The bay’a is a contract and so it’s permitted to add additional conditions to the contract, as long as these conditions do not contradict the sharia. If the khaleefah agrees to these conditions then he cannot break them without agreement from those who contracted the bay’a to him from the Ahlul hali wal-aqd (people’s electoral representatives) on behalf of the ummah. Allah (Most High) says,يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَوْفُوا۟ بِٱلْعُقُودِ “O you who believe, fulfil your contracts.”[1]
The shar’a daleel (legal evidence) for adding additional conditions to the bay’a, and binding the khaleefah to them is taken from the ijma’ as-sahaba (consensus of the companions) regarding the bay’a to the third khaleefah Uthman bin Affan (ra).
After Umar ibn al-Khattab (ra) was stabbed, the sahaba, asked him to nominate the next khaleefah as Abu Bakr (ra) had done with him. Umar couldn’t decide on a candidate so he selected six companions from the Ashara Mubashara (ten promised jannah in this life), and ordered them to appoint one from among them. He also set a time limit of three days and three nights.
After Umar passed away, the council of the six met and they all agreed for Abdur-Rahman ibn ‘Awf (ra) to be the arbitrator and make the final judgement. Abdur-Rahman ibn ‘Awf took his role incredibly seriously and not only consulted those in the council, but also widened the consultation to the inhabitants of the capital Madinah. Al-Miswar bin Makhrama said, “Abdur-Rahman called on me after a portion of the night had passed and knocked on my door till I got up, and he said to me, ‘I see you have been sleeping! By Allah, during the last three nights I have not slept enough.’”[2] Uthman and Ali emerged as the leading contenders for the post, and after three days and nights of shura Uthman came out in front. After fajr in the masjid at the start of the fourth day, Abdur-Rahman said, “Now then, O Ali, I have looked at the people’s tendencies and noticed that they do not consider anybody equal to Uthman, so you should not incur blame (by disagreeing).” Then Abdur-Rahman said (to Uthman),
أُبَايِعُكَ عَلَى سُنَّةِ اللَّهِ وَرَسُولِهِ وَالْخَلِيفَتَيْنِ مِنْ بَعْدِهِ
“I gave the bay’a to you on (condition) that you will follow the sunnah of Allah, and His Messenger, and the two khulufa‘ after him (i.e. Abu Bakr and Umar).”
So Abdur-Rahman gave the bay’a to him, and so did the people including the Muhajireen and the Ansar and the leaders of the armies and all the Muslims.[3]
The Ahlul hali wal-aqd were all senior sahaba and all consented to the extra bay’a condition “to follow the sunnah of Abu Bakr and Umar.” This represents an ijma which is a shar’a daleel.
What does following the sunnah of Abu Bakr and Umar mean?
Following the sunnah of Abu Bakr and Umar does not mean following their individual opinions. We know that Abu Bakr and Umar both differed in their opinions and administrative styles.
Umar divided the wealth in a manner different to that employed by Abu Bakr. Abu Bakr had divided the wealth among the people equally, whereas Umar divided it on the basis of seniority in Islam (who had come to Islam first), participation in jihad and support for the Messenger of Allah ﷺ.[4]
Ibn ‘Abbas said: “At the time of the Messenger of Allah ﷺ and Abu Bakr, and for the first two years of ‘Umar’s khilafah, the pronouncement of three divorces in one was regarded as one. Then ‘Umar ibn al-Khattab said, ‘The people are being hasty with regard to something in which they should take their time. It would be better for us to let it stand (i.e., to let it count as three divorces),’ so he let it stand.”[5]
Uthman also differed with Abu Bakr and Umar in some of their opinions and policies.
When Umar was khaleefah, Mu’aawiya the governor of Ash-Sham tried to convince Umar to establish a navy, but on the advice of Amr ibn Al-‘Aas he refused because he didn’t want to risk the lives of the Muslim soldiers by fighting a battle with the well-established Byzantine Navy. Umar said, “No, by the One Who sent Muhammad with the truth, I will never let a Muslim campaign by sea. By Allah, a Muslim is dearer to me than all that the Byzantines have. Stop suggesting that to me.” Uthman reversed this policy and allowed Mu’aawiya to lead the first naval expedition to Cyprus in 28H/649CE.[6]
Malik narrated that he heard Ibn Shihab say, “The stray camels in the time of Umar ibn al-Khattab were numerous and left alone. No one touched them until the time of Uthman ibn Affan. He ordered that they be publicised and then sold, and if the owner came afterwards, he was given their price.”[7]
Abdur-Rahman ibn ‘Awf divorced his wife when he was sick, but Uthman allowed her to inherit from him after her ‘iddah ended. It was narrated that Shurayh[8] wrote to Umar ibn al-Khattab about a man who divorced his wife three times when he was sick, and Umar replied: “Let her inherit from him so long as she was still in ‘iddah when he died, but if her ‘iddah had ended, then she cannot inherit.”[9]
“Uthman bin Affan introduced the second adhan on Fridays when the number of the people in the mosque increased. Previously the adhan on Fridays used to be pronounced only after the Imam had taken his seat (on the pulpit).”[10]
Therefore, the bay’a condition of following the sunnah of Abu Bakr and Umar does not mean following their individual opinions, but rather means following their usul ul-fiqh (foundational legal principles). In modern terminology this means Uthman was a mujtahid madhab performing ijtihad within the madhab of Abu Bakr and Umar.
Abu Tariq Hilal says with regards to the mujtahid within a madhab, “These Mujtahideen follow the Usul al-Fiqh set up by the Mujtahid Mutlaq to extract the Ahkam (rules); e.g. Imam Abu Yusuf adhered to Imam Abu Hanifah’s methodology.
These Mujtahideen, within a Madhab, generally followed the guidelines of their respective schools to extract rulings. Nevertheless, they did not consider themselves bound to follow their Imams in the implementation of particular issues. This is borne out by the fact that they have held opinions that were opposed to those of their leading Imams. As a matter of fact, some Mujtahideen such as Imam Abu Yusuf reached to the level of Mujtahid Mutlaq, but didn’t form his own Madhab out of respect for Imam Abu Hanifah.”[11]
This understanding is in line with the meaning of the word sunnah used in the hadith. Muhammad Hussein Abdullah says, “As-Sunnah linguistically means: The path that is trodden (or the way that is followed) and its origin comes from the Arabs usage:
سننت الشيء بلمسن
‘I forged something with a grindstone’ (i.e. like carving a path).
This is in the case where I passed a thing through it (the grindstone) until a ‘Sannan’ i.e. a Tareeq (path) was effected within it (i.e. like etching a path).”[12]
Did Ali refuse to accept the bay’a condition of following the sunnah of Abu Bakr and Umar?
There are other narrations of the bay’a to Uthman which mention Abdur-Rahman ibn ‘Awf offering the bay’a firstly to Ali ibn Abi Talib (ra), but because he refused the condition of following the sunnah of Abu Bakr and Umar, the bay’a was not contracted to him.
Ibn Kathir narrates: (Abdur-Rahman) then spoke, “O people I have questioned you in secret and openly on the question of [who will be] your leader. I have found that one of you regard [anyone else] as equal to one of these two, Ali or Uthman. Come forward to me, Ali” He did not and stood beneath the minbar. Abdur-Rahman took his hand and said, “Will you give me your bay’a based on Allah’s book, the sunnah of his prophet, and the actions of Abu Bakr and Umar?” He replied, “No, but based on my own ijtihad in all this and in accordance with my own ability”. (Abdur-Rahman) let go of (Ali’s) hand and called out, “Come forward to me, Uthman” He took him by hand, and (Uthman) stood where Ali had stood, and said, “will you give me your bay’a based on Allah’s book, the sunnah of his Prophet, and the actions of Abu Bakr and Umar?” (Uthman) replied, “Indeed yes!” So (Abdur-Rahman) stretched right up to the ceiling of the mosque, his hand still Uthman’s hand. Then he said, “O Allah, hear and bear witness! O Allah, I have placed what was my own responsibility in all this upon Uthman.”[13]
The narrations which mention Ali refusing this condition are problematic from two angles. In terms of the isnad (chain) they are weak, and in terms of the matn (subject matter) they lead to sectarianism and dispersions being caste on Abdur-Rahman who some claim was biased because he was related to Uthman.[14]
Abu Khaled Al-Hejazi says, “The Tahqeeq (investigations) of the narrations regarding the Baya’ of Uthman prove that AbdulRahman (ra) did not offer the Baya’ to Ali (ra) rather he offered it to Uthman (ra) without having offered it to Ali (ra). The Saheeh narrations do not support the view that Ali (ra) was offered the Baya’ if he accepted the condition to leave his opinions for the opinions of AbuBakr and Umar (raa).”[15]
Ali played a prominent role in the governments of Abu Bakr and Umar. He did not remain distant and acted in office according to the sunnah of each of the khulufa’. This is in accordance with the hadith narrated by Hudhaifah (ra): “We were sitting with the Prophet ﷺ and he said:
إِنِّي لاَ أَدْرِي مَا بَقَائِي فِيكُمْ فَاقْتَدُوا بِاللَّذَيْنِ مِنْ بَعْدِي . وَأَشَارَ إِلَى أَبِي بَكْرٍ وَعُمَرَ
‘I do not know how long I will be with you, so stick to the two after me,’ and he signalled towards Abu Bakr and Umar.”[16]
Government positions held by Ali during the Khilafah of Abu Bakr:
- Shura council[17]
- Khaleefah’s personal secretary writing down letters[18]
- Internal Security. Protecting Medina during the Ridda wars[19]
Government positions held by Ali during the Khilafah of Umar:
- Chief Advisor (mustashar)[20]
- Head of Appeal Court[21]
- Shariah committee[22]
- Teacher in Medina[23]
- Deputy Khaleefah (wazir) in Madinah when Umar left for Syria[24]
- Judge in Madinah[25]
Even if we accept that the narrations concerning Ali’s refusal of the condition are saheeh, then Ali’s action is perfectly permissible within the sharia. There is no obligation on the khaleefah candidate to leave his opinion whether he was a mujtahid or not. The bay’a has to be given with free choice and consent by both parties – the Muslims and the Khaleefah. Taqiuddin an-Nabhani who accepted these narrations as saheeh says, “This [Uthman leaving his ijtihad] is permitted for the mujtahid and not obligatory, as evidenced by ‘Ali’s refusal to leave his Ijtihād for the Ijtihād of Abu Bakr and ‘Umar. No one rebuked him for that, which indicates that it is permitted and not obligatory.”[26]
The additional text referencing Ali does not change the hukm that it’s permitted to add an extra condition to the bay’a binding the khaleefah to an opinion (usul).
Did Uthman follow the sunnah of Abu Bakr and Umar?
In his first speech as khaleefah, Uthman bin Affan said, “I have been given a responsibility and I have accepted it. Verily I am a follower (of the Sunnah) and not an innovator. I promise you that in addition to following the Book of Allah and the Sunnah of His Prophet ﷺ, I will do three other things:
following the example of those who came before me with regard to what you have agreed upon and decided (i.e. Abu Bakr and Umar),
and what is decided by good people openly,
and not interfering with you except when a hadd punishment is required.”[27]
In the later part of Uthman’s khilafah an organised movement called the Saba’is arose which began to spread rumours and false accusations against Uthman. This culminated in Uthman’s assassination and led to years of civil war and bloodshed among the Muslims. Uthman called on the Saba’is to bring a list of issues they had against him to a meeting in Masjid an-Nabawi. Many of the accusations alleged that Uthman had deviated from the sunnah of Abu Bakr and Umar. After the Saba’is presented their accusations, Uthman spoke and gave his response with the sahaba as witnesses. He began, “They said that I have allocated grazing land for myself, and caused hardship for the Muslims, and set aside a vast area of land for my camels. Before my time, grazing land was allocated for the camels that were given in zakaah and used in jihad, and the Messenger of Allah ﷺ, Abu Bakr and Umar all allocated land for grazing. I had to add to it because the number of camels given in zakaah and used in jihad increased. Moreover, I did not prevent the livestock of the poor Muslims from grazing on that land. I never allocated it for my own livestock.
When I was appointed Khaleefah, I was one of the richest of the Muslims in camels and sheep, but I have spent it all and I have no livestock at all now except two camels which I keep for Hajj. Is that not so?” The Sahabah said: “By Allah, yes.”
“They say that I kept only one copy of the Mushhafs and burned all the rest, and I united the people in reading one Mushaf: But the Qur’an is indeed the word of Allah, which came from Allah, and it is all one, and all I did was to unite the Muslims behind the Qur’an, and forbid them to differ concerning it. By doing that I followed in the footsteps of Abu Bakr, who compiled the Qur’an. Is that not so?” The Sahabah said: “By Allah, yes.”
“They said that I gave to Abdullah ibn Sa’d ibn Abi’l-Sarh what Allah had granted of booty, but I only gave him one-fifth of the khums – which was one hundred thousand – when he conquered North Africa, as a reward for his efforts. I said to him: ‘If Allah enables you to conquer North Africa, you will have one-fifth of the khums as a reward.’ Abu Bakr and Umar (may Allah be pleased with them both) did that before me, yet despite that the mujahideen troops said to me: ‘We object to you giving one-fifth of the khums, although they had no right to object. But I took the one-fifth of the khums from Ibn Sa’d and gave it to the hoops, so in fact Ibn Sa’d did not take anything. Is that not so?” The Sahabah said: “By Allah, yes.”[28]
Uthman’s refutation of the Saba’is accusations clearly shows that he continued to follow the sunnah (usul) of Abu Bakr and Umar throughout his Khilafah.
Binding the Khaleefah to a constitution
The Rightly Guided Khulufa‘ are an example for us, and we can take many ruling principles from them, when creating a model for an Islamic government in the modern age. The Prophet ﷺ said,
فَعَلَيْكُمْ بِسُنَّتِي وَسُنَّةِ الْخُلَفَاءِ الرَّاشِدِينَ الْمَهْدِيِّينَ عَضُّوا عَلَيْهَا بِالنَّوَاجِذِ
“I urge you to adhere to my sunnah and the sunnah of the Rightly-Guided Khulufa‘, and cling stubbornly to it.”[29]
As mentioned at the beginning, its permitted to add extra conditions to the bay’a and these conditions can bind the khaleefah to a particular set of sharia principles (usul) which in the modern age are codified in a constitution.
Abdul-Qadeem Zallum says, “While Shura over the mubah (permissible) matters is mandub (recommended), it is allowed for a Khaleefah to bind himself to some or all of these allowed matters. Once he has obliged himself to certain matters, he has to abide by it and is under obligation to carry out the consulted matter. This is derived from the fact that when the post of Khaleefah was offered to ‘Uthman bin Affan, he accepted to proceed according to the way of Abu Bakr and ‘Umar in ruling, as it was proposed to him. This happened in the presence of the sahabah without any objection from them.”[30]
Taqiuddin an-Nabhani says, “If there is an opinion by which it is intended to unify the Muslims, for the good (maslaha) of the Muslims, in such a situation it is allowed for the mujtahid to leave what he reached by his ijtihād, as happened with Uthman when he was given the bay’a.”[31]
The need for a constitutional khilafah
A constitution is defined as, “the set of political principles by which a state or organization is governed, especially in relation to the rights of the people it governs.”[32] Some states have written codified constitutions such as France and America and others have unwritten constitutions such as Britain.
When the first Islamic State was established in Madinah, the Prophet Muhammad ﷺ wrote a document called the Sahifa which was effectively the constitution of the state. After this time the Khilafah never had a written constitution as such until 1876 when Abdul-Hamid II introduced one for the Ottoman State. This was only in effect for two years before being abolished.
Even though the Khilafah existed for most of its history without a written constitution, this does not mean there wasn’t a set of constitutional conventions which were adhered to by the khulufa’. For example, the Abbasid Khaleefah Al-Ma’mun established a mihna (inquisition) to impose the Mutazilite school of thought on the ulema ordering them to accept that the Qur’an was created. This resulted in widespread fitna and the imprisonment of Ahmed bin Hanbal who lead the opposition to this. After this time there was a constitutional convention that the khaleefah does not interfere in the beliefs of people unless they are of the definite (qati) matters.
The Khilafah is not a totalitarian state and it only adopts laws and policies related to governing people’s affairs. In the private matters, beliefs and worship the state does not interfere and adopts a hands-off approach unless there is an impact on wider society. This is what Uthman bin Affan said in his speech on becoming khaleefah, “and not interfering with you except when a hadd punishment is required.”[33] The state will supervise the administration and management of worship such as establishing ministries of Hajj and Salah, but these will not impose a particular opinion on the people such as forcing them to pray as Hanafis or conduct Hajj as Shafi’is.
Khomeini says, “Islamic government is neither tyrannical nor absolute, but constitutional. It is not constitutional in the current sense of the word, i.e., based on the approval of laws in accordance with the opinion of the majority. It is constitutional in the sense that the rulers are subject to a certain set of conditions in governing and administering the country, conditions that are set forth in the Noble Qur’an and the Sunnah of the Most Noble Messengerﷺ .”[34]
Since the future Khilafah will be a new state and an alternative governing system, then it should have a written constitution which outlines the principles upon which the state and its systems are based. In addition, the Muslim ummah has not lived under Islamic rule for more than a century, so it’s vital that a future khilafah has a written constitution, and that the khaleefah is bound to it through a condition on the bay’a.
The framers of this constitution need to be careful not to introduce weak usul and opinions such as mursala maslaha (The Unmentioned Public Interest) and Malat al-Afal (Consequences of the Deeds) which if misapplied, could lead to an Islamic state in name only, or the creation of a totalitarian, highly centralised police state that will cause mass fitna and civil war. The adoption of a weak opinion – albeit based on a shubhat daleel (semblance of an evidence) – in appointing the khaleefah after the end of the rightly guided khulufa’, led to hereditary rule and numerous conflicts during the Umayyad and Abbasid eras. These can be averted by establishing formal constitutional processes for appointing the khaleefah, empowering an independent mazalim judiciary and creating an elected House (Majlis) to hold the government to account.
For all these reasons, a constitutional khilafah is clearly in the benefit of the Muslims, and will unite them preventing much of the fitna and disunity of the past. Binding the khaleefah to a constitution with a condition on the bay’a is therefore essential in the modern era. Through a constitution we can force the creation of a Khilafah based on prophethood as was prophesised by the Messenger ﷺ, ثم تكون خلافة على منهاج النبوة “then there will be Khilafah upon the Prophetic method.”[35]
More research and investigation are required by think tanks, intellectuals and scholars among the ummah to frame a constitution which is implementable in a 21st century world. The wider Muslim ummah and their representatives who will form the Ahlul hali wal-aqd, need to be taught this constitution, and cultured in political Islam to a level where they can impose their authority on a future khaleefah through a constitutional bay’a. Allah (Most High) says,
إِنَّ ٱللَّهَ لَا يُغَيِّرُ مَا بِقَوْمٍ حَتَّىٰ يُغَيِّرُوا۟ مَا بِأَنفُسِهِمْ
“Allah never changes a people’s state until they change what is in themselves.”[36]
Notes
[1] Holy Qur’an, Surah al-Maa’ida, ayah 1
[2] Sahih al-Bukhari 7207, https://sunnah.com/bukhari:7207
[3] Ibid
[4] Siyasat al-Mal fee al-lslam , p.159; Quoted in Dr Ali Muhammad As-Sallabi, ‘Umar ibn al-Khattab, his life and times,’ International Islamic Publishing House, volume 1, p.477
[5] Sahih Muslim 1472c, https://sunnah.com/muslim:1472c
[6] Dr Ali Muhammad As-Sallabi, ‘The Biography of Uthman bin Affan,’ Dar us-Salam Publishers, p.273
[7] Imam Malik, Muwatta, https://sunnah.com/urn/514530
[8] He was the Chief Judge in Kufa under Umar ibn al-Khattab
[9] Dr Ali Muhammad As-Sallabi, ‘The Biography of Uthman bin Affan,’ Op.cit., p.238
[10] Sahih al-Bukhari 915, https://sunnah.com/bukhari:915
[11] Abu Tariq Hilal & Abu Ismael al-Beirawi, ‘Understanding Usul Al-Fiqh,’ Revival Publications, 2007, p.149
[12] Muhammad Hussein Abdullah, ‘Al-Waadih Fee Usool ul-Fiqh,’ 1995, First Translated English Edition 2016, p.94
[13] Ibn Kathir, Al Bidaya Wan Nihaya, Volume 7, Page 165, https://shamela.ws/book/4445/5709
[14] https://en.wikishia.net/view/Six-Member_Council
[15] https://islamicsystem.blogspot.com/2019/01/adoption-evaluation-of-riwayaat-leading.html
[16] Jami’ at-Tirmidhi 3663, https://sunnah.com/tirmidhi:3663
[17] Dr Ali Muhammad As-Sallabi, ‘The Biography of Abu Bakr As-Siddeeq’, Dar us-Salam Publishers, p.269
[18] Ibid
[19] Ibid, 365
[20] Dr Ali Muhammad As-Sallabi, ‘Ali ibn Abi Talib,’ volume 1, International Islamic Publishing House, p.245
[21] Ibid
[22] Ibid, p.341
[23] Ibid, p.345
[24] Ibid, p.432
[25] Ibid, p.496
[26] Taqiuddin an-Nabhani, Op.cit., p.171
[27] Tareekh at-Tabari, 5/443
[28] al-Khulafa’ al-Raashideen by al-Khaalidi, pp.154-155. Quoted in As-Sallabi, ‘The Biography of Uthman bin Affan,’ Op.cit., p.523
[29] Sunan Ibn Majah 42, https://sunnah.com/ibnmajah:42
[30] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.243
[31] Taqiuddin an-Nabhani, ‘Islamic Personality,’ translation of Shakhsiya Islamiya, Vol.1, Dar al-Ilm, 6th Edition, 2005, p.171
[32] https://dictionary.cambridge.org/dictionary/english/constitution
[33] Tareekh at-Tabari, 5/443
[34] Imam Khomeini, ‘Governance of the Jurist,’ translation of Velayat-e-Faqeeh, Iran Chamber Society, https://www.iranchamber.com/history/rkhomeini/books/velayat_faqeeh.pdf p.29
[35] Musnad Ahmed bin Hanbal (Hadith # 18430), As-Saheeha al-Albani (Hadith # 5). It has been declared Hasan by Sh’uaib Arnaoot, and al-Albani classified it as Sahih. The text quoted is the one from Musnad Ahmed.
[36] Holy Qur’an, Surah Ar-Ra’d, ayah 11
Islamic Civilization 