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Conditions of the Caliph: Why only a Muslim Caliph?

The Khilafah (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 Khilafah’s strength depends directly on the strength of the ideology within the state. This means those in ruling positions must be people who will work to protect, implement and propagate the deen of Islam, so the state becomes a beacon of high values, and a leading nation in the world. Only someone who believes in the ideology of the state i.e. Islam could do this, which means those in ruling positions must be Muslim.

The Islamic State 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 former US President Barack Obama had to repeatedly deny he is a secret Muslim is clear evidence of this. Muhammad Asad says, “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.”[1]

The Khaleefah being Muslim is a rukn (pillar) of the bay’ah contract

Al-Mawardi in his famous book Ahkam as-Sultaniyyah ‘The laws of governance’, did not explicitly list being Muslim as a condition for the Khaleefah[2], because it was already understood by his target audience who were scholars, statesmen and rulers of the Islamic State. Even those ulema who mentioned the condition of being Muslim explicitly, such as Imam Ghazali, who says in Mustazhari that “the key conditions of the Imamate are correctness of belief and soundness of religion”,[3] didn’t see any need to expand on this point with sharia evidence, because it was an undisputed fact, known from Islam by necessity that the Imam must be Muslim.

With the dominance of secularism and non-Islamic systems in the Muslim world today, this condition requires more in-depth discussion, and so some of the sharia evidences regarding the Khaleefah being Muslim will now be presented.

The detailed sharia evidence for the Khaleefah being Muslim is from the Holy Quran.

Allah (Most High) says,

يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَطِيعُوا۟ ٱللَّهَ وَأَطِيعُوا۟ ٱلرَّسُولَ وَأُو۟لِى ٱلْأَمْرِ مِنكُمْ

“Oh you who believe! obey Allah and obey the Messenger and those in authority among you.”[4]

Who are “those in authority” (أُو۟لِى ٱلْأَمْرِ)?

The mufassireen (interpreters of the Qur’an) differed on the meaning of “those in authority” (أُو۟لِى ٱلْأَمْرِ) and who they referred to, but they were unanimous that “those in authority” were Muslim. Abdul-Qadeem Zallum says, “The phrase (أُو۟لِى ٱلْأَمْرِ) has always been mentioned in connection with the Muslims, it has not been mentioned in any other context other than to indicate that the people concerned are Muslims. This proves that they must be Muslims. Since the Khaleefah is the person in authority and it is he who appoints people in positions of authority such as his mu’awinoon (assistants), wulah (governors) and ‘ummal (agents), he himself must, therefore, be Muslim.”[5]

The reason “those in authority” are Muslim is because of the next phrase “from among you” (مِنكُمْ), where the second-person masculine plural pronoun كُمْrefers to the beginning of the verse “Oh you who believe” (يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟). Abdul-Qadeem Zallum says, “from among you” (مِنكُمْ) in the verse, clearly indicates that those in authority must be Muslims.”[6]

Although in origin verses which start with “Oh you who believe” are not addressed specifically to Muslims but include non-Muslims as well, in this case there is a restriction only to Muslims, because of other Qur’anic verses which prohibit the obeying of disbelievers[7] such as فَلَا تُطِعِ ٱلْكَـٰفِرِينَ “So do not obey the disbelievers.”[8]

Taqiuddin an-Nabhani says, “It is not right to say that Allah Ta’ala made some verdicts specially for the believers like the prayers, so they are addressed by it alone, so any address issued with ياأيُّها الَّذِينَ آمَنُوا “O you who believe” is to be considered specifically for the Muslims, and what came as common, like the trade and usury, is common for the Muslims and the non-Muslims; it is not right to say this, because the objective of what is issued with “Oh you who believe” is reminding them of their belief and not that it is especially for them.”[9] He also says[10], “…except when a text came to specialize it for the Muslims, either explicitly like:

يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوا۟ ٱتَّقُوا۟ ٱللَّهَ حَقَّ تُقَاتِهِۦ وَلَا تَمُوتُنَّ إِلَّا وَأَنتُم مُّسْلِمُونَ

“Oh you who believe! Have taqwa of Allah with the taqwa due to Him and do not die except as Muslims[11]

The word ٱلْأَمْرِ (authority or leadership) in this verse is unrestricted (mutlaq), and applies to all positions of authority (الأمراء) within the Islamic State. Since the Khaleefah is an Ameer (أمير) it applies to him as well. The circumstances of revelation (asbab an-nuzul) of this verse also illustrate this. Ibn ‘Abbas narrates:

‏{‏أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الأَمْرِ مِنْكُمْ‏}‏‏.‏ قَالَ نَزَلَتْ فِي عَبْدِ اللَّهِ بْنِ حُذَافَةَ بْنِ قَيْسِ بْنِ عَدِيٍّ، إِذْ بَعَثَهُ النَّبِيُّ صلى الله عليه وسلم فِي سَرِيَّةٍ

The Verse: “obey Allah and obey the Messenger and those in authority among you.” was revealed in connection with Abdullah bin Hudhafa bin Qais bin ‘Adi’ when the Prophet ﷺ appointed him as the commander of a Sariyya (army detachment).”[12]

Are “those in authority” (أُو۟لِى ٱلْأَمْرِ) rulers or scholars?

As mentioned previously, the mufassireen differed on the meaning of (أُو۟لِى ٱلْأَمْرِ) and who they referred to, but they were unanimous that the (أُو۟لِى ٱلْأَمْرِ) were Muslim. Some of the sahaba like Abu Hurairah said they are the rulers (الأمراء) and others like Ibn Abbas and Mujahid, said they are the people of jurisprudence and knowledge (أهل الفقه والعلم).[13]

The strongest opinion is that the (أُو۟لِى ٱلْأَمْرِ) are the officials of the state because obedience is only to the Imam, and who he appoints to run the affairs of the people. Obedience to the scholars is not obliged unless the officials of the state were also scholars. The scholars are themselves obliged to obey the Imam. Sahl ibn Abdullah Al-Tustari (818-896CE) mentions:

 وَإِذَا نَهَى السُّلْطَانُ الْعَالِمَ أَنْ يُفْتِيَ فَلَيْسَ لَهُ أَنْ يُفْتِيَ

“If the sultan forbade the scholar to give fatwas, then he is not allowed to give fatwas.”[14]

Al-Shawkani (1759–1834CE) says,

وأُولِي الأمْرِ: هُمُ الأئِمَّةُ والسَّلاطِينُ والقُضاةُ وكُلُّ مَن كانَتْ لَهُ وِلايَةٌ شَرْعِيَّةٌ لا وِلايَةٌ طاغُوتِيَّةٌ،

“those in authority” (أُو۟لِى ٱلْأَمْرِ): “They are the Ameers and Sultans and Judges, and any who have a legitimate mandate (sharia wiliyah) not a tyrannical mandate (taghoot wiliyah).”[15]

We can combine both opinions here because the Khaleefahs, governors and army commanders in the time of the sahaba, were not only Ameers but they were mujtahideen (scholars) as well. This continued during the Umayyad Khilafah. Nāfiʿ said concerning the Ummayad Khaleefah Abdul-Malik ibn Marwan, “I have seen Madinah, and there is no youth with more zeal, fiqh, devotion and knowledge of the Book of Allah than ʿAbd al-Malik ibn Marwān.”[16]

Al-Mawardi, from the Shafi’i school stipulates mujtahid as one of the mandatory conditions for the Khaleefah, although it was generally accepted that the Khaleefah could rely on other scholars and adopt their opinions, if he was lacking in this area. Imam Ghazali mentions in Mustazhari, in defense of the young Abbasid Khaleefah Al-Mustazhir (r.1094-1118), who was 16 when he took office, “Why can he not fulfill the aim of knowledge through the best men of his time, just as the aims of power and competence can be fulfilled through others? Most of the problems of the Imamate are jurisprudential and conjectural and may be solved by following the prevailing opinion.”[17]

The second evidence for the Khaleefah being Muslim is again from the Holy Qur’an. Allah (Most High) says:

وَلَن يَجْعَلَ ٱللَّهُ لِلْكَـٰفِرِينَ عَلَى ٱلْمُؤْمِنِينَ سَبِيلًا

“And Allah will never allow the disbelievers any way (of authority) over the believers.”[18]

Abdul-Qadeem Zallum says, “Ruling is the strongest way (sabeel) for the ruler over the ruled, hence the term لَن (never) which means the categorical prohibition of the non-Muslim (Kafir) from taking a post of authority over the Muslims, be it the Khilafah or any other post of authority.”[19]

Many of the mufassireen including Ali ibn Abi Talib and Ibn Abbas, interpreted this verse as being related to the Day of Judgment. Abdur-Razzaq recorded that Yasi’ Al-Kindi said, “A man came to Ali bin Abi Talib and said, ‘What about this ayah, And Allah will never give the disbelievers any way over the believers?’ Ali said, ‘Come closer, come closer. Allah will judge between you on the Day of Resurrection, and He will not grant victory for the disbelievers over the believers.’”[20] Ibn Jurayj recorded that ‘Ata’’ Al-Khurasani said that Ibn Abbas said, “And Allah will never give the disbelievers any way over the believers, will occur on the Day of Resurrection.”[21]

This reason they interpreted it for the Day of Judgment, is because if we apply the verse to the temporal life (dunya), then the pronounced meaning (mantuq) contradicts the reality. Muslims have lived under the authority of the disbelievers during many periods throughout Islamic history. Muslims were still living under the authority of the mushrikeen of Quraysh in Makkah, while the Prophet ﷺ was ruling the Islamic State in Madinah. During the Crusades, after the fall of Spain, under the colonial occupation of Britain and France, and today in the west, Muslims lived and continue to live under the authority of the disbelievers.

If we look to the mafhum[22] (implied meaning) of the verse however, then we can apply it to the dunya by deriving a command (amr) that it is prohibited for a disbeliever to rule over a believer, and hence the ruler must be a Muslim.

Taqiuddin an-Nabhani says, “The existence of the authority of the disbelievers over the believers has surely happened. It happened in Makkah while the Messenger was there. Since the Muslims were under the authority of the disbelievers, and it has existed after the Messenger ﷺ like in Andalusia, where Muslims were under the authority of the disbelievers, and it also exists nowadays, the negation of an authority of the disbelievers over the believers that came in the particle “لَن” “never”, which denotes an eternal negation, is impossible because it has certainly happened. So it is inevitable that it is a negation of a verdict that can be negated, and that is the negation of the permissibility, which means it is forbidden for the disbelievers to have an authority over the believers. This is what the Shari’ah requires because of the truthfulness of the report.”[23]

The reason many mufassireen didn’t look to the mafhum of this verse, is because Muslims having a non-Muslim ruler was never a reality for them, and not even in the minds of the ulema. There was, therefore, no need to look for additional evidence above and beyond what was already established from other ayaat, such as the first one we discussed commanding obedience to “those in authority among you”.

To conclude the Khaleefah must be a Muslim. If the Khaleefah becomes an apostate (murtad), then this breaks a pillar (rukn) of the contract, and the bay’ah becomes void (batil), and the ummah are relieved of their obedience to him. In the first instance this must be proven by the Mahkamat Al-Mazaalim (Court of Unjust Acts), if it was present in the Khilafah, as this is the highest court within the state. If it was a clear-cut decisive issue, or the Mazalim court was abolished, then the “right of revolution” will come in to play. This is something that exists as a final safeguard against the loss of the Islamic system, and in fact exists in all political systems. The American revolution being a stark example of this.

Narrated by Junada bin Abi Umaiya: We entered upon ‘Ubada bin As-Samit while he was sick. We said, “May Allah make you healthy. Will you tell us a Hadith you heard from the Prophet ﷺ and by which Allah may make you benefit?” He said, “The Prophet ﷺ called us and we gave him the bay’ah for Islam, and among the conditions on which he took the bay’ah from us, was that we were to listen and obey both at the time when we were active and at the time when we were tired, and at our difficult time and at our ease and to be obedient to the ruler and give him his right even if he did not give us our right, and not to fight against him unless we noticed him having open Kufr (كُفْرًا بَوَاحًا) for which we would have a proof with us from Allah.”[24]

Notes


[1] Muhammad Asad, ‘The Principles of State and Government in Islam,’ Dar al-Andalus Ltd, Gibraltar, 1985, p.41

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

[3] Imam Ghazali, ‘Al-Mustazhari,’ translated by Richard J. McCarthy, Twayne Publishers, 1980, p.276

[4] Holy Qur’an, Surah An-Nisaa, ayah 59

[5] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.56

[6] Ibid, p.118

[7] The disobeying of disbelievers here should not be misunderstood to mean its permitted for Muslims to disobey the law or their bosses at work etc. Other sharia evidences apply here such as يا أَيُّهَا الَّذينَ آمَنوا أَوفوا بِالعُقودِ “O you who believe! Fulfil your contracts.” (Al-Maaida, 5:2). Extracting sharia rules from the texts (ijtihad) is a legal subject which must be performed without emotions or other factors clouding the judgement.

[8] Holy Qur’an, Surah Al-Furqan, verse 52

[9] Taqiuddin an-Nabhani, ‘The Islamic Personality,’ translation of Ash-Shaksiyya Al-Islamiyya, Vol.3, p.41

[10] Ibid, p.44

[11] Holy Qur’an, Surah al-‘Imran, ayah 102

[12] Sahih al-Bukhari 4584, https://sunnah.com/bukhari:4584

[13] Al-Tabari, https://tafsir.app/tabari/4/59

[14] Al-Qurtubi, ‘Al-Jami’Al-Ahkam Al-Qur’an,’ https://tafsir.app/qurtubi/4/59

[15] Muḥammad al-Shawkānī , ‘Fath ul-Qadeer,’ https://tafsir.app/fath-alqadeer/4/59

[16] Jalal ad-Din as-Suyuti, ‘History of the Umayyad Khaleefahs,’ translated by T.S.Andersson, Ta Ha Publishers, p.30

[17] Imam Ghazali, ‘Al-Mustazhari,’ p.279

[18] Holy Qu’ran, Surah Al-Nisaa’ ayah 141

[19] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ Op.cit., p.55

[20] Tafseer Ibn Kathir, http://m.qtafsir.com/Surah-An-Nisa/Hypocrites-Wait-and-Watch-what—

[21] Ibid

[22] The principle used here is called: Dalaalat ul-Iqtidaa’ (Indication of requirement/necessity). This is where there is a requirement to change the meaning of a text of the Qur’an or Sunnah so its meaning makes sense. Muhammad Hussein Abdullah says, “Dalaalat ul-Iqtidaa’ is the Dalaalah (indication) of the Lafzh upon a matter that its meaning does not stand up except by its Taqdeer (determination). This necessary Taqdeer (determination) could be dictated by the Shar’a or it could be dictated (i.e. made necessary) by the ‘Aql, either due to the Daroorah (necessity) of the Sidq (truthfulness) of the Mutakallim (source of speech/information) or due to the correctness (Sihhah) of the occurrence of the Lafzh (wording) through it.” ‘Al-Waadih Fee Usool ul-Fiqh,’ p.453

[23] Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Vol.3, Op.cit., p.286

[24] Sahih Bukhari 7055, 7056, https://sunnah.com/bukhari:7055

Conditions of the Caliph

There is consensus (ijma) among the scholars on the pillars (arkan) that someone must possess to take up the post of Khaleefah. However, there are differences of opinion (ikhtilaaf), on some of the other conditions (shuroot) such as being from Quraysh, a mujtahid (able to perform ijtihad) and brave.

The contractual conditions must have a shar’a daleel (divine evidence) from the divine text (Qur’an and Sunnah). Imam Ghazali (1058-1111) says, “Conditions for the Imamate must be proved, and proof is either a text from the Trustee of the Law, or a reasoning about the benefit (maslaha) for which the Imamate is sought. The only text is that about descent from Quraysh. The other conditions are from necessity and needed for the purpose of the Imamate.”[1]

Before discussing the opinions of the classical scholars concerning the contractual conditions of a Khaleefah, we need to understand the time period they lived in. Only then can we begin to appreciate why they emphasised certain conditions over others, and why they legitimised certain abnormal situations, such as the Khaleefah delegating (tafweedh) most of his executive powers to a Turkic (non-Qurayshi) Emir or Sultan.

In the later part of the Abbasid Khilafah during the 10th, 11th and 12th centuries, the state split in to a number of autonomous provinces, with some declaring themselves fully independent as rival Khilafahs, and others as Emirates and Sultanates who gave nominal allegiance to the Abbasid Khaleefah in Baghdad. The Fatimids (Ismailis) in Egypt declared independence and a “Khilafah” in 909CE. This lasted until 1171 when Salahudeen Ayyubi who was a Wazir within the Fatimid State, formally abolished it upon the death of its last Emir Al-Adid. He then gave bay’ah to the Abbasid Khaleefah Al-Mustadi in Baghdad, and Egypt became unified with the Khilafah once again, albeit still semi-independent with the Seljuk Sultan Nur ad-Din Zengi in full control of Egypt and Ash-Sham.

In the East, the Buyids established themselves in Iraq, and central and southern Iran from 934 to 1062, but kept the Abbasid Khaleefah in office. The Khaleefah had limited executive power, with most executive power delegated (tafweedh) to the Buyid Emir. The Buyids were replaced by the Seljuk Sultanate (1037-1194), which spanned across Central Asia, Khorasan, Iran and the Middle East in to Ash-Sham and Anatolia, but the Khaleefah continued to exert limited authority, with most executive powers held by the Sultan. Ibn Khaldun says, “From the time of an-Nâṣir (r. 1180-1225) on, the caliphs were in control of an area smaller than the ring around the moon.”[2]

It’s during this time that the ahkam (rules) related to the Khilafah or Imamah, as it was commonly known, were collated and written down.

Al-Mawardi (972–1058), wrote his famous book Al-Ahkam Al-Sultaniyyah ‘The laws of governance’ during the mid-11th century, which collated all the rules related to the Islamic governing system, and which became the de-facto go to reference by later scholars. The ulema of the past were not academics who simply wrote textbooks about hypothetical scenarios. They were scholars who wrote practical guides for the Muslims, so they could implement Islam in their lives and societies like the sahaba did. Al-Mawardi was the Chief Judge (Qadi ul-Qudat) for the Abbasid Khaleefahs Al-Qadir and Al-Qa’im, and an ambassador for them in their dealings with the Buyid Emirs. His book was written for leaders, statesmen and politicians to implement.

Al-Mawardi lays down seven conditions for the Imam (Khaleefah), according to the Shafi’i madhhab (school of thought):[3]

  1. Justice
  2. Mujtahid
  3. Good health in their faculties of hearing, sight and speech
  4. Sound in limb
  5. A Judgement capable of organising the people and managing the offices of administration
  6. Courage and bravery
  7. Quraysh.

Imam Ghazali, also from the Shafi’i school mentions ten conditions[4] for the Imam (Khaleefah), six are innate and four are acquired. The six innate conditions are:

1. Mature

2. Sane

3. Free

4. Male

5. Quraysh

6. Sound sight and hearing;

The four acquired conditions are:

7. Military prowess/bravery (al-najdah),

8. administrative competence (al-kifayah)

9. piety (al-wara’)

10. knowledge (al-‘ilm)

These conditions are from his book Mustazhiri which was written on the orders of the Abbasid Khaleefah Al-Mustazhir (1094-1118) refuting the legitimacy of the Fatimid “Khilafah” based in Egypt.

Imam Qurtubi (1214-1273) from the Maliki school, mentions eleven conditions for the Imam.[5] These are:

  1. Muslim
  2. Free
  3. Sane
  4. Mature
  5. Male
  6. Good character
  7. Possess [ruling] experience
  8. Sound limbs
  9. Knowledge
  10. Quraysh
  11. Mujtahid

Although the condition of Quraysh features prominently as a mandatory condition for all the scholars of the period, its importance started to diminish with the rise of the Turkic Sultans. Power and strength became more important conditions for the Khaleefah, with Ibn Jamāʾah (1241-1333) initiating the idea that “the seizure of power itself gave authority”.[6]

Al-Juwayni (1028-1085), who taught at the Nizamiyya madrassa established by the Seljuk wazir Nizam ul-Mulk (1018-1092) mentions, “If there is in an era someone who possesses sufficiency and strength but does not reach independence in his mastery of knowledge, and has dominated by means of his numerous [troops] and helpers and endorsed by the loyalty of powerful people, then he is the ruler and under his power are the affairs of wealth, military and other offices, but it is incumbent upon him to not finalize any matter without the consultation of the ulama.”[7] “The overall purpose of establishing a leader for the Muslim community, al-Juwaynī argues, is not affected by the question of genealogy, whereas to insist upon a leader of Qurashī blood may in fact be detrimental. Preference, al-Juwaynī explains, should be assigned at all times to a scholarly, capable, and pious candidate for caliph over one who is merely Qurashī.”[8]

Ibn Khaldun (1332-1406) says, “The group feeling (asabiyah) of the Fâṭimids and the Ṭâlibids, indeed, that of all the Quraysh, has everywhere disappeared. There are other nations whose group feeling has gained the upper hand over that of the Quraysh.”[9]

These changes in Islamic political thought, laid the foundations for the rise of the Ottoman Khilafah in 1517, and the end of the powerless Qurayshi Abbasid Khaleefahs in Cairo. After the abolition of the Khilafah in 1924 by Mustapha Kemal, Mustafa Sabri, the last Sheikh ul-Islam of the Ottoman Khilafah, wrote to Mustapha Kemal pointing out that he didn’t need to abolish the Khilafah and that “he could have had himself recognized as caliph, following this tradition, and Muslims around the world would have happily acquiesced. He was after all widely hailed as the hero of Islam and the restorer of its glory, and Muslims no longer felt compelled to limit a caliph’s lineage to Quraysh alone as they had with the Abbasid caliphs in Baghdad and Cairo.”[10]

Although Al-Mawardi and Al-Ghazali didn’t explicitly list Muslim as a condition, this was because it was already understood by the target audience of their books i.e. the scholars, statesmen and rulers of the Islamic State. Imam Ghazali mentions elsewhere in Mustazhiri that “the key conditions of the Imamate are correctness of belief and soundness of religion”.[11]

As for the conditions related to capability like possessing ruling experience, sound limbs and knowledge we can combine them under one general condition called capability (kifayah). This leaves us with seven contractual conditions for the Khaleefah post which are agreed upon by the ulema, and which have decisive qaraa’in (indications) for being an obligation. This is the opinion of Abdul-Qadeem Zallum (1924–2003) who specified seven contractual conditions for the Khaleefah, four of which are pillars (arkaan) and three of which are conditions (shuroot).[12] He says, “The Khaleefah must satisfy seven contractual conditions in order to qualify for the Khilafah post and for the Bay’ah of Khilafah to him to take place legitimately. These seven conditions are necessary. If just one condition is not observed the Khilafah contract would not have taken place and it would be considered null and void.”[13]

The contractual pillars of the Khaleefah are:

1- Muslim

2- Free (hurr)

3- Sane (‘aaqil)

4- Mature (baaligh)

The contractual conditions are:

5- Male

6- Just (‘adl)

7- Capable (kifayah)

More in this series:

Conditions of the Caliph: Why only a Muslim Caliph?

Conditions of the Caliph: Why can’t a woman be a ruler in the Caliphate?

Conditions of the Caliph: What does the word upright (‘Adl) mean?

Conditions of the Caliph: Will there will be teenage Caliphs in a future Caliphate?

Conditions of the Caliph: Why does the Caliph being free actually mean?

Conditions of the Caliph: The Caliph must be sane

Conditions of the Caliph: The Caliph must be capable of ruling

Notes


[1] Imam Ghazali, ‘Al-Mustazhari,’ translated by Richard J. McCarthy, Twayne Publishers, 1980, p.278

[2] Ibn Khaldun, ‘The Muqaddimah – An Introduction to History,’ Translated by Franz Rosenthal, Princeton Classics, pp.385

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

[4] Imam Ghazali, Op.cit., p.278

[5] al-Qurṭubī, ‘Tafsīr al-Qurṭubī Vol. 1,’ translated by Aisha Bewley, Diwan press, p.156

[6] Mona Hassan, ‘Longing for the Lost Caliphate,’ Princeton University Press, 2016, p.104

[7] Al-Juwayni, Ghiyath al-Umam, 392; Quoted in Ovamir Anjum, ‘Politics, Law, and Community in Islamic Thought,’ Cambridge University Press, 2012, p.123

[8] Mona Hassan, Op.cit., p.104

[9] Ibn Khaldun, Op.cit., p.394

[10] Mona Hassan, Op.cit., p.238

[11] Imam Ghazali, Op.cit., p.276

[12] Taqiuddin an-Nabhani, ‘An Introduction to the Constitution and its obligation’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 40, p.124

[13] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.55

Is the bay’ah a “social contract”?

A “social contract, in political philosophy, is an actual or hypothetical compact, or agreement, between the ruled or between the ruled and their rulers, defining the rights and duties of each.”[1]

While on the surface, this seems to apply to the bay’ah contract, as Ulrika Martensson has mentioned[2], the “social contract” is not in line with Islamic thought because the premise in the “social contract” is that man is sovereign (Rouseau), whereas in Islam the sharia is sovereign.[3]

Shahrough Akhavi elaborates on this point: “Although social-contract theorists differ on a number of points, they concur that human beings choose to form associations to promote their interests. An important corollary is that tension exists between the individual’s inherent independence and freedom and the authority to which she or he must submit to achieve compliance with the goals of the contract. Occasionally, a theorist discusses God in the overall scheme of things, but the conception is deistic, so that the God who created the world does not intervene in its operation. For the rest, contractarian theories privilege natural law and natural rights, according to which the individual is treated as a social being who is fully rational, free, and independent. Fundamentally, three steps are taken in the process of making the social contract: (1) creating society; (2) creating the sovereign state; (3) discharging obligations and enjoying benefits.

Because mainstream Ash’ari Sunni Islam views God as continuously intervening in the operation of the universe and insists on the human being’s “acquisition” of his or her actions from such a God, it did not generate a theory of social contract. The theory was introduced in the 19th century as a convention to the Muslim world, when reformers such as the Egyptian Azharite scholar Rifa’ah Rafi’ al-Tahtawi (d. 1873) and the Young Ottoman writer Namik Kemal (d. 1888) became interested in contractarian theorists. This is not to say that Muslim traditions lack ideas and concepts that are important to the elaboration of a theory of social contract, such as justice, obligation, mutuality, and interests. But, before the 19th century, jurists would not have referred to individual Muslims ceding their discrete interests to the community as a whole and converting them into a collective interest for which that community would be the trustee.”[4]

Notes


[1] https://www.britannica.com/topic/social-contract

[2] Martensson, U. (2017). Social Contract Theory in Islamic Sources?. Comparative Islamic Studies, 10(2), 129–136. https://doi.org/10.1558/cis.32431

[3] It is important to note that the concept of sovereignty (السِيادَة) is a political and legal concept, i.e. related to temporal life (dunya) and not the hereafter. The Qur’an uses the word ٱلْمُلْكَ which is sometimes translated as sovereignty. This is completely different to the word السِيادَة which in origin is a western term.

[4] Akhavi, Shahrough. “Sunni Modernist Theories of Social Contract in Contemporary Egypt.” International Journal of Middle East Studies 35, no. 1 (2003): 23–49. http://www.jstor.org/stable/3879926

Contracts in Islam

Wael b. Hallaq says, “In fiqh, contracts do not stand as a separate category, in the manner, say, American or French law articulates them in textbooks and treatises. Rather, Islamic conceptions of contract are implicit in juristic discussions pertaining to pecuniary and commercial transactions, among others. They are constituted by three essential elements (arkān; sing. rukn), namely:

(a) the parties;

(b) the form (ṣīgha) of offer and acceptance; and

(c) the object, or subject-matter.

(a) The contracting parties: A person qualified to enter into a contract on behalf of oneself or another must be of major age (bāligh) and have attained rushd, namely, the capacity to behave in a responsible and constructive manner (muṣliḥan), and without this capacity being subject to interdiction (ḥajr). Minors and the insane cannot enter into a contract without a guardian acting in their interest, except for discerning minors (mumayyiz) who can, inter alia, receive gifts and be the beneficiaries of a waqf.

(b) Offer and acceptance (ījāb and qabūl): The majority of jurists associate offer with the owner (mālik) of the object, and acceptance with the party to whom ownership or possession of that object (or usufruct) is transferred. The Hanafites placed greater importance on the order of occurrence, declaring the first proposition seeking to contract to be the offer, and the second in chronological order to be the acceptance. Key to any contract is the presence of rida wholehearted consent without any trace of coercion whatsoever…

(c) The locus [subject-matter] of the contract: It is largely because of the existence of a variety of contractual objectives and aims that several types of contract have come to be recognized. These range from objects to be sold and bought, to those gifted, pawned, loaned, hired or rented. As we shall see, in contracts of sale, not only must the object be in existence (with the single exception of the salam contract) but its characteristics must also be known with a great deal of specificity.” [1]

A Saheeh, Baatil or Faasid Contract

Islamic contracts can be classified as either Saheeh (correct), Baatil (invalid) or Faasid (defective).

A saheeh contract is one in which the Arkaan (pillars) and Shuroot (conditions) are correct. So a saheeh marriage contract (nikah) would be one with the choice and consent of the man and woman, both of who are Muslim, or the woman is from the people of the book, the correct number and type of witnesses, permission from the wali ul-amr (guardian) and a specified mahr (dowry).[2]

A baatil contract is one in which a rukn (pillar) was missing. Such a contract cannot be rectified and is null and void. So a baatil marriage contract is one in which a Muslim woman marries a non-Muslim man.

A faasid contract is one in which a condition does not violate the Arkaan of the contract, and this condition can be rectified. [3] So a faasid marriage contract is one in which the mahr was not specified. The amount of the mahr can be specified after the marriage, turning the contract from faasid to saheeh.

The Hanafis says: “The Aqd (contract) that is not Saheeh is divided into two categories: The Baatil and the Faasid. If the deficiency or violation occurred in the pillar (rukn) of the contract it would be Baatil and no effects will be built upon this invalid transaction as a consequence of it, like the sale of carrion (Al-Maitah) for example. That is because the ownership of the carrion does not result from it nor does the ownership of its price or value and there is no permissibility in respect to benefitting through the Maitah (carrion) or its price.

If, however, the flaw, violation or deficiency (Khalal) occurred in one of the conditions (shart) of the contract then the ‘Aqd would be Faasid and some effects would be consequential to it like the contraction of the marriage without the specification of the Mahr. That is because the consequences of the Saheeh (valid) marriage are built upon it whilst the Fasaad (corruption or corrupted element) is removed by specifying the Mahr.”[4]


Notes


[1] Wael b. Hallaq, ‘Sharia: Theory, Practice, Transformations,’ Cambridge University Press, 2009, p.239

[2] Taqiuddin an-Nabhani, ‘The Social System in Islam,’ 3rd Edition, 1990, Al-Khilafah Publications, p.127

[3] Muhammad Hussein Abdullah, ‘Al-Waadih Fee Usool ul-Fiqh,’ p.364

[4] Ibid, p.366

What is the Bay’ah?

The bay’ah or pledge of allegiance, is a ruling contract which governs the relationship between Muslims and the Islamic state. For those Muslims living under the authority of the state, the bay’ah is their citizenship contract with its ruler – the Khaleefah.

The bay’ah is the method of appointing the Khaleefah and legitimising his rule. It must be given with the consent of the ummah, who are free to choose whomever they wish to rule them, within the boundaries of the sharia rules. If the bay’ah and its conditions are absent, then the Khaleefah has no authority to rule and will be considered a usurper. From the time of Abu Bakr to the last Khaleefah Abdul-Majed II, the bay’ah was always present and legally convened, albeit misapplied for much of Islamic history.

If we look back to Islamic history, most of the major political problems and fitan (tribulations) that occurred, can be traced back in some way or the other to the misapplication of the bay’ah. It’s the misapplication of the bay’ah that distinguishes a rightly guided Khilafah from mulk (monarchy), and it’s the misapplication of the bay’ah which sowed the seeds of the sunni shia schism which lasts to this day.

Hundreds of thousands of Muslims needlessly lost their lives throughout the centuries in civil wars over who should govern the Muslims. Mu’awiya’s decision to appoint his son Yazid as the next Khaleefah after him, without the consent of the sahaba, transformed the Khilafah in to mulk, not in the sense of the Khaleefah being sovereign like an absolute monarch or king, but in the characteristics of a monarchy like hereditary rule and abuse of power. This was prophesised by the Messenger of Allah ﷺ who said,

تكون الخلافة ثلاثين سنة ثم تصير ملكا

“The Khilafah will be for thirty years. Then it will become mulk (monarchy).”[1]

Eric Hanne mentions, “A case in point were the difficulties inherent in the Buyid, Saljuq, and Abbasid household politics. The familial-confederacy system, although irrevocably linked to the cousin-clan tradition from which both dynasties arose, was an inherently volatile form of rule. Baha’ al-Dawla rose to power only after he had earned the position through a protracted struggle with his relatives. To secure his rule he had to maintain this effort, a process that involved recognizing the status of such older relatives as Fakhr al-Dawla, and simultaneously bolster his own position in the region partly through the deposition of al-Ta’I’ and the installation of al-Qadir in Baghdad. Upon Baha’ al Dawla’s death, however, his lands, and those of the other Buyids in the region, experienced a prolonged series of conflicts among the various Buyid sons, brothers, and uncles.

The Saljuq system, although initially more successful than that of the Buyids, fell victim to the same centrifugal tendencies. After the relatively “cohesive” reigns of Tughril Bek, Alp Arslan, and Malikshah, the central Islamic lands experienced almost a century of constant warfare among the rival claimants to the Saljuq sultanate.”[2]

Does Islam have a ruling system?

This question was never on the minds of the Muslims because to them the Islamic ruling system of Khilafah was an inseparable part of Islam. The Prophet ﷺ said, “Whoever removes himself from the Jama’at [the unified Muslim Ummah] by a handspan then he has taken Islam from his neck until he returns.”  And he ﷺ said, “Whoever dies and does not have an Imam of the Jama’at over him then his death is a death of jahiliyah.”[3]

Abu Hurairah said: “By the One Whom there is no god but him, if Abu Bakr had not been appointed as Khaleefah then Allah would not have been worshipped.”[4]

Mona Hassan says, “For many Muslims, the caliphate even constituted a symbol of Islam itself, one deeply embedded in a rich intellectual and cultural discourse that could readily evoke a sense of the wider community’s glory, righteousness, and esteem.”[5]

Israel Gershoni and James Jankowski said: “In much of the Islamic world by the beginning of the twentieth century, identity as a Muslim had come to mean political solidarity with the Ottoman Empire and manifested itself in declarations of allegiance to its Sultan/Caliph, acceptance of its theoretical authority as an alternative to final subjection by Europe, and support for it in the international crises in which it was involved.”[6]

During the last period of the Abbasid Khilafah, the power of the Khulufa’ was limited to a near ceremonial role, with the Saljuq Sultans retaining actual executive power[7]. Imam Ghazali commented on this situation, and whether the ulema should declare the Khilafah (Imamah) void due to the Khaleefah’s loss of executive power. He said, “So which situation is better, to say that the judges are discharged and public functions are invalid and marriages cannot be contracted and all the transactions of the holders of public office across the world cannot be implemented and that all creation is engaged in what is forbidden, or to say that the imamate is contracted and that transactions and public functions can be implemented based on contemporary circumstances and necessity?!”[8] We will come back to this question later. Does the bay’ah become batil (void) or fasid (defective) in a situation where the Khaleefah ’outsources’ his executive power to a wazir or sultan?

The abolition of the Khilafah on 3rd March 1924 (28 Rajab 1342H) in Turkiye sent shockwaves across the Muslim world. On 19th March 1924, the Albanian newspaper Shpresa Kombëtare expressed a common sentiment among the ummah: “At the time of the Young Turk Revolution in Constantinople Sultan [Abdül-] Hamid was dethroned, but no one suspected that bold commencement would end by wiping out, not only the Imperial House and the ancient might of the House of Osman, but would also drive out of Turkey that which for three hundred million Moslems is the religious centre of their lives.”[9]

The early 20th century reformists and orientalists worked hard to undermine the Khilafah in the minds of the Muslims. One such reformist – Ali Abdel Razek – living under British rule in occupied Egypt, wrote a book called ‘Islam and the Foundations of Governance’ published in 1925. He said, “If the establishment of a state had indeed been part of his appointed purpose, how could he have left it so vague that the Muslims, finding themselves completely in the dark [after his death], fell to killing one another? Why did he not address the problem of succession or the head of state when holders of power always and everywhere regard it as a duty to settle this question as a matter of priority? How could he have left his people in such utter confusion as that which swept over them and instantly plunged them into the most vicious violence even before they could see his body to the grave?”[10] His attempt to undermine the Khilafah and the ongoing efforts at the time to resurrect it, led to his excommunication from Al-Azhar by the ulema.

The British orientalist Thomas Arnold said, “The Prophet Muhammed nominated no successor. It would be idle to speculate why with his genius for organization he neglected to make such provision for the future of the new religious community he had founded.”[11]

These shallow arguments are easily debunked by the sahih hadith on the bay’ah which we will discuss in due course, and the ijma (consensus) of the sahaba who acted according to these hadith upon the death of the Messenger ﷺ. One such hadith which is agreed upon (متفق عليه) by Bukhari and Muslim is:

كَانَتْ بَنُو إِسْرَائِيلَ تَسُوسُهُمُ الأَنْبِيَاءُ كُلَّمَا هَلَكَ نَبِيٌّ خَلَفَهُ نَبِيٌّ وَإِنَّهُ لاَ نَبِيَّ بَعْدِي وَسَتَكُونُ خُلَفَاءُ فَتَكْثُرُ ‏‏قَالُوا فَمَا تَأْمُرُنَا قَالَ فُوا بِبَيْعَةِ الأَوَّلِ فَالأَوَّلِ وَأَعْطُوهُمْ حَقَّهُمْ فَإِنَّ اللَّهَ سَائِلُهُمْ عَمَّا اسْتَرْعَاهُمْ

“The prophets ruled over the children of Israel, whenever a prophet died another prophet succeeded him, but there will be no prophet after me. There will soon be Khulafaa’ and they will number many.” They asked; “What then do you order us?” He said: “Fulfil the bay’ah to them, one after the other, and give them their dues for Allah will verily account them about what he entrusted them with.”[12]

“According to Ibn Taymiyyah’s analysis [of this hadith], the acknowledgment of a future multitude of caliphs indicates that there would be more caliphs than just the first few righteous ones (since they alone could not be considered “many”). The Prophet’s instruction to be loyal to one’s pledge of allegiance to whoever had assumed the caliphate first also suggested to Ibn Taymiyyah that, unlike the time of the Rightly Guided Caliphs, succession would later become a matter of dispute. Ibn Taymiyyah further regards the Prophet’s injunction to respect the rights of those later caliphs, who would eventually be taken to task by God for their shepherding of the Muslim community, as evidence supporting the Sunni position of recognizing temporal political authority.”[13]

After the death of the Prophet ﷺ, the senior sahaba gathered and elected Abu Bakr as the first Khaleefah, by giving him the bay’ah. Abu Bakr then organised the state according to the same ajhizat (structure) established by the Prophet ﷺ. This proves that Islam has a detailed ruling system which is the Khilafah. For further information please read History of the Islamic State’s Institutions

Who is the Khaleefah?

The Khaleefah (Caliph) or Imam is the head of the Khilafah or Islamic State. The scholars have formally defined this institution as: “The Khilafah (Caliphate) is the general leadership over all the Muslims, in the whole world, whose responsibility is to implement the laws of Islam, and to convey the Islamic Message to the whole world. It is also known as the Imamah (Imamate), so Imamah and Khilafah are synonymous,”[14] and “Imamate is prescribed to succeed prophethood as a means of protecting the deen and of managing the affairs of this world. There is a consensus of opinion that the person who discharges the responsibilities of this position must take on the contract of Imamate of the Ummah.”[15]

A Khaleefah cannot exist without a Khilafah and vice-versa, because the Khaleefah is the state. The title ‘Khaleefah’ is not important, but the function of the post is, which is a leader ruling by Islam over a land (dar) whose security is in the hands of the Muslims i.e. dar ul-Islam, with a legitimate bay’ah from the Muslim ummah. This is the criteria against which we assess rulers and states. As an example, King Salman of Saudi Arabia is called a king and Mu’awiya was called a king, but Mu’awiya was a Khaleefah with a legitimate bay’ah whereas King Salman is not a Khaleefah, because the bay’ah given to him is batil (void) due to him not ruling by Islam.

The Khilafah is a general leadership (Riyaashah ‘Aammah)[16], because the Khaleefah is the Ameer of Ameers, and sits above all the leadership positions in the state.

Ruling Contracts

Allah (Most High) revealed a detailed system for governing the relationships between people. These relationships are known as the mu’amilaat (transactions) and account for the largest section of Islamic Fiqh. The contract (‘aqd) is a fundamental concept in mu’amilaat for defining these relationships. Allah (Most High) says,يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَوْفُوا۟ بِٱلْعُقُودِ “O you who believe, fulfil your contracts.”[17]

The relationship of marriage between men and women is governed by the contract of Nikah. The relationship of trade is governed by the contract of Al-Bay’, and the relationship of establishing companies is governed by the contract of Sharika (partnership) and so on.

The relationships of ruling are no different. They are governed by three specific contracts which are:

1- Bay’ah (بَيْعَة) – contract between the Muslims and the Khaleefah

2- Dhimmah (ذِمَّة) – contract between the non-Muslim citizens and the Khaleefah

3- Mu’aahadah (مُعاهَدَة) – treaty between other states and the Khaleefah

Our concern here is with the bay’ah which is a contract between two parties – the Muslims and the Khaleefah who is head of the Islamic State or Khilafah.

Difference between ‘aqd and ‘ahd

In this series on the bay’ah, two terms will be used for ruling contracts – ‘aqd (عقد) and ‘ahd (عهد). Both have similar meanings, but ‘aqd is more appropriate for the bay’ah, and ‘ahd more appropriate for the succession contract. In Islamic history the succession contract which governed who would be the next Khaleefah, became known as the Wiliyatul-‘Ahd based on the ‘ahd of Abu Bakr nominating Umar as his successor. Abu Bakr summoned Uthman to him in private and said to him, “Write, ‘In the name of Allah, the Merciful, the Most Merciful. This is the ‘ahd which Abu Bakr bin Abi Quhafah has enjoined on the Muslims. Now then…’”[18] Treaties with other nations are also a derivative (form III) of ‘ahd called mu’ahadaat (المعاهدات).

What is the meaning of bay’ah?

Linguistically bay’ah (بَيْعَة) is derived from the verbal noun[19] البيع which means “selling or purchasing”.[20] Form III of this verb بايع means “to contract” or “pledge allegiance”.[21]

The sharia texts (Qur’an and Sunnah) have assigned a different meaning to the word بَيْعَة which is – the contract between the Muslim Ummah and the Khaleefah. This contract stipulates that the Khaleefah must rule by Islam and the Ummah must obey the Islamic laws he adopts. This is why bay’ah only existed in the Islamic State of Madinah or in relation to assuming authority in Madinah (1st and 2nd pledges of Al-Aqaba). Prior to this, anyone who became Muslim in Makkah simply attested to the shahada, أشهد أن لا إله إلا الله وأشهد أن محمدا رسول الله and by doing so obeying the Messenger ﷺ was obliged upon them in his ﷺ capacity as a Prophet and Messenger. Allah (Most High) says in Surah Al-Jinn, a Makki surah,

وَمَن يَعْصِ ٱللَّهَ وَرَسُولَهُۥ فَإِنَّ لَهُۥ نَارَ جَهَنَّمَ خَـٰلِدِينَ فِيهَآ أَبَدًا

“As for him who disobeys Allah and His Messenger, he will have the Fire of Hell, remaining in it timelessly, for ever and ever.”[22]

After the Messenger of Allah ﷺ assumed authority in Madinah, he was acting in his capacity as a ruler of a state and this is the reason obedience is restated in the bay’ahوَلَا يَعْصِينَكَ فِي مَعْرُوفٍ “or disobey you in respect of anything right”.[23] In his capacity as a Prophet and Messenger, he ﷺ was infallible and would never order anything except that which is right. But in his ﷺ capacity as a ruler he acted differently. The Messenger of Allah ﷺ said: “…I verily would wish to meet Allah Azza wa Jall without anyone claiming from me for an act of injustice I had committed against him be it blood or money.”[24]

Abdul-Qadeem Zaloom mentions, “This clearly indicates that he ﷺ held two posts: Prophethood, together with Messengership and the leadership over all the Muslims in the world in order to establish the Shari’ah of Allah which He revealed to him ﷺ. He ﷺ performed each task in accordance with that which the task itself required, acting differently in each role. He ﷺ took the Bay’ah to rule upon the Muslims in ruling. He took it from men and women but not from children who had not yet reached puberty. This only confirms that it was a Bay’ah over ruling and not over Prophethood.”[25]He also says,“Thus his execution of ruling does not require infallibility as such, but in reality he ﷺ was infallible because he was a Prophet and a Messenger.”[26]

The Khaleefah therefore succeeds the Prophet ﷺ in ruling not prophethood, as the temporal head of the ummah.

Ibn Khaldun says, “It should be known that the bay’ah is a contract to render obedience. It is as though the person who renders the oath of allegiance made a contract with his Ameer, to the effect that he surrenders supervision of his own affairs and those of the Muslims to him and that he will not contest his authority and that he will obey him by (executing) all the duties with which he might be charged, whether agreeable or disagreeable.

When people rendered the oath of allegiance to the Ameer and concluded the contract, they put their hands into his hand to confirm the contract. This was considered to be something like the action of buyer and seller (after concluding a bargain). Therefore, the oath of allegiance was called bay’ah, the infinitive of bâ‘a ‘to sell (or buy)’. The bay’ah was a handshake. Such is its meaning in customary linguistic terminology and the accepted usage of the religious law.”[27]

Are there any other meanings of bay’ah?

Since bay’ah has a linguistic meaning of making a pledge, it is sometimes used for pledging to other than the Khaleefah. In Sufism for example, bay’ah is used for a mureed (seeker of spiritual knowledge) who attaches himself to a sheikh who teaches him. Bay’ah here is used in the linguistic sense and means making an oath of commitment.

After the Umayyad ‘Khaleefah’ Mu’awiya ibn Yazid (64H/683CE) died, the Muslims in the provinces elected Ameers to rule over them until a new Khaleefah had been appointed. The term bay’ah was used here for this pledge to the Ameer. Tabari mentions,

و الضحاك بن قيس الفهرى قد بايعه أهل دمشق على أن يصلى بهم و يقم لهم أمرهم حتى يجتمع أمر أمة مح مد[28]

“The people had given bay’ah to al-Dahhak bin Qays al-Fihri on the understanding that he should lead them in prayer and manage their affairs until the question of authority over the community of Muhammad had been settled.”[29]

Bay’ah was also used in the Umayyad period for the wali ul-ahd (succession contract). This started with Mu’awiya who took ‘bay’ah’ for his son Yazid while he was still in office. It was well known during that period that bay’ah can only be given to one Khaleefah at a time. Abdullah ibn az-Zubayr said to Mu’awiya regarding him taking bay’ah for Yazid, “Allegiance to both of you can never be combined.”[30]This is based on the famous hadith, إِذَا بُويِعَ لِخَلِيفَتَيْنِ فَاقْتُلُوا الآخَرَ مِنْهُمَا “When bay’ah has been taken for two Khaleefahs, kill the latter of them.”[31]So although the word bay’ah was used by Mu’awiya and subsequent Khulufa’, it actually means wali ul-ahd.

Is bay’ah on belief or action?

The 9th year of the Hijrah is known as the ‘Year of the Delegations’ (سنة الوفود), in which each Arab tribe sent a group of representatives to meet with the Prophet ﷺ in Madinah. Apart from the Christians of Najran who chose to remain on their religion and pay the jizya, the rest of the Arab tribes accepted Islam and gave their bay’ah to the Prophet ﷺ. Since the bay’ah for many of these tribes and individuals was given at the same time as accepting Islam, this may lead someone to the conclusion that the bay’ah is related to belief, and withdrawing bay’ah is apostasy.

In response to this, bay’ah is related to ruling which is an action, and those who give bay’ah are already Muslim. The evidences for this are as follows.

1- Bay’ah is always taken from a believer

Allah (Most High) says:

يا أَيُّهَا النَّبِيُّ إِذا جاءَكَ المُؤمِناتُ يُبايِعنَكَ

“O Prophet! When women who have iman come to you pledging allegiance to you…”[32]

لقد رضي الله عن المؤمنين إذ يبايعونك تحت الشجرة

“Allah was pleased with the believers when they pledged allegiance to you under the tree.”[33]

إِنَّ الَّذينَ يُبايِعونَكَ إِنَّما يُبايِعونَ اللَّهَ

“Those who pledge you their allegiance pledge allegiance to Allah.”[34]

When the Prophet ﷺ met members of the Al-Khazraj tribe at Hajj, two years before the hijra, six converted to Islam but there was no bay’ah. The following year ten members of Al-Khazraj and two from Al-Aws met with the Prophet ﷺ at Hajj and all were Muslim. When the Prophet ﷺ saw that their number had increased, and that they had started to convert members of their traditional enemy the Al-Aws tribe, he ﷺ saw a potential for gaining authority in Yathrib, so he ﷺ took the first bay’ah of Al-Aqaba from them, and then despatched Mus’ab ibn Umayr to prepare the society of Yathrib for Islam.

2- Bay’ah is not taken from a child whereas belief in Islam is accepted from a child

Zainab bint Humair took her son ‘Abdullah Ibn Hisham to the Messenger of Allah ﷺ and said: يَا رَسُولَ اللَّهِ بَايِعْهُ‏ ‘O Messenger of Allah! Take his Bay’ah’. The Prophet ﷺ said: هُوَ صَغِيرٌ “He is young”, so he stroked his head and prayed for him.[35]

Zubair ibn Al-Awwam asked his son Abdullah ibn Zubair to go to the Messenger of Allah ﷺ to give the bay’ah.

ثُمَّ جَاءَ وَهُوَ ابْنُ سَبْعِ سِنِينَ أَوْ ثَمَانٍ لِيُبَايِعَ رَسُولَ اللَّهِ صلى الله عليه وسلم وَأَمَرَهُ بِذَلِكَ الزُّبَيْرُ فَتَبَسَّمَ رَسُولُ اللَّهِ صلى الله عليه وسلم حِينَ رَآهُ مُقْبِلاً إِلَيْهِ ثُمَّ بَايَعَهُ

“He (Abdullah) went to him ﷺ when he had attained the age of seven or eight years in order to pledge allegiance to Allah’s Messenger ﷺ as Zubair had commanded him to do. Allah’s Messenger ﷺ smiled when he saw him coming towards him and then accepted his allegiance.”[36]

Nawawi comments on this saying, هَذِهِ بَيْعَة تَبْرِيك وَتَشْرِيف لَا بَيْعَة تَكْلِيف “This is a bay’ah of blessing and honor, not a bay’ah of (shar’i) responsibility.”[37]

This is different to accepting Islam, because reaching puberty is not a condition for becoming Muslim. We know from the seerah that Ali ibn Abi Talib was the first boy to accept Islam and he hadn’t reached puberty. Ibn Kathir says, “And the first boy to accept Islam was Ali ibn Abi Talib; he was young then and had not reached puberty – as generally believed.”[38]

3- A Bedouin requested to be relieved of his bay’ah and wasn’t executed for apostasy

A Bedouin came to the Prophet ﷺ and said, بَايِعْنِي عَلَى الإِسْلاَمِ‏ “Please take my bay’ah for Islam.” So the Prophet took from him the bay’ah for Islam. He came the next day with a fever and said to the Prophet ﷺ أَقِلْنِي “Cancel my pledge.” But the Prophet ﷺ refused and when the Bedouin went away, the Prophet said, الْمَدِينَةُ كَالْكِيرِ، تَنْفِي خَبَثَهَا، وَيَنْصَعُ طِيبُهَا “Madinah is like a pair of bellows (furnace): It expels its impurities and brightens and clears its good.”[39]

Abdul-Qadeem Zaloom comments on this hadith, “It would be wrong to claim that the Bedouin wanted to leave Islam by seeking relief from his bay’ah rather than the obedience to the Head of State. This is because if this had been the case, his act would have been considered as apostasy, and the Messenger of Allah ﷺ would most certainly have killed him, since the punishment for the apostate is killing. The bay’ah itself is not a bay’ah for embracing Islam but for obedience. Therefore, the Bedouin wanted to rid himself from his oath of obedience, not to apostasise.”[40]

So coming back to the original point that the tribes and individuals in Madinah gave bay’ah at the same time as accepting Islam, what actually happened was the bay’ah was combined, or made at the same time as the shahada to accept Islam. This is evident from Khalid bin Walid’s conversion to Islam, as narrated in the Seerah of Ibn Hisham where Khalid first accepted Islam (submitted) and then gave the bay’ah.

فَتَقَدَّمَ خَالِدُ بْنُ الْوَلِيدِ ، فَأَسْلَمَ وَبَايَعَ

“So Khalid bin Walid came forward and submitted, then gave bay’ah.”[41]

Two parts of the bay’ah

The bay’ah can be split into two parts:

1- Bay’ah of Contract (بيعة الانعقاد)

2- Bay’ah of Obedience (بيعة الطاعة)

The reason for this split is because the bay’ah is a contract of one-to-millions i.e. between the Khaleefah and the Muslim ummah. This is different to other Islamic contracts which are one-to-one such as buying, selling and marriage. This therefore poses a challenge on how you get the consent of millions of people which is a condition in Islamic contracts. It’s not possible for every Muslim to participate in the election of the Imam, which is why in the rightly guided Khilafah of the sahaba, the senior representatives of the people would contract the bay’ah to the Khaleefah. The rest of the Muslims would accept their opinion and rush to pledge their bay’ah to the newly appointed Khaleefah. 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.[42] 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.”[43]

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.”[44]

The sharia has not defined who the Ahlul hali wal-aqd or people’s representatives are. This falls under manat ul-hukm (reality the rule is applied to) and will vary through the ages. We will come back to this point later.

The bay’ah of contract is the actual contracting ceremony where the Khaleefah is appointed. This is referred to by some as the private bay’ah(bay’at al-khassa)Once its concluded, the Khaleefah is the new ruler, and he must fulfil the conditions of his contract which is primarily ruling by Islam. The Muslims must also fulfil their side of the contract which is obedience.

The bay’ah of obedience, also referred to as the public bay’ah (bay’at al-‘amma)is not another bay’ah. It is simply the Muslims publicly confirming their side of the existing bay’ah contract, which is obedience. In fact, the bay’ah of obedience can be given multiple times, and the Khaleefah can demand it from the Muslims if he so wishes. This is similar to what some westerners do when they renew their marriage vows. They are still contractually married, but renew their vows with each other to reconfirm and celebrate their relationship.

Abdul-Qadeem Zalloom says, “Therefore, the Khilafah is contracted if the Bay’ah was taken from those who represent the majority of the Islamic Ummah that lives under the authority of the (last) Khaleefah, in whose place another Khaleefah is sought to be appointed, as it was the case at the time of the Khulafaa’ Ar-Rashidoon. Their Bay’ah would constitute a Bay’ah of contract, while for the others, once the Khilafah has been contracted; their Bay’ah would be classed as a Bay’ah of obedience, i.e. a Bay’ah of allegiance to the Khaleefah and not a Bay’ah of contract.”[45]

The election of the first Khaleefah in Islam – Abu Bakr As-Siddiq clearly illustrates the two parts of the bay’ah. After the Prophet Muhammad ﷺ passed away, the senior sahaba from the Muhajireen and Ansar who were the Ahlul hali wal-aqd, met in the saqeefa (portico) of the Sa’ida clan of the Al-Khazraj tribe to appoint a new head of state. A heated debate ensued, and then Abu Bakr was selected and given the bay’ah, becoming the first Khaleefah of Islam. This is the bay’ah of contract. The next day the Muslims of Madinah gathered in the Masjid and Abu Bakr’s appointment was announced. They then came one by one giving him the bay’ah by shaking his hand. Messengers were dispatched to the various provinces, and the Muslims living there gave bay’a via their governors.[46] Abdul-Qadeem Zalloom says, “Thus the first Bay’ah of the Saqeefah was the Bay’ah of contract, while the Bay’ah of the Masjid, on the next day, was that of obedience.”[47]

The two bay’ah ceremonies continued throughout the Khilafah and this is shown in the bay’ah to the Abbasid Khaleefah Al-Qadir. Hanne says, “Going beyond the concerns of regional and household politics, however, the events surrounding al-Qadir’s rise to the Caliphate also shed light on the procedural issues surrounding the installation of new caliphs. Al-Qadir was required to participate in two bay’a ceremonies, the first the bay’at al-khassa (private bay’a), generally limited to the household and members of the new caliphal administration and court, and the second one, the bay’at al-‘amma (public bay’a), a general audience in which the people were allowed to give their oath of allegiance to the new caliph. The final phase of the procedure with regard to Baha’ al-Dawla and al-Qadir included an officially witnessed ceremony wherein both leaders swore mutual oaths of fealty to one another. [48]

Evidence for the Bay’ah

The Bay’ah of Contract is Fard Al-Kifayah (a collective obligation)[49]. Although it is the right of every Muslim man or woman to participate in contracting the Khaleefah, it is not obligatory for them to practice this right, as long as some from among the ummah are engaged in this. As mentioned before, those involved in contracting the bay’ah are the Ahlul hali wal-aqd who represent the opinion of the Muslims at large. The bay’ah of obedience on the other hand is Fard Al-‘Ain (an individual duty).

The evidence for the bay’ah being an obligation is from the sunnah. The Prophet ﷺ said,

كَانَتْ بَنُو إِسْرَائِيلَ تَسُوسُهُمُ الأَنْبِيَاءُ كُلَّمَا هَلَكَ نَبِيٌّ خَلَفَهُ نَبِيٌّ وَإِنَّهُ لاَ نَبِيَّ بَعْدِي وَسَتَكُونُ خُلَفَاءُ فَتَكْثُرُ ‏‏قَالُوا فَمَا تَأْمُرُنَا قَالَ فُوا بِبَيْعَةِ الأَوَّلِ فَالأَوَّلِ وَأَعْطُوهُمْ حَقَّهُمْ فَإِنَّ اللَّهَ سَائِلُهُمْ عَمَّا اسْتَرْعَاهُمْ

“The prophets ruled over the children of Israel, whenever a prophet died another prophet succeeded him, but there will be no prophet after me. There will soon be Khulafaa’ and they will number many.” They asked; “What then do you order us?” He said: “Fulfil the bay’ah to them, one after the other, and give them their dues for Allah will verily account them about what he entrusted them with.”[50]

The commandفُوا بِبَيْعَةِ “Fulfil the bay’ah to them” is an obligation because of the decisive qareena (indication) found in many other hadith such as:

It has been reported on the authority of Nafi’, that Abdullah ibn Umar paid a visit to Abdullah ibn Muti’[51] in the days (when atrocities were perpetrated on the People of Madinah) at Harrah in the time of Yazid ibn Mu’awiya. Ibn Muti’ said: ‘Place a pillow for Abu ‘Abd al-Rahman (family name of ‘Abdullah b. ‘Umar). But the latter said: I have not come to sit with you. I have come to you to tell you a tradition I heard from the Messenger of Allah ﷺ. I heard him say:

 مَنْ خَلَعَ يَدًا مِنْ طَاعَةٍ لَقِيَ اللَّهَ يَوْمَ الْقِيَامَةِ لاَ حُجَّةَ لَهُ وَمَنْ مَاتَ وَلَيْسَ فِي عُنُقِهِ بَيْعَةٌ مَاتَ مِيتَةً جَاهِلِيَّةً

“Whoever withdraws his hand from obedience (to the Ameer) will find no argument (in his defence) when he stands before Allah on the Day of Judgment, and whoever dies while having no bay’ah on his neck he dies the death of Jahiliyah.”[52]

Also narrated by Abdullah ibn Umar through Nafi’ that the Prophet ﷺ said:

” من خرج من الجماعة قيد شبر فقد خلع ربقة الإسلام من عنقه حتى يراجعه ” قال : ” ومن مات وليس عليه إمام جماعة فإن موتته موتة جاهلية

“Whoever removes himself from the Jama’at [the unified Muslim Ummah] by a handspan then he has taken Islam from his neck until he returns.” [and] he ﷺ said, “Whoever dies and does not have an Imam of the Jama’at over him then his death is a death of jahiliyah.”[53]

The phrase “death of jahiliyah”doesn’t mean the person is a disbeliever, because the subject matter of the hadith is action not iman. In usul ul-fiqh (the science which governs the actions of people), any text of the Qur’an and Sunnah related to actions which negate Iman, is considered a decisive qareenah which indicates an obligation or prohibition, not kufr.[54]

Muhammad Hussein Abdullah says under the chapter “Qaraa’in (connotations or linking indications) that establish Al-Jazm (decisiveness) in the Amr (command)” that “If the Daleel (evidence) indicates that leaving or not doing the action has a punishment built upon that in the Dunya (the life of this world) or in the Akhirah (the hereafter), or the hate (detestation) or anger of Allah is attached to it or the negation of Imaan (belief).”[55]

This is similar to the hadith where the Messenger of Allah ﷺ said,

إِذَا قَالَ الرَّجُلُ لأَخِيهِ يَا كَافِرُ فَقَدْ بَاءَ بِهِ أَحَدُهُمَا

“If a man says to his brother, O Kafir! Then surely one of them is such.”[56]

This doesn’t mean the man saying this is a kafir. Rather it means because it is related to an action it is a decisive qareenah that saying to a believer “O Kafir” is a major sin.

Abu Ubayd al-Qaasim ibn Sallam (d.224H/838CE) comments on such hadith saying, “These reports are not to be interpreted as meaning that the one who commits sin is to be labelled as belonging to the people of jahiliyah, a kafir or a hypocrite when he believes in Allah and the message sent by Him, and he fulfils the obligatory duties. What these reports mean is that these sins are part of the actions of the kuffar which are forbidden in the Qur’an and Sunnah, so that the Muslims can avoid these things and steer clear of them, and not imitate the kuffar in any of their attitudes or ways.”[57]

These two hadith are clear in that it is Fard Al-‘Ain for all Muslim men or women to have a bay’ah on their neck because of the generality indicated in the use of من (whoever). In other words, they are bound by the bay’ah of obedience, even if they were not part of the process to contract the bay’ah to the Khaleefah.

The second hadith explains what is meant by the metaphor “having no bay’ah on his neck” with the words “does not have an Imam of the Jama’at over him”. [58] Therefore establishing the Khilafah today is an obligation based on the sharia principle “whatever leads to a wajib (obligation) is itself wajib”.[59]Abdul-Qadeem Zalloom says, “The obligation therefore, is the existence of a bay’ah on the neck of every Muslim. This necessitates the existence of a Khaleefah, who, through his existence, is entitled to a bay’ah (on the neck of every Muslim). Thus, the existence of the Khaleefah is the issue that necessitates a bay’ah on the neck of every Muslim, whether he actually gave the bay’ah [in person] or not.”[60]


More in this series (coming soon):

The Bay’ah Contract

Misapplication of the Bay’ah

Who contracts the Bay’ah?

The Designated Successor (Wali ul-Ahd)

Bay’ah in Islamic History: The Islamic State of the Prophet (saw)

Bay’ah in Islamic History: The Rightly Guided Khilafah

Bay’ah in Islamic History: The Umayyad Khilafah

Bay’ah in Islamic History: The Abbasid Khilafah

Bay’ah in Islamic History: The Abbasid Khilafah within the Mamluk Sultanate

Bay’ah in Islamic History: The Ottoman Khilafah


Notes


[1] https://www.islamweb.net/ar/library/index.php?page=bookcontents&flag=1&ID=6074&bk_no=22 The hidden pronoun (dameer mustatir) in the verb تصير is a هي and it refers back to the word Khilafah. This doesn’t mean the Khilafah will end after thirty years, rather it means the Khilafah will continue but with the characteristics of mulk. Sayf ad-Deen al-Amidi (1156-1233CE) says, “He ﷺ said: ثم تصير ملكا ‘then it will become a mulkan’. The personal pronoun (dameer) in تصير ملكا ‘taseeru mulkan’ refers to the Khilafah. Since the mentioned (verb) cannot refer to anything other than the Khilafah, it’s as if it is saying ‘and then the Khilafah becomes a mulk’. It judged that the Khilafah will become a mulk, where the judgment on a thing requires that the thing itself still exists.” [Sayf ad-Deen al-Amidi, ‘al-Imaamah min abkar al-afkar fi usul ad-din,’ p.306; Kamal Abu-Zahra, ‘The Centrality of the Khilafah in Islam,’ p.48]

[2] Eric J. Hanne, ‘Putting the Caliph in His Place: Power, Authority, and the Late Abbasid Caliphate,’ 2007, Fairleigh Dickinson University Press, p.205

[3] Al-Hakim, Al-Mustadrak, 267

[4] Jalal ad-Din as-Suyuti, ‘The history of the Khalifahs who took the right way’, translation of Tareekh ul-Khulufaa, Ta Ha Publishers, p.63

[5] Mona Hassan, ‘Longing for the Lost Caliphate,’ Princeton University Press, 2016, p.13

[6] Israel Gershoni and James Jankowski, Egypt, Islam, and the Arabs: The Search for Egyptian Nationhood, 1900– 1930 (NY: Oxford University Press, 1986), 5; Quoted in Mona Hassan, ‘Longing for the Lost Caliphate,’ p.10

[7] This made the bay’ah contract fasid (defective) but NOT batil (void)

[8] Abū Ḥāmid Muḥammad b. Muḥammad al- Ghazālī, al- Iqtiṣād fῑ’l-ʾItiqād, ed. Hüseyin Atay (Ankara: Nur Matbaası, 1962), p.240. Quoted in Mona Hassan, ‘Longing for the Lost Caliphate,’ p.102

[9] T.N.A., F. O. 371/10218/E2823, March 31, 1924; Quoted in Mona Hassan, ‘Longing for the Lost Caliphate,’ p.151

[10] Ali Abdel Razek, ‘Islam and the Foundations of Political Power,’ a translation of Al-Islam Wa Usul Al-Hukm, 1925, Translated by Maryam Loutfi, Aga Khan University-ISMC; Edinburgh University Press, 2013, p.104

[11] Thomas W. Arnold, ‘The Caliphate,’ Oxford University Press, 1924, p.19

[12] Sahih Muslim 1842a, https://sunnah.com/muslim:1842a ; sahih Bukhari 3455, https://sunnah.com/bukhari:3455

[13] Ibn Taymiyyah, Majmūʾ Fatāwā, 35:20; Quoted in Mona Hassan, ‘Longing for the Lost Caliphate,’ p.113

[14] Abdul-Qadeem Zaloom, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.35; Ibn ‘Aabideen also said, “The general leadership (Riyaashah ‘Aammah) in respect to the Deen and the Dunyaa, in successorship (Khilafatan) to the Nabi ﷺ” [Haashiyah Ibn ‘Aabideen: 1/571-572]

[15] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.10

[16] Ibn ‘Aabideen, ‘Haashiyah,’ 1/571-572

[17] Holy Qur’an, Surah al-Maa’ida, ayah 1

[18] al-Tabari, ‘The History of Al-Tabari’, translation of Ta’rikh al-rusul wa’l-muluk, State University of New York Press, Volume XI, pp.147

[19] The grammarians disagreed on the original roots of every derived Arabic word. Some said they are derived from the masdar (verbal noun) as is mentioned here. Others said they are derived from the verb (three-letter roots).

[20] The Hans Wehr Dictionary of Modern written Arabic, fourth edition, p.105

[21] https://corpus.quran.com/documentation/verbforms.jsp

[22] Holy Qur’an, Surah Al-Jinn, ayah 23

[23] Holy Qur’an, Surah Al-Mumtahana, ayah 12

[24] Musnad Ahmad, narrated from Anas

[25] Abdul-Qadeem Zaloom, ‘The Ruling System in Islam,’ Op.cit., p.131

[26] Ibid, p.133

[27] Ibn Khaldun, ‘The Muqaddimah – An Introduction to History,’ Translated by Franz Rosenthal, Princeton Classics, p.268

[28] al-Tabari, ‘Ta’rikh al-rusul wa’l-muluk,’ Arabic Edition, Vol.4, p.409

[29] al-Tabari, Op.cit., Vol. XX, p.48

[30] Jalal ad-Din as-Suyuti, ‘History of the Umayyad Caliphs,’ a translation of Tarikh al-Khulafa’, Translated by Abdassamad Clarke, Ta-Ha Publishers Ltd, p.24

[31] Sahih Muslim 1853, https://sunnah.com/muslim:1853

[32] Holy Qur’an, Surah Al-Mumtahana, ayah 12

[33] Holy Qur’an, Surah Al-Fath, ayah 18

[34] Holy Qur’an, Surah Al-Fath, ayah 10

[35] Sahih al-Bukhari 7210, https://sunnah.com/bukhari/93/70

[36] Sahih Muslim 2146a, https://sunnah.com/muslim:2146a

[37] Imam Nawawi, ‘Sharh Sahih Muslim,’ 14/126

[38] Ibn Kathir, ‘The Life of the Prophet Muhammad,’ translation of Al-Sira al-Nabawiyya,’ pp.314

[39] Sahih al-Bukhari 7216, https://sunnah.com/bukhari/93/76

[40] Abdul-Qadeem Zaloom, ‘The Ruling System in Islam,’ Op.cit., p.125

[41] Sirah An-Nabuwa by Ibn Hisham

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

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

[44] Abu l-Hasan al-Mawardi, Op.cit., p.12

[45] Abdul-Qadeem Zaloom, ‘The Ruling System in Islam,’ Op.cit., p.65

[46] Dr Ali Muhammad As-Sallabi, Op.cit., p.250

[47] Abdul-Qadeem Zaloom, ‘The Ruling System in Islam,’Op.cit., p.86

[48] Eric J. Hanne, Op.cit., p.64

[49] Fard Al-Kifayah means if some Muslims fulfil the duty then the sin is dropped from the rest of the ummah. Janazah prayer is another example of Fard Al-Kifayah.

[50] Sahih Muslim 1842a, https://sunnah.com/muslim:1842a ; sahih Bukhari 3455, https://sunnah.com/bukhari:3455

[51] He was a commander for the Muslims of Madinah who rebelled against Yazid at the battle of al-Harrah. Abdullah ibn Umar had given bay’ah to Yazid, and held a different opinion to ibn Muti’ and those who fought against Yazid at al-Harrah.

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

[53] Al-Hakim, Al-Mustadrak, 267

[54] If the text is applicable to both actions and iman then depending on the context it may indicate kufr such as the ayah, وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَٰئِكَ هُمُ الْكَافِرُونَ “Those who do not judge by what Allah has sent down, such people are kafirun.” [al-Maaida, 44] “if he [Khaleefah] adopted rules from other than the Islamic rules and he knew that what he had adopted was something other than the Islamic Shari’ah then the words of Allah (swt)

“And whosoever rules by other than what Allah has revealed then such are the disbelievers” apply to him, so if he believed in the rule that he adopted then he has committed disbelief and apostatised from Islam.” [Taqiuddin an-Nabhani, ‘An Introduction to the Constitution and its obligation’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 38, p.115]

[55] Muhammad Hussein Abdullah, ‘Al-Waadih Fee Usool ul-Fiqh,’ 1995, First Translated English Edition 2016, p.525

[56] Sahih al-Bukhari 6103, https://sunnah.com/bukhari:6103

[57] Kitaab al-Eemaan by Abu Ubayd al-Qaasim ibn Sallam, p.94; Quoted in Umar al-Ashqar, ‘Belief in Allah in the light of the Qur’an and Sunnah,’ International Islamic Publishing House, p.61

[58] Abu Luqman Fathullah, ‘The Sixty Sultaniyya,’ p.13

[59] Ibid

[60] Abdul-Qadeem Zaloom, ‘The Ruling System in Islam,’ Op.cit., p.36

Pakistan: A Solution to an Ailing Economy

This article has been reproduced from Prophetic Economics

Regarding the Current Economic Situation in Pakistan, it is vital to appreciate that the Global Economy is going through a challenging time; this is not specific to Pakistan. However, Pakistan indeed has systemic issues with its Economy, and that is linked to the inherited Colonial Capitalist Economic System that it follows.

The GDP in Pakistan is 347.75 Billion USD; however, Countries with similar populations like Brazil and Indonesia have done significantly better in terms of Economic Development compared to Pakistan. In Pakistan’s case, the problem of interest-based debt traps that Pakistan is stuck in and combined with inefficient Economic policies have led to an Economic Failure.

The root for all these problems lies in reliance on Capitalist Economic Policies instead of the Islamic Economic Policies based on Divine Guidance – Quran and Sunnah.

A Radical shift in the Economic Policies with a key reset of the system can help free Pakistan from the clutches of the global loan sharks and their interest-based debts and help it develop its Economy in an independent yet robust manner.

Certain Key Points to Consider about the existing Revenue & Expenditure Setup and how it can be solved.

1- Introduction

True Economic Development is not possible through existing Economic Policies. Existing Policies are developed without consideration for authentic Economic Development, rather, it is a patchwork that is intended to serve as temporary solutions without actual scrutiny of the real problems.

Sufficient revenues in the state treasury are essential for looking after the people’s affairs and managing the state expenses, such as the armed forces, health and education. However, in Pakistan’s current system, the Ruling class secure the economic interests  in light of the Capitalist system, so the preference lies in addressing the interests of foreign powers and other influentials in the leadership setup. To achieve this, the World Bank, and IMF in cahoots with the government selectively employ humiliating policies of taxation and privatization. These policies deprive the population of public ownership of vast sources of revenue and then leaves the people to take the burden of the expenses of the state, by imposing an entire host of taxes, that choke economic activity and add to the people’s misery, usurping what private wealth they have left. Taxation on buying food, clothing, shelter, earning, inheritance, administration, health and education, renders them “luxuries” for the “privileged” few, and not guaranteed needs for all.

2- Depriving the society of revenue from public properties

Capitalism, as implemented by Pakistan deprives the state and the general public of huge sources of revenue, through privatization of the public properties, such as oil, gas and electricity. Local and foreign owners of the oil, gas and electricity assets generate huge revenues and sizeable profits from these valuable resources.

Pakistan is endowed with huge reserves of minerals covering an outcrop area of 600,000 sq. Kms.There are 92 known minerals of which 52 are commercially exploited, with a total production of 68.52 million metric tons per year. The country has the world’s second-largest salt mines, fifth largest copper and gold reserves, second largest coal deposits, and estimated billions of barrels of crude oil. Despite huge potential, the contribution of the mineral sector to Pakistan’s GDP is around 3 % and country’s exports are only about 0.1% of the world’s total. In the year 2017, Pakistan’s total mineral exports were 0.5 Billion USD compared to the world’s 401 Billion USD.

From an Islamic perspective, all natural resources belong to the public and cannot be privatized. The Mineral Sector in Pakistan if exploited and developed with the right strategy and planning, has the potential to be a major driving force for Pakistan’s Economy. Mineral sector has been one of the significant source of economic development of a number of developed countries; China, Italy, Turkey, Spain, Brazil etc.

3- Strangling most of the people with taxes, whilst only a few thrive

Under IMF supervision, all the way from before Nawaz Sharifs time followed by Musharraf, continuing under Kayani-Zardari, Pakistan’s Economy has been strangled by huge taxation on earnings and consumption of goods. So, For example consider that total revenues in 1987-88 were Rs. 117,021 million, in 2002/3 they were Rs. 706,100 million and in 2011/12 they were 2,536,752 million. Of this total, direct taxes, which are income tax, property tax and corporate tax, were Rs. 12,441 million in 1987-88, then rose to Rs. 153,072 million in 2002/2 and then again in 2011/12 to Rs. 745,000. This represents an initial jump in direct taxes, from 10% to over 20% of total revenues, and then a further rise to 29% under Kayani and Zardari in 2011/12.

Moreover, income tax alone surged from 17% to 32% of the major state revenues, between 1987-8 and 2002-3. This has meant that the labour force, blue and white collar workers, are facing ever greater hardships, with increased taxation eating away at their wages. Yet the government calls for increased taxation echoing demands of the western colonialist.

Consider also indirect taxes, which are excise, tax on international trade, sales tax, surcharges on gas and petroleum and other taxes such as stamp duties, foreign travel tax, motor vehicle tax were Rs. 81,015 million in 1987/88 and then rose to Rs. 397,875 million in 2002/3. Significantly, under the Musharraf regime, within this category, it is sales tax that surged from 9% in 1987/88 to 43% of the state’s major taxes. It is this sales tax that has made buying medicine, food, inputs for agriculture and industry unbearable for people, choking their ability to contribute to the Economy and secure basic needs. Such taxation naturally leads to the concentration of wealth in the society in the hands of the few, as those at the bottom of the ladder are hit hardest, twice, by what they earn and also what they are able to consume. Over time, this means more collapses within industry and agriculture, leading to a concentration of wealth in the hands of a small fraction of the population.

So after all, capitalism has ensured that the combined revenues of sales tax and income tax alone are over 60% of all the state revenues. This means the major share of the revenues is from usurping the wages of the people and undermining their ability to buy essentials.

In an Islamic system, neither income tax nor sales tax exists, because private property in origin is inviolable. Taxation occurs on surplus wealth beyond that which is needed to secure basic needs and some luxuries, and that too under stringent conditions. What allows this low taxation policy is the fact that the Islamic State has abundant sources of revenues from public and state property, as well as a unique set of laws for revenue generation from agriculture and industry.

4- Expenditure that is biased

Having deprived the Ummah of its rightful revenues and also choked its earnings and ability to buy and produce, the government then takes interest-based loans from the Western countries. These loans are a trap, designed to keep Pakistan in debt so as to strip it of its assets and gravely reduce its ability to stand on its feet as a challenge to the West. Over decades Pakistan has paid $3.66 billion every year, yet has seen its external debts double. And the situation continues to worsen with every decade. Consider the staggering debt to just one foreign institution, at the end of May 2022, debt owed to IMF aggregated up to $6.4 billion. This is money that is taken away from the Economy, looking after the affairs and securing the people’s basic needs. And it is a global injustice, as like Pakistan, many countries have paid back their loans many times over, but remain in debt due to interest and unjust colonialist conditions.

Legal Injunctions: Pertaining to establishing the Economy on a firm footing

1- Revenue and expenses overview

Unlike Capitalism, Islam does not rely on taxation on income and consumption as a dominant means to generate revenue. Its revenue generation is based on accrued wealth beyond the basic needs, as well as upon actual production. Even when the Islamic State does tax, it is with stringent conditions that are based upon accumulated wealth, so it does not penalize the poor and underprivileged who are unable to secure their basic needs. This is possible because partly because of the huge revenue that the state will generate from state-owned and publicly owned enterprises such as energy resources, machinery and infrastructure manufacture and partly through Islam’s unique revenue laws, which increase distribution of the wealth, rather than its concentration.

2- Industry as a source of revenue

The industry will thrive in an Islamic system. It will not be strangled by taxes for all manner of crucial inputs, from energy to machinery. Instead, the state will generate revenue from profits of the trade and accrued trading merchandise. This allows the businesses to focus on production without fetters, whilst circulation is ensured by giving revenues from their profits or accumulated wealth.

3- Agriculture: Kharaaj as a source of revenue does not strangle farmers

Under Islamic rule, the Indian Subcontinent, a predominately agricultural society, produced almost a quarter of the world’s GDP. One of the factors was the concept of Kharaj. Under Kharaj, the neck of the land was owned by all the Muslims, but its use and benefit was with the one who cultivated it. So the one who cultivated it benefited from its production directly. This allowed the circulation of wealth and boosted production. In return for a strong source of livelihood, the Muslims generated revenue from the land for the state, in accordance to its capacity. With the introduction of capitalism, under the British rule, the cultivators were taxed heavily, were forced then to take interest-based loans, subsequently drowned in debt and ultimately had to sell their lands. This was asides from the land seizures by the colonialists for the sake of themselves and their collaborators. Agriculture continues to suffer from capitalism until today, even though Pakistan’s existing agriculture remains world-class in many fields, and has potential to develop far further. The farmers face huge taxation on agricultural inputs from fertilizer, seed, machinery, transport and fuel. Then they are forced to try and increase profits by exports to foreign markets. This in turn drowns Pakistan in suffering by forcing it to make more and more expensive imports of the same grains and crops that it can grow in abundance. In Islam, the revenue generation is not based on taxation of agricultural inputs, but on production from the land, which enables the farmer to maximize the production, without being slowed down by over-expensive inputs.

POLICY: Revenue generation and expenditure to propel a world leading global power

P1. Great revenues generated through public ownership of oil, gas and electricity resources as well as prominent state ownership of the manufacture of heavy machinery and weaponry, etc.

P2. Ending taxation on inputs to industry and agriculture that choke production. Revenue generation from the profits and accrued merchandise of industry, as well as from the production from the land, according to the Shari’ah rulings.

P3. Rejection of the debt to the Western colonialist institutions, whose loans have been repaid many times over due to the oppressive interest. Focusing expenditure on the Shar’i needs of the Muslims and looking after their affairs, including building strong industrial basis, for strength and prosperity.

This is a brief outline of the current reality of the Revenue & Expenditure aspect of the Pakistan Economy and how Islam can solve the problem fundamentally.

The Fiqh of Transitioning to the Gold & Silver Standard

This article has been reproduced from Prophetic Economics

The following are answers to several questions related to the future Dar Ul Islam state and the transition of the current currency to the Gold and Silver Standard.

Question: Is it permissible in Islam for the Dar Ul Islam to partially back its currency during a transitional period on the justification (if it is so) that it does not have the capacity (in reserves) to maintain 100% convertibility. In terms of the US, this would mean that it could partially back (at around 20%) all of its currency at the current rate, without having to change that parity or endure the negative effects associated with this. This would grant it the stability it would need to expand its reserves (through various means) so that it can gradually move towards a 100% backed rate.

Answer: 

For the state to issue a gold and silver based currency it will have to depend on the availability of these metals in its treasuries. In addition to this the state will also have to attain the available gold and silver from the merchants, goldsmiths and the general population apart from attempting to extract the metal from the earth.

And in the situation if it does not has the necessary amount of gold and silver so as to be able to replace the existing currency completely then the state will look at mechanisms to attain the gold and silver from outside the state.

However, considering the reality that we live in today and because of the very limited gold and silver reserves maintained by treasuries and the proliferation of fiat currency, it is very likely that the state will not be able to find the necessary amounts of gold and silver to issue enough currency which can replace the existing currency in any state.

The unavailability of the necessary amount of gold and silver to issue currency is similar to the well-researched and discussed subject among the scholars, which is called ‘انقطاع النقد’ among the scholars which is the reality when a currency runs out in a marketplace.

This is a reality that often occurred in the Muslim market places where people would deal with metallic currencies such as the dirhams and dinars and fils and so on, and many a times a person would make a trade deal only to find that the currency has run out at the time of payment. The scholars discussed about this in detail and especially the ahnaaf who mentioned that in such a situation, the ‘قيمة’ is still applicable i.e the value is still payable as was agreed upon and it remains a debt.

Note that the term ‘value’ here is different to the price. So the price may have been agreed as 10 dirhams for a certain product, and the dirhams were no more available in the market at the time of payment, then the buyer pays the value of the 10 dirhams in another currency and this will be calculated based on the rate of exchange between this currency and the dirham on the last day before the dirham ran out in the market.

Ibn Abidin writes in his Hashiya –

إذا انقطعت ـ أي النقود ـ بأن لا توجد في الأسواق، ولو وجدت في يد الصيارفة، أو في البيوت، تجب القيمة هنا في آخر يوم الانقطاع وهو المختار”

“if the money/currency ran out in the market, even if it was available with the currency exchangers or in the houses of the people, the value is obliged based on what the value was on the day when the currency ran out”

In Tanbeeh arruqood ala masail al uqood, Ibn Abideen says

وإن انقطع بحيث لا يقدر عليه، فعليه قيمتها ـ أي في الدين والعقود ـ في آخر يوم انقطع، من الذهب والفضة، وهو المختار”.

“if the currency is not available then the value applies on him in gold or silver i.e in debts and contracts as was the rate of exchange on the last day when the currency ran out”

The reality of the currency running out in a market or its demonetization and the removal of the state that minted a currency that people currently use and the loss of the value of this currency are similar. The removal of the state that minted the currency is equivalent to the ‘انقطاع النقد’ i.e after the removal of the state the currency has no value.

The illah (legal reason) that relates the two realities is the loss of the currency’s value due to a cause and the people’s dependency on conducting transactions on it.

Therefore, in the reality that the Dar ul Islam was not to be able to exchange peoples existing currency with a gold backed currency, it can still issue the currency to them which will be considered a debt on the state. This currency that the state will issue will be similar to a cheque or a bond that the state has to return, and this has been discussed in the books of fiqh as ‘qutoot’ which is a currency issued by the state in the form of a debt.

The evidence to issue Sukook or Qutoot is found in the hadith of Bukhari,

حَدَّثَنَا سَعِيدُ بْنُ أَبِي مَرْيَمَ، حَدَّثَنَا اللَّيْثُ، قَالَ حَدَّثَنِي عُقَيْلٌ، عَنِ ابْنِ شِهَابٍ، قَالَ ذَكَرَ عُرْوَةُ أَنَّ الْمِسْوَرَ بْنَ مَخْرَمَةَ، رضى الله عنهما وَمَرْوَانَ أَخْبَرَاهُ أَنَّ النَّبِيَّ صلى الله عليه وسلم حِينَ جَاءَهُ وَفْدُ هَوَازِنَ قَامَ فِي النَّاسِ، فَأَثْنَى عَلَى اللَّهِ بِمَا هُوَ أَهْلُهُ، ثُمَّ قَالَ ‏ “‏ أَمَّا بَعْدُ، فَإِنَّ إِخْوَانَكُمْ جَاءُونَا تَائِبِينَ، وَإِنِّي رَأَيْتُ أَنْ أَرُدَّ إِلَيْهِمْ سَبْيَهُمْ، فَمَنْ أَحَبَّ مِنْكُمْ أَنْ يُطَيِّبَ ذَلِكَ فَلْيَفْعَلْ، وَمَنْ أَحَبَّ أَنْ يَكُونَ عَلَى حَظِّهِ حَتَّى نُعْطِيَهُ إِيَّاهُ مِنْ أَوَّلِ مَا يُفِيءُ اللَّهُ عَلَيْنَا ‏”‏‏.‏ فَقَالَ النَّاسُ طَيَّبْنَا لَكَ‏.‏

Narrated Al-Miswar bin Makhrama and Marwan:When the delegates of the tribe of Hawazin came to the Prophet (ﷺ) he stood up amongst the people, Glorified and Praised Allah as He deserved, and said, “Then after: Your brethren have come to you with repentance and I see it logical to return to them their captives; so whoever amongst you likes to do that as a favor, then he can do it, and whoever of you like to stick to his share till we give him his right from the very first Fai (war booty) (1) which Allah will bestow on us, then (he can do so).” The people replied, “We do that (to return the captives) willingly as a favor for your sake.” [Bukhari]

In another hadith narrated by Abu Dawud

 رُدُّوا عَلَيْهِمْ نِسَاءَهُمْ وَأَبْنَاءَهُمْ فَمَنْ مَسَكَ بِشَىْءٍ مِنْ هَذَا الْفَىْءِ فَإِنَّ لَهُ بِهِ عَلَيْنَا سِتَّ فَرَائِضَ مِنْ أَوَّلِ شَىْءٍ يُفِيئُهُ اللَّهُ عَلَيْنَا ‏”‏ ‏

Return to them (Hawazin) their women and their sons. If any of you withholds anything from this booty, we have six camels for him from the first booty which Allah gives us. [Abu Dawud]

There are other evidences to prove that the prophet would borrow from the people in his capacity as the head of the state, and he had appointed bilal ibn Rabbah (ra) to undertake this responsibility of raising debt for spending on the people.

These Sukook/Qutoot is acceptable to be sold and purchased. Ibn Shaibah narrated in his Musannaf under the chapter of ‘sale of Sukook arrizq’ that Umar bin Al khattab and Zaid accepted the sale of Qutoot and they and applied the rules of money on them.

In short, the state will make all attempts to avail the necessary amounts of gold and silver to be able to issue the currency and wherever the state falls short it will issue the currency in the form of ‘sanadaat – cheques/bonds’, and in this case the amount of gold/silver equivalent to the currency will be a debt on the state.

Question: Is it possible in Islam to fix a parity, announce it, and work towards that conversion rate or would that come under the subject of price fixing (taster) in Islam? It may be conducive to have a parity to work with, in order to accrue enough reserves to meet that rate and ensure that the state can convert all of its currency to gold if it needs to. Also if it announces a rate, people can adjust and plan on that.

If not, can experts estimate what parity the market would likely reach in the future based on the scarcity of gold within the country and the current demand for money, sort its reserves based on this figure, without informing the public – and when transition comes (the conversion rate should be similar to what the experts estimated) the state would simply adopt this figure as the true value so as to enable a smooth transition? In doing this it would not fix the parity but estimate what it would settle at in the future so that it can expand its reserves in the meantime.

Answer:

The state when it is established will bring about a new economic regime after ending the existing capitalist regime. The state will have to define the exchange value of the dinar compared to the goods and services. And the shari way to do that would be to not give the dinar any additional value other than what the market has given it, i.e its price in gold and silver. For eg, the price of 4.25 grams of pure gold was equivalent to ‘x’ kg of a vital good. In this way the state would have not only set the exchange rates for the new currency and the goods and services but also the exchange rates of the new currency with the demonetized currency.

In short, the value of the demonetized currency will be defined based on its value in the market by comparison to the goods and services that could be purchased with this currency.

Based on this assessment of value at the time of demonetization, the new currency’s exchange rate will be defined.

As for the hadith that price fixing is prohibited in Islam and that the prophet did not fix the prices of gold and silver, it is true and the principle is that the state does not fix prices. However, there is a difference between the two realities, i.e the reality of the prophet and the reality of the upcoming state. When he (saw) came to Makkah, the dirham and dinar were already being circulated so he did not undertake any changes but rather accepted what was already the situation. However, the state upon its establishment will encounter a new reality which is the responsibility to replace the existing currency with a gold/silver-backed currency, so it will have to fix a rate of exchange and thereafter leave the matter to the market.

This is something the state will have to undertake so as to avoid chaos and confusion among the people , so it is not considered as ‘price fixing’ rather, it is considered from the aspects of ‘riayah – care’ of the people.

Question: Is it permissible for the Dar Ul Islam to purchase gold from its people (or ask them to sell) at a just and fair rate in times of desperation? This would add significant gold to our reserves and maintain convertibility – if we could not find the gold in any other way

Answer:

Upon the establishment of the first Islamic state, the prophet (saw) encouraged the people of Madina to contribute to the building the bayt al Maal and there are many ahadith that discuss about the sahaba’s sacrifices.

In a similar way, the future Dar Ul Islam will encourage people to contribute their gold and silver items to the state, and the state will also buy these metals from the people in return of lands that the state owns or in return of bonds to return the metal upon availability in the future.

However, the state cannot compel or force the general population rather it can only encourage them except for those who the state finds are hoarding gold and silver, in which case the hukm of hoarding would apply on them.

Allah knows Best.

Dr. Fadhl AbuKhaled AH

Industry is a new revenue for the Bait ul-Mal

This is based on an article from Al-Waie Magazine, Issue 407, 4 Aug 2020 by Youseff Al-Sarisi.

As the Muslim ummah heads towards revival and victory, practical research is required in relation to the financial structure of the Bait Al-Mal (State Treasury) and additional revenues that will supplement the traditional funds from fai’, kharaj, jizya, ‘ushur, khums and zakat. This is with the aim of avoiding the possibility of financial bankruptcy, if its resources do not meet the rising expenditure required in modern states especially with regards to military weapons, heavy industries and infrastructure projects.

This is why serious thinking is required on how to provide additional resources for the state, so that it does not fall into the sea of ​​poverty and destitution, and therefore cannot fulfill its mission, nor play its role as a state that carries a message of guidance to other nations.

Is there a new Shariah resource that we can find for the Bait Al-Mal which was not mentioned previously among the Shariah rulings related to the Bait Al Mal and its revenues?

To find such a resource requires creativity in practically solving the problems that the future Khilafah State will face.

Al-Kharaj – The genius solution which found a new revenue for the treasury

The issue of insufficient resources in the Bait al-Mal to cover the major tasks required of the state was of great concern to Umar ibn Al-Khattab (ra), a matter that preoccupied his mind and made him tired. With his insightful, political and administrative insight, he realized that there must be an additional, permanent, and constant revenue for the treasury, so that the money from which gifts come out is available, and it is spent on the interests of the state, jihad and armies, feeding the poor, and spending on all the obligatory areas. Therefore, Umar imposed kharaj tax on agricultural lands in countries that had been conquered by force, such as Syria, Iraq and Egypt, and prevented its distribution to warriors as ghaneema (spoils of war) in order to find a stable financial revenue to cover the state’s increasing expenses, even though some of the Companions objected to this.

It is clear that there is a real possibility in a modern Islamic state, that the treasury will face a lack of revenues as almost happened in the past and which Umar resolved with the kharaj. It could happen in the coming Khilafah state as a result of the tremendous development in the civilization of the modern world. Accordingly, it must be resolved by ijtihad and the fiqh of renewal after understanding the reality and achieving the relevant requirements to come up with solutions for the revenues of the treasury, and if possible to achieve financial surpluses.

Charitable endowments – a creative idea in solving the problems of financing the needs of the community

It is worth mentioning here that Muslims in their long history made a great many innovations in solving the problem of financing the needs of the Muslim community, such as the creative idea of ​​the waqf “endowment”. Among these creative solutions were endowments for the general benefits of Muslims, where some of the rich endow real estate, land and money for specific interests, as the Messenger ﷺ urged in his honorable hadith for Muslims to do ongoing charity (sadaqa jariyah) in his saying: “If the son of Adam dies, his deeds come to end except for three: ongoing charity, knowledge by which people benefit, or a righteous son who prays for him.” (Sahih Muslim 1631) The Muslims, following this hadith, made many ongoing charity, the most prominent forms of which was waqf charitable endowments.

Searching for additional revenues for the Bait ul-Mal

It must be said that the three Amirs of the daw’ah (Hizb ut-Tahrir) addressed this problem. For his part, Sheikh Abdul Qadim Zalloum, may Allah have mercy on him, in the book “Funds in The Khilafah State” raised this problem, and addressed its treatment when he discussed how to cover any shortfall in spending by three methods:

  1. Borrowing from foreign countries and international financial institutions
  2. Protecting (hima) some of the public property assets of petroleum, gas and minerals
  3. Imposing taxes on the Ummah

As for borrowing from foreign countries or international financial institutions, it is rejected as an option because of its association with riba, as well as making the disbelievers have authority over the Muslims. As for the hima and taxes, they are from the shariah procedures with specific and temporary controls. In them, he relied on Sharia ijtihad with two evidences:

Firstly, he worked hard on the permissibility of the Khaleefah’s permission to designate some types of public property temporarily, so they would provide the state with an additional financial income to the treasury. In the event that there is no money in the treasury, the state protects some oil wells and then spends this money on the areas obliged upon the state.

Secondly, the obligation to spend on weapons and the army for jihad in the way of Allah. When the treasury becomes empty, the Khaleefah may impose a certain tax on the Muslim community, or collect this money from public property revenues that are owned by the community, by protecting from it what covers these expenses instead of taxes.

The legal basis for hima and taxes is that some ahkam such as jihad and feeding the poor are among the duties of sufficiency on the ummah, so it is obligatory for her to provide the necessary funds if other funds were unavailable. However, both options are temporary, and not a permanent resource like the kharaj. Therefore, it became necessary to search for a new permanent resource for the treasury to enable the state to carry out its responsibilities.

State Heavy Industries – A new and permanent revenue for the Bait ul-Mal

After researching, reviewing and thinking about the issue of finding a new and permanent resource for the Bait Al-Mal, to cover the exorbitant expenses of the military industries and armies, it was noted that the Kharaj as a permanent resource would not be sufficient to cover the necessary expenses, after the massive civil development in industries, technology and weapons.

When we delve into the rule of the kharaj that was imposed on agricultural land, we find that in the past, agriculture was the main resource for individuals and states, while industry was limited to handicrafts and simple machines that were essentially needed for wars, agriculture, household tools, and others. There were no real industries in the modern form, and handicrafts and crafts were secondary to the incomes of individuals and the state. Today, agriculture constitutes only 3% or less of the resources of the real industrialized countries, and employs less than 3% of the labor force. As for industry, it forms the backbone of the economy and the main source of money in most countries. Therefore, we need to think about industry as a revenue for the treasury.

The importance of industry and the role of the state

When human beings converted to the use of steam in the running of machines, the automated factory took the place of the manual factory. When modern inventions came, a serious revolution took place in the industry. Production greatly increased, and the automated factory became one of the foundations of economic life.

The Imam and al-Mujaddid Taqi al-Din, may Allah have mercy on him, in his book “The Ideal Economic Policy” looked into the importance of industry and said: “The State can own anything included within private property like any individual such that, today, there are things of private property that the State owns practically, rather than individuals, such as machine factories that produce other machines, car factories and the like that require colossal funds which cannot be undertaken save by the State alone that possesses the capability for such factories.

This is because establishing such factories requires colossal capital beyond individual capability, thus the West became accustomed to founding limited liability companies whose system of founding afforded them the accumulation of colossal funds enabling individuals to establish and own these factories.

Islam however forbids limited liability companies and various such companies agglomerating into one company such as trusts and cartels because the company in Islam is a type of contract like trade and hiring/employment not a type of unilateral will transaction like waqfs and bequests. Thus the company must have partners who personally direct disposal in the company, or with their capital together with a body partner who personally disposes.

Naturally this would not bring about capital accumulation thus no company could be founded owning colossal capital according to Islam’s company rules. So these factories, even if they are (essentially) private property, but due to the colossal expenses can only be State-owned.

Therefore no monopolies for factories and production will exist with machine-producing or car factories etc being private property similar to the capitalist system. Rather applying the Shar’a rules will make these types of factories State property even though they are private property.”

It was mentioned in “Funds in The Khilafah State” with regard to the public utilities that the state provides to people under its care, and that includes postal services, banking, public transport facilities, and factories. He stated that since today’s heavy weapons were no longer individual weapons owned by individuals as was the case previously, but rather became owned by the state,  the duty was imposed on the state to establish factories for the manufacture of weapons and heavy industries.

The shariah evidence for the obligation of the state to establish industries

The Khaleefah is considered to be the representative of the Ummah in governance and authority, and in implementing the provisions of the Shariah, and the legislator has made the responsibility of looking after the affairs necessary for the community among the Khaleefah’s duties, such as establishing public utilities and others. Likewise, everything that was a duty of sufficiency on the ummah and that individuals were unable to do was the duty of the state to do on behalf of the ummah, in accordance with the shariah principle “Whatever is necessary to accomplish a duty is in itself a duty”.

Jihad is an obligation on the Muslims, and the establishment of weapons factories necessary for jihad is considered a duty of sufficiency for them as a sign of necessity, and this duty is transferred to the state when individuals are unable to perform it. It also requires the establishment of the necessary industrial infrastructure for weapons, which can only be accomplished by having an industrial infrastructure for machines that manufacture machines, and factories for manufacturing materials needed for armament, such as iron factories, copper, lead, gunpowder and other materials.

Industrialization is also one of the duties of sufficiency for the ummah, and this duty is not fulfilled except through the establishment of the industrial infrastructure. As long as individuals are incapable of performing this duty then the duty is transferred to the state, and the state must establish the necessary infrastructure for industry and the establishment of heavy factories that individuals are unable to do. As for the industries that individuals can establish, the first thing is that the state should not conduct industrial and commercial competition for individuals because it is a state sponsor of affairs, not a merchant.

The Profits of Heavy Industry

When the goods and products that originate from the state-owned factories are sold in the internal and external markets, the state naturally obtains profits from them that are an additional revenue for the treasury. The state also obtains profits from the sale of some weapons abroad, provided that the sale of arms is in the interests of the Muslims and does not constitute a supply or aid to the enemy. Consequently, civil manufacturing and weapons generate profits that are an additional resource for the Bait ul-Mal, and are placed within the revenues of the Diwan of Fai’ and Kharaj.

Industry therefore would be an important resource to cover the expenses of the Bait ul-Mal, as it would cover the potential shortfalls for the expenses of the military industries and the cost of the Islamic army. In addition, this new resource keeps pace with modern industrial development. It is not wise to leave such a major economic resource without any of it returning to the treasury.

However, we may encounter an obstacle in providing the necessary funds to initiate the military and heavy industrialization process, especially since we are talking here about the establishment of industry in the first place, so this obstacle must be addressed first.

Providing funds for heavy industry and military industry

If the profits of heavy and military industries are the new resource that will cover a part of the state’s financial revenues, a question arises: How can the necessary capital be provided to start, launch and nurture those industries by acquiring advanced technology, providing raw materials and training so that those factories begin production?

In our opinion, this problem to provide the money needed to launch heavy and military industries is addressed in the following ways:

A- It is permissible for individuals to be partners with the state in the factories of heavy industry

Some public property resources such as oil, gas, gold, iron and others result in money that is distributed in kind or in cash to state citizens, and they can spend these funds in their own affairs or invest them. An appropriate way to invest the money that is surplus to the people’s needs is in industry. A “special fund for the people’s money from public ownership” صندوق خاص بأموال الرعية من الملكية العامة can be established so that the funds resulting from public ownership are placed here as an asset for the individual citizens, from which the costs of electricity, water, sewage services, waste, etc. are deducted, and the rest of the money, which they can invest in state factories instead of receiving the money in cash.

B- Encouraging state nationals to invest their money in the factories of heavy industry

The state encourages individuals, especially the rich owners of capital – with their consent and choice – to become partners in the state’s factories, and in this case they are “partners of money” in these factories.

This musharika (partnership) by the citizens of the state in the factories of heavy industry achieves a number of goals:

  • Provides part of the funds necessary to finance the establishment and operation of the factories of heavy industry
  • Avoids imposing taxes on the ummah, for the purpose of establishing heavy industries in the first place, except in cases of necessity, and this as mentioned provides some funds without the need for taxes or reduces them.
  • Solving the problem of hoarding money that is forbidden by Shariah, and is a way out – in particular – for individuals who cannot invest their money.
  • The state and its partners from among the members of the ummah benefit from the profits from the products of heavy industries, which raises their standard of living.

C – The Treasury benefits from the zakat on industry profits

The Bait ul-Mal benefits from the obligatory zakat it receives on the profits from Muslims selling the products of these industries, in the event that the shariah conditions for the payment of zakat on trade goods are fulfilled.

State policy between commercial profit and looking after the affairs of its citizens

The main engine of civil industries is usually profit, but the state’s use of its property, and the sale of its products, must be dominated by the aspect of taking care of people’s affairs, by fulfilling their interests and providing for their needs. The industries established by the state must be intended to take care of people’s affairs because the origin is care and not profit. The state should not be a merchant, a producer or a businessman. It does not mean to say that looking after the affairs and not profit is the main driver of industry, because this leads to losses for the state, so that industry becomes a burden on the treasury instead of a resource for it. If the industry as a financial resource may be conflicted by these two views, the solution to this apparent contradiction is for the state to give priority to the aspect of care, through the following ways:

  • Meeting the basic and luxury needs of the nation that are not normally available in the markets.
  • Focusing on the establishment of heavy industries that individuals are incapable of establishing themselves.
  • Production in industries that are undesirable for individuals, because there is no suitable profit, or that there is a high risk, or that production takes a long time.
  • Preventing an individual or an entity from controlling basic commodities necessary for people, which would be tantamount to a monopoly.
  • Breaking the monopoly of outside countries on essential commodities whose loss would be detrimental to the nation.
  • The products of state factories are priced reasonably according to the ability of the people to pay, and not commercial prices.
  • Selling goods abroad at reasonable prices to countries in which we desire to spread the da’wah and inspire the hearts of its people.

It is a foregone conclusion that the state will gain profits from the sale of industrial products in all cases. These profits will constitute a new and permanent resource for the Bait al-Mal, which the Khaleefah spends on looking after the interests of the people and on its foreign policy which is jihad in the way of Allah.

Avoiding financial corruption in the state

To immunize the state employees from any financial corruption, the rulers and civil servants should be prohibited from trading or competing with the people of the nation in their commercial businesses. This is because the state’s usage of its property must show the aspect of taking care of people’s affairs, and so must prevent the rulers and civil servants from becoming merchants, businessmen, monopolists or corrupt, especially in light of the heavy industries owned by the state, which generate huge profits for the treasury, and which may tempt some weak-spirited and low-piety state employees, which can become an entry point for financial corruption! As a precaution, the state’s industries are separated from the control of the governors and mayors. Thus, they are prevented from interfering in the affairs of these industries financially.

Umar (ra) used to count the wealth of the governors and mayors before and after he assigned them their mandate, and then confiscate the any wealth gained during their tenure.

It was mentioned in the book “Institutions of the Khilafah State” that the management of heavy industry is carried out by the “Director General of Industry”. He is entrusted by the Khaleefah to supervise all the affairs of state industries, and to sell these products internally, and perhaps externally. All the expenses of industrial affairs and the profits of its products must be subject to the accountability of the head of the treasury, and all data and information must be transparently available upon the request of the National Assembly (Majlis ul-Ummah) or some of its members. It is the right of this council to hold rulers and department heads accountable for all revenues and expenditures in the state. In the penal system, the state must adopt strict punitive provisions for those rulers whose financial corruption is proven (Mal al-Ghulul).

Conclusion

Accordingly, it becomes clear that industry will constitute a new and permanent resource for the Bait al-Mal, avoiding the possibility of other state revenues failing to meet the necessary expenditures for armament and jihad, and avoiding the state imposing taxes or protecting public property. In addition, industrialisation raises the level of the nation economically, and makes it significant in front of other nations which helps in carrying the call, and in the Islamic state becoming a successful model to be followed in the application of the systems of Islam. At the same time, it explains to Muslims the meaning of the fiqh of renewal, and the meaning of creativity in solving problems.

We pray to Allah Almighty to hasten the establishment of the Islamic state in which Muslims are cherished, and whose imam will be a shield for them to fight behind and be feared for. He will establish for them heavy industries that advance the economy and make people tranquil, and prepare the necessary force that terrorizes their enemy, and helps them spread Islam to the world. Amen.