No Darul Islam Unless Riba Prohibited

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Rib and the Dr al-IslmFatw Issued For Virtual Sharah Court

Imran A . Nyazee Version 1.0

[email protected] October 10, 2013Cite as: VSCF-4 (2013)

THE QUESTION

has been raised about the prohibition of rib being an essential

condition, in addition to other conditions, for a territory to be called Dral-Islm.

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1 F R I . . . . . . . . . . . . . . . . . . . . . . . . . 12 P R E C T

C D -I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1 F R I

1. In our book on Islamic legal maxims, we recorded a qidah that explains theconcept of the two drs. The text is reproduced below:Al-Dabbs mentions the following qidah to highlight the positions taken by theanafs and the Shfis about the concept of the drs:

: The principle according to our jurists is that the world is divided into two drs: dral-Islm and dr al-arb. According to al-Shfi the entire world is a single

dr. This governs cases.

Our jurists said that the (idea of the) dr al-arb prevents the implementation ofpenalties that are waived on account ofshubhah, because our laws are not appliedin their dr, and the ukm (legal sovereignty) of their dr opposes the ukm (legalsovereignty) of our dr. Al-Shfi said that enemy territory does not prevent theimposition of penalties that are waived due to shubhah.

The elaboration of this is that if an enemy converts to Islam and then a Muslimman enters their dr on amn and murders him, there is no qi on him, nor isany diyah to be paid, in our view. According to Al-Shfi, he is liable to qi.

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Our jurist said that if two Muslims enter the dr al-arb on amn and one ofthem murders the other, there is no qi for him. According to Al-Shfi, he isliable to qi.

On the same grounds if there are two Muslim prisoners of war in the dr al-arb,and one of them kills the other, the murderer is not liable to qi, in our view.According to Al-Shfi, the murderer is liable to qi.

Our jurists said that if a Muslim, present in the dr al-arb, drinks khamr, com-mits zin, or commits qadhf, there is no add for him, in our view. According toAl-Shfi, he will be subjected to add.

If one of the spouses moves as a migrant to the dr al-Islm as a Muslim or asa Dhimm, while the other stays behind in the dr al-arb, a legal separation(divorce) occurs between them, in our view. According to al-Shfi no separation

occurs just by moving. If the enemy seize our goods and move them to the dr al-arb, they come to own

them, in our view. According to al-Shfi they do not come to own them.

If the residents of the dr al-arb acquire our goods as spoils and take them intopossession in the dr al-arb, but then they surrender when the goods are stillin their possession, the goods belong to their ownership. According to al-Shfi,they do not own the goods and it is incumbent upon them to return the goods tothe owners.

If the Muslims retrieve the goods belonging to them, which the polytheists had

earlier acquired (as spoils), the original owners can take them back when they findthem only after paying the value of the goods subsequent to division (of the spoils).According to al-Shfi, they can take them back without any compensation.

If the residents of the enemy territory capture a slave and then a Muslim entersthat territory on amn and purchases the slave from them moving him to the dral-Islm, the owner cannot take him back, except by paying the price. If he hasreceived the slave by way of gift from them, the owner can take him back by payingthe value of the slave. According to al-Shfi, the owner can take the slave backwithout paying any compensation.

The reader may wish to take sides on the above qidah and its issues, however, thematter is not that simple; in fact, it is serious business. The qidah represents twodifferent world-views. The anaf jurists are saying that Islamic law is not applicablein the dr al-arb, while al-Shfi is saying that Islamic law is applicable to the wholeworld. The anafs are saying that if there is to be an international law, it must takeinto account Islamic law too and accommodate it in the truce concluded. If the truceis entered into on the basis of weakness of Muslims, it is liable to be rejected by Mus-lim states as soon as they gain some strength. Al-Shfi is saying that Islamic law isinternational law that is applicable to the whole world at all times. No truce can alter


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this state. Perhaps, he is also saying that Islamic law does not recognize any other law.The text from our book, Islamic Legal Maxims, ends here.In addition to the above, we would now like to add that according to the anafs, Islamic

law is international law, and is applicable to the whole world, but its implementationzone is restricted to the dr al-Islm or territory under Muslim control. This rulehas been agreed upon after detailed discussions with all my colleagues of Vcourt, whospecialize in areas of international law, jihd and the drs. 2. It is not our purpose here to go into the details of the minimum requirements fora territory to qualify as dr al-Islam. For this purpose, the reader may approach thewritings of Professor Muhammad Mushtaq. 3. The main issue here is whether the prohibition ofrib is an essential condition.

2 P R E C T C D -I

4. The Prophet of Islam (pbuh) concluded an agreement with the Thaqf. This agree-ment appears to settle the issue beyond any doubt, and it does not leave any room for usto add anything. He (pbuh) made huge concessions for these people, and these conces-sions reflect his compassion and magnanimity. Yet, he did not agree to the continuationof rib in the territory that was now the dr al-Islm. We reproduce this agreementfrom Abu Ubayds book Kitb al-Amwl. Some of the footnotes have been removed.Ab Ubayd has the following to say:(507) Uthmn ibn li related to us from Abd Allh ibn Laha from Ab al-Aswadfrom Urwa ibn al-Zubayr, who said: This is the document recorded by the Messengerof Allah (pbuh) for the Thaqf:

In the name of God, the Beneficent, the Merciful.

This is a document from Muammad, the Prophet and Messenger of Allahfor the Thaqf.

He wrote: They have the protection of God, besides Whom there is no God,and the protection of Muammad ibn Abd Allh, the Prophet, in accordancewith what is written in this epistle. Their entire valley is deemed protectedby God, and it is prohibited to cut any of its trees and bushes, to hunt for preyin it, to do injustice in it, to steal, and to commit an evil deed. 1 The Thaqfhave the foremost right to Wajj,2 and their Taif3 is not to be crossed over norwill any Muslim advance upon it to subjugate them. They have the right toconstruct structures or other things in their Taif and their valley in any waythey like. They will not be forced to come out nor will they be charged ushr.They will not be coerced by causing a threat to their wealth or their lives.

1. That is, it was not permitted to anyone other than the Thaqf to benefit from their valley in any way.Thus, no one was to cut its trees or hunt in it and no one was to do injustice in it or commit an evilact.

2. The name of the valley of the Thaqf.3. It is the city in which the Thaqf resided. No one was to subjugate it.


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They are part of the Muslim umma (nation) and they can go to and fro among

the Muslims as they like;4 they may go and come as they like. Any captivethat they hold belongs to them and they have a prior right to him and may

do to him what they like. If they have debts secured by pledges and thesehave reached their periods, the interest (liw) thereon is waived by Godina tradition related by Ibn Isq, the word used is liy. Those debts, securedby pledges, owed to the area beyond Uk,5 are to be repaid by the principalsums alone. The debts owed to the Thaqf, as recorded in their books to date,because of sums they gave to the people, are to be paid to them. As for thedeposits made by the Thaqf to the people, or monies left with them, or livingbeings (left in custody), which the custodian (depositee/bailee) has employedfor profit or has lost, know that this will be returned (compensated). Theliving beings or wealth of the Thaqf that is not present (with the Thaqf)at the moment is secure in the same way as that present. Their wealth at

Baliyya6

is to be given the same security as their wealth at Wajj. Any allyof the Thaqf or one trading with them, if he embraces Islam, is to be giventhe same rights as those of the Thaqf. If a right of the Thaqf is infringed,or injustice is caused to them, it is not to be accepted insofar as it relates towealth or life. The Messenger of God will come to their aid against one doinginjustice and so will the believers. Those people whose presence they dislikein their area will not be permitted to go there. All markets and trade maybe set up in the courtyards of the houses. No one will be appointed to governthem, except someone from among them; the Ban Mlik will have theirown governor and the Akhlf7 their own. The vineyards of the Quraysh thatthe Thaqf water entitles those who water them to half the produce. Thesecured loans owed by them and that are devoid of liw may be paid nowby the debtors if have the ability to do so. For those who do not have suchability the period is extended up to Jumd al-l of the coming year. Hewho does not pay by the end of the period has indulged in interest.8 In theloans that they have given to people, they are entitled to the principal sumsalone.9 Those who had prisoner slaves, but the owner10 has sold them, thesale is valid. In case such a sale has not taken place the payment to be made(for freedom) is six quality she camels,11 with half having reached the ageof four and the remaining the age of three. He who has bought such a slave

4. That is, they can enter any land of the Muslims they wish and are not to be prevented from doing so.

5. It is a place between Makka and Taif where a huge market used to be held by the Arabs. A largenumber of people used to gather there for sale and purchase, for pomp and show, for poetry, formatchmaking and arbitration for such things.

6. A place close to Taif.7. This could be alf, that is, their allies.8. The discussion here is about the charitable loan in which no interest is to be paid. The donor has

gifted its use to the donee. If the borrower keeps it for an unreasonable period, he derives an excessbenefit that is also considered rib. The time-value of money is involved here.

9. The principal amount without any excess for that would amount to rib (interest).10. That is, the owner who got him as his share of the spoils.11. The word qali is the plural ofqal, which means a good she-camel.


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has the right to sell the slave.

Ab Ubayd: The word ah means a tree with thorns. The words they will not be

forced to come out mean that zakt will be levied on their domestic animals, whenthe collector will come over to their residences and he will not force them to bring theanimals to him. Most people interpret it this way, while some say that it applies tohorses. The words they will not pay ushr mean that the ten percent will not be leviedon their wealth, but zakt will be charged at the rate of five dirhams for every twohundred dirhams. The words a prisoner that he has belongs to him mean those whobecame prisoners during the Jahiliyya and then embraced Islam. If they are in theirpossession then they belong to them till such time that they take ransom for them.The words If they have debts secured by pledges and these have reached their periods,the interest (liw) thereon is waived by God mean rib. It has been called liw orliy, because it is intertwined with a (credit) sales transaction. The same word is used

for anything that is attached to another thing. Ab Bakr used the word for the child,because it is attached (dear) to the core of the heart.12 Likewise, it is said about a thingthat is not liked, Do not bring it close to my heart. What elaborates this meaning arethe words Those debts, secured by pledges, owed to the area beyond Uk, are to berepaid by the principal sums alone. When the principal alone is paid, rib is excluded.The meaning is found in the verse Ye shall have your capital sums; deal not unjustlyand ye shall not be dealt with unjustly.13 It is said that this verse was first revealedabout the Thaqf and then it applied to the Muslims in general.The words The secured loans owed by them and that are devoid of liw mean thatno rib is stipulated in them. If those who owe them have the ability to pay, they maydo so immediately. This is the loan in which no rib is stipulated. Note that he toldthem to pay it back if they found the means to do so. For those who did not find the

means to do so, he delayed them till Jumd al-l.(508) This is the document written for the Muslims of Thaqf and it has the same isnd(chain of transmission):

In the Name of God, the Beneficent, the Merciful

This is the letter of Muammad, the Messenger of God sent to the believ-ers.14 The thorny trees and bushes of Wajj will not be cut, and its prey willnot be hunted. He who is found doing this will be beaten with lashes and hisgarments will be taken off. The violator will be arrested and brought beforeMuammad, the Messenger of Allah (pbuh). This directive is from Muam-mad, the Prophet, and it has been written under the orders of Muammad

ibn Abd Allh, the Messenger of God, by Khlid ibn Sad. No one is toviolate it otherwise he would be doing injustice to himself with respect tothe directives issued by Muammad, the Messenger of God, for the Thaqf.It is witnessed by Al ibn Ab lib, by asan ibn Al, and usayn ibn Al.A copy of this has been transcribed for purposes of evidence.

12. The word afr has been used which means core.13. Qurn 2 : 27914. In some manuscripts the words are to the Muslims.


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Ab Ubayd: A legal point in this tradition is the Prophets taking of al-asan andal-usayn as witnesses.15

It has also been transmitted from some of the Followers of the Companions, that is, the

testimony of minors will be recorded and they will be attributed towards their parentsand that it is a preferred practice. By this it becomes a practice (sunnah) laid down bythe Prophet (pbuh) himself.The document indicates that he made certain concessions for them, on their embracingIslam, that were exclusively for them. For example: the declaration of their valleyas prohibited; the prohibition of going across Taif; the prohibition of entering it andsubjugating them; and that only one of them would be given authority over them. Allthis, as we have already stated, is within the right of the ruler, who is the caretakerof Islam and its followers. If he is apprehensive of an attack by the enemy and is notin a position to put up a defence against them, except by making such concessions, hemay do so. This is what the Prophet (pbuh) did with the allies during the Battle of

the Trenches.16

Likewise, if they refuse to embrace Islam unless something is givento them, and their entering into the fold of Islam is a means of strength for Islam,and there would be no defence against their aggression and strength, he may grantthem these in order to appease them. This is what the Messenger of Allah (pbuh) didwith al-mualafat qulbuhum (those who were to be appeased)17 so as to provide themwith an incentive to embrace Islam and to mend their intentions towards it. Theseconcessions are valid as long as they do not conflict with the provisions of al-Kitb andthe Sunnah.18

The rule is illustrated by the fact that the Messenger of Allah (pbuh) did not grantthem, among the various concessions, the permission to deal in rib. He stipulated thatthey would have their principal sums alone. This is the significance of its prohibitionduring period of ignorance. As Islam gains in strength, it would be prohibited moreemphatically and would not be permitted under any circumstances. It is related insome traditions that they had offered to embrace Islam on the condition that unlawfulsexual intercourse, dealings in rib and drinking of wine be permitted. He refused allthese and they returned to their lands.19 They later returned to him with a desire toembrace Islam. It was then that he wrote this document for them.

Imran Ahsan Khan NyazeeZilhajj 3, 1434

October 9, 2013

15. Who were minors at that time.16. This was when he decided to make an agreement with the Ghafn on a third of the fruit if they would

return to their lands and not assist the Quraysh.17. These were Uyana ibn aan al-Fazr, Aqra ibn bis al-Tamm, Abbs ibn

Mirds al-Sulam and afwn ibn Umayya. He gave them a lot of wealth (spoils)for the Battle of unayn.

18. That is, the peace agreement should not contain terms that render the prohibited lawful and viceversa.

19. According to some, the correct view is that they returned to their riding animals for consultationamong themselves and then decided to accept the authority of the Prophet (pbuh).

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No Darul Islam Unless Riba Prohibited