Question:

The Khilafah "Caliphate" is a contract based on mutual consent and choice, the Ummah made a condition for Abdul-Rahman bin Awf (radhiyaAllahu anhu) that whoever becomes a ruler should only rule by the Book of Allah (swt) and the Sunnah of His Messenger (saw), adding to this "the methodology of the two scholars"(..?) So do we understand from this that it is permissible for the Ummah to make a condition in the Bayah contract determining the duration for the Khaleefah? Please clarify, Jazakum Allah Khair.

Answer:

Before answering, I would like to remind you with the following:

1. It is permissible for the Muslim to place any condition in contracts as he pleases except that which allows a haram or bans a halal. It was reported by Al-Bukhari that the Prophet (saw) said in the hadith reported by Aísha (ra) in the issue of ransoming Barira...

And then the Messenger of Allah (saw) stood up among the people and praised and glorified Allah and then said,

أَمَّا بَعْدُ، مَا بَالُ رِجَالٍ يَشْتَرِطُونَ شُرُوطًا لَيْسَتْ فِي كِتَابِ اللَّهِ، مَا كَانَ مِنْ شَرْطٍ لَيْسَ فِي كِتَابِ اللَّهِ فَهُوَ بَاطِلٌ، وَإِنْ كَانَ مِائَةَ شَرْطٍ، قَضَاءُ اللَّهِ أَحَقُّ، وَشَرْطُ اللَّهِ أَوْثَقُ، وَإِنَّمَا الوَلاَءُ لِمَنْ أَعْتَقَ

"Why is it that some men make conditions which are not in the Book of Allah? Any condition which is not in the Book of Allah is invalid even if it is stipulated a hundred times. The decision of Allah is more binding and the condition of Allah is firmer. The wala' (loyalty) belongs to the one who sets free."

Tirmidhi also reported in the Sahih Hadith that it was reported by Katheer bin Abdullah bin Amr bin Awf Al-Muzany, on the authority of his father, on the authority of his grandfather that the Prophet of Allah (saw) said:

«وَالمُسْلِمُونَ عَلَى شُرُوطِهِمْ، إِلَّا شَرْطًا حَرَّمَ حَلَالًا، أَوْ أَحَلَّ حَرَامًا»

"The believers have to abide by the conditions they have agreed on, except a condition that made a prohibition (haram) allowable(halal) and something allowed (halal) prohibited (haram)."

2. Hence, it is permissible for the Muslim to add a condition in the contracts, but without allowing something that it prohibited or prohibiting that which is allowed, i.e. without going against the Legislation of Allah (swt), it otherwise becomes a void and unlawful condition.

3. It is allowed for a Mujtahid to make Taqleed to another Mujtahid, as was the case with the Companions (radhiaAllahu anhum), thus, if a Muslim conditions a Mujtahid to make Taqleed to another Mujtahid in a specific matter, otherwise he will not give bayah to him, then this (condition) is valid because it is permissible for a Mujtahid to make Taqleed to another Mujtahid.

It is mentioned in the book The Islamic Personality Volume I, under the chapter "The Reality of Taqleed", (in the second paragraph, page 222 of the Arabic version; p. 178 in the English version)

"When the Mujtahid comes to obtain a complete competence (ahliyya) for Ijtihad in one of the issues, then if he performs Ijtihad on it and his Ijtihad leads him to the hukm, he is not allowed to imitate other Mujtahidin in a matter contrary to what his Ijtihad has led him to. It is not allowed for him to leave his opinion in this matter except in four cases:

First: When it appears that the evidence on which he relied in his Ijtihad is weak (da'if) and the evidence of another Mujtahid is stronger than the evidence he used. In such a case he is obliged to leave forthwith the rule to which his Ijtihad had led and adopt the rule which is evidentially stronger....

Second: When it appears to a Mujtahid that another Mujtahid has a greater capacity to link or has better awareness of the reality, or stronger comprehension of the evidences or is more acquainted with the textual evidences (adilla sam'iyya) etc. And it became preponderate to him that the other Mujtahid is closer to the truth in understanding a specific issue or issues as they are. It is allowed for him in this case to leave the rule he has reached through his Ijtihad and follow the other Mujtahid in whose Ijtihad he has more confidence than his own.

Third: If the Khaleefah adopts a rule which conflicts with the rule arrived at through his Ijtihad. In such an event he is obliged to leave the rule reached at by his Ijtihad and take the rule which the imam (leader) has adopted.

Fourth: If there is an opinion by which it is intended to unify the Muslims, for the good of the Muslims. In such a situation it is allowed for the Mujtahid to leave what he reached by his Ijtihad, as happened with Uthman (r.a.) when he was given the bay'ah... However, this is permitted for the Mujtahid and not obligatory, as evidenced by ‘Ali refusal to leave his ijtihad for the Ijtihad of Abu Bakr and ‘Umar. No one rebuked him for that, which indicates that it is permitted and not obligatory.

However, this is permitted for the Mujtahid and not obligatory, as evidenced by ‘Ali refusal to leave his Ijtihad for the Ijtihad of Abu Bakr and ‘Umar. No one rebuked him for that, which indicates that it is permitted and not obligatory.... It has been correctly reported about ‘Umar that he said to Abu Bakr: ‘We hold opinions in accordance with your opinion.' It has also been correctly reported about ‘Umar that when he found himself completely at a loss to find in the Qur'an and Sunnah what was needed when two disputing parties come to him, that he would see if Abu Bakr had a decision in the matter. If he found that Abu Bakr had passed a certain judgment on the issue he would pass the same judgment. It has been authentically reported about Ibn Mas'ud (r.a.) that he used to adopt the opinion of ‘Umar (r.a.). That used to take place before the eyes and ears of the Sahaba in numerous incidents and no one objected. Thus, it became a tacit ijma' (ijma' sukuti)." Ends.

4. The Legislative Texts concerning pledging Bayah to a Khaleefah contradicts the restriction on his duration, because the Bayah which was pledged to the Prophet (saw) and the Bayáh pledged to the righteous Khulafaa' was to rule by the book of Allah (swt) and the Sunnah of His Prophet (saw), thus this is its constrainment, so if the Khaleefah leaves the ruling by the Book of Allah (swt) and the Sunnah of His Prophet (saw), his leadership ends according to the legislative rulings regarding this matter, which have outlined the way to isolate the Khaleefah and the validity of the Grievances... and adding another restriction is therefore impermissible because it contravenes with the Texts of the Bayah, which is to rule by the Book of Allah (swt) and the Sunnah of His Messenger (saw), as proved in the Sunnah and the Consensus of the Sahaba:

As for the Sunnah:

Bukhari also reported on the authority of Ubada Ibnus-Samit who said: The Messenger of Allah (saw) called upon us so we gave him the pledge of allegiance, of which included:

«أَنْ بَايَعَنَا عَلَى السَّمْعِ وَالطَّاعَةِ فِي مَنْشَطِنَا وَمَكْرَهِنَا، وَعُسْرِنَا وَيُسْرِنَا، وَأَثَرَةٍ عَلَيْنَا، وَأَنْ لَا نُنَازِعَ الْأَمْرَ أَهْلَهُ»

"We pledge ourselves to him in complete obedience, in well and woe, in ease and hardship in preference over ourselves, and that we would not dispute with the people in authority" and he (saw) said:

«إِلَّا أَنْ تَرَوْا كُفْرًا بَوَاحًا عِنْدَكُمْ مِنَ اللهِ فِيهِ بُرْهَانٌ»

"Unless you witness an act of flagrant disbelief of which you have proof from Allah." This was also reported by Muslim.

Muslim also reported on the authority of Yahya bin Hussain, that his grandmother reported, he said: I heard her say: that she heard the Prophet (saw) saying:

«إِنْ أُمِّرَ عَلَيْكُمْ عَبْدٌ مُجَدَّعٌ - حَسِبْتُهَا قَالَتْ - أَسْوَدُ، يَقُودُكُمْ بِكِتَابِ اللهِ تَعَالَى، فَاسْمَعُوا لَهُ وَأَطِيعُوا»

"If a slave is appointed over you and he conducts your affairs according to the Book of Allah, you should listen to him and obey (his orders)."

It is therefore apparent from all of this that the continuation of  the Bayah and obedience is a must as long as the ruling is conducted by the Book of Allah (swt) and the Sunnah of His Messenger (saw), except if open Kufr is witnessed i.e. a definitive violation of the Shara'.

As for the Consensus of the Sahaba, the Bayah which was pledged to the Righteous Khulafaa' was to rule by the Book of Allah (swt) and the Sunnah of His Messenger (saw), it was not pledged for a limited period, their Bayah was pledged in front of a number of the Sahaba, may Allah be pleased with them, hence it was a consensus on not limiting the period of the Khaleefah, but his continuation depends on his obedience to Allah (swt) and to the Prophet of Allah (saw), i.e. ruling by what Allah has revealed. It was reported by Muammar bin Rashed in his collection, saying: Abu Bakr delivered a sermon in which he said:

يَا أَيُّهَا النَّاسُ إِنِّي قَدْ وُلِّيتُ عَلَيْكُمْ وَلَسْتُ بِخَيْرِكُمْ... أَطِيعُونِي مَا أَطَعْتُ اللَّهَ وَرَسُولَهُ، فَإِذَا عَصَيْتُ اللَّهَ وَرَسُولَهُ فَلَا طَاعَةَ لِي عَلَيْكُمْ، قُومُوا إِلَى صَلَاتِكُمْ يَرْحَمْكُمُ اللَّهُ

"O people, I have been appointed over you, though I am not the best among you....  Obey me so long as I obey Allah and His Messenger. And if I disobey Allah and His Messenger, then I have no right to your obedience. Stand up now to pray, may Allah have mercy on you."

It is apparent from these evidences that the period is unlimited, but what is stipulated is the Khaleefah's obedience to Allah (swt) and His Messenger (saw), so as long as the Khaleefah rules by what Allah (swt) has revealed, then his leadership continues, and if he violates one definitive text, his leadership stops even if it lasted for one or two months... this is in accordance to the legislative rulings regarding the isolation of the Khaleefah and the validity of the Judge of Grievances...

5. As for what had occurred in the appointment of a Khaleefah after Omar (ra), and that they made a condition to Abdul Rahman bin Awf - who was delegated to ask the people which Khaleefah they want - that they will only pledge allegiance to the Khaleefah whom, if an issue is presented to him which had occurred during the times of the two previous Khulafah, and which Abu Bakr and Omar had passed their Hukm (ruling) on it, then he is to follow (make Taqleed on) their ruling in this matter, and that he should not make his own Ijtihad in it; but Ali (ra) refused this, and preferred to make his own Ijtihad in every matter, and Uthman (ra) accepted this condition so they pledged allegiance to him. It is permissible for them to put forth this condition, and it is permissible for him (Uthman (ra)) to either accept and make Taqleed or reject and make his own Ijtihad, because it is permissible for a Mujtahid to make Taqleed to another Mujtahid as we outlined previously about the Taqleed of a Mujtahid to another Mujtahid during the time of the Sahaba (ra).

In conclusion, putting forth a condition in contracts is permissible as long as it does not violate the Sharí texts, otherwise it is not permissible and invalid, and because the condition to limit the duration of a Khaleefah is contrary to the Bayah text which is fixed in the Sunnah and the Consensus of the Sahabah, which is to rule by the Book of Allah (swt) and the Sunnah of His Messenger (saw), it is therefore not allowed to put a condition to limit the duration of the Khaleefah who is being appointed.