apostle only. As ShafiI

says:

So they were commanded to obey those in authority the

one who the Apostle appointed with conditional but not absolute

obedience, concerning their right and duties.

However, God said: if you should quarrel about anything,

refer it to God and His Apostle, that in the event of disagreement.

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He went on that

This (i.e. the meaning implied in the latter command) is if God wills as He said about

those in authority; namely that if you should quarrel (but God knows best) whether

they (the people) and the commander who they were ordered to obey should refer

it to

God and His Apostle for settlement on the basis of what God and His Apostle said. If

they know it13.

This explanation seems to indicate the wide gap the scholars placed between the

command of the Prophet and that of people in authority (ulu al-amr). Perhaps this

involves the idea that people in authority are just ordinary men who do not possess

extra power other than the privilege of leadership to which obedience is due only

for

the sake of law and order. A similar modest interpretation was earlier reported from

Abu Hanifah, He said:

If any instruction comes from God we accept it very gladly and with pleasure

(ala ar-ras wa ala-ain) and any instruction from the Prophet, we listen (to nm) and

obey him and any instruction from the companions, we select from their opinions

though we do not rebel against them. Any instruction from the successors they are

men

and we are men14.

Although Abu Hanifah did not indicate whether or not the instructor was a

leader (mtr) who is in authority or a learned man as many others defined ulu al-

amr, he

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seems to be regarding the instruction or command of anybody after the Prophet as

a

weighless order from an ordinary man whom he considers himself to be equal to.

However, little is known about his attitude towards the Quranic evidence (Q4:59)

which is the main subject of different interpretations.

In another attempt to strengthen the view that obedience to the command of the

people in authority (ulu al-amr) is not absolute, Sahal b. command of people in

authority necessary. He said that one should obey the authority (Sultan) on six

occasions.

(a).

When he commands coining money.

(b).

When fixing measurement and weights

(c).

On law of Hajj.

(d).

On what related to Friday prayer

(e).

On what related to the two Muslim festivals and

(e).

On what related to the Muslim holy war15.

At Tustari went on to state that if a leader (Sultan) forbids a learned men from

giving

legal opinion, (al-falawa). The learned man should not give it and if he does, he has

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disobeyed him. But if the commander is only a governor (amir) he may give his

legal

opinion (falawa) against the wishes of the governor16.

The view that a leader is not given absolute power and therefore should not enjoy

unquestionable obedience, seems to be popular among the Malikite scholars too.

Ibn at

Khuwayz Mindal, a leading Malikite sholar presents the Malikites stand. While

agreeing that a leader must be obeyed for as long as he is within the law of Allah,

he

insists that once he deviates, he has lost that right. He argues that, that is why we

said

that it is not appropriate nowadays to obey or assist them (the people in authority)

or to

war with them and decisions are for them, appointment of Imam (prayer leader) and

market supervisory (al-hisbah) also for them, for as long as they do that in

accordance

with Islamic law. If they lead the prayer and they are sinful (fasiq) in term of

disobedience, prayer after them is acceptable. But if they are heretics (mubtadia)

the

prayers behind them is not appropriate unless one is afraid (of the consequences)

and

performs the prayer out of fear of them but one should repeat his prayer 17.

These are the examples and arguments put forward by those who are opposed to

absolute obedience to the command of people in authority.

In addition to the earlier explanation, they seem to be indicating the occasion where

obedience to the command of people in authority is paramount as when the public

interest or security is at stake and decision of the authority is not in contrary with

the

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Islamic laid down rules. This is evident in the examples given by Sahal B. Abd. Allah

and Ibn Khuwayz.

As for those who believe that power of people charged with authority (ulu al-

amr) is absolute, they also put forward two conditions under which a leader could

enjoy

absolute obedience: (a) such a leader must be a just ruler: (b) he must not

command

something which involves disobedience to Allah18. Al-Tabari however added

another

one that he must be appointed by the Muslim (community) themselves19.

Their main evidence is Q4:59 cited above together with some prophetic

traditions in which he emphasized the importance of obedience to command of the

leader (ulu al-amr) even though their actions may not be good. The first of these

traditions was reported by Abu Hurairah who quoted the Prophet as saying:

Some people will govern you after me, the honest among them will

govern you with honesty while the wicked among them will

govern you with his wickedness. Listen to them and obey them in

everything which accords with truth and prayer after them. If they

do well, that is in your favour and if they do badly that is also in

your favour but against them20.

In another tradition, which was narrated by Abdullahi b. Umar. The Prophet says:

It is a duty of every Muslim to obey his leader in what he

Likes and what he hates unless he was ordered to disobey

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(Allah and His Messenger) whoever has been ordered to

Disobey (Allah) must not obey21.

This hadith is first of two ahadith narrated by Ibn Umar on the issue. Both of

them are in support of absolute loyalty and they were put forward by the pro-

absolute

loyalty

In the second hadith of Ibn Umar, he said:

I heard the messenger of Allah saying: He who goes out of

authority of (his) leader will meet Allah in the Day of Judgment

without any excuse for him and he who dies without being obeying

(his leader) dies like unbeliever 22.

The last hadith which originated from Anas b, Malik emphasis not only absolute

loyalty but also that

there should ot be discrimination in the choice of leader i.e the leader must be

obeyed regardless of his tribe

or race. In the hadith Anas reported the messenger of Allah as saying:

Listen (to your leader) and obey (them) even when an Abystinia

slave is made your leader. 22

According to the pro-absolute loyalty, these Traditions clearly indicates that one

must obey his leader at all circumstances as long as he (the leader) did not involve

him in

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anything that is against the teaching of Islam. They appear to be viewing the people

in

authority (ulu al-amr) as a divine institution, obedience to which is a matter of

divine

command and therefore they paced the command of people in authority at the

same level as

that of God and His messenger. This feeling is reflected in Al-Taoars comment on

the

traditions. He referred to both traditions in his tafsir. He argues that if it is certain

that it is

not necessary to obey anybody other than God or His Messenger or a just leader

(Imam

adl) and God has commended us by the content of Q4:59 to obey among those who

govern

our affairs, then it has come clear that those whom God has ordered us to obey

among those

who take care of our affairs are and those whom Muslims themselves have

appointed, not

anybody else.

Al-Tabari went on that even though it is an obligation to accept order from anybody

hwo commands obedience to God and discourage disobedience to Him, that

obligation to

anybody in whatever he orders or forbids as long as there is no evidence indicating

that it is

obligatory except for those leader to whom, God has imposed obedience. He

concluded

that it is obligatory they ordered to obey them of anything in which there is no dis-

obedience to God.24

The same group further supported their view with a story which they maintained

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was the reason why Q4:59 was revealed even though the story seems to be more in

favour

of their opponent. The story was reported by Buhjari from Abdullah b. Abbas that

Q4:59

was revealed in respect of Abdullah b. Qais when the Prophet sent him as head of a

military

expedition. Abdullah ordered his troop to prepare a fire and then he ordered them

to enter

into it. When they refused he asked them Dont the Prophet tell you to obey me

when he

said: whoever obeys my governor has obeyed me? They (the troop) replied that we

believe in God and obey the prophet only to escape from (hell) fire. When theyreturned to

the Prophet, he approved of their action and told them that there is no obedience in

anything in which there is disobedience of God. He (the Prophet) then cited Q4:29.

Do

not kill (or destroy yourselves) for verily God hath been to you most merciful25.

While the pro-absolute loyalty are making the action of Abdullah b. Qais a case for

their stand, their opponent can also depend on the response of the Prophet which iseven

more justifiable in the sense that he did not only support their action but also set

limit for

the level of obedience expected from the followers to the leader.

While the pro-absolute loyalty are making the action of Abdullah b. Qais a case for

their

stand. Their opponent can also depend on the response of the Prophet which is

even more

justifiable in the sense that he did not only support their action but also set limit for

the

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level of obedience expected from the followers to the leader.

It is remarkable that all hadith on the issue of obedience to the authority emphasis

that it (order an

obedience) must be within what is acceptable to Allah as a basic condition but many

of them (ahadith) wen

further by insinuating absolute obedience without any exception to the point that

makes any command of th

authority unquestionable and any argument with them as unacceptable. For

example, in the following ahadit

Abu Hurairah reported the Prophet as saying:

He who obeys me has obeyed Allah and he who

disobeys me has disobeyed Allah. He who follows

my representative (amir) has obeyed me and

he who offends my representative has offended me.26

In another hadith from Ibn Abbas, he puts it thus:

The messenger of Allah has said: He who dislike anything from his

leader (amir) should be patient with him as for he who disobeys his

leader for a second dies the death of an ignorant person27.

Some of these ahadth like one reported by Abdullah b. Masud have infact

recognized

the possibility of a leader who may not be fair but still encourage the follower to

fulfill their duty

towards them. In the hadith, Ibn Masud reported the Prophet as saying:

There will be after me incidences and something (from your

leaders) that may not please you. Then the audience asked him.

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What do you advise whoever is present at that time? He replied

that you should fulfil your duty towards leader and ask Allah what

is due to you.

Al-Jazairi supports the view that one must give his leader absolute obedience.

Infact, he

believed that it is haram (prohibited) to rebel against or reveal their wrong doing.

His position is

based on Abu Hurairahs hadith cited above. He insists that one must remain loyal

to them, go to

war with them and pray behind them even when they are known for wickedness or

in the habit or

engaging in forbidden things that does not lead to kufr. He cited two ahadith from

Imam

Muslims collection. In the first one, the Prophet. The Prophet was asked about

(disobedience

to) a bad leader and he said listen (to them) and obey (them), they are responsible

for whatever

they do and you are responsible for whatever you do29.

In the second tradition, Ubadah b. Samit reported that they swore oath of allegiance

to the

Prophet that they were going to listen to him and to obey him in what they like and

what they

dislike in their difficult and comfort times and that they were not going to contend

the authority

with those whom it belongs to. Then the Prophet said that:

Except you see a deliberate display of kufr that is an excuse for

you in the front of Allah30.

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Al-Jazairi recommended two anti-dotes against bad leadership: prayer and

admonition i.e. that

the followers offer constant prayers to God to correct them (the leaders),

Strengthen them, give

them good luck and protect them against evil and mistake, the followers should also

admonish

the leaders in keeping with the prophetic saying: Religion is admonition31

CONCLUSION

In concluding the arguments on the power of people charged with authority, there

are

some important things to take note of All contributors have agreed on two

fundamental points:

(a)

Authority of Allah is not the same as that of the Sultan (authority) when the Sultan

is

commanding obedience to Allah, he enjoys the authority of Allay and therefore he

should both be disobeyed. This can be identified when he enjoys all the spiritual,

social and other things advocated by Islam.

However, if he encourages or acts in contrary to this principle, he cannot claim the

backing of Allah again. For example, if he begins to deviate from the laid down rules

of the Quran. Hadith and established pattern of the Muslim scholars or interpret the

law to suite his personal interest, he has lost the right to be obeyed.

For instance, under Islamic law, there is no capital punishment for a political offence

unless the offender has taken arm against the State. If the Sultan decides to kill his

political opponent simply because the latter criticized him, the Sultan will not be

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acting within the law of Allah and therefore his authority cannot be described as

that

of Allah. Furthermore, the Court of law under Islamic legal system is supposed to be

independent and the judge is expected to decide all cases, in accordance with the

law

regardless of what Sultan feels even though the Sultan himself if he is legally

competent can decide any legal matter without referring it to any judge. But once

he

has entrusted a case to the hand of a competent judge, he cannot influence his

decision for as long as the judge does not err in his decision.

Political authority is also a divine authority, in the sense that Islam or Allah enjoys

the

faithful to delegate authority among themselves.

However, political authority unlike other kind of leadership present variety of

challenges

which are not associated to other offices. Some of the challenges expose the holder

to

temptation which if care is not taken are capable of luring the person involved not

only to

abuse but also to a situation where he may act outside his limit. It is on this kind of

discretionary aspect that the authority of a leader may be subjected to the question

of the

follower if found to be outside the limit.

Even though the two major schools of opinion on the issue may have taken two

different

routes, they seem to have arrived at the same conclusion and that is to say that

they agree

that people charged with Authority must be obeyed when implementing the

injunction of

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Allah and that of his Prophet. But when he is exercising his discretion a matter that

may

not be described as implementation of injunction of Allah, the follower is not obliged

to

follow him.

This conclusion becomes apparent when one considers the fact that those who are

opposed to the absolute obedience are not saying that one should rebel against a

constituted leader but only setting legal limitation possibly to make sure that the

leader is

not just being obeyed even when going off the limit. On the other hand, those who

say

that a leather must be obeyed have also attached two important conditions i. e. that

he

must be a just leader and that he must command what is lawful. In the end, a good

Muslim leader will not engage in what is unjust and he will not command what is

unlawful that the follower will have choice of whether or not to obey it. After all they

all

agreed on the Prophets saying:

There is no obedience to human being in what is

offensive to the Creator (Allah) or obedience is only in

good cause32

END NOTES

Lecturer, Department of Religious Studies, University of Jos, Bauch

Road, Jos

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1. Muhammad b. idris As-Shafi ar-Risala, (Translated with

introduction by Majid Khadiri), University press Baltimore,

U.S.A., 1977. P. 112.

2. Muhammad b. Ahmad al Ansari al-Qurtubi Jamial Ahkam al-

Qudran. Islamic Publication Collection, Beiruth. 1963 vol. 5. P.

259.

3. Ibid., p. 259

4. Ibid.

5. Abu al-Fida Ismail b. Kathir. Tafsir b. Kathir ( A bridged by M.

A. Sabuni) Dar al Quran Beiruth, 1981. Vol 1., p. 406-7

6. Nahawi popularly known as Ibn Kaysan (d. 299 AH). See

Yakut. Vol. 6.Pp. 280 282.

7. Al-Qur tubi. Op. c.it

8. Abu Yasir Muhammad b. Muhammad al-Bazawi Kitah Usul ad-

Din Mustafa Alabi Publication Cairo, 1963. Vo. 5. P. 318.

9. Ibn Taymiyyah also defined ulu al-amr as the master of authority

who oders and forbids the people. They include those with

power and authority (ak-audrah wa-as-Sultan). He also divided

them into two categories. Princes and Scholars. See Salih,

U.M..m Political Thought of Ibn Taymiyyah Unpublished Ph.D.

Thesis. Presented to University of Edinburgh, 1988 p. 120.

10. The Imamiyyahs view on ulu al-amr which they described as al-

masum is in some way different from the other schools.

According to them, there is no difference between the Prophet

and Imam except that the latter did not transmit a divine

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scripture. To ignore or disobey the divinely invested Imam was

infidelity equal to ignoring or disobeying the Prophet. On top of

that the Imam is conditioned to be fully immuned (ma-sum) from

sin and error. They also hold the view that the last of the Imams

is in concealment and he continues to live and operate the

functions of the imamship. See Encyclopedia of Imam (New

Edition) vol. III p. 1167.

11. Another Quranic reference which many scholars have used to

support Q4:59 as evidence of obligatory of obedience to the

command of ulu al-amr is Q4:48 when there comes to them some

matter touching (public safety on fear) they spread it abroad

they had oly referred it to Apostle or to those charged with

authority (ulu amr) among them, the proper investigations would

have tested from them direct. Were it not for the Grace and

Mercy of God into you, all but a few of you would have fallen

the clutches of Satan. But many other scholars hold view that

this verse refers only to ulama (learned people). Infact, it is

because of this verse that may of them interpreted ulu al-amr as

meaning only alim rather than Qurtubi, Jami al-Ahkam vol. 5, p.

295

12. See Q4: 59

13. As-shafi ar-Rasalah op.cit p. 113.

14. Ala ad-dim Usman b. Abdul Jamid as samaraqandi: Tuhfat al-

fiqa

15. Al-Qurtubi, op.cit, vol 5 p. 259

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16. Ibid.

17. Ibn al-Khuwaiz Mandads full name and date of dath is not yet

been established but it appears that he lived between the third

and fourth century of Islam. He was one of the leading Malikite

scholars of his time, His view on this issue was reported by

Abdul Wahab Ali Sbuki. See Hashiyyat al-Allamah al-Bunani

ala Jumqa al-Jawami. Published by Daral-Otqan, Damascus,

1969. P. 123.

18. Muhammad b. Jarir at-Tabari Tafsir at Tabari, Mustafa Alabi

Publication, Cairo 1968. Vol. 5 p. 150.

19. Ibid.

20. See Abu Zakariyyah Yahya b. as-Sharaf a Nawawi, Riyad as-

Salihin, Dar al-Mamum Li-rthurath, Damascus N..D. Hadith

667.

21. Ibid. Hadith 663

22. Ibid. Hadith 663

23. Ibid. Hadith 663

24. At-Tabari, op.cit, hadith 669

25. Ibid.