Conclusion

The Muslim caliphate during the reign of Han al-Rashid was undeniably a formidable power, and it is impossible that the jurists who witnessed that era were not aware of the impressive ability of that caliphate to rule over massive and diverse lands.

Al-Shaybani's al-Asl can be read as a pragmatic statesman/jurist's attempt to weigh out and balance different and perhaps competing interests. However, it seems his primary interest lay in ensuring hegemony of the Muslim empire, as well centralization of authority. This cannot be read as mere subservience to the caliph. Rather, it should be seen as an attempt to promote internal stability, because of its balance and limitation by other interests, such as establishing Muslim suzerainty and lending legitimacy to rebellion. Public office also ap­pears to have contributed to some level of acknowledgement of the enemy's legitimacy and a pragmatic attitude to “international relations.” All these inter­ests are qualified by the, perhaps subconscious, inclination to affirming estab­lished social structures and gender relations.3٥i

On the other hand, although al-Sh fi'i's proposal for armed conflict with non-Muslims also leads to the expansion of targeting techniques, it further narrows untargetable categories and limits alternatives for co-existence for the defeated if they do not fit into his definition of religions eligible to pay Jizya.

301 Badawi, “Sunni Islam,” 312.

But one cannot rule out the caliphate's role in al-Shah^ti^ls reasoning, nor po­sition him as a lone champion ofjihad. The 'AbbasidJihad policy at the time of Harbn al-Rashid was invested in small-scale attacks aimed at asserting Muslim hegemony rather than at converting the other. Additionally, al-Rashid may have nurtured an atmosphere of hostility towards non-Muslims, allowing al- Shafi'i to restrict the access that the People of the Book had to the regime. For example, al-Rashid reportedly “ordered that the churches in the frontier provinces should be destroyed because the Christians were thought to be act­ing as a fifth column for the enemy.”3٥2 Al-Shafi'i's approach toJihad might thus have been more extreme than the official policy, but in no way was it an aber­ration.

Al-Shafirs permissive approach to conflicts with non-Muslims is best con­trasted with his restrictive approach to rebellion. He goes to some lengths to ensure rebel immunity from liabilities for damages and to guarantee that the caliph's exercise of power with Muslim rebels is heavily regulated. In return, restrictions imposed on rebels in order to be classified as rebels do not address their own conduct or legitimacy of the rebellion itself. Ta’wll, even if errone­ous, and the number threshold, were pragmatic restrictions necessary for maintaining public order and stability without creating the space for the ca­liph to exercise jurisdiction in terms of denying rebels the right to baghy.

Al-Shafirs independence from the political authorities appears to have been a key factor in shaping his jurisprudence. It is no coincidence that al- Shaybani, the jurist-judge, relatively expanded the caliph's authorities in his use of force with rebels and comparatively limited the use of force with infi­dels, through expanding the Jizya regime and relying on a longer untargetable list of individuals. Apparently, al-Shaybani came to realize that a restrictive Ji- zya regime was an impractical alternative for the Muslim state. As for rebel­lion, he was evidently sympathetic to and as equally interested as al-Shafi'i in limiting the caliph's authority, but perhaps he was aware that caliphs are un­likely to accept a regime such as the one promoted by al-Shafi'i. On the other hand, al-Shafi'i, the outsider, adopted a harsher approach to wars with non­Muslims and a more restrictive approach to rebellion.

302 Kennedy, EarlyAbbasid Caliphate, 131.

303 Abou El Fadl, Rebellion, 149.