Authority and the Classical Tradition

Modern Islamist militants have long claimed that their controversial opera­tions are justified under Islamic law, triggering responses from official institu­tions and scholars, who denounce the resort to such tactics and also attempt to legitimize their positions and views within the framework of the same legal system, Islamic law.

In a way, this book is an attempt to intervene in the debate over Islamic law in general and its applicability in “modern” times, but it is equally a revisionist reading of classical jurisprudence, in that it aims to prove that classical jurists often deviated from their declared jurisprudential techniques, usul al-fiqh the­ories, or taqlld, and that such deviation corresponded to the sociopolitical en­vironment of their time. In essence, the book argues that jurisprudence, while it functions mostly within the contours of legal reasoning, can move outside those contours to correspond to sociopolitical factors as envisioned by the ju­rists in the development of their works. In order to do so, scholars and jurists are often selective in their reliance on sources and sometimes deviate from their theoretical frameworks to reach their desired conclusions. However, to a great extent, classical scholars show more willingness to engage with counter­arguments and to refute opposing views than modern scholars, who often at­tempt to portray a singular image of Islamic jurisprudence, as articulated in the Introduction. Perhaps modern scholarship's shyness from controversy and engagement with counterarguments, as opposed to the classical tradition, is attributable to several factors.

However, the claim made in this book that classical jurists showed varying levels of selectivity across the board does not in any way mean that such schol­ars were whimsical or that they were intentionally and consciously subverting legal methodologies to achieve particular legal outcomes. Many of them dis­played allegiance to the Islamic jurisprudential tradition even when this

1 Wael Hallaq, “What Is Shari'a?,” Yearbook of Islamic and Middle Eastern Law 12 (2005-6), 151-52.

allegiance conflicted with their interests or ideologies. As detailed in previous chapters, al-Shaybani refused to grant legitimacy to al-Rashid^ls conduct with rebels, losing his judicial position in so doing. Al-Shafi'i states that had it not been a sin to favourably treat the Arab race, he would have stated that the en­slavement of Arabs was prohibited. And although Ibn Taymiyya stripped the regime of baghy of any potential for application in the conflict with the Mon­gols, he accepted its theoretical application out of deference to the juristic tra­dition, as argued by Abou El Fadl.

1 Personal Ray: Employed by Its Critics

The book covers jurists from the four established Sunni schools and a Zahiri jurist. Findings of the book prove that the impact of ray on legal reasoning is not limited to schools of jurisprudence commonly associated with the accep­tance of resort to reason. As a matter of fact, jurists often seen as strong adher­ents of textual interpretation (at the expense of human reason) show instances of deviation from their jurisprudential techniques to push forward an interpre­tation they wish to promote. For example, Ibn Hazm's strict interpretive theory did not stand in the way of his project to limit non-Muslim power within the Muslim polity by imposing limitations on the dhimma regime.2 Similarly, Ibn Rushd (al-Jadd), who was also a witness to perpetual war with northern Chris­tian neighbours, offered a creative analysis of the sources of Islamic law, in or­der to devise a regime that promoted a harsher treatment of spies through the employment of the hiraba regime and its strict penal regulations. Not only was this argument, as established in Chapter 2, a deviation from standard juridical treatment of hiraba (as a regime reserved for robbers and bandits), but more important, it created an amalgam between different positions in the Maliki

2 Nesrine Badawi, “Sunni Islam. Part I: Classical Sources,” in Religion, War and Ethics: A Sourcebook, ed.

school, to reach a new ruling not advocated by any of the jurists relied on as Malikf authorities. Al-Shafi'!, who was very critical of citing anonymous sourc­es to back up one's positions, relied on unestablished agreement of “the people of knowledge” to claim that the subjugation (sighdr) of non-Muslims must en­tail applying Muslim laws to them. Finally, Ibn Taymiyya denied the applica­tion of the long tradition of baghy to conflicts with the Mongols, collapsing the regimes of apostasy and jihdd against infidels to come up with an innovative approach that expanded the privileges of the factions fighting Muslim Mon­gols.

Yet, inconsistency is not in any way unique to literalist and textual ap­proaches. Unlike claims made by their critics, Hanafis also asserted textual sources as a basis for their legal methodology. A scholar like al-Shaybanf was always keen to rely on the Qur'an and sunna in his legal analysis.3 Yet, analy­sis offered in this book of his jurisprudence shows how his sociopolitical views have equally influenced his jurisprudence, beyond the claimed rubric of Lstihsdn. His treatment of the regime of tatarus, for example, was clearly intent on expanding Muslim military advantage during conflict. At the same time, his approach to division of the booty among different factions within the military, his regulation of the amdn framework, and his treatment of regulations in ddr al-harb indicate an interest in asserting institutional governance through the caliphate.

2 Modern Projects: Eclectic Approaches to Classical Legal Authority

In addition to selective reliance on sources, the modern tradition is perhaps even more incoherent than the classical tradition. It lacks a coherent theory of usul, replacing it with what is, at least on its face value, an arbitrary reliance on classical jurisprudence. Yet, what calls for more attention than such selectivity is that mainstream scholars and militant works mirror each other's techniques in their approach to the classical tradition.

3 Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 112.

often literal and loyal to the classical tradition on matters such as targeting in order to prove that mainstream claims about targeting are fallacious. In both cases, each camp surveys classical jurisprudence and examines the sources re­lied upon by classical jurists in an attempt to prove congruence between their modern approach and the classical tradition. At the same time, when both camps are aware they might be deviating from the classical tradition, either they selectively rely on one convenientjurisprudential work and disregard oth­ers, who are relied upon in other instances, or they claim that the modern con­text differs significantly from the classical one, thereby deeming that it would be invalid to apply classical jurisprudence in the modern situation. For exam­ple, modern mainstream scholarship adopts an innovative approach in its claim that the hiraba regime should apply to terrorist activities, adopting a lim­ited or extremely selective approach to the classical tradition, and deliberately ignoring how classical works generally limited the application of the hiraba regime to non-political crimes. At the same time, we have seen how al-Zawahiri has gone to great lengths in citing classical jurisprudence on unintentional kill­ing to argue that the killing of a schoolgirl is collateral damage in a failed assas­sination attempt, but shifted to policy-oriented, context-driven argument in order to discredit the claim that a modern-day visa is akin to the classical re­gime of aman.

Such similarities in techniques between mainstream scholars promoting an understanding ofjihad that approximates modern international humanitarian law, and militant groups claiming a puritan revival of Islamic law, portrays the understanding of the two camps as reformist vs. traditional to be limited and reductive. Additionally, the perception of the classical regulation of conflict under Islamic law as archaic, and in need of evolution to catch up with inter­national norms, fails to understand the complexity of both Islamic law and international humanitarian law, because it fails to understand these two legal regimes through the interests promoted and legal arrangements developed by jurists to respond to society as they envisioned it. This perception, because of its limited and evolutionary perception of development of societies and legal frameworks, fails to account, for example, for how classical Islamic law was more restrictive of armies' destructive power in armed conflicts between Mus­lims than modern international humanitarian law and its regulation of non­international armed conflicts, perhaps even international armed conflicts.^ However, an understanding that pays attention to the interests placed in a fa­vourable position by the jurisprudence and how those interests reflected themselves alongside legal reasoning and adherence to legal theory, allows us

4 Badawi, “Sunni Islam,” 311-15. to understand why scholars like al-Shaybani and Ibn Rushd (al-Jadd) showed more faith in the political authority and offered a more pragmatic outlook on the law than scholars like al-Shfi'i and Ibn Hazm, who attempted to offer more restrictions on the political authority's power vis-a-vis competing Mus­lim factions.5 It also gives us insight into how the waning power of the Muslim empire shaped thejurisprudence of scholars like Ibn Hazm and Ibn Rushd (al-Jadd) and their approach to the treatment of non-Muslims, as well as the impact of the Mongol acquisition of Muslim lands on Ibn Taymiyya's approach to illegitimate rulers. This approach similarly helps us navigate modern re­views and assess them in a manner that extends beyond either their adherence to the classical tradition or their assimilation into international norms. Most important, it helps us engage in a discussion about the relationship between the modern sociopolitical context and the rise of militancy.

3 Modern Institutions: What Can They Do?

The rise of militancy is closely connected to a legitimacy gap for the legal order across the Muslim world, and legal transplantation and the shift to modern secular legal systems have been of significant impact, as Hallaq points out.6 Under modern legal regimes and their so-called modernist approaches to the application of Islamic law in Muslim states, approaches to Islamic regulation of armed conflict inevitably are vulnerable to accusations of incoherence and illegitimacy, in the light of those institutions' claimed adherence to the rules of Islamic jurisprudence in other areas, like personal status law. One must not be tempted, however, to accept the claim that there is one, specific form of legal order in the Islamic state, and that that form is classical sharFa as we tradition­ally understand it.7 Although it is tempting to reject both the militant under­standing of Islamic law and the authoritarian influence of the postcolonial state on the Islamic legal tradition, with a call for a glorious, golden past, such a call is hardly methodologically different from modern transformations of

5 Badawi, “Sunni Islam,” 311-15.

6 Wae∖Ha⅛a¾ TlielmpossiblestateilslaPoticsandModernitys Moral PredicameiIt, Kinde ed. (New York: Columbia University Press, 2012), loc. 65.

7 For a compelling critique of this approach, see Lama Abu-Odeh, “The Politics of (Mis)recogni- tion: Islamic Law Pedagogy in American Academia,” AmericanJournal of Comparative Law 52 (2004), 789-824. See also reviews of Hallaq's recent book, such as Andrew F. March, “What Can the Islamic Past Teach Us About Secular Modernity?,” Political Theory 43 (6) (2015), 838-49, and Lama Abu-Odeh, “Book Review of The Impossible State by Wael HaIIaq (2013),” IiIternationalJournal of MiddleEasternSuidies 46(5)(72014)),216-1%.

Islamic law, because it equally disregards the complexity of the past. Rather, contextual analysis needs to carve out its own space in this historical moment, laden as it is with Islamophobia and essentialist readings of the Islamic legal tradition and Muslims as proponents and propagators of violence. Yet, at the same time, we must strenuously reject attempts to romanticize and glorify the Islamic tradition at the expense of critical assessment. Hallaq, for example, makes a very compelling argument in his critique of the modern nation-state, its closely connected notion of sovereignty, and its proclivity to promote authoritarianism and a highly unequal world order. Hallaq's is an argument asserted and promoted by many of the critics of international law referred to earlier in the book, not least Antony Anghie, whose work on sovereignty and colonialism continues to be a seminal text.8 Yet, accepting this argument about the modern legal order does not entail accepting Hallaq's claim that Islamic culture, which he sees as a legal culture par excellence, is superior to the mod­ern state system due to its highly moral nature.9

In a way, I agree with Hallaq that the Islamic legal system regulating jihad. was heavily influenced by morality, an argument made by Abou El Fadl, who argues that the system developed by the jurisprudence attempted to balance moral principles with a functionalist interest in the expansion of the combat­ant's leeway in armed conflict, as discussed in the Introduction^ But stating that a system is premised morally on the protection of religion is no different from claiming that the international laws of armed conflict are morally pre­mised on a chivalrous inclination to limit the loss of lives among non-combat­ants, a view contested in numerous literature offering a nuanced critique of international humanitarian law.؛؛ Throughout this book, I have attempted to prove that the moral and legal outlook in pre-modern jurisprudence, although it indeed aims to protect religion, was embedded in complex understandings

8 Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth­Century International Law,” Harvard International LawJournal 40, no. 1 (1999), 1-80.

9 Haffaq, Impossible State, loc. 3364.

10 Khaled Abou El Fadl, “Between Functionalism and Morality: The Juristic Debates on the Conductof- Wat” ⅛ Islamic EtfiicsoJLjiJe:A^t^(^٦^1;i^r^, Wc^r andEuthanasia,ed. JonaihionE.. Brockopp (Columbia, SC: University of South Carolina Press, 2003), 103-128.

11 See e.g. Nathaniel Berman, “Privileging Combat? Contemporary Conflict and the Legal ConstarctAon of- Wat” Colt^mbia Jot^maloJ Transnational Law 4¾f200⅛5J, ¾-1.'S>e.ea⅛l0 David Kennedy, OJWar and Law (Princeton, NJ: Princeton University Press, 2006), 36-37; Antony Anghie and B. S. Chimni, “Third-World Approaches to International Law and Individual Responsibility in Internal Conflicts,” ChineseJournal oJ International Law 2 (2003), 80; Fredric Megret, “From Savages to Unlawful Combatants: A Post-colonial Look at International Humanitarian Law's Other,” in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006), 265-317. of societal hierarchy and structures. This is a system that was conditioned to perceive slavery as a normal extension of the legal order; that sometimes aimed at increasing Muslim revenue from conflict, as seen in al-Shafi'i and al- ShaybanTsjurisprudence; that asserted social and hierarchical structures of class and gender when dividing booty and discussing women's entitlement to grant aman, as discussed by al-Shaybani; that, shaped by fear of annihilation by the other, significantly limited the privileges of dhimma, as seen in Ibn Hazm's jurisprudence; and that denied the inherent privilege long established for a Muslim in internal armed conflict, as seen in Ibn Taymiyya'sjurispru- dence on the Mongols. So, although it may be true that Muslim conceptions of armed conflict are indeed helpful in critiquing the modern approach to war and armed conflict, failure to engage seriously with the dynamics of develop­ments in the field - or with the biases and outlooks guiding morality and legal­ity in devising a system of rules governing the field - reduces the potential for engaging critically with the modern order to mere apologetics and romanticiz­ing one historical moment of understanding Islamic laws of war.

As mentioned earlier, the static, ahistorical approach to the regulation of armed conflict in early Islamic jurisprudence was strongly connected to the intellectual conundrum we find ourselves caught up in today - the debate over militant Islam - with both mainstream scholars and militant groups claiming legitimacy on the basis of the pre-modern tradition, with ISIS ironically mak­ing a claim to the reintroduction of the “impossible state” that Hallaq exam­ines. With their assertion of moral supremacy, their absolutist adherence to a model heavily dependent on the erosion of the sovereign and their claim to legitimacy in the pursuit of God's will, ISIS seems not to differ significantly from the model of the so-called impossible state. True, its approach and the legal details of its model may legitimately be criticized for being internally contradictory, but the claim to morality is not that distinctive. I acknowledge that ISIS does not fit the model of the pre-modern Islamic state and that its approach to Islamic law is heavily shaped by the modern conception of the state, as I believe Hallaq would argue. It is also true that ISIS's model is clearly trapped in legal sanction and excessive resort to punishment, thereby signifi­cantly deviating from Hallaq's model of the Islamic state and its treatment of criminality in pre-modern Islam. It is also far from emulating the pre-modern separation of powers between jurists and the political authority, which indeed deems it a far cry from the impossible state described in Hallaq's work. Still, it makes the same ahistorical claim to a moral past, disregarding how its ideals, contradictions, and values were highly responsive to its time and its associated sociopolitical understanding of the world. This ahistorical understanding is also not different from the widely witnessed regressive attempts in the West to position Muslims and their world outlook as reflective of a static legal order with an archaic understanding of violence, a violence that is ill suited to this modern world and that must be shunned, whether physically (by halting im­migration and banning refugees in the midst of a humanitarian crisis) or by enforced assimilation in the modern state, with its acknowledged proclivity towards coercion and attempts to control public space, erode its long-held commitment to private space and, in many instances, control agency over the body, because Muslims “cannot appreciate the political order of the present,” and because of their fixation on a moral system developed centuries ago.

Undeniably, the call for internal critique and critical engagement with both the Islamic legal tradition and the modern laws of war barely addresses the surface of the dilemmas of a modern doctrine of regulation of armed conflict. In a way, I agree that the modern replacement of the system with the interna­tional legal order hardly addresses the issue of Islamic militancy and not just for the equal tendency of international laws of armed conflict to sanction and channel violence and legitimize the loss of life. True, many Islamists see the colonial experience as a serious abomination and an indication of the kufr of the current regimes, with their resort to secular laws and claims for displace­ment of a system that has for long been seen a mere theoretical field, yet a field highly revered and romanticized because of a perception that it touches the core of the Muslim culture: how and when it sanctions the loss of life.

In this book, I have attempted to dissociate this relationship. Historical un­derstandings of how violence is promoted should not essentialize cultures, be­cause cultures have always sanctioned violence and will continue to do so. It is in this context that modern mainstream readings of the Islamic regulation of armed conflict become extremely relevant, for they are collectively seen as sig­nificant contributors to present-day understandings of conflict. However, in order for them to be more relevant in this debate, modern scholars of Islam need to engage critically with the premise upon which the debate is set. They must acknowledge the inseparable relationship between politics, morality, and the law, in the past and in the present, and, more important, in their own projects.

For modern institutions to offer a coherent understanding of Islamic law, they need to address internal contradictions in their projects, in their approach not just to Islamic laws of armed conflict but also to Islamic law in general. Take the case of al-Azhar. Its contextualized, albeit rudimentary, approach to Islamic regulation of armed conflict is starkly contrasted with its approach to social issues, more specifically, its approach to gender issues. As discussed in Chapter 3, the Grand Shaykh of al-Azhar came head to head with the Egyptian head of state for failing to toe the president's line on verbal divorce, whereby the Egyptian president wished to amend the law to limit the state's acknowl­edgement of divorce to one registered with the state. Undoubtedly, aside from the president's interference, addressed below, the issue touches the lives of many women who have long suffered from being in a limbo - seen as divorced because their husbands have verbally pronounced them as such, but treated legally as married because they are unable to provide evidence of the divorce. As noted by many analysts, due to historical legal “reform,” personal status law has long been seen as the last remaining sphere of influence for al-Azhar, lead­ing it to show serious reluctance to deviate from pre-modern jurisprudence.^ But this position, aside from serious questions relating to the “scapegoating”i3 of gender in the modern state, raises an important theoretical question: how can an institution that promotes strict adherence to pre-modern jurisprudence in some instances, even when there is a serious social need to reformulate such jurisprudence, legitimate the alternative theoretical and practical position when it attempts to offer novel interpretations of the jurisprudence, especially if those interpretations deviate from the traditional pedagogical and doctrinal approaches to the study of law at the institution? True, any doctrine of internal criticism, as Zaman calls it, is bound to incoherence, and in many instances it may also be true that, as he argues in the case of al-Qaradawi, some conserva­tive views lend legitimacy to more lenient views.14 But this dynamic, although it may lead to some significant wins, freezes the jurisprudence in a debate over legitimacy, with pre-modern jurisprudence constantly resorted to as the benchmark.

Additionally, any attempt by al-Azhar (or by other significant religious insti- Prtions across the Muslim world) to maintain its relevance and legitimacy is closely connected to its authority and independence. Prominent religious in- stiPutions often come under heavy criticism from militant groups for subservi­ence to corrupt and authoritarian regimes. Because al-Azhar has been very much controlled over the years by the Egyptian state,15 both legally and po­litically, and because the move towards national legal systems and national courts has eroded its scholars' power, al-Azhar has long been seen as a tool of the political regime. This has created the space for the rise of alternative influ­ences on Muslim youths, searching for what they hope is “depoliticized and

12 LamaAbu-Odeh, “Modernizing Muslim Family Law: The Case of Egypt,” Vanderbelt Journal of Transnational Law 37, no. 4 (2004), 1047.

13 Abu-Odeh, “Modernizing Muslim Family Law,” 1047.

14 Muhammad Qasim Zaman, Modern Islamic Thought in a Radical Age (Cambridge: Cam­bridge University Press, 2012), 310-12.

15 See discussion in Chapter 3.

genuine Islamic authority,” influences that utilize the above-mentioned con­tradictions and deviations from pre-modern jurisprudence to paint al-Azhar as a political tool of the regime. In this situation, calls for the state to reign in al- Azhar, to impose an alternative, more tolerant understanding of the “other” in Islamic law and in its curriculai6 - and even to deem ISIS an apostate groupi7 - are extremely short-sighted in their understanding of authority in the Islam­ic tradition and the traditionally upheld, and indeed laudable, inverse relation­ship between scholars' authority and legitimacy and their proximity to the ruler. Muslim states' enforcing a vision of jihad, on their scholars and institu­tions would only further erode any chance at legitimacy and influence for these InstitutionsIS

That is not to say that independent scholars have not also come under heavy criticism in recent years. After all, a group like ISIS, which flirts with deeming even figures like al-Maqdisi and Abh Qatada apostates, can hardly be satisfied with anyone's Islam except for its own recruits and fighters. But like any group, ISIS relies significantly on a flow of recruits willing to die in its name, and that is why the legitimacy of scholars and institutions providing alternative and nu- anced understandings of the field is still extremely significant. But even schol­ars traditionally perceived as independent, like al-Qaradawi, are eroding their independence with highly inconsistent and sectarian approaches to political dissent and political violence after the Arab Spring.

In conclusion, this book is not an attempt to tell the reader what Islamic laws of armed conflict are, or what the “correct” understanding of the rules during armed conflict is. It is, rather, an attempt to build on a long tradition of criticism, both in Islam and in Western scholarship of law, to reorient the de­bate in this field, with an acknowledgement that the arguments I put forward here could be subject to the same critique of incoherence and political influ­ence. What I am hoping to do is shift the debate. The question is not what the laws are, as much as it is what pronouncements on the law - whether made by revered, towering figures in Islamic legal history, official Muslim institutions, independent modern scholarship, or even militant groups - tell us about those

16 Hamza Hendawi, Lea Keath, and Mariam Fam, “Angry Debate in Egypt over Reforms in Islam Against Radicals,” Associated Press, online:, accessed 1 May 2015.

17 “Shaykh al-Azhar: Da'ish min ahl al-qibla wa-la yumkin takfirahum,” al-Masry al-Youm, online:, accessed 28 April 2017.

18 See e.g. Aharon Layish, “Transformation of Shari'a from Jurists' Law to Statutory Law in the Contemporary Muslim World,” Die Welt des Islams 44, no. 1 (2004), 85-113. who make such pronouncements, their biases, their outlook on the world, and, more important, their objectives in conflict situations. Rather than engaging in a cyclical debate over whether ISIS was entitled to enslave Yazidi women - whether they were permissible targets due to the “apostasy” of the Iraqi regime - we need to expose isis's position for what it is and disarm it of the shield of claims of apolitical adherence to Islamicjurisprudence. We need to ask the necessary questions: why was the image of slave markets necessary for the group's propaganda, and what did the heavy-handed targeting of a small, eth­nically Kurdish minority mean for its battle with Kurdish paramilitary groups and its fueling of sectarian conflict in Iraq and Syria? But in order to ask such questions, it is pertinent to disarm those groups of their claim to legitimacy and authenticity as revivers of the classical tradition, not simply by pointing out their deviation from said tradition but, more important, by reorienting our reading of the classical figures of Islamic jurisprudence.

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