Ruling Contracts
The relationship between the ruler and the ruled and their corresponding rights was discussed by thinkers such as Rousseau during the enlightenment period. Rousseau developed the theory of a social contract which underpins modern western societies. While Islam views the relationship between the ruler and the ruled as a contract this bears no resemblance to the social contract theory.
There are three ruling contracts in the Caliphate. These are:
- Bay’ah – contract between the Muslims and the Caliph
- Dhimmah – contract between the non-Muslim citizens and the Caliph
- Mu’aahadaat (treaties) – contract between other states and the Caliph
The Bay’ah (pledge of allegiance)
The second principle of the Islamic ruling system is that ‘Authority belongs to the Ummah.’1 The Caliph is not a king or dictator who imposes his authority on the people through coercion and force. The Caliph’s authority to rule MUST be given willingly by the Muslims through the Islamic ruling contract known as Bay’ah.2 Without this Bay’ah the Caliph cannot rule.
The Bay’ah contract is between two parties – the Caliph and the Muslims. The principle elements of the Bay’ah are that the Caliph fulfils the seven mandatory conditions of his post and implements shari’a upon the citizens of the state.1
The seven mandatory conditions of the Caliph’s post are listed below.2 Violation of any of these will result in the impeachment of the Caliph and his removal from office unless the violation can be rectified.3
- Muslim
- Male
- Mature
- Sane
- Just (‘adl)
- Free
- Capable to rule
As an example if it was proven that the Caliph drinks alcohol and womanises, this would make the Caliph a fasiq and would contradict the condition of him being just (‘adl). Likewise committing oppression against citizens of the state would contradict this condition.
An example of this is the Umayyad Caliph Al-Walid bin Yazid bin Abdul-Malik (743-744) who was known for being corrupt and his public display of sins. He was removed from office by members of the ruling Umayyad dynasty who ordered his killing.
These conditions of the Caliph can be summarised as strength of ideology and capability to rule.
The Muslims must also fulfil their side of the Bay’ah contract which is to obey the Caliph openly giving him the clasp of their hands and secretly by the fruit of their hearts.
The Prophet Muhammad ﷺ said: “Whosoever gave a Bay’ah to an Imam, giving him the clasp of his hand, and the fruit of his heart shall obey him as long as he can, and if another comes to dispute with him, you must strike the neck of that man.”4
Why only a Muslim Caliph?
A question may be raised over the Caliph being Muslim and why non-Muslims citizens have no part in the Bay’ah. The Caliphate is an ideological Islamic State where the Islamic aqeeda (belief) is the basis of the state, its institutions, systems and societal relationships. There is no separation between religion and politics in Islam as we find in the west. The Caliphate’s strength will depend directly on the strength of the ideology within the state. This means those in ruling positions must be of those who will work in protecting, implementing and propagating the Islamic ideology so the state remains strong and becomes a leading nation in the world.
This means those in ruling positions must be Muslim. This is because the shari’a (Islamic law) has restricted ruling positions to those who believe in the ideology of the state i.e. Islam. This is no different to any ideological state within the world today. America or Western Europe for example would never accept a Muslim or Communist as President or Prime Minister. The fact that Obama had to repeatedly deny he is a secret Muslim is clear evidence of this.
Muhammad Asad in his book ‘The Principles of State and Government in Islam,’ writes on this point.
“One cannot escape the fact that no non-Muslim citizen – however great his personal integrity and his loyalty to the state – could, on psychological grounds, ever be supposed to work wholeheartedly for the ideological objectives of Islam; nor, in fairness, could such a demand be made of him. On the other hand, no ideological organization (whether based on religious or other doctrines) can afford to entrust the direction of its affairs to persons not professing its ideology. Is it, for instance, conceivable that a non-Communist could be given a political key position – not to speak of supreme leadership of the state – in Soviet Russia? Obviously not, and logically so: for as long as communism supplies the ideological basis of the state, only persons who identify themselves unreservedly with its aims can be relied upon to translate those aims into terms of administrative policy.”5
With regards non-Muslim citizens not being part of the Bay’ah this is because they are governed by a separate ruling contract called Dhimmah which is discussed in a later chapter.
Capability to rule
Secular democracy emanates from the belief that religion should be kept separate from politics. The ruler in a democratic system is therefore not restrained from tyranny by fearing God or divine accountability. With this fundamental aspect of accountability missing i.e. consciousness of God (taqwa) the ruler in a democratic system is prone to tyranny if he isn’t restrained by the mechanisms of government.
The Caliph is not a saint but a human being who is prone to mistakes. This is why such detailed accountability mechanisms exist within the Caliphate. Although the Caliph is not a saint he must be Muslim and ‘adl (just) and cannot be a fasiq (transgressor).
Capability in carrying out the task of ruling is an explicit shar’i (Iegal) condition for the Caliph, Assistants (mu’awinoon), governors (wulah) and mayors (aamil) to ensure they fulfil the responsibilities of office.
This ruling capability is manifested in certain traits that will enable the person to fulfil the responsibilities of office and manage the affairs of state. These traits are strength of personality, consciousness of Allah (taqwa), kindness and that he should not be one who causes aversion.6
A. STRENGTH OF PERSONALITY
The Prophet Muhammad ﷺ stipulated that the ruler must be strong and that the weak person is not suitable to become a ruler.
Muslim also narrated from Abu Dharr who said: I said: “O Messenger of Allah, will you not appoint me as a governor/ruler?” He struck my shoulder with his hand then said: “O Abu Dhari, you are weak and it is a trust (amanah). On the Day of Judgement it will be a disgrace and regret except for the one who took it by its right and fulfilled his duty in it.”7
The meaning of strength here is strength of personality i.e. intellectual and emotional strength. It is necessary that this intellect be the ruling intellect by which he understands matters and relationships, and that his emotional disposition (nafsiyya) is that of a ruler who understands he is a ruler so his inclinations are of a leader.
B. CONSCIOUSNESS OF ALLAH (TAQWA)
Since the personality trait of strength has within it the potential of domination there is an obvious need for the ruler to have an attribute which protects him from the evil of domination. It is therefore necessary that he has the attribute of taqwa within himself and in his taking care of the Ummah.
Muslim and Ahmad from Sulayman bin Buraydah from his father: “Whenever the Messenger of Allah ﷺ would appoint an Amir over an army or expedition, he would command him with taqwa with himself and to be good to those Muslims who are with him.”8
The ruler, if he is conscious of Allah and fears Him, and accounts Him in his own soul secretly and openly, then this would prevent him from tyranny in the first instance.
C. KINDNESS
Taqwa alone would not prevent the Caliph from harshness and severity since in his taking account of Allah he would restrict himself to His commands and prohibitions. And since he is a ruler, it is natural in his position to be severe and hard, and because of this the Legislator (Ash-Shari’) commanded him to be friendly and not to be hostile to the citizens.
From Aisha who said: I heard the Messenger of Allah ﷺ saying in his house of mine: “O Allah, whoever is appeared over any matter of my Ummah and is severe/hostile to them, then be severe/hostile to him! And whoever is appointed over any matter of my Ummah and is friendly to them, then be friendly to him!”9
D. DOESN’T CAUSE AVERSION
He also commanded to be one who gives glad tidings not one who repels or turns people away.
From Abu Musa who said: When the Prophet Muhammad ﷺ sent one of his companions in some of his affairs, he would say to him: “Give glad tidings and do not repel people, be easy and do not be hard (to the people).”10
These traits were not restricted only to the Rightly Guided Caliphs but were embodied by many later Caliphs including the 20th century ruler Abdul-Hamid II. This is not a flaw of the Caliphate as El-Affendi claims11 but one of its strengths. Before any of the state accountability mechanisms take effect the Caliph is restrained by his Islamic belief and taqwa. This is illustrated in the following examples of Caliph’s that are not part of the Rightly Guided Caliph’s.
Once Caliph Mu’awiya said in a khutba. “‘Umar appointed me over Syria and then ‘Uthman did so after him. By Allah, I never swindled nor monopolised. Then Allah appointed me to command, and I did well sometimes and badly sometimes.” Then a man stood up and said, “O Mu’awiya! Rather you monopolised and were bad and neither good or just!” He said to the man, “Sit down. Why are you speaking?” They went on to exchange words with each other until Mu’awiya said, “Sit down or I will make you sit down.” At which the man exclaimed, “I will not sit down! I will go as far from you as possible!” He made to leave and Mu’awiya said, “Bring him back.” They brought him back and Mu’awiya said, “I ask Allah’s forgiveness. I saw you when you came to the Messenger of Allah ﷺ and greeted him and he returned the greeting to you and you were guided to him and he accepted it from you. You became a good Muslim. We have spoken harshly to you. Tell us what you need and I will give it to you and you will be pleased.”12
In 1901, Dr Theodore Hertzil, founder of the Zionist movement visited Istanbul and tried to meet with Caliph Abdul-Hamid II. Abdul-Hamid refused to meet him and told his Head of the Ministers Council:
“Advise Dr Hertzil not to take any further steps in this project. I cannot give away a handful of the soil of this land for it is not my own, it is for all the Islamic Ummah. The Islamic Ummah that fought Jihad for the sake of this land and they have watered it with their blood.”13
Is there a minimum age limit for the Caliph?
The US constitution places a minimum age of 35 for the President. Even without this limit it is highly unlikely anyone below this age could assume the post since their political experience would be insufficient to win the trust of political parties and financial backers.
Islam does specify any particular age for the Caliph except that of maturity i.e. they have reached the age of puberty. This however does not mean there will be teenage Caliphs in a future Caliphate as happened in certain eras of Islamic history. In addition to maturity another contractual condition is capability to rule. Achieving a ruling mentality in which the Caliph can fulfil the heavy burden of governing cannot be achieved at such a young age.
During the Rightly Guided Caliphate all the Caliphs were selected freely by those who represented the opinion of the Muslims. They were given the Bay’ah on the basis of meritocracy and each of them had huge political experience. Abu Bakr, Umar, Uthman and Ali had all held the position of Wazir (Delegated Assistant) which is the highest government position after the Caliph. When we look to their ages we see they were all elder statesman (excluding Hasan who became Caliph during the civil war).
If we compare this to when the Bay’ah was misapplied and became confined to ruling dynasties as happened after Muawiyah we find a stark contrast in the ages of the Caliphs. This is a characteristic of hereditary rule where the ruler is chosen not on meritocracy but by position in the family. This is why we find instances of very young Caliphs in certain periods of the Caliphate.
During the Abbasid Caliphate Al-Muqtadir who was only 13 at the time was given Bay’ah and became the Caliph in 908CE and ruled until 932CE. Since he didn’t have the capability to rule he relied heavily on his Wazirs (Delegated Assistants) of which there were thirteen. The Wazir is the most powerful government position after the Caliph and has similar powers to the Caliph in the task he is assigned. Too many Wazirs can lead to power struggles and infighting which will destabilise and weaken the government. It’s no coincidence that in 909 the Fatimids in Egypt declared independence from Al-Muqtadir in Baghdad and appointed their own Caliph (not legitimate) in Cairo. In 929 still under the reign of Al-Muqtadir, Abdur-Rahman III declared himself as Caliph (not legitimate) and Al-Andalus also became independent from the Caliphate.
In a future Caliphate there will be constitutional processes in place on how to elect the next Caliph which will prevent the Bay’ah being misapplied as it was previously. Therefore, the Caliph will likely be an elder statesman in their forties or fifties when they come to office. This is not to say we will specify a minimum age limit as the US constitution does where someone must be 35 years old before they can be President or Vice President of the United States. This cannot be done because the shari’a has only restricted the minimum age to puberty. However, as discussed the contractual condition of capability to rule will not be reached by a teenager.
Is the Caliph appointed by God?
Some may claim that the Caliphate is similar to the medieval Christian Kingdoms of Europe. The Christian Kings believed in the Divine Right of Kings, a belief that legitimate kings were appointed by God and so were answerable to God alone. King James I in 1609 said:
“The state of monarchy is the supremest thing upon earth; for kings are not only God’s lieutenants upon earth, and sit upon God’s throne, but even by God himself they are called Gods.”14
The King’s decrees were therefore seen as divine. Opposition to such decrees would be considered blasphemy and punished. This is not the case in Islam.
The Caliphate is not a theocracy and the Caliph is not divinely appointed. He is a human being who will sin and make mistakes.
Accounting his actions or the laws he has adopted is not blasphemy but an obligation as long as it is performed within the framework of the Islamic ideology. For example opposing a particular candidate for the post of Caliph at the time of election is fine, but opposing the entire Caliphate system and calling for its replacement with democracy is not acceptable. Opposing the imposition of zakat on women’s jewellery due to stronger shari’a legal evidence is fine, but calling for the abolition of zakat entirely is not acceptable.
Electing the Caliph
Since the time of the first Caliph of the Muslims – Abu Bakr Siddiq to the last – Abdul-Mejid II, every Caliph achieved his authority through the Bay’ah. The styles and means regarding the implementation of the Bay’ah differed and in some cases were misapplied, but nevertheless the Bay’ah process always remained in place.15
There are many hadith detailing this Bay’ah process.
Abi Hazim said: “I accompanied Abu Hurayra five years and I heard him talk about the Prophet ﷺ saying: ‘Children of Israel used to be governed by Prophets, every time a Prophet died, another came after him, and there is not Prophet after me. There will be Caliphs and they will number many’. They said: ‘What would you order us to do?’ He ﷺ said: ‘Fulfil the Bay’ah to them one after the other, and give them their due right, surely Allah will account them for that which He entrusted them with.’”16
In modern times the most appropriate style of conducting the Bay’ah is through a general election, where all mature Muslims, male and female have a right to vote for the Caliph of their choice.17 The Muslim representatives of the Majlis will form an electoral college and shortlist the candidates for the Caliph firstly to six18 and then to two before a final vote.19 If a general election is not possible due to time and technological constraints then the Majlis will simply vote on the final candidate themselves.
This election process will be in the Caliphate’s constitution and allow a Caliph to be chosen based on merit rather than family ties. Therefore all Muslim male citizens regardless of school of thought have the potential to be Caliph if they are capable of fulfilling the contractual conditions. This will avoid the bloodshed and civil wars that afflicted the Caliphate during part of its history due to dynastical rule.
Caliph’s Term of office
In contrast to a democratic system, the term of office of the Caliph cannot be limited to a specific time period. As long as the Caliph is abiding by the shari’a, executing its laws and able to perform the duties of state, he remains in office. This is because the Islamic legal evidences concerning the Bay’ah came as indefinite (Mutlaq) and not restricted to any specific period of time.
Anas b. Malik reported that the Prophet Muhammad ﷺ said: “Do hear and Obey even if you were ruled by an Abyssinian slave whose hair is like the raisin.”20
In another narration He ﷺ said: “As long as he leads you by the Book of Allah.”21
In addition, all the Rightly Guided Caliph’s were given an indefinite (Mutlaq) Bay’ah which is the one mentioned in the hadith. They were not in office for a limited period. Each one of them assumed the post of Caliphate until he died, and this represents a general consensus (ijma) of the Companions (Sahaba) confirming that the Caliphate does not have a limited term of office but is unrestricted. Therefore, if a Caliph is given a Bay’ah he remains in office until he dies, resigns or is removed due to violating the Bay’ah conditions by the Court of Unjust Acts (Mahkamat Mazalim).22
Without this restriction on the term of office, the Caliph can focus on long term strategic planning for the state instead of short-term planning from one election to the next as we find in democratic systems. It also prevents corporate interests from hijacking the government agenda through campaign contributions that any Presidential candidate or party in the west must secure to achieve power. Some are predicting that the 2016 US presidential election could cost a staggering $5 billion!
Limiting the term of office for the leader is an essential element of accountability in democracy but not for the Caliphate. The Caliph can be investigated at any time by the institutions of state and can be removed from office at any time if he violates the Bay’ah. Since the Caliph is not a lawmaker or legislator he is unable to pass legislation that would drastically alter the shape of the state and the rights of Muslim and non-Muslim citizens. This makes the question of who rules less of an issue in the Caliphate as opposed to democracy where different political parties can have dramatic events on people’s lives. The terrorism legislation in the UK and its effect on Muslims and community relations is a good example of this.
Binding the Caliph to specific conditions
The Bay’ah is a contract and as such it’s allowed to add extra conditions that the Caliph must abide by, as long as these extra conditions do not violate the fundamentals of the contract. So it would be haram to impose a four-year time limit on the Bay’ah contract due to the discussion above.
Also in origin it is not allowed to add a condition to the Bay’ah that obliges the Caliph to adopt a certain opinion which becomes law because this contradicts the first executive mandatory power that adoption is for the Caliph only (see chapter 3). However, a condition can be added to the Bay’ah that obliges the Caliph to adopt a certain opinion if the unity of the Muslims requires this. This is because of the principle in usul ul-fiqh (foundations of Islamic law) that a Mujtahid (scholar) can leave his ijtihad and adopt another opinion if it is intended to unify the Muslims for their own good.23
The evidence for this is derived from the third Rightly Guided Caliph Uthman bin Affan’s Bay’ah where he accepted to proceed according to the way of his two predecessors Abu Bakr and ‘Umar in ruling. This is ijma as-sahaba as it happened in the presence of the Sahabah without any objection from them. A detailed account of Uthman’s Bay’ah follows to illustrate this point.
Then Abdul-Rahman sought the opinion of the prominent figures in Madina, and asked all the Muslims in Madina one by one, men and women. He left no one without asking him about whom, he or she, would like to be the Caliph from amongst that group. A group of them chose Uthman and another group chose Ali. Abdul-Rahman found that opinion was split between Uthman and Ali, and that the Qurayshis sided with Uthman.
Once Abdul-Rahman completed his fact finding mission and consulted all the people, men and women, he summoned the Muslims to the mosque and went up the Minbar (podium) with his sword on and his “Amama” (head-dress) which the Messenger of Allah ﷺ gave him: He stood for a long while then spoke:
“O people! I have asked you openly and secretly about your Imam, and I found that you cannot place anyone on the same level as these two men: Ali and Uthman.” Then he turned to Ali and said to him. “Come to me O Ali!” Ali stood and walked to the Minbar until he came underneath it. Abdul-Rahman took his hand and said: “Would you give me your Bay’ah according to the Book of Allah and the Sunnah of His Messenger and the (actions) of Abu Bakr and Umar?”
Ali replied: “By Allah no, but on my own exertion of that and my knowledge” – (i.e. I would give you my Bay’ah according to the Book of Allah and the Sunnah of His Messenger according to my own exertion of that and my knowledge of them.) “As for the actions of Abu Bakr and Umar, I do not adhere myself to them but exert my own opinion.”
Abdul-Rahman then released his hand and called: “Come to me O Uthman!” He took his hand as he stood on the spot where Ali stood earlier and said to him: “Would you give me your Bay’ah according to the Book of Allah and the Sunnah of His Messenger as well as the actions of Abu Bakr and Umar?” Uthman replied, “By Allah yes.” Upon this Abdul-Rahman looked up to the roof of the mosque with his hand clutching that of Uthman and said: “O Allah! Hear and witness; O Allah, I have put what was in my neck of that (matter) in the neck of Uthman.”
Then people rushed to give their Bay’ah to Uthman until they overwhelmed him. Then Ali came pushing his way through to reach Uthman and gave him his Bay’ah. Thus Bay’ah was concluded to Uthman.24
It is therefore permitted to restrict the Caliph to certain constitutional processes such as the empowerment of the Majlis ul-Ummah and the judiciary as counterbalances to his executive power, if unity of the ummah demanded this.
Notes
1 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p. 72
2 Ibid, p. 55
3 Ibid, p. 122
4 Sahih Muslim 1844
5 Muhammad Asad, ‘The Principles of State and Government in Islam,’ Dar al-Andalus Ltd, Gibraltar, 1985, p. 41
6 Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Volume 2, translation of Shakhsiya Islamiyya, Dar ul-Ummah, Beirut, Fourth Edition
7 Sahih Muslim
8 Sahih Muslim, Musnad Ahmed
9 Sahih Muslim
10 Ibid
11 El-Affendi, Op.cit.
12 Aisha Bewley, ‘Mu’awiya Restorer of the Muslim Faith,’ Dar al-Taqwa Ltd (2002), p. 31
13 ‘Biography of Sultan Abdul Hameed the Second and the fall of The Islamic Khilafa’ http://www.ummah.net/sultan/
14 King James I, ‘Speech Before Parliament,’ 21 March 1609, http://www.luminarium.org/sevenlit/james/1609speech.htm
15 Taqiuddin an-Nabhani, ‘The System of Islam,’ translation of Nidham ul-Islam, Khilafah Publications, p. 62
16 Sahih Muslim
17 Taqiuddin an-Nabhani, ‘The draft constitution of the Khilafah State. The Introduction and the incumbent reasons,’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 33
18 Hizb ut-Tahrir, ‘Khilafah State Organisations,’ translation of Ajhizat dowlah ul-Khilafah, Dar ul-Ummah, Beirut, 2005, First Edition
19 Taqiuddin an-Nabhani, ‘The draft constitution of the Khilafah State,’ Op.cit., Article 33
20 Sahih Muslim
21 Ibid
22 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p. 122
23 Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Volume 1, translation of Shakhsiya Islamiyya, Chapter: The reality of Taqleed
24 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p.90
Islamic Civilization 