The contracts and transactions that were concluded, together with the courts’ verdicts that were confirmed and executed before the establishment of the Khilafah are considered valid between their parties till the end of their execution before the Khilafah. Judiciary in the Khilafah would not repeal them and nor start them again. No new lawsuits would be accepted regarding them after the establishment of the Khilafah.
Two cases would be excluded of that:
1. If the case that was confirmed and its execution was finished still have a continuous effect that contradicts Islam.
2. If the case relates to somebody that hurt Islam and Muslims.
The evidence for not repealing the contracts, transactions and lawsuits that were confirmed and whose implementation finished before the establishment of the Khilafah, and nor raising them again in other than the above mentioned two cases is that the Messenger صلى الله عليه وسلم did not return back after the conquest of Makkah to his house from which he emigrated.
Uqayl ibn Abi Talib had, according to the laws of Quraish, inherited the houses of his relatives that embraced Islam and emigrated. He had disposed of them and sold them, including the house of the Messenger of Allah صلى الله عليه وسلم. It was said at that time to the Messenger صلى الله عليه وسلم: “In which house are you going to stay?” He صلى الله عليه وسلم said: “Has Uqayl left any of our houses?” [Bukhari, Sahih, #3058]
In another narration, he said: “Did Uqayl leave to us any house?” He had then sold the houses of the Messenger of Allah صلى الله عليه وسلم, but the Messenger صلى الله عليه وسلم did not repeal them. The hadith is reported by Al-Bukhari through Usama ibn Zayd, he said: “That he said on the day of the conquest, ‘O Messenger of Allah, where do you want to stay tomorrow?’ The Prophet صلى الله عليه وسلم said, ‘Did Uqayl leave us any house?'” [Bukhari, Sahih, #3058].
It was also narrated that when Abu Al-‘As ibn Al-Rabi’ embraced Islam and emigrated to Al-Madinah, his wife Zainab had then embraced Islam and emigrated after Badr, while he remained Mushrik in Makkah, the Messenger of Allah صلى الله عليه وسلم returned to him his wife, without renewing her marriage contract to him. This was recognition of the marriage contract concluded at Jahiliyyah time. Ibn Majah reported through Ibn Abbas (ra): “That the Messenger of Allah صلى الله عليه وسلم sent back his daughter, i.e. Zainab to Abu Al-‘As ibn Al-Rabi’ after two years based on her first marriage contract”. [Tirmidhi, Sunan, #1142]
With regard to raising the lawsuits that have continuous effect contradictory to Islam, the Messenger صلى الله عليه وسلم had cancelled the usury left to Abbas on the people after they came to the Islamic State, and only gave their actual capital. This means after dar ul-Islam, the usury left upon them would become cancelled usury. Abu Dawud narrated through Suleiman ibn Amru from his father, he said: “I heard the Messenger of Allah صلى الله عليه وسلم say in the farewell pilgrimage:
“Behold! Any usury from the days of Jahiliyyah is cancelled. You are only entitled of your capitals, where you do not wrong (others) and nor are you wronged.”
Moreover, those who were married to more than four wives according to the laws of Jahiliyyah were obliged after dar ul-Islam to hold to four only. Al-Tirmidhi reported through Abdullah ibn ‘Umar that Ghaylan ibn Salamah Al-Thaqafi embraced Islam while having ten wives in Jahiliyyah, and they embraced Islam together with him. “The Prophet صلى الله عليه وسلم commanded him to choose four of them.”
Therefore, the contracts that have continuous effect contradictory to Islam, such effects are removed after the establishment of the Khilafah. This removal is obligatory.
If for example a Muslim woman was married to a Christian before Islam, then after the establishment of the Khilafah this contract is cancelled in accordance with the rules of shara.
In regards to starting lawsuits related to those who harmed Islam and the Muslims, this is permitted because the Messenger صلى الله عليه وسلم, when he conquered Makkah declared the blood of some people to be shed with impunity as they used to harm Islam and Muslims in Jahiliyyah. He asked that their blood be shed even if they hung themselves to the curtains of the Ka’bah. This is despite the Messenger of Allah صلى الله عليه وسلم saying: “Islam removes that which comes before it”, as narrated by Ahmad and Tabarani from Amr ibn Al-As. This means the one that harmed Islam and Muslims are excluded from this hadith.
Since the Messenger صلى الله عليه وسلم forgave some of them later on, such as his forgiving to Ikrimah ibn Abu Jahl, therefore the Khalifah is allowed to start a lawsuit against these or forgive them. This applies to those who used to torture Muslims for saying the truth or those who defamed Islam. The hadith: “Islam removes that which comes before it”, [Ahmad, Musnad, 4/199] does not apply to them, for they are excluded of it, and a case is started against them according to the view of the Khalifah.
In other than these two cases the contracts concluded before the establishment of the Khilafah, together with the transactions and lawsuits are not cancelled and nor started as long as they were confirmed and their implementation finished before the establishment of the Khilafah.
Thus, if a man for example was sentenced with two years of imprisonment for a charge of breaking the doors of a school, and he finished the two years before the establishment of the Khilafah and he left the prison. Then after the establishment of the Khilafah he wanted to start a case against the one that imprisoned him for that charge because he views that he did not deserve imprisonment. Such a case is not accepted, because it happened, and a sentence was given for it and its implementation finished before the establishment of the Khilafah. He has to refer this matter to Allah سبحانه وتعالى, anticipating reward from Him سبحانه وتعالى.
If however, this man was sentenced for ten years, of which two had finished, and the Khilafah was established; in this case the Khalifah is allowed to examine the case, either by cancelling the sentence of punishment from its origin, thus letting him come out of the prison as free of the charge, or to be satisfied with the period he already spent, and he comes out of the prison. It is also possible to study the remaining time of the sentence taking into consideration the relevant divine rules and the interest of the citizens, particularly the issues related to the rights of the people, such that it removes the discord.
The above chapter is taken from the book:
The Institutions of State in the Khilafah in Ruling and Administration
(A translation of Ajhiza Dawlat-al-Khilafah) by Hizb ut-Tahrir