What is the Ahlul hali wal-aqd?

The sharia texts related to the bay’ah are ‘aam (general) in their address by use of the relative pronoun مَنْ which translates as whoever.[1] They therefore include the entire Muslim ummah, which is why we say the source of authority in origin is with the ummah. This is seen in numerous ahadith on the bay’ah:

مَنْ كَرِهَ مِنْ أَمِيرِهِ “Whoever sees in his Ameer…”[2]

مَنْ خَرَجَ مِنَ الطَّاعَةِ “Whoever withdraws obedience (to the Ameer)…”[3]

مَنْ بَايَعَ إِمَامًا “Whoever gave bay’ah to an Imam…”[4]

مَنْ مَاتَ وَلَيْسَ فِي عُنُقِهِ بَيْعَةٌ “Whoever dies while having no bay’ah on his neck…”[5]

When it comes to exercising that authority however, a problem arises because the bay’ah is a contract of one-to-millions i.e. between the caliph and the Muslim ummah. This is different to other Islamic contracts which are one-to-one such as buying, selling and marriage. This poses a challenge on how you get the consent of millions of people which is a condition in Islamic contracts.

Historically it was not possible for every Muslim to participate in the election of the Imam, which is why in the rightly guided caliphate of the sahaba, the senior representatives of the people would contract the bay’ah to the caliph. The rest of the Muslims would accept their opinion and rush to pledge their bay’ah to the newly appointed caliph. This was done either directly in the Prophet’s Mosque in Madinah, which was the capital of the state, or indirectly through the governors in the other provinces.[6] The classical scholars called this contracting group the Ahlul hali wal-aqd which literally means the ‘people who loosen and bind’.

Ahmad ibn Hanbal says, “The imamah is not effective except with its conditions […], so if testimony was given to that by the Ahlul hali wal-aqd of the scholars of Islam and their trustworthy people, or the imam took that position for himself and then the Muslims were content with that, it is also effective.”[7]

Al-Mawardi says, “Imamate comes into being in two ways: the first of these is by the election of the Ahlul hali wal-aqd, and the second is by the delegation of the previous Imam.”[8]

This is why Sa‘d al-Taftazani said, “By ummah, he means those who loose and bind (Ahlul hali wal-aqd), namely, those who on the basis of their prestige and rank represent the community. Their leadership is over others, or over all individuals within the community.”[9]

Therefore, in modern times, the ummah elects the Ahlul hali wal-aqd to be their representatives in the Majlis al-Nuwwab (House of Representatives).[10] This House institutionalises the principles of shura and accountability, and will act as an electoral college for the election of the caliph. Dr. Abdul-Karim Zaidan (d.2014) mentions:

أما علاقة أهل العقد والحل بالأمَّة: فهي علاقة النائب والوكيل، فهم يباشرون انتخاب رئيس الدولة ـ الخليفة ـ نيابةً عن الأمة ومن ثَمَّ يعتبر انتخابهم ملزمًا للأمة.

“As for the relationship of the Ahlul hali wal-aqd with the ummah: it is the relationship of the representative (na’ib) and the agent (wakeel). They initiate the election of the head of state – the Caliph – on behalf of the ummah, and therefore their election is considered binding on the ummah.”[11]

Hasan al-Banna (d.1946) concludes a marriage between the ‘people of the authority’ (ahl al-al wa al-aqd) and the representatives of the ummah in the parliament when he writes: “The modern parliamentary system establishes the protocol for arriving at the people of authority (ahl al-al wa al-aqd) through what the constitutional fuqaha put in place of systems of elections and their various means,” with the result that, “this system ought not be declined so long as it leads to the choice of the people of authority (ahl al-al wa al-aqd).”[12]

Who are the Ahlul hali wal-aqd?

The sharia has not defined who the Ahlul hali wal-aqd or people’s representatives are, “it did not appoint them by name or by their persons”[13] as mentioned by Hasan al-Banna. This definition falls under manat ul-hukm (reality the rule is applied to) and will vary throughout the ages.

Hasan al-Banna describes the Ahlul hali wal-aqd as “being composed of three groups:

1) the mujtahidun of the fuqaha whose assertions can be depended upon in fatwas and matters of implementation of the rulings (al-ahkam);

2) the people of experience (ahl al-khibrah) in general matters;

3) whoever has a position as a leader or chief among people…all of these may be correctly subsumed under the rubric of ‘the people of authority’ (ahl al-al wa al-‘aqd).”[14]

Sa‘d al-Taftazani mentions something similar that “they are scholars [ulama], heads of the ummah, and people of distinction.” Imam Nawawi adds in Al-Minhaj: “they are those who are readily able to meet.” His commentator Ramli explicates that this is so since “they determine matters, and other people follow their decisions.”[15]

Are the Ahlul hali wal-aqd elected or appointed to the Majlis?

The reason for the existence of the Ahlul hali wal-aqd is to represent the ummah’s opinions in order for a valid bay’ah to be contracted to the Imam. Dr. Abdul-Karim Zaidan describes this relationship as “the relationship of the representative (na’ib) and the agent (wakeel).”[16]

Prior to the establishment of the Islamic State in Madinah, at the Second Bay’ah of Al-Aqaba, the Messenger of Allah ﷺ did not know all the representatives of the 75 attendees from Al-Aws and Al-Khazraj, so he ﷺ said to them,

أَخْرِجُوا إلَيَّ مِنْكُمْ اثْنَيْ عَشَرَ نَقِيبًا، لِيَكُونُوا عَلَى قَوْمِهِمْ بِمَا فِيهِمْ

“Choose from among you twelve leaders (naqibs) who will be responsible for themselves and their people.”

فَأَخْرَجُوا مِنْهُمْ اثْنَيْ عَشَرَ نَقِيبًا، تِسْعَةً مِنْ الْخَزْرَجِ، وَثَلَاثَةً مِنْ الْأَوْسِ

“So they brought out from among them twelve leaders, nine from the Khazraj,[17] and three from the Aws.”[18]

Once the state had been established, the Prophet ﷺ came to know who the natural representatives of the Ansar were, and so He ﷺ singled them out for consultation as he knew they represented the opinion of their respective clans. This continued throughout the Rightly Guided Caliphate.

In modern times it is not possible for the leader to know who the representatives are except for a select few such as leaders of groups, ‘ulema and influential businessmen. Therefore, the ummah will elect the Ahlul hali wal-aqd to be members of the Majlis. This is similar to what we see in western countries with elections every 2-4 years, and constituencies drawn up based on population size.

The caliph also reserves the right to appoint certain individuals to the Majlis if there is a shortage of qualified mujtahideen or those with particular expertise in fields such as economy and finance, which are necessary for scrutinising proposed laws sent to the Majlis for debate.

Conditions of the Ahlul hali wal-aqd

Although the primary reason for the Ahlul hali wal-aqd is to contract the caliph, there are other functions they serve such as accounting the caliph and his government, and acting as a ‘legislature-lite’ for laws and policies which fall under the scope of administrative law, which is the bulk of law in modern societies. For this reason, the scholars have placed some extra conditions on the Ahlul hali wal-aqd so that those chosen are competent enough to choose the best person for caliph, and play a role in the shura and accounting process after his election.

It should be noted however, that all that is required in sharia is that the person standing for election is mukallaf (legal responsible i.e. mature and sane), a citizen, and a representative of the people. This is due to the generality of the address “whoever” مَنْ in the ahadith related to the bay’ah as discussed earlier.[19] The representatives can be men, women, Muslims or non-Muslims, although in the context of the bay’ah and the electoral college function of the Majlis, the non-Muslim members can voice their opinion but are not involved in the election. This is because non-Muslim citizens (dhimmi) have a different citizenship contract with the state called dhimma which is discussed elsewhere.

Al-Mawardi places three conditions on the Ahlul hali wal-aqd:

“There are three conditions regarding those eligible to make the choice:

1. That they be just and fulfil all the conditions implied in this quality

2. That they possess a knowledge by which they may comprehend who has a right to the Imamate and that they fulfil all the conditions implied by this knowledge

3. That they possess the insight and wisdom which will lead them to choose the person who is most fitting for the Imamate and who is the most upright and knowledgeable with respect to the management of the offices of administration.”[20]

Imam Al-Rafi’i (d.1226CE) adds that at least one of the Ahlul hali wal-aqd must be a mujtahid. He says, “The basic principle is the stipulation that one of them must be a qualified for ijtihad: a mujtahid.”[21] This is important in modern societies which require new laws and systems of a multitude unheard of previously. This means the caliph will need to appoint mujtahideen to the Majlis if not enough are elected by the ummah.

In addition to some Majlis members being mujtahid, there is a need for those in the Majlis to be knowledgeable in politics and governmental affairs. This is a natural quality for those running for office and shouldn’t require any specific appointments to the Majlis in this regard.

Rashid Rida elaborates on this point, “learning as a stipulated qualification evolves over time. The knowledge that would entitle someone to the imamate in this era differs from the knowledge that was required in previous eras. Certain scholars have said that one of the reasons why the Companions’ preference was to select Abu Bakr as caliph, may God be pleased with him, was that he was the one among them with the greatest knowledge of the Arabs’ lineages, circumstances, and strengths. For this reason, he did not fear what ‘Umar feared when it came to fighting apostates.

Now, the imam and those who make up the body of counselors – Ahlul hali wal-aqd who are the substance of his imamate and the pillars of his government—are required to be versed in the laws of war and peace, major treaties, and conditions in the nations and states neighboring and having political and commercial relationships with Islamic lands: their politics and power, what may be feared and hoped from them, and what is needed to avoid harming them and procure benefit from them.”[22]

Ibn Hajar (d.1449) says something similar when discussing the bay’ah to Uthman bin Affan. “What is apparent from ‘Umar’s conduct regarding his emirs, whom he appointed in the lands, is that he did not only consider the question of who was superior in religion. Rather, he also considered knowledge of politics, along with avoidance of what the revealed law prohibits. Hence, he installed, namely appointed as emir, Mu‘awiyah, Mughirah bin Shu‘bah, and ‘Amr bin al-‘As, although there were others who were superior in the matters of religion and learning, such as Abu al-Darda’ in Syria and Ibn Mas‘ud in Kufah.”[23]

This is the sunnah of the Prophet ﷺ where the tribal leaders and some governors, remained in positions of authority and responsibility after their conversion to Islam, because they already had a personality capable of looking after people’s affairs. Muhammad As-Sallabi says, “Kisra’s[24] viceroy to Yemen was Bādhān ibn Sāsān. During the Prophet’s lifetime, Bādhān embraced Islam, and the Prophet ﷺ recognizing good leadership qualities in Bādhān allowed him to remain governor of Yemen. It was always the case that the Messenger of Allah ﷺ appointed people based on their qualities and on the job performance that could be expected of them. The Prophet ﷺ knew that Bādhān was an experienced leader and that he was well-acquainted with the people of Yemen and with their needs; thus he, and not a person of high-ranking from Makkah or Al-Madeenah, was best suited for the job; hence the Prophet’s decision to allow Bādhān to stay on as governor.”[25]

Notes

[1] A relative pronoun (الاسم الموصول) in Arabic grammar is a pronoun that begins a relative clause and relates it to the main sentence where it is contained. There are terms like “who,” “whose,” “which,” and so on do the same role in the English language. https://kalimah-center.com/arabic-relative-pronouns-and-relative-clauses/

[2] Sahih al-Bukhari 7053, https://sunnah.com/bukhari:7053

[3] Sahih Muslim 1848, https://sunnah.com/muslim:1848a

[4] Sahih Muslim 1844a, https://sunnah.com/muslim:1844a

[5] Sahih Muslim 1851a, https://sunnah.com/muslim:1851a

[6] Dr Ali Muhammad As-Sallabi, ‘The Biography of Abu Bakr As-Siddeeq’, Dar us-Salam Publishers, p.250

[7] Ahmad, al-ʿAqīdah bi-Riwāyah al-Khallāl, 1/124

[8] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.12

[9] Muhammad Rashid Rida, ‘The Caliphate or Supreme Imamate,’ Translated by Simon A Wood, Yale University Press, 2024, p.60; Original Arabic: https://shamela.ws/book/9682 p.63

[10] The Majlis al-Nuwwab is not a legislature like we find in the western liberal democracies. It does a legislative function but within a strict framework limiting voting to administrative laws only. Sharia laws will be subject to ijtihad and undertaken by the ‘ulema (scholars) in the Majlis only.

[11] Dr. Abdul-Karim Zaidan, Principles of calling to Allāh (Uṣūl ad-Da’wah أصول الدعوة) https://www.islamweb.net/ar/fatwa/204622/%D8%B4%D8%B1%D9%88%D8%B7-%D8%A7%D8%AE%D8%AA%D9%8A%D8%A7%D8%B1-%D8%A3%D9%87%D9%84-%D8%A7%D9%84%D8%AD%D9%84-%D9%88%D8%A7%D9%84%D8%B9%D9%82%D8%AF-%D9%88%D9%85%D9%86-%D9%8A%D8%AE%D8%AA%D8%A7%D8%B1%D9%87%D9%85

[12] Abdelilah Belkeziz, ‘The State in Contemporary Islamic Thought,’ I.B.Tauris Publishers, 2009, p.133

[13] Ibid

[14] Ibid

[15] Muhammad Rashid Rida, Op.cit., p.57

[16] Dr. Abdul-Karim Zaidan, Op.cit.

[17] There were three times more members of the Khazraj than the Aws at the bay’ah, hence three times more Khazraj representatives

[18] Ibn Hisham, https://shamela.ws/book/23833/466

[19] Muhammad Hussein Abdullah, ‘Al-Waadih Fee Usool ul-Fiqh,’ 1995, First Translated English Edition 2016, p.480

[20] Abu l-Hasan al-Mawardi, Op.cit., p.11

[21] Muhammad Rashid Rida, Op.cit., p.64

[22] Ibid