Official Institutions

HistoricalCoittexta--A haron١952tothePreseitt

In 1952, the Free Officers forced King Farfiq (r. 1936-1952) to hand over the title of the monarch to his son, who was eventually overthrown and the monarchy abolished.

4 Skovgaard-Peterson, “al-Qaradawi and al-Azhar,” 35--3.

5 Radwan al-Sayyid, “al-Shaykh Wahba al-Zlayli wa-l-taqlid al-fiqhi wa al-thawra al-Sfiriyya,” al-Sharq al-Awsat (14 August 2015), online: 'Issa, was charged with libel and fabrication of infor­mation. Soon after, Tantawi stated that journalists who “spread rumours and false information” are considered to have committed qadhf24 and should be punished with eighty lashes.25 The most obvious necessity for support for the regime came in 2011 with the protests against Mubarak in January. Key reli­gious figures including 'Ali Jum'a (b. 1952), the Grand Mufff at the time, and Ahmad al-Tayyib (b. 1946), the sitting Grand Shaykh, were called upon to de­nounce the protests. Both officials stated that such protests were a form of khuruj that is prohibited by God.26 The public statements made by al-Azhar, however, were more ambiguous and less supportive of the regime. On 2 February 2011, the Academy issued a statement asserting the prohibition of any actions that might lead to the spilling or Egyptian blood or that might cause Jitna (sedition), and calling on all parties to resolve the conflict politi­cally, while taking into consideration President Mubarak's responsiveness to

22 Barraclough, “al-Azhar,” 240.

23 Egyptian Law No. 12 of 1996, Issuing the Child Law, Official Gazette No. 13, 28 March 1996.

24 The crime and the said punishment are traditionally reserved for false accusation of adultery or fornication in Islamic legal interpretations.

25 aljazeera.net, “Ba'd mutalabatihi bi tatbiq 'uqubat al-jald fi qadaya al-nashr: Salafiyu Mir yastahjinun talrid Shaykh al-Azhar did al-ξ!u⅛uf'' (14 October 2007), online:, accessed 5 June 2011.

26 For Islam Series, “'Ali Jum'a: Thuwar yanayir khawarij wa yajib qatluhum,” Youtube video, 3:06, filmed January-February 2011, posted August 2013, online:, accessed 1 May 2017. Note: the title is inaccurate - al­though he says khawarij ought be killed, he also says that is not what he was calling for because the Prophet also prohibited killing; Islamic Egypt News, “Ra'y Shaykh al-Azhar: La yajuz al-thawra wa al-khuruj 'ala Hakim Husni Mubarak,” Youtube video, 1:51, filmed January-February 2011, posted June 2013, online:, accessed 5 May 2017.

the demands of the protesting youths.27 Less than a week after Mubarak was ousted, al-Tayyib held a press conference to debunk claims that al-Azhar had been complicit with or subordinate to the regime, asserting that it had always been committed to supporting liberation movements, whether in Egypt or out­side it.28 After the Supreme Council of Armed Forces (scaf) assumed power, they issued a law in 2012 changing the appointment of Shaykh al-Azhar to elec­tion by the Esteemed Scholars' Authority (esa), reinstated by the same de- cree.29 However, the prominent Sunni institution appears to have favoured taking less polarizing positions after the 25 January revolt. For example, while showing solidarity with the military institution's decision to remove President Mursi on 3 July 2013, al-Tayyib's use of language was far from religious in his commentary on Mursi's regime, and he asserted the need for a resolution of the conflict between two disputing parties that live on the same land.3٥ More important, he leaned towards condemning the violent dispersal of the protests against the removal of Mursi, which lead to the death of hundreds of protes­tors.

Al-Azhar al-Sharif, in its attempt to gather the sides of this political con­flict to a sincere and serious negotiation table to end this current crisis, asserts resolutely the sanctity of blood and the gravity of the responsibil­ity [for spilling it] before God, the nation, and history. And al-Azhar an­nounces its sorrow and grief for the falling of victims this morning, prays for them and consoles their families. 31

It is unclear whether al-Tayyib's positions affected the relationship between al-Azhar and the state, considering that they deviated to some extent from the

27 ''Majma' al-Bulh al-Islamiyya yu'akid Iurmat iraqat al-dam al-Misri,” Ahram Daily (2 February 2011), online:, accessed 24 April 2017.

28 Abdulrahman Elhadi, “Shaykh al-Azhar A⅛mad al-Tayyib muwadil mawqif al-Azhar min al-thawra wa yarud 'ala Iadhin itahamuh bi-l-khiyana,” Youtube video, 14:35, filmed February 2011, posted March 2011, online:, accessed 5 May 2017.

29 Egyptian Law No. 13 of 2012, Amending Some Provisions of Law No. 103 of 1961, Regarding Restructuring al-Azhar and Its Institutions, Official Gazette No. 3, 19 January 2012.

30 On Ent, “Bayan fadilat al-Imam alAkbar Shaykh al-Azhar al-Sharif: D. A⅛mad alTayyib,” Youtube video, 00:57, filmed July 2013, postedJuly 2013, online:, accessed 1 May 2017.

31, “Bayan Shaykh al-Azhar D. Almad al-Tayyib Iawl fad i'tiamay rab'a al- 'adawiyya wa-l-nahda,” Youtube video, 2:31, filmed August 2013, posted 14 August 2013, online:, accessed 1 May 2017. established formula of fill support for the regime on matters relating to reli­gious violence, but the relationship between alTayyib and President al-Sisi (r. 2014-) is said by many commentators to have witnessed a recent rift, as evi­denced by the president's slight and soft-handed rebuke of alTayyib on ac­count of al-Azhar's reluctance to condone conditioning divorce on official documentation, followed by a statement issued by al-Azhar asserting stead­fastness on this matter of personal status, where al-Azhar has generally en­joyed relative control, as discussed earlier.

support for the Church and unity in Egypt, stated that al-Azhar is the sole au­thority capable of propagating Islam's message of peace and tolerance, and condemned the apparent attempts to deceive the public and betray the tradi­tion by slandering al-Azhar's curricula and by claiming that it breeds terror­ists.32

Even if a serious rift does exist between the Grand Shaykh and the presi­dent, the causes of such a rift and its potential repercussions are open to spec­ulation. But arguably, if al-Azhar were to fail to delegitimize violence, it would seriously risk its raison d'etre with the state, as well as its internationally recog­nized stature as a primary authority and force of moderation. Additionally, one cannot rule out individual and collective inclinations of the institution to gen­uinely denounce and reject terrorist activities in the name of Islam, even if a well-articulated theory for such rejection is yet to be developed, as will be seen later.

12 OjJcialN ItvesonAielCoiijflct

1.2.1 Majma' al-Buhtith al-Islamiyya

Majma' al-Buhtith al-Islamiyya (the Academy) is the primary research and fatwa institiition at al-Azhar. It has fifty members, of which a maximum of twenty may be non-Egyptian. The fact that it is assigned the task not only of conducting research on Islamic law issues but also of “purifying [the Islamic cultiie] of impurities and ambiguities” and “clarifying the opinion on emerging sectarian [madhhabya] or social problems on matters relating to

32 al-Yawm al-Sabi', “Hay'at Kibar a!'Ulama': Tashwih Manahij al-Azhar Tadlis Fadil li- Tazyif Wa'y al-Nas,” April 18, 20.17, online: faith”33 means that it is crucial for the government to ensure that the “purihca- tion” and “clarihcation" processes ht its agenda.

Despite the law's stipulating an annual conference, the Academy's confer­ences have become less frequent in recent years,34 slowing down after the elev­enth conference, held in 1985,35 with the Supreme Council becoming more active. However, the recent revival of the Academy's conferences is an indica­tion that the Supreme Council is not meant to replace the Azhari institution. As of 2009, al-Azhar's library contained copies of all conference proceedings until 1985. An examination of the materials from these conferences reveals that interest in exploring the regulation of armed conflict was stronger in ear­lier conferences than in later ones. Examination of the pattern of focus on the subject matter shows that interest in jihad, and the rules governing it was an academic one that aimed to portray the peaceful face of Islamic law as under­stood by the writers, but that the Israeli-Arab conflict in 1967 overrode that in­terest, with most scholars dedicating focus to mobilization efforts.

Unfortunately, the lack of relevant material from the 1990s onwards means there is no chance to explore positions on the regulation of armed conflict in light of significant and more contemporary developments. On the one hand, the early 1990s witnessed a surge in militant Islamist attacks in Egypt, as well as the Iraqi-Kuwaiti conflict. On the other hand, the early twenty-first century has witnessed the 9/11 attacks, the invasion of Afghanistan and Iraq, and the violence emanating from the aftermath of the Arab Spring. Accordingly, pro­ceedings of conferences of the Supreme Council, and a 2014 conference on terrorism convened jointly by al-Azhar and Majlis Hukama' al-Muslimin,36 are consulted to fill this gap.

1,2.. 1,1- AfMca,' Before the 1967 Arab-IsraeLi-Wcrr

In his introduction to the first conference held in 1964, the Academy's secre­tary general Hub Allah emphasized the academic and practical importance of the newly established institution. He said that al-Azhar “continued its message and did not stop at the research of Islamic thought it inherited from

33 Law No.

34 Ibid., Art. 22.

35 Eleven conferences were held between 1964 and 1985, at an almost biannual rate, and three conferences were held in 2002, 2009, and 2010.

36 An “independent” international organization set up and funded by the United Arab Emirates in July 2014 to promote peace, tolerance, and unity. The organization is headed by Almad alTayyib. For further details, see their official website: ItpWiwwwmuslim- elders.com/en/about-the-council/>.

predecessors, but renewed examination of God's book and the sunna of his prophet,''37 emphasizing al-Azhars intellectual role as a reformist institution exercising ijtihad. This examination was meant to respond not merely to theo­retical and intellectual questions but also to modern and contemporary prob­lems facing the Muslim world:

New patterns of behaviour and modes of interactions and links require looking into Ijtihad of the ،'mams and research of thejurists to extract what is suitable for the new form of life from these ideas, while preserv­ing the holistic sources on which shari^ca was established.38

In his speech, Hub Allah used a research paper on international relations pub­lished by the renowned scholar and a key figure in the study of “Islamic inter­national relations” Abh Zahra (d. 1974) as an example of such a project and states that Abh Zahra's paper portrays how Muslims abide by their agreements regardless of other parties' religion or race.39 Like much of the literature re­viewed, the research aims to portray a non-violent image of Islamic law. Al­though this research is to be credited with innovative analysis and alternative reading as one of the earliest modern examinations of this issue, selectivity is again one of its primary features.

Initially, it appears that Abh Zahra's work aims to acknowledge controversy and challenges to the author's hypotheses regarding Islamic law, but acknowl­edgement of contradiction with classical works does not continue throughout the work. Abh Zahra is willing to acknowledge the various positions regarding reasons for waging war and the existence of some juristic positions advocating jihad for spreading the message of Islam. He is reluctant, however, to acknowl­edge positions that contradict his arguments about targetable categories. Like many modern authorities, Abh Zahra argues that those who do not participate in Hghting are not to be targeted and relies on the following prophetic tradi­tion, among others, to support his claim:

Be warm to people and be patient with them and do not raid them until you call upon them [to join the religion]. There are no people on the face of the earth, whether they are people of clay or wool who I would not

37 Malhd Hub Allah, “Kalima Iftital yya,” in Majma' al-Buhuth al-Islamiyya First Con­ference, al-Azhar, Cairo, March 1964, 7.

38 Hub Allah, “Kalima iftitaliyya,” 8.

39 Hub Allah, “Kalima iftitaliyya,” 9.

40 Whether they live in clay houses or tents.

prefer you bring to me as Muslims rather than bring their women and children and kill their men 41

On the basis of this hadlth and another famous tradition prohibiting the killing of women, children, and hired labour, Abh Zahra argues that the Prophet “for­bade killing the one who does not fight.''42 His interpretation of these tradi­tions cannot be said to deviate from Islamic jurisprudential techniques, especially since the hadlth prohibiting the killing of women stated that “she would not have fought,” a statement that could be perceived as explicitly men­tioning the 'illa (ratio legis) for the prohibition of the killing women, and could thus be used as a basis for qiyas to conclude that those who do not fight may not be killed. But at the same time, Abh Zahra avoids referring to traditions examined in previous chapters, traditions that could be perceived as legiti­mate basis for expanding the targetable categories. More important, his analy­sis of the hadlths that he cites is incapable of refuting counterarguments. The hadlth instructing Muslims to call upon people to join Islam, for example, could be interpreted to indicate general acceptance of the killing of men, since the Prophet says conversion is better than bringing women and children as captives and killing men. Such an interpretation would not conflict with the hadlth that prohibits the killing of women, because it can be said that the 'illa for prohibiting the killing of the woman in that particular incident was that she would not have fought, rather than that she was not fighting. In other words, the prohibition could be understood to apply only to categories not ex­pected to participate in the battle, rather than to anyone not participating in the battle.

Additionally, Abh Zahra's interpretation of prophetic traditions to prohibit targeting anyone not participating in combat is a novel one when contested to the juristic traditions dealt with in previous chapters. Generally speaking, clas­sical and mediaeval jurists chose one of two approaches when dealing with the issue of targeting. According to the first approach, advocated by al-Shafi'i and Ibn Hazm, anyone may be targeted unless an explicit tradition is reported to prohibit this person's targeting. Hence, older men may be targeted. The second approach, advocated by al-Shaybani, Ibn Rushd (al-Hafid), and Ibn Taymiyya, inclines towards prohibiting the targeting of anyone who cannot or is unpre­pared to participate in fighting, normally through listing categories of people incapable of fighting. In neither of those two positions is there reference to

41 Muhammad Abh Zahra, “al-Ilaqat al-dawliyya fl l-Islam,” in Majma' al-Buhuth al-Islamiyya First Conference, al-Azhar, Cairo, March 1964, 295.

42 Abh Zahra, “Ilaqat,” 296.

actual participation in fighting. In other words, the prominent classical jurists focused on in this book believed that anyone capable of fighting or prepared to fight may be targeted, regardless of whether or not they participate in battle. Although Abfi Zahra's reinterpretation of the authorities is welcome, his fail­ure to acknowledge deviation from classical jurisprudence, and his reliance on this very same jurisprudence in other instances, indicates a certain degree of incoherence and selectivity.

In addition to being somewhat selective, Abfi Zahra is not immune to cir­cumventing history in order to support his arguments about the regulation of armed conflict. He does not acknowledge, for example, the existence of slavery at the time of the Prophet, arguing that slavery was introduced at the time of the Rightly Guided Caliphs in response to the context.43 Not only does this argument fail to mention that classical jurists unanimously agreed that cap­tives can be enslaved, it also attempts to evade discussion of the topic by claim­ing that it is not relevant to the research presented, despite the enslavement of prisoners of war being of evident relevance. More important, it disregards the numerous Quranic verses that can be understood to acknowledge the legiti­macy of enslavement, such as the reference to the legitimacy of malakat al- ayman (concubines) in “Prophet, We have made lawful for you the wives whose dowries you have paid, and any slaves god has assigned to you through war.''44 Even traditions relied on by Abfi Zahra in his research could be understood to acknowledge slavery. For example, the hadith indicating that the Prophet pre­ferred that people convert to Islam, rather than be killed, and that their women and children be “brought to the Prophet,” would most likely have been under­stood by classical jurists to indicate that the women and children should be taken as captives if members of their community did not convert. This under­standing enjoys some legitimacy, considering that captives were commonly enslaved prior to Islam45 and that traditions exist that claim that the Prophet concurred with Sad b. Abi Mu'adh's decision, in his arbitration between the Jewish tribe of Banfi Qurayza and the Prophet after Banfi Qurayza's defeat, that the men should be killed and the women and children enslaved.46

One other feature of Abfi Zahra's work is that it tends to compare Islamic regulations to non-Muslim societies, with emphasis on the superiority of what

43 Abfi Zahra, “Ilaqat,” 305.

44 Q 33:50.

45 Jonathan E. Brockopp, “Captives,” Encyclopaedia of the Qur'an, ed. Jane Dammen McAuliffe, Brill Online, accessed 6 November 2008.

46 al-Shaybani, Sharh Kitab al-Siyar al-kablr, ed. Abfi 'Abdullah Ismail al-Shafi'i (Beirut: Dar al-Kutub al-'Ilmiyya, 1997), 2:118.

he argues is the Islamic approach to interaction with the other. For example, he argues that Islamic law is based on Undividable virtue, which means non­Muslims, unlike other societies, are to be treated equally to Muslims.47 Al­though it is useful to examine legal systems on the basis of their treatment of the other as an insightfill examination of biases within those legal systems, this critical examination appears one-sided in Abti Zahra's analysis. He pays no at­tention to the various others in Islamic jurisprudence in general and in issues relating to armed conflict in particular. Abti Zahra emphasizes examples of just treatment of non-Muslims during armed conflict, and gives examples thereof. For example, he argues that jurists guarantee the property of an indi­vidual granted aman, to the extent of withholding his property in case of his death in order to send it to beneficiaries of the inheritance, even if they are in the battlefield fighting Muslims.48 But he fails to make any reference to chal­lenges to his theory of equal treattnent. As portrayed in earlier chapters, classi­cal and mediaeval jurists offered two sets of treatments to adversaries during war depending on whether those adversaries were Muslim or non-Muslim, with Muslim adversaries offered more protection for their lives and properties during and after conflict.

It should not be denied, however, that Abti Zahra's work is of great signifi­cance to the development of scholarship on the regulation of armed conflict. It is true that Abti Zahra refuses to challenge established classical juristic works. For example, he does not acknowledge the fallibility of jurists, stating that jurists would not have wrongly classified the different territories of non- Muslims.49 His research is, however, essentially an undeclared attempt to dis­tance modern scholarship from established classical jurisprudence. In order to do this, he chooses to directly interpret the sources of the law in order to derive certain conclusions. He argues that jurists were not able to achieve the full “liberational” potential of the holy texts:

We do not base that on sayings of jurists who were influenced by some conditions of their times, but we rely on a general principle stated in the Qur'an and applied by jurists to the [relevant] subject of the text, but did not reach the maximum limit aimed for by the text.5٥

47 Mulammad Abu Zahra, "al-Mujtama' al-insani fl Zil al-Islam,” MaJma' al-Buhuth al- Islamiyya Third Conference, al-Azhar, Cairo, October 1966, 404.

48 Abu Zahra, “Mujtama',” 409.

49 Abu Zahra, “'Ilaqat,” 276.

50 Abu Zahra, “Mujtama',” 394.

The flexibility Abb Zahra advocates in reading classical jurisprudence ap­pears to be rather limited to calls for taking jurisprudence a step further, as stated in the above quote. But as explained earlier, his reasoning often exceeds his recommendations and adopts different and distinct rulings unsanctioned by classical jurisprudence. It is true that Abb Zahra's subtle alteration of estab­lished juristic tradition is arguably an extension of the centuries-old tradition of attributing novel interpretations to key figures and schools of thought to guarantee the salience of promoted positions,5i but his inability to engage with those traditions despite widespread documentation of “assumed” juristic posi­tions leaves this approach open to attack due to its hesitation between taqlld andijthd.

One other distinctive feature of Abb Zahra's interpretive approach is that it focuses on general principles, arguing that Islam's relationship with the other is premised on ten principles: equality, human cooperation, human dignity, forgiveness and tolerance, freedom, virtue, justice, reciprocity, commitment to agreements, and maintenance of friendly relations. A principle-based ap­proach undoubtedly would offer more flexibility of interpretation and allow for more reformist readings of regulations than a strict textual approach, and such a general, holistic approach undoubtedly would prove useful for modern jurists in developing a contemporary theory of armed conflict in Islamic law. He also relies on untraditional sources, such as the conduct of Salah al-Din with his captives, which expands and alters the traditional understanding of Islamic law.52 These techniques and arguments not only potentially prove useful for a reformist reading of the legal system, but they appear to have been the initial efforts towards formulating an emerging modern consensus on rules governing armed conflict in Islamic law.

As seen in subsequent works examined, most contemporary scholars argue along the same lines as Abb Zahra with regards to targeting and show the same reluctance to acknowledge the legitimacy of targeting groups not participating in fighting. Additionally, even if some of them are not willing theoretically to accept distancing modern scholarship from classical jurisprudence, they effec­tively employ their own techniques and directly interpret the sources, regard­less of alternative interpretations provided by classical and mediaeval jurists. Whether or not contemporary approaches were influenced by Abb Zahra is hard to establish, but there is no denying that he is unanimously agreed upon as an authority with regards to armed conflict. If this new consensus

51 Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 54.

52 Abb Zahra, '"Ilaqat," 299.

consolidates, it could arguably be of equal authority to classical positions and may be built upon further in scholarship, but as mentioned earlier, the reluctance to acknowledge its modern basis and contradictions with classical scholarship prevents it from materializing into a significant and powerful proj­ect. As long as modern scholars continue to claim their allegiance to classical scholarship, their works will continue to be vulnerable to attacks and claims of deviation from classical jurisprudence. In other words, loyalty to the tradi­tion becomes the benchmark for assessing modern arguments rather than the merits of those arguments.

One cannot assume, however, that Abfi Zahra's approach is regarded as the unanimous modern interpretation of the Islamic laws of armed conflict. Al- Amin, for example, also attempting to prove the non-violent nature of regula­tions governing war, acknowledges the potential for enslavement of captives. This position might appear more in accordance with classical jurisprudence. However, al-Amin introduces a slight innovation to the regulation of enslave­ment. Whereas some classical jurists, such as al-Shafi'i, 53 argue that it is not preferable for the imam to release captives if Muslim interest does not require such a release, al-Amin argues that the head of the state may “impose slavery on the rest of the captives if he believes that Muslim interest necessitates that.''54 This argument basically reverses the necessity argument in favour of releasing captives rather than enslaving them. So, by accepting the enslave­ment alternative, it is loyal to the tradition, but it innovatively shifts the weight of the imam's power.

Although Abfi Zahra and al-Amin's works offer different reasoning with re­gards to the rules of armed conflict, both men display fluctuating loyalty to classical jurisprudence and are willing to recognize neither the contradiction between their works and classical works nor the innovative nature of their own approaches. Additionally, there appears to be an interest in proving Islamic law's “mercy” and “justice” in war in what appear to be responses to a sense of attack on Islamic law. That objective is in fact referred to in different confer­ence proceedings. For example, the first conference (1964) recommendations state the need for “a wise plan to call for adherence to the path of God, to resist the challenges facing Islam and refute rumours around it.”55 It is unclear what

53 al-Shafi'i, al-Umm, ed. Malmfid Mutraji (Beirut: Dar al-Kutub al-'Ilmiyya, 1993), 4:250.

54 'Ali 'Abdul Ralman al-Amin, “'Awamil intishar al-Islam,” in MaJma' al-Buhuth al-Islamiyya First Conference, al-Azhar, Cairo, March 1964, 363.

55 “Taw iyat al-mu'tamar,” in MaJma' al-Buhuth al-Islamiyya First Conference, al-Azhar, Cairo, March 1964, 390.

might have triggered the sense of attack, but it is most likely a recurring theme in the ongoing debates on the challenges of modernity to the Islamic tradition.

1-.2..1,2 alMajma' After the 1967 Arab-Israelt-War

The subject focus in addressing armed conflict changed significantly after the 1967 war with Israel. Whereas before, attention was paid to the conflict with Israel because of the partition of Palestine in 1948 and what was perceived in Muslim and Arab circles as occupation, this attention grew after the occupa­tion of Egyptian territory by Israel in the Sinai peninsula. In succeeding years, sessions and conference publications were dedicated exclusively to the war with Israel, but the focus shifted to the need to mobilize Egyptian, Arab, and Muslim forces to fight the Israelis. The emphasis on the defensive nature of jihad, was continued, as with Grand Shaykh of al-Azhar, Abdul Halim Mahmhd (1973-1998), who reiterated jihads focus on self-defence, prevention of injus­tice, and ensuring that oppressive rulers do not obstruct the propagation of the Islamic message.56 Some arguments also resemble Abh Zahra's argument that Islamic law prohibits killing those who do not participate in fighting. Ghaw- sha, for example, adopts the same technique with regards to targeting and uses traditions that prohibit the killing of certain categories to deduce that those who did not participate in Hghting are not to be targeted.57 But his approach is equally contradictory. He relies, for example, on a tradition from 'Umar b. al- Khajjab to prevent the killing of older people, but he fails to acknowledge the existence of an equally authoritative tradition claiming that 'Umar stated that all adult men should be killed, a tradition relied on by Ibn Hazm to prove that adult men must convert to Islam in order for their lives to be spared.58

But the primary focus of most writings after 1967 is the obligatory nature of jihad in cases of self-defence and the rewards due to those who conduct wars of jihad. The need to shift focus from the rules of war to the benefits of partici­pating in war and donating to it in case of self-defence is probably self-evident. To a great extent, the case for a defensive war against Israel could easily be made at least from an Islamic perspective, where a Muslim territory was taken over. Nasir's speech to the fifth conference (in 1970) is perhaps a good example of that position, where he says, “We do not want more than the rights that were

5,6 ‘AbdulHa٦¹MMa١mdI,''a\-١ihad” tn atBrtalaiyaal-A aFotCoil-

ference, Cairo, September 1968, 42.

57 'Abdullah Ghawsha, “al-Jihad tariq al-nar,” in MajmaT al-Buhuth al-Islamiyya, al-Azhar Fourth Conference, al-Azhar, Cairo, September 1968, 241.

58 Ibn Hazm, al-Muhalla bi-l-athar, ed. Almad Shakir (Beirut: al-Maktab alTijarl li-]-Tiba'a wa-]-Nashr, 1969), 7:299.

ours over the years and over time. We are working for peace. We resort to peace as God almighty asked us to do in the Qur'an."59

One could also argue that the last priority during times of war would be unilateral regulations that bind one's own forces without setting any sort of obligation on the adversary. Additionally, regulations and limitations do not stimulate the necessary mobilization as much as an emphasis on obligations to fight, punishments for those who do not fight, and rewards of those who do: “Jihad is a fard kifaya^{[59] [60] [61] [62] [63] [64]... the whole nation cannot go out and fight. But Jihad can transgress being fard kifaya and become fard ⅛yn6! and that is when the enemy enters the territory of Islam.''62 Finally, Egypt was not as wealthy as other Muslim and Arab nations, and the scholars were interested in tapping into the resources of wealthier states to share the burden of the conflict. That was why they emphasized more than once the need for those who are not neighbouring the enemy to contribute with money. The Prophet's Compan­ions were often invoked as examples to be followed by Muslims in the conflict with Israel.63}

That shift in emphasis meant less attachment to the project represented by Abb Zahra, aiming at proving the compatibility of Islamic law with so-called civilized principles. Although post-1967 writings do not attempt to challenge Abb Zahra's arguments, many unintentionally contradict his message in their diverted attention to mobilization. Another member of the Academy, for ex­ample, presenting a paper on the values of self-sacrifice during armed conflict in Islamic law, cites the incident of Ka'b b. al-Ashraf, a Jewish man said to have verbally attacked the Prophet. Some Muslims went to his house and pretended they needed to talk to him about a specific matter and then killed him.64 Al­though the author cites this incident as a sign of self-sacrifice, focusing on how those Muslims put their lives in danger, this incident challenges the theory that targeting is based solely on participation in fighting. In fact, this incident is relied on in Sharh al-Siyar to indicate how aman is only binding if clearly and unambiguously pledged, and to prove that because the Muslims had pretended that they wanted to talk to the victim, he did not qualify for aman.65 The fact that it was necessary for Ibn al-Ashraf to be granted an aman to prohibit his killing, even if there was no battle for him to participate in then, indicates that his life was not considered immune, even in non-combat situ­ations. More important, the incident is relied on by militants as a basis for terrorist attacks and to claim that the enemy may be deceived into a sense of safety in order to be attacked. Ghawsha also relies on al-Mawardi, who states that “whoever the message has not reached, we are prohibited from proceed­ing to fight them with surprise, or at night through killing and burning.''66 The condition of delivering the message of Islam indicates that al-Mawardi favours resorting to surprise Hghting during the night and burning if people are famil­iar with the message of Islam, which again challenges the targeting conditions presented by Abh Zahra and others.

Innovative theories are also employed to serve the war mobilization agenda. Abh Zahra, for example, in a paper presented at the third conference (before 1967), adopts the mainstream classical view of the crime hiraba, stating that acts of hiraba such as armed robbery are criminal offences aimed at terrorizing people.67 Mahmhd, on the other hand, utilizes this legal regime in a manner that is more useful to the conflict with Israel. He states that “the enemies are fighting God and his prophet and anyone who allies with them is a fighter of God and his prophet, because he aides the victory of God's enemies over his allies” and then cites the hiraba verse to support his proposition, without refer­ring to the prevalent reading of the legal regime of hiraba - as a regime govern­ing criminal activities in Muslim lands. 68

Another distinctive feature of the discourse on the 1967 conflict is the ten­dency to view it as a sign of societal decay and distance from true Islam, argu­ing that the only path to defeating the enemy is to return to Islamic principles. The conflict may have been perceived, at least partially, as a chance to reclaim al-Azhar's authority, eroded by Nasir, and to emphasize the institution's crucial role in the forthcoming era. Scholars appear to have been aware of their indis­pensable importance to the government in time of war, with the need to mobi­lize people through both national and religious messages. Additionally, the Academy's conferences seems to have been a suitable platform for a more general appeal for assistance from Muslim countries, leading Nasir to place on the Muslim scholars' shoulders the duty of mobilizing public opinion in

65 al-Shaybani, Sharh al-Siyar, ed. Abh 'Abdullah Ismail al-Shafi'i, 1:188-91.

66 Ghawsha, “Jihad,” 241.

67 Abh Zahra, “Mujtama',” 356.

68 Malmhd, “Jihad,” 57-58.

Islamic countries.69 Confident in their role, scholars appear to have perceived the conflict as a chance to correct the path of the nation. That confidence seems, however, to have been very cautious not to agitate the Egyptian govern­ment or attempt to erode its credibility. Thus, Nasir is, at least officially, ex­cluded from the critique of drifting from religion.

When Muslims were shocked with what happened, they were surprised that their God would give them up and deliver them to them [unbeliev­ers]. But if they were fair, they would know their position from God's reli­gion and that faith is not based on hope but on what is in the heart affirmed by action.... I do not doubt, and you are with me, that if we had won with the disruption and deviation of our society, we would have be­come more audacious to continue in the prohibitions of God.™

Nevertheless, the right never dies. God sends this nation at the begin­ning of every hundred years someone to renew the matters of religion for it. We thank God almighty that this era witnessed the appearance of great men such as Jamal al-Din al-Afghani, Shaykh Muhammad 'Abdti, Shaykh Rashid Rida, and then the great man Jamal 'Abdul Nasir.71

1.2.2 al-Majlis al-'Ala !i-l-Shu'tin al-Islamiyya: Prior to the Arab Spring Until those words were written, the Supreme Council has convened twenty­seven conferences, but I have only been able to locate proceedings of the first twenty-five conferences. In addition to the Council conferences, I have also relied on al-Azhar's 2014 joint conference to cover the discourse after the Arab Spring. It comes as no surprise that the proceedings of the Supreme Council's conferences dedicate significant focus to the issue of terrorism, even before the Arab Spring. The 1990s witnessed an escalation in the intensity of Islamist militant attacks within Egyptian borders, such as the 1993 attempted assassina­tion of then prime minister Atif Sidkr, leading to the death of a female student in a nearby school and the infamous 1997 Luxor massacre. It should be ex­pected, then, that the 1998 conference, “Islam and the Twenty-first Century,” dedicated considerable effort to “the phenomenon of terrorism.” The decline in domestic militant attacks in Egypt was paralleled by the rise in globalized attacks, with the height of intensity of such attacks witnessed in the 9/11 bomb­ings. Again, the Supreme Council was quick to respond, with the conferences

69 Nasir, “Kalima,” 36.

70 AasanKhAtayaJhdasabA Aaah” in al-Bultal-aiiiiyyaFoitiCoiifereiice,

al-Azhar, Cairo, September 1968, 164.

71 Khalid, “Jihad,” 165.

“The Truth About Islam in a Changing World” (2002) and “Tolerance in Islam” (2003) both dedicating Signihcant focus to armed conflict.

².2.. 2..² DomesticTerrorism

Internal Muslim warfare has always been a complex legal issue facing Muslim jurists, primarily because of the lack of clear prophetic precedents on armed conflict with a Muslim group. The works participating in the proceedings of the conferences show consensus on rejecting “terrorism” as a legitimate means of conflict. Some of the works, however, fail to offer any jurisprudential basis for such rejection and rely solely on rhetoric about tolerance in Islam.72 But even scholars who attempt to offer a jurisprudential definition for the phe­nomenon fail to acknowledge the complexity of the issue. As detailed in Abou El Fadls comprehensive study of rebellion, classical Muslim scholars used the Qur'an, prophetic hadlths and the Companions' siyar to formulate a complex legal system dividing conflicts within the Muslim nation into ridda, baghy, and hirdba.7³ But most works presented at the conference emphasize that militant attacks are punishable under the regime of hirdba, without any reference to the possibility of an alternative regime applying to such conflicts. In the eighth conference (1996), Dayf relies on the hirdba verse to argue that “terrorists” spread corruption on earth because of the devastating impact of their acts, including killing police officers, killing bystanders in the course of fighting, widowing women, orphaning children, bereaving parents, and destroying property.74

Although such arguments can plausibly apply to hirdba, they disregard the fact that such damage does not necessarily deny the potential for militants to fall under the regime of baghy. Most classical jurisprudence limited hirdba to highway robbery and similar criminal behaviour and applied the regime of baghy to rebellion against a just imdm. In the classical discourse, it was often presumed that bughd would cause a loss of life and property and they were not held liable for such losses. That is not to claim that modern Islamist militant

72 Almad MarSnI, “Mawqif al-Islam min ?ahirat al-irhab,” in al-Majlis al-Ald li-l-Shu^,un al- IsaiyyaTenth Conference•. al-Isldm wal-Qarn al-tiddl wal-'!shrdn, Ca⅛o, 2-5 JtA t99⅛, online:, accessed 6 June 2011. Note: many papers are presented under the same title.

73 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2002), 61.

74 Nash'at 'Abdul Jawad Dayf, “Mawqif al-dln min al-irhab wa-l-tataruf,” in al-Majlis al-Ald ll-l-Shu⅛ alIsldmiyya Eighth Conference•. alIsldm wa Mustagbal alljiwdr al-!Ja a, Cairo, 24-26 Jul 1996, online:, accessed 6 June 2011.

attacks fall neatly under the baghy regime stipulated by classical jurispru­dence, nor is it to deny that the hiraba regime might apply, but it is to say that scholars dealing with Islam's position on terrorism should, at the very least, be expected to address the complexity of adapting definitions of crimes and acts of political violence developed by classical jurists to this modern-day phenom­enon and reftrte alternative interpretations. Ibn Hazm and Ibn Taymiyya, for example, who present novel interpretations of rebellion, argue that, in some instances, rebellion may fall under the regime of hiraba, and they attempt to address and refute some of the established jurisprudential arguments on the matter.75

Khan confirms the application of hiraba to terrorists and says that under Islamic law, it is “different from baghy because shari^ca encourages dialogue with bugha and if they are sincere in their claim and they corroborate it with honest witnesses, their claim is to be accepted and they are not to be treated like criminals.''76 So, despite awareness of the baghy regime, Khan does not explore the details of whether terrorist acts coincide with the definition and practices of baghy, simply dismissing the regime because of its consequences. He is unwilling to accept dialogue with terrorists, so he refirses to accept that bugha regulations might apply to them.

Al-Amin, Mufti of Eritrea, makes the only attempt to address the applica­tion of baghy to terrorist activities and offers alternative reasoning to prove that Islamist militant tactics are illegitimate, hence undeserving of applicabil­ity of the regime. First, he argues that rebelling against the sultan is denounced by the Qur'an and the Prophet and cites the verse, “You who believe, obey God and the Messenger, and those in authority among you”77 and prophetic tradi­tions that demand obedience to authority figures.™ He also refutes the argu­ment that governments' failure or reluctance to apply Islamic shari^ca is proof of ridda of the rulers, which is, in Purn, a legitimate cause for overthrowing the government. He cites numerous traditions that emphasize Allah accepting the repentance of individuals for any sin other than shirk (polytheism) to prove that the rulers cannot be treated as apostates.™ Thus, he seems to be employ-

75 See Chapter 2.

76 Iqbal Almad Khan, “Mawqif al-adiyan tijah al-irhab wa-l-tataruf,” in al-Majlis al-Ala li-l- Shuri alaiyya Eighth Ccmfereiice-. ala WaMustagbalal-IJia allJaa, Ca⅛o, 24-26 Jul 1996, online:, accessed 6 June 2011.

77 ^q 4:59.

78 Almad al-Amin, “Mawqif al-Islam min ?ahirat al-irhab,” in al-Majlis al-Ala li-l-Shu∑^,un al- IslaiiiiyyaTe th C^^n^e^n^c^e∙. al-Islam W^c^-l-^c^t^i^n al-Jadi WalTshihn, Ca⅛o, 2-5 JtA 1998⅛, online:, accessed 6 June 2011.

79 al-Amin, “Mawqif.”

ing the quietest tradition advocated by Ibn Taymiyya to renounce rebellion against Muslim leaders, while rejecting his attempts to expand the potential against leaders whose Islam is suspect Finally, al-Amin argues that foreign tourists are not legitimate targets, because they entered the Muslim territory by virtue of an official permission from the government, which amounts to aman.81 While al-Amin's paper lists the primary arguments often made by militants in support of their tactics, its brevity and lack of exploration of ju­risprudential controversies surrounding each of the issues brought up makes it a very unconvincing attempt to refute militant thought. This is especially so when compared to more extensive militant revisionist works, exemplified by Abdul Aziz's Wathlqat tarshld al-jihad, or when measured against militant works like alZwahiri's al-Tabri’a, written in response to 'Abdul Aziz.82

122.. 2 InternationalTerrorism

International terrorist attacks in the 1990s and the early twenty-first century seem to have regenerated interest in the issue of Islamic regulation of warfare. Jihad becomes a new, dominant theme in the proceedings of the conferences, especially the fourteenth and sixteenth (2003 and 2004). But that interest fails to move scholarship Ifirther than earlier 1960s forums and the approaches of­fered there to this pressing and controversial issue. The approach adopted in the Academy's conferences portrayed certain methodological trends. First, scholarship suffered from the inherent selectivity witnessed in most projects addressing the issue. Second, in many instances, texts were often expanded beyond their traditional interpretation to prove the “peaceful” nature of the discourse. Third, many of the works examined relied primarily on rhetorical renunciation of violence rather than offer a thorough jurisprudential analysis. Finally, in some instances, the reader can detect defensive attacks on other religious traditions to prove the superiority of Islamic ethics of war. But an important contribution witnessed in those conference proceedings is an ex­pansion of reliance on numerous historical precedents to prove their argu­ments about the law, which, as argued earlier, expands the tools ofinterpretation at modern revisionists' disposal.

1-.2.2.3 TextsRe'rnterpreted

Many of the works published continue the modern tradition of relying on par­ticular texts and juristic opinions to limit targeting to those fighting and

80 See Chapter 2.

81 al-Amin, “Mawqif.”

82 See Chapter 4. disregarding contradictory texts and opinions. For example, Abd Talib argues that war captives are to be treated kindly and lists two alternatives for dealing with captives: ransom and release. In order to prove his argument, he relies on only parts of the Quranic verse dealing with the issue of captives that support his argument؛ The part he relies on (in italics below) avoids the reference to “striking unbelievers” in the necks at the beginning of the verse:

When you meet the disbelievers in battle, strike them in the neck, and orcetheya^redefeated,binda^nyca^pth^es JfrrLy-IaterocanreIeasether bygraceorbyansom-antllthetolbof Warhaveended. Thatfthe way١. GodcorIdhavedefeatedtherHinrself if Hehad!.wiUed.84

Moreover, Abd τlib's argument makes no reference to the long juristic tradi­tion upholding four alternatives for the imam, ransom, release, killing, and en­slavement. Not only do the majority of classical jurists accept the killing of male captives, al-Tabari's ikhtilaf (lit. difference, historically referring to com­parative jurisprudence genres) states that jurists agreed that “if women and children were captured and taken to dar al-Islam, they become booty and the imam cannot grace them [with release] if the army captured them in a desert land that they do not own.''85

Sometimes disregard for the legal tradition is made without any reference to the textual basis that would support the proposed position. Al-Khayat, for ex­ample, argues that Islamic law prohibits confiscation of civilian property, then fails to cite any source of Islamic law that would support this claim,86 a claim that deviates from the long tradition of jurists' treating enemy property as boo­ty, as evidenced in previous chapters. He also argues that cities should not be destroyed, again without making any reference to sources other than a pro­phetic hadlth that prohibits the cutting of plants, disregarding juristic argu­ments that the prohibition of destruction of property emanated from an

83 Sufi Abu Talib, “al-Islam wa-l-akhar fi l-ilaqat al-dawliyya: Nazra 'ama,'' in al-Majlis al-Ala Ii-I-ShiTUn ClIaiyyaSixteenth Conference: ñ³--Òñ^؛^ñ^ï^ã^³³ft HJ ara al-Islamiyya, Ca⅛o, 28 Apr-1 May 2004, online:, accessed 7 June 2011.

84 Q 4:47.

85 SfJabatt, Kitab aljihad Wa Kttab aljya Wa afam atmalabln mtn Kttab Ikhittaf al- Jaqaha", ed. Joseph Schacht (Leiden: Brill, 1933), 141. See also Ibn Rushd (alHfid), Bidayat al-m.ajtahld.wanihUyatal-m.a.qtasid. fCa⅛o-.D⅛ta'--IJadi'⅛ι,2004'),2.14⅛

86 'Abdul 'Aziz al-Khayat, “al-Islam din al-salam: Mafhum al-larb wa-l-salam fi l-Islam,” in

al-Majlis al'Ala I--I-Sfr OlIslamiyyaTenthConference-. alIslawalQamalIjadtwal

lshrun, Cairo, 2-5 JuI 1998, online:, ac­cessed 8 June 2011.

interest in preserving potential boot,?. In fact, al-Shafi'i argues that property hard to acquire should be destroyed to prevent the army from benefiting from it Whereas the prophetic tradition could prove useful to an argument against the destruction of property and cities, failure to address the controversy over booty and destruction of property weakens the potential for the argument to develop into a significant, coherent modern position.

But not all scholars show the same disregard for thejuristic tradition. Al- Tabtaba'! offers one of the most rigorous examinations of classical jurispru­dence on armed conflict and lists in detail the different juristic positions on the targeting of women, monks, hired labourers, and so forth.88 However, he adopts an apparently neutral position on terrorism and its permissibility un­der Islamic law, arguing that jihad, differs from terrorism because jihad is in­tended for combat with non-Muslims only, whereas terrorists target Muslims; that jihad is always justified (unlike terrorism); and that God always rewards participants in jihad, whereas “he only rewards participants in terrorism if their objective is justified.''89 Al-Tabtabars seemingly neutral position means that the paper does not employ the restrictive approach to violence adopted by modern works and is thus not suited for examining the consistency of this ap­proach in how it relates to classical jurisprudence. However, in another paper presented at the sixteenth conference, he tries to argue that opposition to au­thority, even peaceful protest, violates Islamic law because protests obstruct traffic and cause chaos,90 an argument that became widespread after the 2011 revolt but that is unsuited for this discussion due to the lack of armed conflict in the said situation. Unlike his jihad analysis, this argument lacks any signifi­cant and well-supported textual basis.

1.. 2,.2,.4 AttemptstoProveSuperiority

Another common tactic employed by many commentators is the attempt to prove Islamic law superior to other religious traditions of war, particularly Ju­daism. To a great extent, many scholars feel that Islam has been under attack

87 See Chapter 1.

88 Mulammad 'Abdul Razzak al-Sayyid Ibrahim alTabtaba'i, “Ahkam al-jihad,” in al-Majlis à²-'Ala Itl-Shuri allsamlyya Fourteenth Conj^s^n^n(^i^: IJaqtqat at Islam ft 'Alam Muta ghayyir, Cairo, 20-23 May 2003, online:, accessed 7 June 2011.

89 al-Tabtaba'!, “Alkam al-jihad.”

90 Mulammad 'Abdul Razzak al-Sayyid IbrahIm al-Tabtaba'!, “al-Tataruf wa-l-irhab: Dirasa shatAya/ tn alMajlis à²-'Ala I--ISfunalamiyyaTenthConfeence-. al Islam v^c^---^C^t^rn al-Hadt ^wa-l-^,Ishrun, Cairo, 2-5 Jul 1998, online:, accessed 7 June 2011.

recently for its legitimation of “violence against the other” and feel that they need to fend off this argument by proving other religious traditions' inclina­tion towards violence. This sense of attack is best articulated by Sultan al- 'Ulama':

Perhaps Islam is the only religion that is defamed and held responsible if one of its believers commits a mistake, whereas we find that throughout history, and until now, whoever conducts terrorist operations and hei­nous acts from the adherents of other... religions, their acts are not rele­gated to [their religions] and it is not said that the Chrisitan or the Jewish or other religions are the ones that instigate such acts.91

Possibly, the choice of Judaism as the religion against which most scholars compare the Islamic tradition of armed conflict is simply a comparison against the other Abrahamic religion with a strong legal emphasis, but one cannot ig­nore the impact of the Israeli-Palestinian conflict on this project. In their com­mentary on terrorism, many presenters argue that the West often ignores state terrorism conducted by Israel against Palestinians and complain about Islam being singled out as a religion that condones violence.Jum'a, the Egyptian Grand Mufti at the time, for example, cites different verses from the Torah to argue that “the notion of war is not a detested concept from the Talmudic per­spective; it seems that wars stemmed from the Talmudic sharfa, conducted with the blessing and aid of God.''92 Abh Talib cites some Talmudic verses that supposedly instruct the destruction of whole cities and killing of their inhabit­ants and then argues that those verses inspire modern Israeli military practic­es, “and if Palestinians defend their legitimate rights and resist the Israeli occupation, they are accused of terrorism and violence.''93

91 Mu⅛ammad 'Abdul Ralim SultSn al-'Ulama', “Mawqif al-Islam min al-irhab,” in al-Majlis

al-'Aa lii-l∙^l^l^ιitm allslamiyyaTenth Conference-. ala a-l-Qa atljadt at'Ishriu,

Cairo, 2-- Jul 1998, online:, 1167, accessed 7 June 2011.

92 ،أغشم Juwta, ''Jh ad ة J-IslamJ In afMajlis a--'A a i---shrι atIslamiya Fourteenth

Conference:lfa٩i٩ata--Isa fl'AlamMutaghayyir, Cairo, 2^c^-^2^3MIcy, oU⅛ne∙., accessed 7 June 2011.

93 Abu Talib, “al-Islam wa-l-akhar,” 401. It is interesting to see how Muslim scholars commit the same mistakes they often accuse “orientalist” scholars of committing when examining Islamic law. None of the presenters appeared to be an expert in Jewish law and its deductive techniques. Texts were simply quoted to support arguments that the legal system condoned harsh treatment of the other, without understanding the context behind those texts or how they were interpreted within the legal tradition. Moreover,

1-.2..2..5 BeodtheTertiHoicalATgume

Another potentially interesting approach is a reliance on historical precedents to prove a particular point of view about the law. Whereas acts of the Prophet and the Rightly Guided Caliphs94 have traditionally constituted a source of law, other precedents were never officially recognized as authoritative. But in some of the papers presented, arguments about Islamic ethics of war rely on historical narratives to prove the researcher's position. Jum'a, for example, re­lies on statistical data about the rate of conversion to Islam to prove it was too slow to have been forceffil Salim offers an interesting analysis of a precedent relied upon by many jurists to justify a harsher treatment of the People of the Book. He shows that 'Umar's pact with the people of Jerusalem, cited in differ­ent historical sources as a basis for Jizya contracts, does not stand up to his­torical scrutiny, arguing that the harsher clauses, such as standing up when they see a Muslim passing, were fabrications.96 He argues that most sources mention such conditions in the format of the People of the Book promising to abide by such conditions, which is unlikely because normally the caliph would state the conditions of the pact, especially ones that limit the freedom of the other. He also argues that the Prophet's pacts never stipulated similar condi­tions, and it is unlikely that 'Umar would deviate from the Prophet's pacts. Fi­nally, he argues that a pact with such offensive conditions goes against the spirit of Islam and should, therefore, be regarded with considerable scepti­cism. He also relies on the conquest of Constantinople by Muhammad al-Fath (r. 848-50/1444-6, 855-86/1451-81), to prove the lenience of Muslim warriors with enemies.97

This critical historical assessment of traditions - often relied on to refute “tolerant” arguments, citing statistics that contest the claimed “brutality” of Muslim conquests, and relying on historical incidents not traditionally con­sidered to constitute a legal source - expands the sources available for schol­ars examining the Islamic regulation of armed conflict. Such an expansion could prove useful to the modern researcher in any attempt to reform and

much like the often criticized link between terrorism and Islam, scholars argued that practices of the modern Israeli state stem from Judaism.

94 With authoritativeness varying depending on the madhhab.

95 Jum'a, “Jihad.”

96 'Abdul RalmSn Salim, “Bayn aluhda alUmariyya wa 'ahd Mulammad al-Fatil li ahali ACJysyaniJniyal' in Ctl-MalisaUAa Ul-Shuta-IslcmiiyyasixteetCoiifereealTasa- muhfll-Hadara al-Islamiyya, Cairo, 82 Apr- 1 May 2004, online:, accessed 7 June 2011.

97 Salim, “Bayn al-'uhda,” 1089.

contextualize classical jurisprudence by offering an alternative set of rules that could be relied upon.

1.2.3 The Supreme Council and al-Azhar after the Arab Spring

We see a renewed interest in terrorism in the last five conferences of the Coun­cil, all dedicated to the issues of terrorism and takfir (deeming one an apos­tate). Of those five conferences, I examine the first three as part of my examination of Modern mainstream jurisprudence and its reaction to the creation of ISIS, its claim to the caliphate and its insistence on the apostasy of its opponents. Al-Azhar also convened a conference in December 2014 titled “al-Azhar in Confrontation with Terrorist Thought,” covering four primary themes: “Correction of Concepts,” with papers published addressing the cali­phate, takfir, Kaklmlyya, and jihad; “Extremism,” covering extremist ideologies and the role of al-Azhar in combating them; “Terrorism and Its Threat to Inter­national Peace,” covering means to combat terrorism; and “Citizenship and Peaceful Coexistence,” covering respect for diversity and citizenship in Islamic law. The Supreme Council conferences examined focused on the dangers of takfir and the issuance of fatwa without knowledge, errors of extremists and the role of preachers in deconstructing extremist thought. Despite the rise of ISIS, with its ideological pronouncements of takfir, and its claims for re-estab­lishing a caliphate and re-introducing slavery, the conference proceedings are generally exceptionally brief in their analysis of those complex issues, despite their ambitious claims to be confronting terrorist ideologies. Much of the pa­pers are filled with rhetorical statements about terrorism, with little jurispru­dential analysis. This section will, however, focus on the arguments around the notions of takfir and the caliphate due to their direct relevance to the argu­ments made by ISIS, as seen in the next chapter, and due to coverage of analy­sis of terrorist activities and jihad in the sections covering the timeframe prior to the Arab Spring.

ا.examining this issue. If they were to adopt al-Sayyid's position, they would be advocating complete withdrawal of the sharfa from governance, and thereby face serious challenges to their own legitimacy and at the same time create their own au­thority and grip over some social issues, a grip gained over decades of confron­tation and cooptation with the Egyptian regime, as well as other Arab regimes. If, on the other hand, they were to elaborate on how Arab regimes adhere to the sharfa, this would certainly prove tricky considering the many questions raised over what many see as the “secularization” of the legal regimes in the region.

r.2,¾.2 Ta^kj∣^r

The other significant issue covered as part of the conferences is the issue of takfir. The series of papers starts out with a paper published by al-Tayyib de­nouncing the concept of takfir and framing al-Azhar's position as an extension of Ash'arism and Mattrridisms distinction between beliefs and actions,!٥8 where failure to perform obligatory “actions does not erode belief in its core,

105 Mulammad 'Imara, “al-Khilafa al-Islamiyya,” in al-Azharjl muwajahat al-fikr al-irhabl conjerence, Cairo, 03-04 December 2014, 2nd ed. (Cairo: Dar al-Quds al-Arabi, 2016), 31; Mtlammad RSfat- 'Uthman, ''af-Kh⅛f ⅛ al-Azhar jt rr^uM^ajc^h^c^t à³-flk-r alirhabl conjerence, Cairo, 03-04 December 2014, 2nd ed. (Cairo: Dar al-Quds al-Arabi, 2016), 45.

106 Ma'uf, "N⅛am al-khilafa,” 57.

107 al-Sayyid, “al-Dawla al-Islamiyya,” 24.

108 Twoprominent classical theological schools asserting belief as the primary tenet of religious identity.

but the believer remains a believer even if he falls short in obedience or com­mits sins 09 He quotes several Quranic verses and hadiths in support of his claim, such as the distinction between believers and those who do good deeds as two distinct categories in “Those who believe, do good deeds, keep up the prayer, and pay the prescribed alms will have their reward with their Lord: no fear for them, nor will they grieve,''110 and other Quranic verses that refer to Companions of the Prophet having committed major sins without describing them with kufr.111 He does not, however, address any of the jurisprudence or textual sources relied upon by the proponents of takfir, an approach consis­tently adopted by the other papers addressing Kakimiyya and takfir in this sec­tion.

In the Supreme Council twenty-fourth conference, Abb Asi shows some at­tempts to address the issue of takfir and argues that takflrls (those who es­pouse takfir of others), have relied on Ibn Taymiyya, Ibn Qayyim and Ibn Abdul Wahhab, whose works are at odds with the majority of jurists.112 He also pres­ents some basic principles that prohibit takfir, yet in those principles, he acknowledges that denial of prophetic ordinances constitutes major kufr necessitating the application of earthly rules relating to apostasy.113 It is clear that this approach leaves the space open for claims of takfir with regards to the denial of what may be seen as a qat^ci rule of Islamic law, itself a contested cat­egory of law. More importantly, this view is not significantly different from the views offered by !SiS's ideologue, al-Bin'ali. Of course, it is highly likely that mainstream scholars who employ those views are much more restrictive in their understanding of what constitutes definitive knowledge, the denial of which establishes apostasy, but it is still noteworthy that the methodological position on the establishment of apostasy does not necessarily counter claims made by ISIS and similar militant groups.

A serious cause for concern with the proceedings of the conference is that none of the propositions, or perhaps rudimentary arguments, shows a serious attempt to engage with jurisprudence providing for alternative understanding of criteria of the caliphate and obligations of the caliph, nor do they make an attempt to address the various sources, whether Quranic verses, hadlths, or

109 Almad alTayyib, ''Khuturat al-takfir,” in al-Azharfi muwajahat al-fikr al-irhabi conference, Cairo, 03-04 December 2014, 2nd ed. (Cairo: Dar al-Quds al-Arabi, 2016), 74.

110 Q 2:277.

111, al-Tayyib, “takfir,” 76.

112 Mulammad Sami Abu 'Asi, “al-Fikr al-takfiri: al-muntalaqat wa-!-nata'ij," in al-Majlis al- 'Ala !i-l-Shu'Un al-Islamiyya Twenty Fourth Conference, “Azamat al-Islam wa-akla' ba'd al-muntasibin ilayhi,” Cairo, 28 Feb-1 Mar 2015 (Cairo: Matabi' al-Ahram, 2015), 502.

113 Abu 'Asi, “al-Fikr al-Takfiri, 510.

other sources relied upon to prove that adherence to Islamic law is a necessary condition of the caliphate. Finally, there is absolutely no attempt to examine the significant issue of the status of subjects of said states if the state signifi­cantly deviates from the implementation of Islamic law, even by those who claim that such implementation is a necessary requirement of the caliphate. This negligence is ironic considering the conference's focus on terrorism. One might be inclined to argue that the rise of ISIS is a new phenomenon that has taken the Islamic world by surprise and that responses by mainstream institu­tions and scholars may legitimately be expected to show slight delay, but that would be to disregard the existence and propagation of ideas articulated by ISIS for decades. In the case of Egypt, the modern reiteration of this brand of takfirl militant Islam has been around since the 1960s, according to Ahmad al- Tayyib, the Grand Shaykh himself. 114

Despite the brevity and the lack of serious engagement with the arguments presented by militant groups such as ISIS with regards to takflr and Kakimiyya, there is a clear consensus among the scholars participating in the conferences that one of the primary factors contributing to extremist thought is unquali­fied jurisprudence, the lack of faith in proper religious institutions and the at­tacks against al-Azhar and other mainstream institutions. 'Arajawi, for example, states that those who issue fatwa without the necessary training and knowl­edge lead followers astray.115 He also argues that criticism of mainstream schol­ars in the media erodes their legitimacy, and leads the youth towards extremist Ideologuesie Yet, despite his claims for the need for specialists to be given a voice in countering militant thought, his arguments against takflr are hardly unchallengeable. First, like many participants in the different conferences, he relies on the prophetic hadlths reprimanding Muslims for takflr of fellow Mus­lims like “If somebody accuses another of Fusuq (by calling him 'Fasiq' i.e. a wicked person) or accuses him of Kufr, such an accusation will revert to him (i.e. the accuser) if his companion (the accused) is innocent."117 He also relies on Ibn Taymiyya stating that no Muslim had the right to deem another Muslim an unbeliever, even if he had erred until evidence is brought against that other Muslim and that whoever is proven to be a Muslim, his faith is not to be

114 al-Tayyib, ''Khuturat al-takfir,” 72.

115 Mustafa 'ArajSwi, “al-Asbab al-Mu'diya li-dhahirat al-takfir,” in al-Majlis al-Ala !i-l-Shu'Un al-Islamiyya Twenty Third Conference, “Khuturat al-fikr al-takfiri wa-l-fatwS bidun 'ilm” Cairo, 25-22 Mar, 2014 (Cairo: Matabi' al-Ahram, 2014), 44.

116 'Arajawi, “al-Asbab,” 45.

rη SalhalBuka, The Translattonof the I√^e^c^r^ir^c^s of Sahih alBukhari, ArabicfEngiish,

trans. by Muhammad Muhsin Khan (Chicago: Kazi Publications, 1979), Volume 8, Book 73, Number 71, Quoted in 'Arajawi, “al-Asbab,” 23 questioned on the basis of uncertain claims.118 It is evident that both the tex­tual hadlth sources nor Ibn Taymiyyas views may still be used as basis for takfir if the Muslim accusing the other of apostasy has not erred and can provide certain evidence for his claim. The paper presented, however, makes no at­tempt to address this potential challenge, especially in light of Ibn Taymiyya's well known views leaning towards acknowledgement of takfir under certain conditions, as discussed in Chapter 2.

One other technique employed by several papers presented in the confer­ence is to dismiss controversial practices such as takfir or indiscriminate tar­geting on the basis of the need for an official endorsement of the state. In the case of apostasy, several papers have asserted that apostasy in the present day can only be proven by evidence and pronounced by a judge. In the case of in­discriminate targeting, al-Hudhud acknowledged permissibility on the basis of the night raids hadlth, but again conditioned them on receiving instructions from the imam.119 Again, much like the reliance on the prophetic hadiths or Ibn Taymiyya's views on takfir, this approach does not provide solid basis for dismissing organizations like ISIS, who claim the existence of a legitimate imam and have created parallel justice systems.

1.2.4 Olhcial Narratives: Concluding Remarks

The above analysis portrays that scholarship published by official government authorities appears intent on proving Islamic law's congruity with interna­tional law. Even if international law is not explicitly relied on or invoked, prin­ciples such as participation in Hghting as a condition for targeting bring heavy influence on modern scholars' approaches. This keenness stems from the ten­dency to perceive Western principles of law as benchmarks for civilization, which causes many of them to attempt to prove the similarity, or in some cases the superiority, of Islamic law. That perception is perhaps triggered by a sense of attack against the Muslim faith and civilization in general, as detailed earli­er. To achieve this objective, scholars adopt unique interpretive approaches and re-examine textual sources. These approaches could, potentially, reform jurisprudence, but the reluctance of modern scholarship to engage with classi­cal jurisprudence that may contradict their intellectual positions on jihad, while selectively relying on corroborating jurisprudence from the same body

118 'Arajawi, “al-Asbab,” 25

119 Ibrahim al-Hudhud, “Waqi' al-khitab al-dini al-mu'aιr: muqaraba fi al-waf wa-l⅛al'' in

aLMajltsat'Ala Ittshiri alamtyaTWeiityFifthCoiifeieiiceiRyat alaTmaat at

HtajdtdaLkLia aLdtuatafktkaLftkraLmutatartf,Ca⅛o,iA-¾Nov2c¾,ι2.. of jurisprudence, sets adherence to classical texts as the benchmark for assess­ing modern works, which often comes to the disadvantage of those works.

Moreover, government association prevents scholars from examining any argument that might erode the legitimacy of the ruling elite or allow for any challenge to its status and conduct of affairs. This reluctance leads many schol­ars to dismiss and ignore a potentially useful legal regime that could help gov­ern the acts of the government and militant groups: baghy. There are of course serious challenges that face the application of the crime of baghy to modern intra-Muslim conflicts. First, it is hard to apply a legal regime that is premised on the religion (and in some instances religiosity) of the ruler and rebels to the modern state apparatus, with its relative emphasis on citizenship and equality of individuals before the law. Moreover, the practice of militant groups equally turns a blind eye to this legal regime and claims apostasy of the state in order to manoeuver under the less restrictive regime of ridda. But perhaps, at least at the intellectual level, one should explore the potential of the baghy regime for bringing both parties under a framework that offers stronger restrictions to armed conflict on both sides. Hence, the question of how to adapt this regime to modern states, as well as other questions about the challenges facing poten­tial invocation of Islamic laws of war, should be addressed by the body of Mus­lim scholars, but in order to do so, a level of independence from the orbit of the state, as well as freedom from claimed yet unattainable adherence to juristic tradition, is necessary.

Finally, the reasons for decline in the sophistication of juristic analysis, as evidenced in the recent conferences, is unclear. Possibly, association with the state, particularly the Egyptian state, at a critical time in Egyptian history after the oscillation in religious positions with the turmoil of the overthrow of the Mubarak regime and the subsequent overthrow of the Mursi regime, leads scholars to hesitate in adopting a definitive position. In this atmosphere, it is possible that scholars fear articulating a sophisticated view on those matters. It is also possible that they find the thin line between maintaining their rele­vance as Muslim jurists in Muslim states and denying the need of applicability of Islamic law difficult to tread. As mentioned earlier, there is a consistent con­cern with the erosion of legitimacy of established religious institutions. In some instances, scholars have accused the media of deliberately eroding the legitimacy of mainstream institutions like al-Azhar.!2٥ In other instances, some scholars acknowledged that the institutions themselves need to be more

120 'Arajawi, “al-Asbab,” 45. selective with the hgures they rely on to present their views.121 But one of the primary reasons behind possible erosion of legitimacy, independence from state control is never addressed.

2