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Constitution and Canon
Canon is a foreign connotation which means the decree issued by the
ruler for people to enact. It has been defined as ‘the group of
principles which the ruler obliges the people to enact in their
relationships’. The basic law for every government is called a
constitution; whereas law which emanates from the system decreed by
the constitution, is called a canon. The term constitution has been
defined as ‘the canon which specifies the shape of the state and its
ruling system, and defines the limit and specification of the
authority vested in it’, or ‘the canon which organises public
authority, i.e., the government, defines its relationship with its
subjects, and assigns both the state’s rights and duties towards the
subjects and the subjects’ duties and rights towards the state’.
Constitutions have different origins. Some have been issued in the
form of a canon, and some have arisen through customs and
traditions, such as the British constitution, while others have been
drafted by a committee of a national assembly - vested with the
authority at that time - which passed the constitution, defined the
procedure for revising it and then dissolved itself to be replaced
by the authority established by the constitution, as happened in
America and France. Constitutions and canons are taken from two
sources. The first being the source from which they directly
originate, such as traditions, religion, the opinions of jurists,
court precedents and the principles of justice and equity. Which is
known as the legislative source. Examples of this type of
constitution are some of the Western states like Britain and
America. The second is an historical source, i.e., the constitution
or canon that emerges from, or is taken from a particular place,
like the French Constitution and some of the states in the Islamic
world, like Turkey, Egypt, Iraq and Syria.
This is but a brief definition of the terms constitution and canon,
which in sum means the state takes certain rules from either
legislative or historical sources which it adopts and enacts, such
that thereafter the rules adopted by the state become a
constitution, if they are general, or canons if they are specific.
The question that now faces the Muslims is whether or not it is
permissible to use these terms? The answer to this question is that
if foreign terms contain terms or logical connotations that
contradict the terminology of Muslims, they are prohibited for use:
such as the term ‘social justice’, which implies a specific system
which is manifested in the form of guaranteeing education, medical
care for the poor and guaranteeing the rights of employees and
workers. This connotation contradicts the Muslims terminological
meaning for justice, because in Islam justice means the opposite of
injustice, and the guaranteed provision of education and medical
care is a right for rich and poor, and protecting the rights of the
weak and needy is a right beholden to all those who hold citizenship
of the Islamic State, whether they are employees, labourers or
farmers etc. However, if the meaning of the terminology is
consistent with what the Muslims’ have then it is permissible to use
that term, such as the term tax, which means the funds collected
from the people for the management of the state and the Muslims do
have funds collected by the state for the management of their
affairs and, thus, it is correct to use the term tax. The terms
constitution and canon mean that the state adopts certain rules,
announces them to the people and obliges them to act according to
them and governs them on their basis. This meaning is consistent
with Islam. Accordingly, we do not find anything to object with the
use of the terms constitution and canons, the rules adopted by the
Khaleefah from the Ahkam Shari‘ah. However, which means there is a
difference between the Islamic constitution and canons, on the one
hand, and other constitutions and canons, on the other. The source
of the other constitutions and canons are the traditions and
judgements of their courts etc., and the origin is an institutional
committee which establishes the constitution councils elected by the
people to decree canons for they consider the people to be the
source of authority and sovereignty. As for the Islamic constitution
and canons, their source is the Qur’an and Sunnah only, and their
origin is the ijtihad of the mujtahideen from which the Khaleefah
adopts certain rules, executes them and obliges the people to act
according to them. Sovereignty is for the Shari‘ah and ijtihad is a
right for all Muslims and a fard kifayah upon them to deduce Ahkam
Shari‘ah. Only the Khaleefah has the right to adopt the Ahkam
Shari‘ah.
This is with respect to the permissibility of using the terms
constitution and canon. As for the necessity of adopting rules, the
Muslims, from the time of Abu Bakr (raa) up to the time of the last
Khaleefah, have seen the necessity of adopting rules according to
which the Muslims have been commanded to act. This adoption was for
specific rules and not a comprehensive adoption of all the decrees
that the state ruled with. The State only adopted comprehensively in
some eras, namely, when the Ayubites adopted Ash-Shafi’i i madhab
and when the ‘Uthtmani State adopted Al-Hanafi madhab .
The question which is asked is, whether or not it is in the interest
of the Muslims to lay down a comprehensive constitution and general
canons? The answer to this question is that the presence of a
comprehensive constitution and general canons for all rules stifles
creative ability and ijtihad. Hence, the Khulafa’ah in the age of
the Companions (Sahabah), the followers of the Companions (tabe’yeen),
and the followers of the followers of the Companions (tab’ee et-tabe’yeen),
avoided adopting all the rules. They merely restricted in adoption
to specific rules where adoption was required to maintain the unity
of ruling, legislation and administration. Therefore, for the sake
of maintaining creative ability and ijtihad, it is preferable for
the State not to have a comprehensive constitution which includes
all the rules, but rather a constitution that includes general rules
which define the form of the State and which guarantees the
continuity of its unity, and leaves ijtihad and deduction to the
governors and judges. This is the case if ijtihad is prevalent and
people are mujtahideen as in the time of the Sahabah, tabe’yeen, and
tab’ee et-tabe’yeen. But if all the people are muqalideen, and where
mujtahideen are rare, it is obligatory for the State to adopt rules
by which the State, i.e. the Khaleefah, wala’a and judges govern the
people, because in such circumstances the governors and judges will
suffer from differences and contradicting taqleed. However, adoption
should come after studying the subject matter and daleel. Allowing
the wala’a and judges to rule from their own knowledge will lead to
the existence of different and contradicting rules within the same
state, even in the same province, and it could even lead to them
judging with what Allah (swt) has not revealed. Therefore, because
of the ignorance of Islam which prevails these days, it is
obligatory for the Islamic State to adopt certain rules confined to
the transactions and punishments, excluding adoption in ‘aqeedah and
the ibadah.. This adoption should be inclusive for all the rules so
as to punctuate the state’s affairs and to conduct all the affairs
of the Muslims in accordance with the rules of Allah (swt). When the
state adopts the rules and establishes the constitution and canons,
it must restrict itself solely to the Ahkam Shari‘ah. It must not
adopt, or even study, anything other than the Ahkam Shari‘ah whether
it agrees with Islam or not. For example, it must not adopt the
nationalisation of property. Instead, it must lay down the rule (hukm)
of public property. The state has to restrict itself by the Ahkam
Shari‘ah in every matter connected with the thought (fikrah) and the
method (tareeqah). But as for the canons and systems that are not
connected with the fikrah and method and thus do not denote a
certain view point of life, such as the administrative canons and
departmental structures etc., considered to be means and styles,
like the sciences, industries and technology, which the state may
adopt to manage its affairs, as happened with Umar ibn al-Khattab (ra)
when he established the army registers (divans) which were taken
over from the Persians. These administrative and technical matters
are not part of the constitution or the Ahkam Shari‘ah and,
therefore, are not included in the constitution. Therefore, the duty
of the Islamic State is to observe that its constitution be Ahkam
Shari‘ah i.e. that its constitution and canon be Islamic with and
when it adopts any rule it has to adopt it based on the strength of
the daleel shari’ with the correct understanding of the subject
matter. Hence, first it has to study the problem in order to
understand it - because understanding the problem is essential - it
must then understand the hukm shari’ related to this problem, and
then it has to study daleel of the hukm shari’. The state then
adopts this rule, based on the strength of daleel, on condition that
these Ahkam Shari‘ah are adopted either from the opinion of one of
the mujtahids - after looking through the daleel and validity of its
strength (estinbat) - or through ijtihad shari’, even in the single
issue, from the Qur’an and Sunnah, ijma’a as-sahabah, or qiyas.
Thus, for example, if the State wished to adopt forbidding insurance
on goods, it has first to understand the nature of insurance on
goods. It must study the means of possession. Allah’s law concerning
property would be applied on insurance and this would subsequently
be adopted as the hukm shari’ in this question. Accordingly, there
should be an introduction to the constitution and to each canon that
clearly explains the madhab from which each article has been
deduced, the daleel relied upon, or, if the article was deduced by a
correct ijtihad, an explanation of the daleel from which the article
has been deduced, so that the Muslims know that the rules which the
state has adopted in the constitution and canons are Ahkam Shari‘ah
reached by a correct ijtihad. This is because the Muslims are not
obliged to obey the laws of the State unless they are Ahkam Shari‘ah
adopted by the State. According to this basis, the State adopts
Ahkam Shari‘ah in the form of a constitution and canons in order to
govern the people who hold its citizenship.
As an illustration of this, we place in the hands of Muslims a draft
constitution for the Islamic State in the Islamic world to be
studied by Muslims while they are proceeding to establish the
Islamic State that will carry the Islamic da’wah to the world. It
should be noticed that this constitution is not meant for a
particular country or intended to be specific to any region or
country but for the Islamic State in the Islamic world.
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