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3 p. 70Jihad in the Legal Literaturelocked

3 p. 70Jihad in the Legal Literaturelocked

  • Asma Afsaruddin

Jurists, unlike Quran commentators, hadith scholars, and moral theologians, primarily dealt with jihad as one of the obligations of the Muslim ruler and the Muslim population in the context of external relations with non-Muslim polities. Within legal-administrative contexts, jihad is, therefore, necessarily military in nature.

The Quran and the sunna were not the only sources that jurists drew on in creating rules for the conduct of warfare. Local customary practices and practical worldly considerations frequently played an influential role. Jurists were mainly concerned with maximizing the welfare of the Muslim community and protecting its interests against hostile foreign entities. With this objective in mind, they sometimes devised legal strategies that qualified or even bypassed clear Quranic injunctions and Muhammad’s established practices on issues of war and peace in specific historical contexts. They also had to devise rules of warfare with no historical precedent. As in the modern nation-state, the executive and judiciary branches of government were concerned with guaranteeing the security of the state and of all who lived within it, Muslim and non-Muslim, against outside aggression. This realist approach led to the emergence of distinctive—and contested—legal perspectives with respect to the state’s role in the military jihad. Such perspectives p. 71must be understood within the specific historical and political circumstances in which they took shape.

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How did Muslim jurists understand jihad?

In the premodern period, jurists dealt with jihad as military activity undertaken by the state to guard its frontiers against penetration by enemies and to ensure the security of its population. Their writings on the waging of war as a state activity reflected a hard-headed, pragmatic engagement with the realities of the outside world. Legal works in this context are typically concerned with topics such as the protocols of declaring war; bearing arms; division of the spoils of war; treatment of prisoners of war and their families; permissibility of attacking enemy combatants when they use Muslims, especially children, as human shields; treatment of civilians during warfare; cutting down trees in enemy territory; taxes to be levied on land; treatment of those who ask for safe conduct; imposition of the so-called poll tax (jizya); and other relevant issues concerning non-Muslims in their interactions with Muslims.

Muslim jurists were very concerned about setting boundaries between what they considered to be legitimate and illegitimate violence. As a result, they paid close attention to the issue of noncombatant immunity and the categories of people to be treated as civilians and thus protected from intentional harm during warfare. Deliberate targeting of civilians was an example of illegitimate violence that violated the command contained in Quran 2:190: “Do not commit aggression!” Jurists typically interpreted this verse as forbidding attacks on civilian noncombatants—those who do not or cannot take part in fighting. (Unlike several Quran commentators, most classical jurists did not understand this verse to prohibit categorically the initiation of war by Muslims.)

The early eighth-century Medinan jurist, Malik b. Anas (d. 795), explicitly prohibited the killing of women, children, p. 72elderly men, and Christian monks and hermits in their cells. Malik stressed that the property of religious functionaries, like monks and hermits, should be left intact since that was their sole means of livelihood. He also cites the hadith in which the Prophet forbade his troops to commit treachery and mutilation. Other hadiths in which Muhammad forbids the killing of noncombatants, particularly women and children, are recorded. Malik furthermore records the advice given by the first caliph Abu Bakr in 632 to one of his generals, “not to kill women, children, and the elderly” or to mutilate or commit treacherous actions. The general was also advised not to cut down fruit trees or burn houses and cornfields and to refrain from killing livestock. When encountering hermits in their monasteries, he and his army were commanded not to disturb them or destroy their dwellings. Malik further records a report from Umar ibn al-Khattab, the second caliph, in which he forbids the killing of the weak and the elderly, women, and children.

The influential ninth-century jurist al-Shafii (d. 820; after whom the Shafii school of law is named) similarly stipulated that women, children, and prisoners of war may never be put to death. He also forbade the torture or mutilation of enemy combatants, in accordance with the Prophet’s prohibition against the gouging of eyes or amputation of limbs. Furthermore, al-Shafii prohibited the killing of birds and higher animals on the basis of a hadith. Other groups of people who are considered noncombatants by jurists are the elderly, serfs or agricultural laborers, slaves, the chronically ill, the blind and those who are disabled in general, and the insane.

These restrictions have continued to be repeated in legal manuals and treatises on warfare, forming an essential basis for rules of humane conduct during armed combat. A general immunity not to attack noncombatants was upheld by jurists through the centuries, but exceptions are sometimes noted. If the enemy uses women and children or Muslim prisoners as human shields, then an attack may be launched p. 73if there is no other recourse. If traditional noncombatants like women and monks resort to fighting, they are to be treated as combatants. Even in such cases, however, many jurists said that women should not be killed given the hadith in which Muhammad expresses great remorse over the corpse of a slain woman during a battle. Animals are not to be indiscriminately slaughtered, plants and trees should not be chopped down, and crops burned, except in retaliation for such prior enemy acts.

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How is war declared and by whom according to jurists?

There is a juridical consensus that a legitimate military jihad can only be declared by the recognized head of state. In the early period, this was the caliph. In the later medieval period, this could be the sultan (local or regional ruler) as well. This was based on the precedent set by Muhammad after his emigration to Medina where he was recognized as the head of state by Muslims and non-Muslims and was able to go to war against the Meccan enemy on their behalf.

In the protocol of war that had developed by the ninth century, the jurists generally insisted that a public proclamation of war should be made by the ruler. According to the understanding of the classical jurists, such a proclamation consisted of inviting the enemy to accept Islam. The early Medinan jurist Malik ibn Anas was of the opinion that non-Muslims could not be fought until they had been summoned to Islam, regardless of which side initiated hostilities. The ninth-century jurist al-Shafii had also maintained that polytheists who had not previously heard of Islam could not be fought until they had been summoned to Islam. If anyone among them is killed before such a summons, then a blood-geld (financial compensation for the wrongful taking of life) must be paid.

A detailed protocol for proclaiming war is outlined by al-Sarakhsi (d. 1096), a well-known jurist from the eleventh century. This protocol is based on a hadith according to which p. 74Muhammad is said to have dispatched one of his generals on a military campaign and advised him as follows:

Do not fight them until you have summoned them. If they should refuse, then do not fight them until they initiate [hostilities]. If they should initiate [hostilities], then do not fight them until they kill someone from among you. Then show them that slain person and say to them, “Is there not a path to something better than this? For now God Almighty has guided you, which is better for you than anything else on which the sun rises and sets.”

This hadith is recorded by al-Bukhari and Muslim and, therefore, regarded as reliable by the majority of Muslim scholars. The report is remarkable for its pacifist tone, which advocates not retaliation for an act of aggression but reasoning with the enemy to demonstrate instead the wisdom of renouncing violence and accepting God’s guidance.

Two other protocols recorded by al-Sarakhsi allow initiating hostilities: One after a public proclamation of war has been made, and the other without such a proclamation. These two protocols must be considered to have developed late in response to Realpolitik, that is, in response to the political realities of the day rather than out of moral considerations. Such protocols, after all, specifically violate the nonaggression clause in Quran 2:190. The first protocol described in detail should be considered a genuinely archaic one because it is in accordance with Quranic directives that forbid Muslims from initiating attacks.

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Can civilians ever be targeted during a military attack?

The overwhelming majority of hadiths that deal with conduct during warfare record Muhammad’s strict prohibition against targeting and harming civilians, especially women, children, p. 75and the elderly. Jurists duly recorded these prohibitions in their writings to mandate humane treatment of noncombatants during unavoidable fighting.

There is, however, one hadith that some cite to make the case that civilians can potentially be targeted in a military attack. According to this hadith, the Prophet was once asked whether it was permissible to attack pagan Meccan soldiers at night when their women and children would be exposed to danger. The Prophet replied, “They [i.e., the women and children] are from them [i.e., the pagans].” This hadith is recorded by both al-Bukhari and Muslim and, therefore, deemed sound by their criteria.

On the surface, it seems the hadith grants permission to Muslim soldiers to attack women and children who cannot be distinguished from male combatants. Given the fact that more hadiths state the opposite—noncombatants must be identified as such and protected as much as possible—this report must be understood as referring to a situation in which, out of necessity, Muslim soldiers have to fight the enemy at nighttime when such distinctions cannot be strictly maintained. Jurists recognized the moral quandary of launching such attacks when the survival of Muslims was at stake—their counsel was to avoid civilian casualties as much as was feasible under the circumstances and attempt to target combatants only.

This hadith bears comparison with a report recorded by the early Kufan jurist and historian Ibrahim al-Fazari (d. 802) in his early treatise on international law. In this report, one of the Companions relates:

We went out on a military campaign with the Messenger of God, peace and blessings be upon him, and we were victorious over the polytheists. The people in their zeal killed even the children. When that reached the Prophet, peace and blessings be upon him, he said, “What is the state of people who are so overcome by killing that they p. 76slay even children? Do not ever kill children; do not ever kill children; do not ever kill children.” Then a man asked, “O Messenger of God, are they not the children of polytheists?” He replied, “Are not the best among you the children of polytheists?”

The protection afforded to noncombatants, here specifically children, regardless of their religious ascription, is understood to be absolute in this report. This report is regarded as “well-known” and “well-attested” according to al-Fazari.

Comparing the two hadiths allows us to reconcile what appears to be contradictory directives. Al-Fazari’s report is unequivocal in stating that children may never be deliberately targeted and harmed during hostilities. When weighed against this general directive, the report found in al-Bukhari’s Sahih is more appropriately understood to refer only to exceptional circumstances, such as nighttime, when noncombatants cannot be distinguished easily from combatants. This was how the fifteenth-century hadith scholar Ibn Hajar (d. 1449) explained the hadith recorded by al-Bukhari. He did not find it to be contradictory to other reports that categorically stress the immunity of children and other noncombatants during warfare.

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How did jurists view martyrdom?

Given their concerns, jurists dealt primarily with the military martyr. In contrast to the Quran and several hadiths that do not rate death on the battlefield to be more meritorious than dying of natural causes, jurists over time came to confer higher status on the military martyr. This is indicated by the fact that special funerary practices developed for such a martyr. The jurists determined that, contrary to the normal practice, the body of the martyr who dies on the battlefield is not to be washed. If the martyr was wounded on the battlefield and died later in his home, then his body is to be washed. Martyrs are to be p. 77buried in the clothes they fought in, but their weapons are to be removed. Most jurists were of the opinion that there was no need to say the funerary prayers over the martyr’s body; the assumption was that all his sins had been forgiven and that he would ascend to heaven right away. Some jurists record that there were differences of legal opinion concerning the funerary practices that would apply to different types of martyrs; for example, one slain by brigands versus one slain by non-Muslims, or one who had perished on land versus one who was killed at sea.

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How are prisoners of war to be treated?

There is a diversity of views on this topic. Positions taken by jurists in the premodern period are broken down according to the legal schools that became established by the tenth century. These principal legal schools are Hanafi (named after Abu Hanifa, d. 767); Maliki (named after Malik ibn Anas, d. 795); Shafii (named after al-Shafii, d. 820); and Hanbali (named after Ahmad ibn Hanbal, d. 855). Jurists from before the ninth century predated the legal schools and their affiliations are, therefore, not mentioned.

From the eighth century we have the two very important scholars—al-Hasan al-Basri (d. 728) and Ata b. Abi Rabah (d. 733)—who firmly maintained that “the prisoner of war should not be killed, but may be ransomed or set free by grace.” They based their legal opinion on Quran 47:4, which states that prisoners of war should be set free outright or after a ransom has been paid. Their views are consistently repeated by later jurists, although they mostly disagreed with them. The famous Hanafi jurist Abu Yusuf (d. 798) was of the opinion that al-Hasan’s and Ata’s views on the issue of prisoners of war should be disregarded. Instead Abu Yusuf advocated that prisoners of war should be invited to embrace Islam or be killed, thus sharply deviating from the Quran’s position on the treatment of them.

p. 78The late eighth-century jurist al-Shafii (d. 820) allowed for several different options in dealing with prisoners of war. He said that the caliph may choose to release them or ransom them for a sum of money or through the equal exchange of prisoners. Al-Shafii pointed to the example set by the Prophet when he ransomed prisoners after the battle of Badr in 624. But al-Shafii went on to say that the ruler also has the choice of enslaving them and treating them as part of the spoils of war. For adult males, the ruler can further exercise his discretion in either having them killed without mutilation or, in the case of idol worshipers, summoning them to Islam, and in the case of the People of the Book (primarily Jews and Christians but also Zoroastrians) accepting the jizya, or the so-called poll tax, from them.

The thirteenth-century Hanbali jurist Ibn Qudama’s views are very similar to al-Shafii’s; he adds that women and children can never be put to death, but they may be enslaved at the ruler’s discretion.

The later Hanafi jurist al-Sarakhsi (d. 1096) indicates an early diversity of views on the issue of ransoming prisoners. He notes that eighth-century authorities like al-Hasan al-Basri and Ata ibn Abi Rabah continued the Prophet’s practice of ransoming prisoners and were known to have been against killing prisoners on the basis of Quran 47:4. Al-Sarakhsi’s views are much harsher, however, which he seeks to justify in the following way. He describes Hasan’s and Ata’s position as not worthy of consideration. Why? Because al-Sarakhsi considers Quran 47:4 to have been abrogated by Quran 9:5, which was revealed later. He acknowledges that Abu Hanifa, who lends his name to the Hanafi school to which al-Sarakhsi belonged, had commented that Quran 9:5 concerned only Arab idol worshipers and, therefore, was not applicable to the later period. Al-Sarakhsi dismisses this view as weak. The correct position, according to him, is that the option of releasing or ransoming prisoners had been abrogated and the ruler may not resort to either option, unless he is aware p. 79that there was general benefit in it for Muslims. Al-Sarakhsi emphasizes pragmatic and material considerations rather than scriptural and moral imperatives for adopting his harsher position vis-à-vis prisoners of war and disregards the well-established practices of the Prophet and early Muslims on this issue.

Comparison of early and later legal discourses on the treatment of prisoners of war is thus highly revealing of distinctive changes in attitudes toward them over time. These attitudes progressed from considerable leniency toward prisoners of war based particularly on Quran 47:4 in the early period to more draconian practices based on the individual preferences of the jurists and their functional concerns, even when such preferences departed from Quranic directives and Muhammad’s own example. The reason appears to be that these later preferences were more closely aligned with the practices of war current among other cultures and nations during the time of these jurists.

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Can Muslims fight under corrupt rulers?

One of the earliest jurists on record to grapple with this question is the eighth-century Medinan jurist Malik b. Anas. Our sources report that Malik initially expressed his distaste for the idea of fighting under corrupt and morally blameworthy rulers like the Umayyads. But he revised his opinion after the Byzantines attacked Marash and committed atrocities there. The city of Marash (called Germanikeia by the Byzantines and now called Kahramanmarash in Turkey) was destroyed by the Byzantine emperor Constantine V in 746. After this attack, Malik adopted the position that if fighting were to be abandoned under the Umayyad rulers in the face of aggression by hostile people like the Byzantines, untold harm to Muslims would result. For the greater common good, Muslims had to defend themselves against external aggressors under their rulers, regardless of their piety.

p. 80This became more or less the standard juridical position. Like Maliki jurists, Hanbali jurists also considered it permissible to campaign with corrupt leaders. Their view was that pragmatic and worldly considerations may influence one’s decision to fight—or not—under a ruler. For example, it would be unadvisable to campaign with either the caliph or any ruler in the face of assured defeat and loss of Muslim lives. According to Ahmad ibn Hanbal, one should fight only with the commander who shows compassion for Muslims and takes due cautionary measures on their behalf. This is recommended even if he is known to drink wine, for traits such as these, says Ibn Hanbal, are merely personal failings and do not affect the general well-being of Muslims.

The duty to fight under one’s rulers, regardless of their personal attributes, is thus regarded by most jurists as a pragmatic, functional one born of worldly concerns for security and self-defense against external aggression. In general, jurists were worried that if Muslims were to abandon fighting under corrupt rulers, there would be no one to defend their lands against an enemy who would come to rule over them and destroy their way of life.

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Did jurists allow offensive military jihad?

Early jurists like Ata ibn Abi Rabah (d. 732) and Sufyan al-Thawri (d. 778) were firmly against the idea of offensive jihad. This was a position also upheld by a number of early exegetes like Mujahid ibn Jabr and Muqatil ibn Sulayman from the eighth century and later scholars like Fakhr al-Din al-Razi from the late twelfth century. These scholars resolutely maintained that Quran 2:190 was unambiguous in its prohibition of the initiation of armed combat by Muslims under any circumstance.

The influential jurist of the ninth century al-Shafii is said to have promoted the concept of offensive military jihad. He considered offensive jihad to be a collective duty and not an individual obligation. He classified it with the performance of p. 81funeral prayers rather than with the daily obligatory prayers, so that this collective duty is effectively discharged if there is a sufficient number of people undertaking it.

Building on al-Shafii’s position, an eleventh-century jurist from the Shafii school, al-Mawardi (d. 1058), outlines what he understands to be a progressive Quranic articulation of the duty to fight, from its initial command to “turn away from the polytheists” (Quran 15:94), to summoning to God with wise counsel and gentle, respectful debate with the People of the Book (Quran 16:125), to fighting only those who initiate fighting with Muslims (Quran 22:39–40), and refraining from fighting those who do not resort to combat (Quran 2:190). Up to this point in time (until the battle of Badr in 624), the military jihad was not a mandatory obligation, says al-Mawardi. In his opinion, subsequent revelations, such as Quran 2:216, establish it as mandatory.

A very important question now comes to the fore for al-Mawardi: Can the Quranic verses permitting fighting be understood to allow all-out war, that is, equally against those who initiate fighting and those who do not? Al-Mawardi documents the view of Ata ibn Abi Rabah who asserted that it was never permissible to fight those who do not fight. Al-Mawardi takes exception to this view, stating that the doctrine of combative jihad reaches its final form in Quran 2:193, 9:5, and 2:191. In his understanding, these verses encode divine permission to fight equally those who fight and those who desist from fighting. The military jihad, argues al-Mawardi, had thus become a general obligation “in every time and place.” Like al-Shafii before him, he regards it as a collective duty on the basis of Quran 9:41, which states: “Go out to battle lightly [armed] and heavily [armed],” as well as on the basis of Quran 9:122, which states: “The believers should not go out to fight altogether.” The main purpose of the collective military jihad, he says, is to protect Islamic realms from the attacks of the enemy and thereby ensure the safety of the lives and property of Muslims. The military jihad is collectively obligatory only p. 82on free, adult, and sane males. If the enemy were to directly encroach upon Muslim territory and threaten it, then the collective duty of jihad becomes an individual one for all those capable of engaging in combat.

Like al-Mawardi, the eleventh-century Hanafi jurist al-Sarakhsi also outlines what he believes to be a progression within the Quran from forbearance and forgiveness toward polytheists to defensive fighting to offensive combat, which he declares to be “an enduring obligation until the Last Hour.” The twelfth-century Andalusian Maliki jurist Ibn Rushd (d. 1198, known in the Latin West as Averroes) declared that all polytheists could be fought, with the exception of Turks and Ethiopians.

The thirteenth-century Hanbali jurist Ibn Qudama stated that the military jihad is an ongoing collective duty for those with the following seven characteristics: they are Muslim, post-pubescent, sane, free, male, free from physical defects, and financially solvent. Circumstances permitting, the military jihad should be carried out once a year by the ruler unless there is benefit for Muslims in not engaging in it or the Muslims are in a weak position.

This gradual watering down and then outright abrogation of the categorical Quranic prohibition against initiating fighting in later exegetical and legal literature can be understood as the triumph of political realism over scriptural directives. Political realism required that the Muslim ruler be allowed to launch preemptive wars to secure existing borders and expand territorial boundaries, in line with contemporary imperial practices in Byzantium and elsewhere. Jurists could sometimes be pressed into service to find the appropriate legal (and sometimes theological) rationale.

Given what we know of the political affiliations of a number of these jurists—both al-Shafii and al-Mawardi, for example, had close connections with the ruling Abbasid elite—we would be justified in saying that their interest in serving the cause of empire motivated them to radically reformulate the p. 83Quranic concept of the military jihad. This tendency is quite prominent during the Abbasid period, but the trend had already started in the previous Umayyad period when a doctrine of aggressive warfare began to take shape. Such views became fairly commonplace in later juridical works, particularly during the Mamluk period when that part of the world we call the Middle East today was besieged by fierce Crusader and Mongol armies. Against this background, the fourteenth-century Shafii jurist Ahmad ibn al-Naqib al-Misri (d. 1368) in his legal manual, called in English translation The Reliance of the Traveler, would state matter-of-factly that one of the duties of the caliph was to declare war on non-Muslims. His assumption was that as non-Muslims, their hostility toward Muslims could be taken for granted. Such hostility, which could result in military aggression, should be preemptively neutralized.

There were however notable exceptions to this later trend, such as the twelfth-century scholar al-Razi, who was suspicious of extracting from scripture politically convenient interpretations contrary to the explicit, commonsense meaning of its text. Al-Razi maintained on the basis of Quran 2:190 that military activity could be launched by Muslims only against actual, not potential, combatants—a principled stand based on scripture that appears to have fallen out of favor to a considerable degree in administrative and legal circles in the late medieval period.

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Did jurists consider the military jihad to be holy war?

It is clear from our sources that roughly by the early Abbasid period (mid-eighth century), the military aspect of jihad became foregrounded over nonmilitary dimensions, particularly in legal and administrative circles. Jihad from this period on would progressively be conflated with qital (fighting), collapsing the distinction that the Quran maintains between the two. As jurists and religious scholars of all stripes acquired considerable authority by the tenth century, they exercised the p. 84right to define the parameters of jihad and limit the range of activities prescribed by it. With the powerful theory of abrogation at their disposal, some (by no means all) jurists effectively rendered null and void the positive injunctions contained in Quranic verses that explicitly permit the conclusion of truces with foes and counsel coexistence with peaceful non-Muslims. These verses (e.g., Quran 60:8–9, 8:61) were understood to be abrogated, or at least superseded, by other verses, such as Quran 9:5, that give the command to fight. In the opinion of these jurists, this abrogation or supersession would remove scripture-based objections to the waging of offensive battles, not for forcing conversion, but to extend the political boundaries of Islam. Once conquered, non-Muslims were to be given the choice of either embracing Islam or paying the jizya. Usually acceptance of the second option (in the absence of the desire to convert) meant that the third option—“to be put to the sword”—devised by this camp of jurists for nonbelievers, would be infrequently exercised.

It would still be difficult to characterize offensive jihad of this sort as “holy war,” mainly because these same jurists also upheld the principle of noncombatant immunity for women, children, the elderly, monks, and others who do not take part in fighting. This is not characteristic of a holy war, in which the demonized enemy has no rights, regardless of their combatant or noncombatant status. Instead of promoting holy war, these hawkish jurists could in fact be accused of doing just the opposite—that is, of politicizing and secularizing the military jihad so that it could be waged as “expansionist war.” Such imperial wars of expansionism would further the state’s objectives to expand territorially and extend its political dominion.

The politicization and secularization of the military jihad is apparent in the Arabic titles of works on international law (also called the law of nations), such as Kitab al-jihad wa al-siyar, which allowed for a religious concept (jihad) to be coupled p. 85with secular imperial law (siyar). This historical development was recognized by Majid Khadduri who stated:

The transformation of Islam into a set of sovereign states brought in its train changes in the concept of the Islamic law of nations, produced by the new circumstances of life. First and foremost was the acceptance of the principle that the control of religious doctrines should be separated from that of external relations.

It should not surprise us that on account of the sensibilities of the day, politically motivated considerations had to be couched in religious rhetoric and theologically legitimized, a tendency that is not exactly unknown to us today.

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Can women take part in the military jihad?

Women were present on the battlefield both during and after the time of Muhammad. Most were there for humanitarian reasons—they tended to the wounded and the sick, prepared food, and provided water for thirsty combatants. Aisha and Umm Salama, two of the Prophet’s wives, are known to have accompanied him to battle. But a number of women took part in the actual fighting. Early biographical sources mention several of these martial women. One such female warrior was Umm Umara, a well-known woman Companion from the first century of Islam. According to one ninth-century Muslim biographer, she fought fearlessly in some of the early battles in Islamic history. During the battle of Uhud (in 625), she is said to have defended the Prophet himself against a particularly ruthless enemy and, consequently, was praised by him for her unusual bravery. That women should take part in the military jihad and related activities should not come as a surprise. The Quran (9:71) describes women and men as allies and partners (awliya) in the moral enterprise of commanding what p. 86is right and preventing what is wrong; defending oneself and one’s community against military aggression would certainly qualify as such an activity.

Some of the later male jurists, however, were not enthusiastic about women’s presence on the battlefield and tried to restrict this practice. The eleventh-century Shafii jurist, al-Mawardi, said they could be present but only for tending to the wounded and preparing food. Some said they should preferably be elderly. A major legal question arose as a consequence—did these women qualify for a share of the spoils of war along with the male combatants? Not surprisingly, there is a diversity of legal opinions on the subject.

According to the early Syrian jurist al-Awzai (d. 774), women present on the battlefield (whether as combatants or noncombatants) were to be given full shares equal to those allocated to male participants. Al-Awzai appealed to the practice of Muhammad, who had awarded full shares to women at the battle of Khaybar (629), for example. Such egalitarianism, however, was not to the liking of most male jurists after al-Awzai. Some of these later jurists said women could be given a small compensation rather than a full share, but others begrudged them even that much and said that they were not entitled to anything. Only the free, adult Muslim male is entitled to a full portion, they asserted, although they were fully aware of Muhammad’s egalitarian practice and al-Awzai’s juridical opinion based on it. One may reasonably conclude that these later juridical preferences were shaped by changing social attitudes toward the desirability of women’s presence not only on the battlefield but, by extension, also in the broader public sphere. Clearly, after the early centuries of Islam, certain rights and privileges were being formulated in highly gendered terms to the detriment of women, even though these new formulations were contrary to the normative practices (sunna) of the Prophet.

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p. 87Can Jews, Christians, and other non-Muslims take part in the military jihad?

Jews and Christians did take part in the military jihad along with Muslims, both during Muhammad’s time and after. Historical and legal sources confirm that Jews and Christians took part in battles alongside the Prophet. Jews from the tribe of Qaynuqa, for example, fought with the Prophet in the military campaigns after Badr, for which they received shares equal to those of the Muslim soldiers. Muhammad also enlisted the help of Safwan, a pagan Meccan, during the battle of Hunayn fought in the year 630; for his help, Safwan was also given the full share of a Muslim.

As in the case of women, later jurists began to register their disapproval of such egalitarian practices in relation to non-Muslims. In his writings, the eighth-century jurist al-Shafii refers to the example of the Prophet who campaigned with non-Muslims and awarded them full shares. But his own opinion was that such practices should be discouraged because one cannot fully trust non-Muslims. Al-Shafii makes exceptions for situations in which they might prove useful to Muslims on account of their knowledge of enemy territory and military strategies. In such cases, he counseled that non-Muslims not be given a full share but only a small compensation or wage. Al-Shafii frankly acknowledges that his position is not based on the practices of Muhammad nor on those of his Companions but simply reflects his personal preference.

After al-Shafii this more or less became the standard juridical position. Even though later jurists acknowledged that Muhammad campaigned with non-Muslims and gave them full shares, they generally advised against the adoption of this prophetic practice. These changes in attitude and praxis allow us to conclude that a certain hardening of attitude toward non-Muslims occurred sometime in the late eighth century and gained momentum in later centuries, no doubt against the backdrop of hostile relations with non-Muslim polities p. 88and groups—with the Byzantines during the Umayyad and Abbasid periods, the Crusaders starting in the Seljuq period, and the Mongols during the Mamluk period. Realpolitik and hard-nosed self-interest rather than religious precedent drove these developments.

By the beginning of the ninth century, greater legal privileges were being conferred on the free, Muslim, adult male at the expense of women and non-Muslims. Even when Muhammad’s own sunna was known to be contrary to such juridical practices, being besieged by ruthless enemies seems to have provided considerable sociopolitical impetus for abrogating earlier more egalitarian and magnanimous interpretations of the law.

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Why did the medieval jurists divide the world into the Abode of Islam and Abode of War?

These divisions are said to have been created by early jurists from the Hanafi school of law (as mentioned, named after Abu Hanifa, d. 767) and further developed by the influential jurist al-Shafii in the late eighth-early ninth centuries. The Abode (literally House) of Islam, called Dar al-Islam in Arabic, referred to orderly Islamic realms in which the Sharia (revealed principles of law and ethics known from the Quran and sunna of the Prophet) was followed. The Abode of War, called Dar al-Harb in Arabic, referred to non-Muslim territories which were considered to be in a natural state of lawlessness and ipso facto opposed to the Abode of Islam. In al-Shafii’s conceptualization, a third realm was added, called the Abode of Treaty (Dar al-Ahd) or the Abode of Reconciliation (Dar al-sulh), into which non-Islamic polities that had concluded peace treaties with Muslim rulers were admitted.

It should be noted that these concepts are not to be found either in the Quran or in the hadith literature. Rather they are the result of the jurists’ independent reasoning, known in Arabic as ijtihad, and reflect the Realpolitik of their time. The study p. 89of law with the use of human reason is known in Arabic as fiqh, or Islamic jurisprudence. While the Sharia is known from divine revelation and regarded as perfect and infallible, fiqh is a human product that results from interpretations of the Sharia. Like all human products, fiqh is imperfect and changeable. When we refer to “Islamic Law” we are in fact referring mainly to fiqh, although many continue to use Sharia and fiqh interchangeably. One branch of fiqh, or jurisprudence, came to focus on the conduct of war by the state, which led to the development of the Islamic law of nations or international law, known in Arabic as siyar.

In the premodern world, Islamic international law was predicated on an existing state of “cold war” between territories inhabited by Muslims and those inhabited by non-Muslims, which required constant vigilance on the part of the former against the latter. In the premodern world, the default relationship among nations was, after all, war. Jurists, like the eleventh-century scholar al-Mawardi, acknowledged this historical reality and stipulated that one of the duties of the caliph was to carry out military campaigns against enemy territory at least once a year to expand Islamic realms and preempt potential attacks by their enemies. Other jurists were of the opinion that this duty could be fulfilled by simply being in an adequate state of military preparedness to forestall enemy attacks.

Al-Shafii’s perspectives on jihad was, in many ways, a marked departure from earlier juristic thinking. This is quite evident when his views are compared with those of jurists from the earlier Hanafi school of law. Hanafi jurists did not subscribe to a third Abode of Treaty, as devised by al-Shafii. They thought the inhabitants of a territory that had concluded a truce with Muslims and paid tribute became part of the Abode of Islam and were entitled to the protection of the Muslim ruler. The early Hanafi jurists also held that nonbelievers could only be fought if they resorted to armed conflict and not on account of their unbelief, basing their position on Quranic injunctions. Their positions were undermined over time by jurists who p. 90went on to formulate a theory of offensive war based on political realism.

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Does the division of the world into the Abode of Islam and Abode of War still apply in the modern period?

This binary vision of the world had already become passé by the twelfth century, as it no longer matched the political realities of the time. Muslim rulers frequently made treaties with non-Muslim rulers so that the “Abode of Treaty or Reconciliation” became a more meaningful category. Furthermore, the idea of a monolithic Abode of Islam seamlessly united against a monolithic Abode of War could not be maintained after the seventh century as Islamic realms splintered into different dynasties. The rulers of these autonomous dynasties were more likely to be warring among themselves than against external non-Muslim enemies. In the tenth century, there were three competing caliphates in the Islamic world—the Abbasid caliphate based in Baghdad; the Fatimid caliphate based in Cairo; and the Umayyad caliphate based in Cordoba, Spain, all at loggerheads with one another. Muslim rulers were not squeamish about allying themselves with non-Muslim rulers against a common enemy when it suited their purpose. For example, the Abbasid caliph Harun al-Rashid teamed up with the Holy Roman emperor Charlemagne in the ninth century against their common enemy, the Byzantines. The Ottoman Muslim rulers in the sixteenth century allied themselves with Francis I of France against their common rival, the Hapsburgs.

In the contemporary period, however, militant Islamists have resurrected the ninth-century concepts of opposed dual spheres or abodes, ignoring the period before the late eighth century (from the time of the earliest Muslims) when these notions had not existed, as well as the later period when these concepts fell into disuse. Although these divisions are not to be found either in the Quran or the sunna (a fact that may not be p. 91known to many among them), they promote these categories and the worldview behind them as required by Islam.

Most modern Muslim scholars tend to disregard this binary division of the world and dismiss it as an archaic, medieval human construct that has no relevance to the modern world. In the late nineteenth and twentieth centuries, the famous Egyptian reformers Muhammad Abduh and Rashid Rida recognized that this idea of a bipolar world had been defunct for centuries and explicitly affirmed that peaceful coexistence should be the normal state of affairs between Islamic and non-Islamic nations. Mahmud Shaltut (d. 1963), another Egyptian reformer who became the rector of al-Azhar University in Cairo, expressed a similar conviction. He stated that Muslims and non-Muslims were equal with regard to rights and duties in a Muslim-majority state and that only defensive wars were permissible in response to external aggression.

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Did jurists permit suicide attacks?

Suicide is categorically forbidden in the Quran. The hadith literature also forbids the taking of one’s own life and warns of punishment in the next world for those who do so. There is no scriptural basis for allowing suicide attacks of the type that one sees in the current period.

Jurists did ponder whether it was permissible to continue to fight on the battlefield when the odds were heavily against the Muslim army. In other words, they debated whether one could be morally justified in refusing to fight a superior army when that would lead to sure defeat and death. If a Muslim army determines that they would most certainly perish if they were to “patiently persevere” and fight against an army twice as large, can it retreat without intending to regroup or join forces with another contingent? The eleventh-century jurist al-Mawardi cites two competing views on this fraught subject: (a) the army may withdraw for God has counseled, “Do p. 92not cast yourselves into destruction with your own hands” (Quran 2:195); or (b) the army may not retreat, because in a military jihad one either “kills or is killed,” and by retreating, the soldiers may fall into error. (In such a case, however, they can compensate by resolving to regroup or join a fighting contingent.) Al-Mawardi concludes by affirming that “God knows best,” indicating that this is a perennial military dilemma to which there is no easy, pat solution since the answer depends on the specific circumstances in which such urgent decisions must be made.

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What are the views of jurists on terrorism?

The premodern, legal Arabic term that corresponds to our modern understanding of terrorism is hiraba. The Quran (5:33–34) describes those who generally wage war and cause corruption on earth as carrying out hiraba, for which stern punishment is prescribed. Jurists used the term “hiraba” to designate specific activities like highway robbery, piracy, and sedition, which sow fear among the civilian population and create chaos and a feeling of helplessness in the public sphere. This is very close to the modern definition of terrorism, a term coined in English only in the twentieth century. According to the Federal Bureau of Investigation (FBI) in the United States, terrorism refers to “the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political goals.”

This definition can be compared with the one given by the Andalusian jurist Ibn Abd al-Barr (d. 1070) of the person who carries out hiraba. He said: “Anyone who disturbs free passage in the streets and renders them unsafe to travel, striving to spread corruption in the land by taking money, killing people or violating what God has made it unlawful to violate is guilty of hiraba … be he a Muslim or a non-Muslim, free or slave, and whether he actually realizes his goal of taking money or p. 93killing or not.” Ibn Abd al-Barr’s definition and that of the FBI both stress the unlawful use of violence and the spreading of fear among civilians; Ibn Abd al-Barr does not mention political goals in connection with hiraba for good reason. Political rebels were placed in a different category (bughat) by Muslim jurists for they were entitled to a fair hearing to determine whether their grievances were justified.

Terrorism is, therefore, unequivocally forbidden in Islamic law which holds human life and dignity to be sacred and inviolable, the protection of which is among its highest priorities. Twenty-first century militant groups like al-Qaeda, Boko Haram, and ISIS all qualify as terrorist groups, according to the definition of hiraba—they deliberately target civilian populations, and the propagation of chaos and fear in the public sphere is one of their prime objectives.

In 2014, over 120 Muslim jurists and scholars signed a letter denouncing the militant agenda of Abu Bakr al-Baghdadi, the so-called caliph of the “Islamic State of Iraq and Syria” (ISIS). The letter contains a long list of crimes committed by ISIS that are designated as terrorist activities. The consensus of these influential jurists places terrorist groups like ISIS outside of the Islamic mainstream. As some have argued, such groups should not be described as “jihadi” or “jihadist” for they clearly do not carry out jihad. Rather, they should be properly labeled as muharibun, that is, those who carry out hiraba, or terrorism.