Contents

Acknowledgements VII

Introduction 1

1 How Do We Study Islamic Legal History? 4

2 Indeterminacy in Islamic Jurisprudence on the Regulation of Armed Conflict 8

3 Primary Concerns of Classical Jurisprudence 13

3.1 TypesofCoiJflict 13

3>.2 WhoMayBeKelDuringConibat?!-?,

33 Capties !٦

3.4 Property, !٦

3.5 Aman 18

Islamic Jurisprudence in the Expansive Empire 19

1 Al-Shaybani: a Jurist-Judge 21

VV A,l-^S^h^cy^l^o^nrsWc^r^l^s; 22

1.2 Al-Shaybanland.

13 ALshaybasLife-InandoutoftheCaiiphsCourt 2٦ !4 ALShaybOni: IheJurst-JudgeandtheReguationofArmed ConfΓιct30

2 Al-Shafr and the Exclusionary Project 45

21 FromDestitutiontoProminence46

2.2 Al-Shafi^cHs Theory of Usl al-Fiqh 50

23 ALShafi'ia.ndtheReguationofArmedConflict53

3 Conclusion ٦3

The Muslim World at the Frontiers: Al-Andalus ٦5

Section One: Andalusi Jurisprudence ٦٦

1 Al-Andalus: Loss of Muslim Power 77

2 Ibn Hazm and the TaTfa States 81

21 I^l^nH^c^2^m^,s Jurisprudence: 'hirl Theory of U⅞d-sλ-Fdh82

2.2 TheHistoricalContextandIbnHazmsRuiingsonWar86

3 The Jurist-Judge in al-Andalus: Ibn Rushd al-Jadd 97

31 TaeldandtheLegacyofthePredecessors 99

3.2 HegemonyaRecurringThemewa

33 FaithinthePoliticalAuthorityvo5

4of militants are gaining popularity. Within this atmosphere, it is becoming increasingly difficult to talk about the Islamic regulation of armed conflict without falling into the trap of either essentialism or apologetics. Nevertheless, the importance of engaging with this branch of law can hardly be overemphasized. This book attempts to make an intervention that avoids those traps by addressing a primary question: how does one understand Islamic jurisprudence on the regulation of armed conflict in its past and present formulations? In order to do so, the book does not offer another summary of the legal tradition as understood by the author.

The idea for this book arose more than a decade ago out of a sense that modern scholarship on the regulation of armed conflict in Islamic law is seri­ously disconnected from the jurisprudence upon which it claims to base itself. The more I delved into classical jurisprudence, the more it became clear to me that classical and modern works are not only making distinct claims; they are, in fact, speaking different languages. Modern works used a language we have grown accustomed to, the language of military necessity and distinction be­tween combatants and non-combatants, or in other words, the language of international humanitarian law (ihl), albeit in its most idealized and sani­tized iteration, the language of the world we live in today and based on the paradigms created by the interaction between law and the modern nation-state. The other language, that of the early jurists, equally reflected the different eras it was formulated within, a world where some categories, such as women and children, were seen as impermissible targets across different cultures and where the separation between the civilian community and the state did not exist, partly due to the lack of a Ihll-Iledged army and the general mobilization of the warring parties' peoples during combat.

In a way, this book is an attempt to carve a space for an open debate over authority in Islamic law and the place of the classical tradition in the contem­porary discourse over violence.

1 On functionalist legal histories, see Robert Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984), 57-125.

2 Nesrine Badawi, “Regulation of Armed Conflict: Critical Comparativism,'' Third World Quarterly 37, no. 11 (2016), 1990-2009.

3 Graeme Wood, “What ISIS Really Wants,” The Atlantic (March 2015), online:, accessed 8 April 2017.

as a set of legal rules, applied rationally and deductively to a particular situa­tion, thereby deriving a “scientific" and “formalist” understanding of the law. This view of the law not only confounds human agency in the process; it also ascribes a rather sacred understanding of the text, whereby the text rises above language, above biases, and above our understandings of social relations to consistently and coherently yield the same result in analogically similar situa­tions. But, as critics note, this understanding of law fails to understand the politics of language and the role played by power dynamics in a society, having a direct impact not only on how we design and articulate legal relations but also on how we implement and understand those legal relations once pro- nounced.4

Perhaps the most relevant example of this critique is how we understand the relationship between law and violence. The prevalent narrative on this relationship is that law regulates and limits our tendency to resort to unmiti­gated violence. This understanding is Idrther amplified by an understanding of legal history as a history of the progress of civilizations, which is most accentu­ated in the history of international law, seen as “a progressive history that in the end would lead to a world governed by the ideals of the Enlightenment, and the American and French Revo!utions.''5 Of course, such an understanding of the legal regulation of violence during war is rightly critiqued for its Euro­centric outlook, an outlook that limits meaningful contributions to interna­tional humanitarian law to Western civilization.^ More important, it actually fails to account for the complexity of the relationship between law and the regulation of armed political violence.

4 James Herget, “Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy,” AmericanJournal ofLegal History 39 (1995), 60. See also Allan C. Hutchinson and Patrick J. Monahan, “Law, Politics and the Critical Legal Studies Scholars: The Unfolding Drama of American Legal Thought,” Stanford Law Review 36 (1984): 202, and G. Edward White, “From Realism to Critical Legal Studies: A Truncated Intellectual History,” Southwestern LawJournal 40 (1986-87), 825.

5 Bardo Fassbender and Anne Peters, “Introduction: Towards a Global History of International Law,” in Oxford Handbook of the History ofInternational Law, ed. Bardo Fassbender and Anne Peters (Oxford: Oxford University Press, 2016), 1.

6 Nahed Samour, “Is There a Role for Islamic International Law in the History of International Law?” EuropeanJournal ofInternational Law 25, no. 1 (2014), 313-19.

abolish violence, nor has it ever levelled the playing field between political players. On the contrary, it was designed and formulated to privilege a particu­lar form of violence, violence committed by the state and its actors, and to re­strict and delegitimize other forms of violence committed by political actors, from liberation movements to modern-day terrorists.?

1