Indeterminacy in Islamic Jurisprudence on the Regulation of Armed Conflict

This book attempts to provide a similarly detailed reading of Islamic jurispru­dence on the conduct of war, with the objective of proving the indeterminacy of the juridical texts.

The choice of scholars from those periods is aimed at testing the hypoth­esis that sociopolitical scenes and identities influence juridical work. Accord­ingly, the book examines, on the one hand, different scenarios of interplay between the scholars' modes of juridical reasoning and, on the other hand, their geographical locations, political contexts, identities, and ideologies.

20 Wael Haffaq, A History ofIslamic Legal Theories (Cambridge: Cambridge University Press, 1997), 26.

and the Shafi^tI school, is an obvious choice to represent this madhhab.2i Ibn Rushd al-Jadd (d. 520/1126), a prominent judge in al-Andalus during the reign of the Murabithn, represents the Maliki school. Ibn Taymiyya (d.728/1328), often claimed as the primary inspiration for militant thought, represents the Hanbali school. Finally, Ibn Hazm (d. 456/1064), who represents the extinct Zahiri school, is chosen for two reasons. First, the Zahiri claim to adhere com­pletely to texhial sources and to deny techniques perceived to expand juristic interpretive tools - such as qiyas (analogical deduction) and Istihsan (juristic preference) - makes it an excellent case shidy for this book, given my hypoth­esis that all works studied deviate from their theories of legal reasoning and produce a legal regime that is responsive to the sociopolitical context. Second, Ibn Hazm is often relied on in contemporary works, both militant and main­stream, which makes him a highly relevant figure in modern juristic debates.

Since the aim is to demonstrate that jurists' schools of thought and legal analyses were not the sole factors to influence their rulings, the chosen jurists, in addition to representing distinctive schools of jurisprudence, also represent varying relationships with political authority.

I contrast two camps in the modern era, the mainstream and the militant. The mainstream camp is represented by al-Azhar and traditional academic Muslim intellectuals. Militant works are represented through an analysis of a

21 A claim that has been challenged by key contemporary scholarship. It is discussed in more detail in Chapter 1.

debate between Ayman al-Zawahiri, often referred to as al-Qa'ida's ideologue, and his former ally and comrade, Sayyid Imam Abdul Aziz (b. 1369/1950), who issued two works renouncing the tactics of al-Qa'ida, as well as by the works of Turki b. Mubarak al-Bin'ali (d. 1438/2017), an ISIS ideologue, and by isis's Eng­lish publication, Dabiq.

But to what extent are the selected texts representative? Although the book attempts to dispel the notion of representation within the Islamic legal tradi­tion (on the basis of its established diversity), the scholars, institutions, and groups chosen for examination in this book are ones whose authority has been asserted or who are at least accepted as having influenced the field.

This book does not claim to offer a full historical survey of Islamic jurispru­dence on armed conflict. Many significant eras, polities, dynasties, and schol­ars are left aside despite their significance. An examination of jurisprudence under the Ottoman Empire, for example, would offer an excellent opportunity to examine Islamic law's interaction with Europe's jus gentium, and an explora­tion of jurisprudence such as Muhammad 'Abdti's (d. 1323/1905) or Abti A'la Maudtidfs (d. 1399/1977) would shed light on Islamic law's development in the colonial and post-colonial contexts.

One of the limitations of the choice of scholars is that the book focuses on Sunni juristic works and so ignores other sects, notably Shi jurists. This choice is based not on a denial of the importance of the role played by these jurists in the development of the held, but rather on the limitations of time and space. As clarified earlier, this book offers a detailed analysis of the legal arguments and tools used by the jurists whose works are explored. In a historical analysis of juristic works from the formative to the contemporary period, it would be difficult to include also an analysis of non-Sunni works. It also addresses the general internal consistency of the works of the jurists, as well as their adher­ence to the positions developed by the madhhab and the juristic tradition as a whole. As argued by Hallaq, Muslim jurists gradually limited the interpretive options available and created a “more determinate body of positive law.”22 The book hopes to internally challenge this perception by proving that this process masked political and ideological agendas and was accordingly far from deter­minate.

The book does not challenge the theories of usul al-fiqh adopted by the ju­rists either. While it is, of course, true that the theorization of the sources of Islamic law was, in itself, influenced by scholars' political interests and identi­ties, the book avoids addressing the jurists' views on the sources, and ap­proaches them as a given benchmark against which application to armed conflict is assessed.23 This approach gives stronger weight to the indetermina­cy argument because accepting the jurists' theoretical premises provides a bet­ter chance to illustrate the inconsistencies in the implementation of their theories to issues relating to the conduct of hostilities.

Inconsistencies found in juristic works are used as tools to interpret the re­lationship between the legal system and society through the eyes of the differ­ent jurists, scholars, and groups, providing a narrative of how early jurists shaped Islamic laws of war and how much they established a notion of the “other” and created a framework through which the Muslim community per­ceived its relationship with non-Muslim communities. It also attempts to ex­plore how the assumed needs and interests of some or all segments of Muslim society influenced classical and modern jurists in their writings. Finally, when­ever relevant, it portiays the influence of the other on the theories developed.

22 Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 236.

23 For an example of critiques of the theories of jurisprudence, see Nar HSmid Abu Zayd, al-Shdfi’twa taSls al-idlyulujiyya al-wasatiya (Cairo: SinS li-l-Nashr, 1992).

In other words, it shows how, in some instances, positions about the law were responses to the perceived practice of the “other.” In doing so, the book hopes to show sensitivity to the complexity of the nature of the relationship between law and politics and the intricate process of interaction between the two by resorting to an analytical framework that remains loyal to the Islamic tradi­tion. After all, this critique was often employed by jurists in their criticism of each other's Juru^c. It is not uncommon to find classical scholars appropriating the theoretical framework of their imaginary interlocutors to prove the inade­quacy of the interlocutors' conclusions.

The book is well aware of the constraints the legal tradition imposed, as it emerged and developed, on thejurisfs freedom to articulate a legal system favourable to his views of the most appropriate conduct in warfare. After all, jurists have shown an interest in preserving the legalistic approach to Islamic jurisprudence in order to preserve their special corporate identity.24 This inter­est is continuously traced in the jurisprudence of the scholars examined in the book. As will be noted in Chapter 1, for example, al-Shaybani defied the caliph Harhn al-Rashid (reign: 148-193/786-809) by only reluctantly legitimizing the caliph's discourse with rebels, and al-Shahi refused to prohibit the enslave­ment of Arabs despite his personal inclination towards such a position. In Chapter 2, I portray how Ibn Taymiyya followed the juristic tradition on rebel­lion despite existing evidence to his discomfort with it. Finally, Ibn Rushd went to great efforts to assert the consistency of the Maliki school, even when the scholars he examined clearly differed in their views. Nevertheless, the book argues that restrictions established by the Islamic tradition did not prevent jurists from deviating from their theoretical frameworks.Jurisprudence was often articulated syllogistically. However, in the cases examined, such syllo­gism does not stand scrutiny, because the foundational framework on which the legal reasoning is premised is inconsistent with the conclusions reached by the jurists. What the book hopes to achieve is to contribute to the literature on the dynamics of interplay between text and context, a debate in which I ac­knowledge that hypotheses and arguments presented in this book are subject to the same critique provided here, whereby the reading of the relationship between law and the historical context reflect the author's own biases and un­derstanding of the law.

This approach takes into consideration the critiques by Abou El Fadl men­tioned earlier regarding the interpretation of juristic positions and the need to pay attention to the “microdiscourses'” of the legal tradition. Rather than offering a snapshot of the Islamic laws of war and providing generalizations

24 Abou El Fadl, Rebellion, 324. developed from the works of some scholars, the book examines, in detail, representative samples of juristic works from the formative, medieval, and modern eras, paying attention to the linguistic mechanisms and details of the arguments of the various jurists.

Although the book is reluctant to offer summaries of the Islamic legal tradi­tion, I am aware that a reader unfamiliar with the legal subject matter may be overwhelmed with the microanalysis provided in the following chapters. Thus, in the paragraphs below, I offer a quick, admittedly reductive, summary of the discipline and of the primary issues relating to the regulation of conflict cov­ered in this book. This summary should be used merely as a guide to the com­mon issues examined in the jurisprudence. Many readers will notice that the book tends to focus on certain themes, a focus shaped as equally by the jurists' anxieties and interests as by the reader's own anxieties and interests, which are largely influenced by contemporary understandings of the legal regulation of violence. For example, despite a significant focus on the division of the booty/ spoils of war among members of the Muslim army, the book dedicates little attention to this matter and focuses more extensively on matters relating to targeting and violence during armed conflict.

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