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-ULUALAMR.

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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.

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.

DEFINITION OF ULU AL-AMR

The term ulu al-amr attracted different definitions among the jurists and the traditionalists alike and the authomatically created different implications. According to Ash-Shafii, ulu al-amr (those charged with authority) means the commander of the Apostles army. He says: That is what more than one commentator have told us but God knows best! Ash-Shafi is definition seems to be popular among early scholars like Maimun b. Mihran (d. 116AH) and Muqatil b. Suliman al-Azdi (d. 150AH). Another definition according to Qurtubi, originated from Jabir b. Abdullah, the famous companion (d. 73AH) who described ulu al-amr as Ahl-al-Qur an wa al-ilm (Those who have knowledge of the Quran and religion (e.g faith). This definition was also supported by the leading successor like Mujahid b. Jabr and Malikb. Anas (d. 179AH)4. Ibn Kathir quoted another one which is more or less the same at least in meaning. It was dated back to Ibn Abbas who said that ulu al-amr means the people of fiqh and religion (the jurists and religious learned men). This view was also ascribed to Mujahid (above mentioned) and Atta b. Taws. Ibn Kathir however believes that the term refers to everybody in the position of authority. Whether it is political or religion5. The fourth definition came from Ibn Kaysan (d.2999AH)6 who also described ulu al-amr as people of intellect and reason, those who should govern the affairs of people. Although there wasnt any evidence to identify Ibn Kaysan as a member of ahl-alkalam, his definition seems to have been influenced by the ahl-al-kalams view which normally lay.

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 alBayadawi, ulu al-amr means governors during the lifetime of the Prophet and after him, 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

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

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.

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 alamr, he

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

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

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 alamr) 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

(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 proabsolute 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

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 disobedience to God.24

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

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 they returned 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 is even 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

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.

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.

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

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

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

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 alQudran. 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 adDin 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 almasum 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

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

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 asSalihin, 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.