Al-Shaybani: aJurist-Judge

Muhammad b. al-Hasan al-Shaybani (131-89/748-804), one of the leading ear­ly Hanafi jurists and often referred to together with Abfi Yusfif as Abfi Hanifa's companions, was a prolific writei He is credited with playing the most im­portant role in documenting the school's early thought.

A Hasan Ibrahwa Hasan, TaIrIhi alslam alsi a Watiaqafi a-ltma'ι, 9fbel. /Ca⅛0'.

Maktabat al-Nahda al-Miriyya, 1980), 2:62.

!2 Hasan,Ta'r⅛h,2¾0.

13, MuhanmaIAbfiZaIwa, aishafiu: IJayatuh wa 'OaaUihafIqhuh /Ca⅛o-.D⅛raI-I⅛c

al-Arabi, 1948), 49.

14 Ahmad Amin, Duha al-Islam (Cairo: Lajnat al-Tarjama walNashr, 1938--3), 1:49-55.

15 He is said to have been the most prolific of the second/eighth century. See Salah al- Munajjid's introduction to Sharh Kitab al-Siyar al-kablr, by al-Shaybani, ed. Salah al- Munajjid, 2nd ed. (Cairo: Ma'had al-Makhtat bi-jami'at al-Duwwal al-Arabiyya, 1971),

16 Wael Hallaq, The Origins and Evolution ofIslamic Law (Cambridge: Cambridge University Press, 2005), 158.

the primary sources elaborating on the school's formative juristic positions.؛? More important for this book, al-Shaybtini earned a reputation for his works regulating Muslim relations with non-Muslim communities in times of war and peace. His books on this subject led to the establishment of the Shaybani Society for International Law.8؛ While al-Shaybani's fame in the West can be attributed, at least in part, to Khadduri's translation of his Siyar^w in the mid- 1960s, his status in the Islamic tradition and in the history of the development of the legal regulation of armed conflict is indeed well earned, and not just in the Islamic tradition.

AfshahnTsWorks

Despite, or perhaps because of, his fame in the Islamic tradition, attribution of individual authorship to al-Shaybani is challenging and has consumed much debate in academic circles, which Ihrther complicates attempts to examine in context his work on matters relating to armed conflict. Al-Shaybani addressed siyar (conduct with non-Muslims) in many of his numerous books, specifically Tn CtfSiyarafkabtr, afstyarafaghtra-ata- aghtr, and Kttab afA⅞I. Some scholars believe that books suffixed al-Saghlr are summaries of the arguments of Abti Hanifa and Abti Ytisuf, his two masters, reviewed and approved by Abti Ytisuf, while books suffixed al-Kablr include his own legal reasoning^

Unfortunately, afstyarafaghtr and afSiyarafkabtr were lost. The Hanaff jurist al-Sarakhsi (d. 489/1096) dictated a commentary on al-Shaybani's five- volume af-S⅛^ar afkabtr andnamedrt. Shar^ha--S⅛^ar afkabtr (hereon, Shc^r^h al-siyar). However, the book is said to have been dictated from memory by al- Sarakhsi to his students during an imprisonment that denied him access to al-Shaybani's originals.2؛ As Khadduri notes, al-Sarakhsi's version “may be re­garded as an exposition of Shaybtins doctrine on the siyar as he [al-Sarakhsi] understood them.''22 Since this book aims to examine al-Shaybani within his sociopolitical context, it would be wrong to rely on Sharh al-siyar, because the “commentary represents Hanafi doctrines as they were understood in the fifth

١٦ MuhaamadAbtiZahra, AbtilJaiIijalJayatta a⅞narat hwa Jiqhah fCatr. Dar at-

Fikr al-Arabi, 1947), 233.

18 al-Munajjid, introduction, 14.

19 Lit. paths or tradition, but used in Islamic jurisprudence to refer to legal regulation of interaction with non-Muslim communities.

20 Abti Zahra, Abu Hanifa, 234.

21 Khadduri, Majid, introduction to, The Islamic Law of Nations: ShaybanTs Siyar, by al- Shaybani, trans. Majid Khadduri (Baltimore, MD. Johns Hopkins University Press, 1966),

22 Khadduri, introduction to Siyar, 44.

century of the Islamic era [eleventh century ce] and not the second century [eighth century ce].''23

At the same time, it is equally problematic to treat Sharh al-siyar as al- Sarakhsfs since many modern Muslim scholars perceive ideas in the text as essentially a!-Shaybn's. For example, Salah al-Munajjid, who edited the text, attempted to distinguish between al-Shaybnr contribution and al-Sarakhsr but he maintained that the attempt is strictly his own impression of the text.24 It seems, however, that al-Munajjid's attempt is achieving more authority than initially anticipated. For example, Abh 'Abdullah Muhammad Hasan a!-Shfi'i, who edited the text again in 1997, uses the exact same distinction between the two jurists earlier made by al-Munajjid without reference to al-Munajjid, which interestingly shows that posthumous attributions of authorship con­tinue to the present day.25

Another book written by al-Shaybhni addressing the issue of armed conflict is al-Asl, a treatise on different legal subject matters in Islamic law, one of whose chapters addresses siyar. However, contextualizing the text is still some­how problematic because some authors argue that it was refined and edited by later scholars, hence elaborating later Hanafi doctrine. The most extreme ver­sion of this argument is the one made by Calder to post-date the text as well as other formative jurisprudential texts.26 Building on Calder's arguments, Abou El Fadl argues that the section dealing with rebellion in al-Asl reflects views that were too developed for the early Hanafi school, an argument later exam­ined in this chapter.27 The technique employed by Calder was, however, sub­ject to much critique in Islamic scholarly circles, and several inadequacies were found in his approach.28 Recent works by Behnam Sadeghi and Mehmet Boynukalin are perhaps the most elaborate academic responses to Calder's claims, with regards to authenticity of texts authored by al-Shaybhni, and after examining the text's tone, debate, style, and format, both concluded that the works examined were authored by al-Shaybhni, even if narrated by discip!es.29

23 Khadduri, introduction to Siyar, 44.

24 al-Munajjid, introduction, 27.

25 Abu 'Abdullah Ismail al-Shafil, introduction to Sharh Kitab al-Siyar al-kablr, by Mulammad Ibn al-Hasan al-ShaybSni (Beirut: DSr al-Kutub al-'Ilmiyya, 1997), iii.

26 Norman Calder, Studies in Early MuslimJurisprudence (Oxford: Clarendon Press, 1993), 39-66.

27 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2002), 145.

28 See e.g. Zaman, “Caliphs,” 14-16.

29 Behnam Sadeghi, “The Authenticity of Two 2nd∕8th Century Hanaft Legal Texts: The Kitab al-Athar and al-Muwatta’ of Mulammad b. al-Hasan al-ShaybSni,” Islamic Law and

Conversely, because of the master-disciple relationship between Abb Hanifa and al-Shaybani and the lack of written work by Abb Hanifa himself, al- Shaybanrs books are often viewed as documenting Abb Hanifa's juristic views. Abb Zahra even argues that al-Shaybani must have had access to memoirs written by Abb Hanifa and that he relied on such memoirs when documenting the school's juristic views.30 Khadduri holds that the “book on the Siyar in the Kitab al-Asl may therefore be regarded as essentially the contribution of Abb Hanifa and his circle.''31 Thus, contrary to Sharh al-siyar, where elaboration by a successor delineates the lines of juristic originality, al-Asl cannot be attrib­uted solely to al-Shaybani, because of the assumed influence of his predeces­sors. Nevertheless, al-Asl is arguably more suitable for this book because al-Shaybani was a contemporary of Abb Hanifa, which in essence means that their views, as well as Abb Ybsuf's, were shaped by the same historical context. Additionally, as noted by Abb Zahra and Boynukalin, al-Asl highlights disa­greements between al-Shaybani, Abb Ybsuf, and Abb Hanifa.32 Accordingly, one can safely assume that in areas where disagreements are not mentioned, the three earliest leaders of the school agreed to the reasoning. For the analysis conducted in this chapter, I rely on Khadduri's translation and Boynukalin's recently compiled al-Asl, which includes the Siyar chapter.

1.2 Al-Shaybanl and Usul al-Fiqh

Aside from complications faced in his writings on siyar, al-Shaybani's work is made harder to address by the lack of a declared jurisprudential theory - most of his books are devoid of rationalization for extrapolated rules.34 “If we read Muhammad's [al-Shaybani's] books, we seldom find qiyas where the ^cilal [sing. ^cilla, trans. ratio legis] and the deduction process are stated.''35 In addition to the lack of explicit reference to the deductive/inductive process in his Juru^c work, al-Shaybani did not write a book focusing on elaborating his/the school's usul theory. Al-Shaybani's approach to jurisprudence is hardly surprising con­sidering that his works were written in the early stages of development of sys-

Society 17 (2010), 291-319, and Mehmet Boynukalin, introduction to al-Asl, by Muhammad b. al-Hasan al-Shaybani (Beirut: Dar Ibn Hazm, 2012), 105-75.

30 Abu Zahra, Abu HaniJa, 211.

31 Khadduri, introduction to Siyar, 45.

32 Ab٥ Zahra, Abu HaniJa, 235; Boynukalin, introduction, 44.

33 Boynukalin, introduction, 175.

34 Ab٥ Zahra, Abu HaniJa, 264.

35 Ab٥ Zahra, Abu HaniJa, 217.

tematic legal reasoning, where the discipline of usul was yet to be formulated and articulated.36 However, the lack of material elaborating on early Hanafi juristic theories does not necessarily indicate that al-Shaybani's, or his two masters', approach to legal reasoning was devoid of any pattern. Many classical jurists (e.g. al-Bazdawi (d. 493/1100), al-Sarakhsi) and modern scholars (e.g. Abfi Zahra, Schacht, Boynukalin) attempted to lay down the theoretical foun­dations of early Hanafi work, predominately drafted by al-Shaybani.37 As Abfi Zahra points out, later reconstructions of Hanafi jurisprudential theory should be viewed with caution due to potential over-sophistication of early Hanafi thought.38 However, they can still form the basis for assessing Hanafi work, at least as a manifestation of generally accepted hypotheses on early Hanafi theo­ries in classical times.

This book relies on al-Sarakhsi's book on usul, Abfi Zahra's biography of Abfi Hanifa and Boynukalin's introduction to al-Asl. Because of the unique intel- lecfiial position of al-Sarakhsi as the narrator of al-Shaybani's books, his theory of usul might have been influenced by what he believed to be al-Shaybani's jurisprudential technique. As al-Sarakhsi says, his usul book aims to clarify the sources (usul) of his commentaries on al-Shaybani's books to those who aim to rely on those books.41 In parallel, the sfiidy also relies on Abfi Zahra's book on Abfi Hanifa and his jurisprudence and Boynukalin's introduction to al-Asl as examples of modern mainstream Muslim interpretation of early Hanafi usul theory.

An examination of al-Sarakhsi's articulation of the Hanafi usul theory indi­cates a highly sophisticated system, a system that is unlikely to have been adopted in the second cenfiiry AH. He dwells on many technicalities of the language that do not seem to have been considered by al-Shaybani in his early

36 Wael Hallaq, SharVa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 74.

37 Abfi Zahra, Abu Hanifa, 264.

38 Abfi Zahra, Abu Hanifa, 218.

39 Hallaq, Origins, 116.

40 Hallaq, Origins, 116.

41 al-Sarakhsi, Usulal-Sarakhsi, ed. Abfi l-Wafa ]-Afghani (Cairo: Dar al-Kitab a!-'Arabi, 1952), writings, such as the definition of a command and a prohibition from the lin­guistic and the legal perspectives. However, the book offers an insight into the sources of law accepted by the early Hanafis. Ai-Sarakhsi, for example, shows how the early Hanafis acknowledged the authoritativeness of al-khabar al- wahid (individually transmitted prophetic traditions).42 This claim is given strong assertion in Boynukalins work and his analysis of al-Shaybani's Kitab al-!stihsan.43 He also argues that the sunna of the Companions44 and ijma^c (consensus, regardless of when it was reached) were binding sources.45 Boynu- kalin, however, asserts that al-Shaybani disagreed with Abfi Hanifa in several instances over the hierarchy of the Companions' authoritativeness. For exam­ple, whereas Abfi Hanifa relied on Ibn Mas'fid on a particular matter, al- Shaybani gave precedence to Ali b. Abi Talib on the same matter.46 Al-Shaybani also appears to have given more weight to hadlth than his master Abfi Hanifa, rejecting in some instances the master's position due to its contradiction with hadh.47

Al-Sarakhsi argues that the Qur'an and sunna of the Prophet would never contradict each other and that any detected contradiction was an outcome of ignorance of the history of abrogation.48 Early Hanafis, however, dismissed hadlths on the basis of contradictions with the Quran.49 Other sources, such as qiyas and opinions of the Companions, do not abrogate each other, because they do not oblige knowledge (ghayr mujib li-l-^cilm).5° Additionally, al-Sarakhsi gives evidence to al-Shaybani's familiarity with the legal technique of classify­ing sources on the basis of their scope of application to Omm (general) and khass (specific). For example, al-Shaybani states that a person who sells a ring to someone, and then sells its stone to someone else, is making a valid sale because the second sale (specific) defines the first (general).51 Whereas Abfi Zahra (relying on al-Dahlawi) argues that such detailed analysis of Omm and khass and abrogation must have been a later innovation,52 there is enough

42 al-Sarakhsi, Usul, 1:332-33.

43 Boynukalin, introduction, 192.

44 al-Sarakhsi, Usul, 1:114.

45 al-Sarakhsi, Usul, 1:315.

46 Boynukalin, introduction, 203.

47 Boynukalin, introduction, 193.

48 al-Sarakhsi, Usul, 2:12.

49 Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1953), 30.

50 al-Sarakhsi, Usu l, 2:12.

51 al-Sarakhsi, Usu l, 1:132.

52 Abfi Zahra, Abu Hanlfa, 263.

evidence in the Islamic tradition, and in al-Shaybdni's work,53 that early jurists and specialists of Quianic exegesis were, to some extent, familiar with the concept in the second/eighth and third/ninth centuries.54

Another possible guidance into early Hanafi methodology is Abd Zahra's biography of Abd Hanifa. Abd Zahra examines another seminal Hanafi work on usul authored by the prominent Hanafi jurist al-Bazdawι,55 but he qualifies al-Bazdawi's approach in terms of its applicability to works authored by al- Shaybdni. In his analysis, Abd Zahra argues that Abd Hanifa did not develop detailed theories of legal reasoning as much as general rules of evidence.56 Those rules, according to Abd Zahra, were declared by Abd Hanifa, who is quoted in Tarilih Baghdad, as saying that he relied primarily on the Qur'dn, then on the sunna, and then on statements of the Companions, but that he did not acknowledge the authoritativeness of others (in reference to al-Tdbin the authoritative successors of the Companions)57 and accordingly relied on his own ijtihad.58 He is also said to have relied heavily on qiyas and to have aban­doned “ugly” qiyas through Lstihsan and custom.59

For the purpose of this book, analysis of al-Shaybdni's work assesses con­formity with the sources mentioned above without delving further into details of Hanafi usul theories, to avoid measuring the text against standards devel­oped at a much later stage of Islamic legal thought. It also keeps in mind that al-Shaybdni was more inclined than Abd Ydsuf and Abd Hanifa to rely on hadlth, in line with “the rising importance of textual sources.”6٥ Moreover, more emphasis is laid on internal inconsistencies in the text itself rather than inconsistency with an overarching usul theory.

1-3 AfShaybdnfsIe: InedOtof theCnliph’sCon t

Al-Shaybdni was born to a wealthy family from Harasta in Damascus, but shortly before his birth, his father moved to Wdsit in Iraq.61 According to Ibn

53 Boynukalin, introduction, 233.

54 Joseph Lowry, “The Legal Hermeneutics of al-ShSβ'i and Ibn Qutayba: A Reconsideration,” Islamic Law and Society 11, no. 1 (2004), 7-8.

5,5, See'AlS A-Dinal-Bikidty Kashfalasar anusrlFakhralIslamalBaavιl,el.'A⅛dιιaay

'Umar (Beirut: Dhr al-Kutub al-'Ilmiyya, 1997).

56 Abd Zahra, Abu Hanifa, 265.

57 Generation following the Companions of the Prophet.

58 Abd Zahra, Abu Hanifa, 266.

59 Abu Zahra, Abu Hanifa, 266.

60 Hallaq, Origins, 112.

61 Abd 'Abdullah Mulammad al-Dhahabi, Manaqib al-Imam Abl Hanifa wa sahibayh Abi Yusuf wa Muhammad b. al-Hasan, ed. Mulammad ZShid al-Kawthari and Abd ]-Wat Sad and al-Baghdadi, al-Shaybani’s grandfather was a client of the famous Shayban Arabian tribe, but neither biographer states whether or not the grand­father was Arab 62 Khadduri believes that this silence indicates his ancestors were probably non-Arabs.63 According to al-Baghdadi, al-Shaybani’s father served in the Umayyad army in Syria and seems to “have become well-to-do.''64 In a move that proved to be very significant to al-Shaybani’s career as a jurist, his father moved to al-Krfa, a political and religious centre at the time.65 Living in al-Krfa introduced al-Shaybani to Abb Hanifa and allowed him to master Hanafi thought. Al-Shaybani studied in Abr Hanifa’s circle until the age of eighteen and the latter’s death. Because al-Shaybani was exposed to Abr Hanifa for only a short time, Abr Zahra’s conclusion that al-Shaybani accumu­lated most of his knowledge in Hanafi thought from Abr Ybsuf seems quite plausible.66

Al-Shaybani continued to lecture on Hanafi thought until he was recom­mended by Abr Yrsuf to Harrn al-Rashid for appointment as ajudge.67 Sources agree that al-Shaybani was reluctant to accept the appointment and was some­how coerced into it.68 Al-Shaybani’s scepticism of judicial appointments is typical of the era, when many jurists perceived such appointments as limiting their ability to express their opinions without fear of authority.69 As stated later in this chapter, al-Shafi'i reportedly rejected a similar appointment by al- Rashid, and sources document Abr Hanifa’s harassment by the authorities for declining a judicial post.™ Al-Shaybani’s reluctance may have been over­estimated by biographers in light of this atmosphere of hostility to official appointments, but the fact that Hanafi biographers did not attempt to prove similar reluctance by Abr Yrsuf suggests that al-Shaybani genuinely resented the role, at least initially. Besides, al-Shaybani’s comfortable financial situation probably contributed to his lack of interest in such posts: “Like Abr Hanifa, he [al-Shaybani] had inherited wealth from his father; unfettered by family de­mands, he could afford to put aside the material temptations that an official

]-Afghani (Cairo: Dar al-Kitab al-'Arabi, 1947), 50.

62 Khadduri, introduction to Siyar, 28.

63 Khadduri, introduction to Siyar, 28.

64 Khadduri, introduction to Siyar, 28.

65 Khadduri, introduction to Siyar, 28.

66 Abu Zahra, Abu Hanifa, 233.

67 Mt¾ammad a∖-Kawfhaι⅛ BulUgL alaanift Sirat b. à²-Hasc^n al-Shaybani

(Cairo: Maktabat al-Khanji, 1936), 36-37.

68 Khadduri, introduction to Siyar, 32.

69 Hallaq, SharVa, 129.

70 AbUZahra, AbtHanfa,54⅛.

position offered."?؛ Some sources state that ÀÜé YLsuPs recommendation that al-Rashid hire al-ShaybLni as ajudge caused a permanent rift between the two.72

Al-ShaybLni, or his biographers, seem to have been keen to assert his inde­pendence as a judge even after he was appointed. It is said that he was sitting in the caliph's court and that everyone stood up for the caliph except for al- ShaybLni. When asked about this incident, al-ShaybLni is reported to have said, “I told him [the caliph] I hated to belong to a different class than the one you granted me. You chose me as a scientist [jurist] and I hated to leave that and belong to the class of servants."73

In a more significant and widely cited incident, al-Rashid sought a fatwa from al-ShaybLni regarding the breach of an aman agreement with members of a Shii rebellion. Unlike another judge who concurred with the caliph's right to breach the aman agreement, al-ShaybLni insisted on the inviolability of the aman and was accordingly dismissed from his role as a judge.74 But al-ShaybLni seems to have become accustomed to his proximityto decision-making cirles,75 because he continued to live in Baghdad and did not move back to his early residence in al-KLfa.76 Moreover, he willingly accepted a later appointment as a judge by al-Rashid.77 Finally, when al-Rashid sought another fatwa from al- ShaybLni regarding the breach of the covenant with a Christian tribe, the BanL Taghlib, for suspicion of cooperation with the Byzantines, al-ShaybLni gave a more flexible response than his earlier position.78 While he held that the cove­nant with the BanL Taghlib may not have been breached, he was “cautious in expressing his opinion to the Caliph, who held the highest authority, by pro­nouncing that the latter's authority would be supreme."79

Apparently, al-Rashid and al-ShaybLni's relationship suffered no further rifts. Al-ShaybLni continued in his position as a judge until his death. While he was never chief judge, he seems to have been very close to the caliph, at one point accompanying him on “an expedition to suppress a rebellion in

71 Khadduri, introduction to Siyar, 32.

72 Azz a∖-D⅛a∖-ShayW, almdm Mrammad b. al-ttasc^n al-^S^b^cyt^o^r^ι: wa fa

(Beirut: Ddr al-Kutub al-'!lmiyya, 1993), 44.

73 al-Shaykh, al-Shaybant, 21.

74 al-Kawthari, Bulugh, 40.

75 Khadduri, introduction to Siyar, 33.

76 Khadduri, introduction to Siyar, 33.

77 Khadduri, introduction to Siyar, 33.

78 Khadduri, introduction to Siyar, 34.

79 Khadduri, introduction to Siyar, 35.

Samarqand.’’8٥ When he died in al-Rayy, the caliph attended his burial. It is re­ported that the caliph said on the day of his burial, “I buried Jiqh and nahw81 [grammar] on the same day.''82 But some sources claim that al-Shaybani was not satisfied with his life as a judge. Al-Dhahabi reports al-Shaybani as con­firming these claims on his deathbed and saying, “What if I stand before God and he tells me, ‘Why did you come to al-Rayy. Is it jihad, in my path or the at­tempt to satisfy me?' What am I supposed to say?'”83

Whether or not al-Shaybani was comfortable with the official post is hard to figure out, but it is an accepted fact that he assumed the position of a judge twice in his life and that he was very close to al-Rashid. It is also noteworthy that al-Shaybani owed his wealth and comfort to wars conducted with non­Muslims, considering that his primary source of wealth was his inheritance, which his father had accumulated as a soldier. In fact, had it not been for his fa­ther's wealth, al-Shaybani might not have been able to reach his status in Islam­ic jurisprudence. Because of the resources available to him, al-Shaybani could afford to spend extravagantly on his education and to perfect his knowledge of the religious sciences.84 How that contributed to his approach to Islamic jurisprudence on jihad and armed conflict is, and will remain, unanswered.

1-4 AfShahnf: Ihejurist-JudgeandtheRegufetonofArmedConftict

It would be a limited understanding of al-Shaybani's positions to read them as an attempt to legitimize the actions of the caliph. After all, as stated in his bi­ographies, al-Shaybani's conflicts with the caliph revolved around the conduct of the caliph in armed conflict. However, it would be equally limited to disre­gard the influence of his public office on his legal reasoning. The ^culama^, of the early 'Abbasid caliphate were never interested in the complete separation of religion from the state, but they were devising a model that allowed for and encouraged the involvement of the political authority in the developed legal system.85 In retiirn, caliphs, including al-Rashid, were keen to comply with, or at least consult, the opinions of jurists on matters relating to jihad.86 This sym­biotic relationship can be detected in al-Shaybani's al-Asl, in its attempt to le-

80 Khadduri, introduction to Siyar, 34.

81 al-Kisδ'i, a famous grammarian, died on the same day.

82 IbnAbl CWafa ∖-Quashl, CttJaiair atmua ft tarajtm aWJcmafyya, el. 'AbIιΛ FataC Mu⅛ammad alHilw, 2nd ed. (Cairo: Hajar, 1993), 126.

83 al-Dhahabi, Manaqib, 59.

84 al-Shaykh, al-Shaybant, 18.

85 Zaman, “Caliphs,” 3-4.

86 John Kelsay, “al-Shaybani and the Islamic Law of War,” Journal of Military Ethics 2, no. 1 (2003), 65.

gitimize and expand the Islamic empire and assert the caliph's authority in matters relating to jihad, and in its pragmatic tendency to accommodate the need to acknowledge non-Muslim nations. But an interest in a legitimate, le­gally regulated caliphate was not the sole factor guiding al-Shaybani's approach to armed conflict. As detailed later, equally witnessed in his work are a ten­dency to accept social hierarchies and an attempt to open up a space for chal­lenging the political authority.

1.4.1 The Islamic Empire and Hegemony

From the opening of al-Asl, it is easy to detect the focus on the spoils of war as a crucial and integral part of the legal system. Having dedicated a full chapter to the division and management of the spoils of war, al-Shaybani continues to address the matter in most other chapters. In fact, the chapter on the conduct of the army in enemy territory offers less attention to legitimate targeting tech­niques than it does to proper conduct with regards to the division of the spoils of war. This interest is partly triggered by the abundance of Quianic texts ad­dressing booty division. But Kelsay offers a convincing argument that the legal approach to booty division was equally a response to the need to mitigate ten­sion between different ethnicities participating in conflict by formalizing the process of dividing booty, and that the legal system adopted by al-Shaybani relied heavily on the institution of the caliphate as the channel for this for- malization.87 However, al-Shaybani's reluctance to accept the presumed cen­sorship of his official post, and his tendency to limit the power of the caliph, as articulated in the section below, indicates that his promotion of a strong cali­phate reflected more a keen interest in a caliphal institution strong enough to manage the state of affairs of the Muslim umma than it did an attempt to aug­ment the power of the caliph as an individual.

Limitations on permissible tactics and tools of destruction at war often are perceived as obstacles to the fully fledged use of force, translating into a rela­tive disadvantage for an army. Al-Shaybani's text, compared with other juristic works examined in this book, reveals a tendency to expand the army's freedom and destructive power in its conduct of conflict with the enemy, especially with regards to the destruction of enemy property and livestock. Al-Shaybani argues that it is commendable for the army to destroy enemy property,88 rely­ing on the following Quranic verse: “Whatever you [believers] may have done to their palm trees - cutting them down or leaving them standing on their roots - was done by God's leave, so that he might disgrace those who defied

87 Kelsay, “al-Shaybani,” 67.

88 al-Shaybani, Siyar, 99. him.''89 However, unlike al-Shaybbni's argument that destruction is commend­able, the verse may be argued as an indication of mere permissibility. More­over, the blanket recommendation in favour of destruction arguably contradicts Abb Bakr's widely cited instruction to the army: “Do not cut down fruit-bearing trees. Do not destroy an inhabited place. Do not slaughter sheep or camels ex­cept for food. Do not burn bees and do not scatter them.”9٥ As mentioned ear­lier, the Hanafis upheld the opinions of the Companions as authoritative sources of law, so an attempt should have been made at least to mitigate Abb Bakr's instruction. In other words, reading the two sources in parallel may fair­ly be assumed to lead al-Shaybani to argue that whereas destruction is permis­sible, it is reprehensible or undesired as he often does in other areas of law,91 or to follow the same interpretive approach of scholars such as al-Shafir who argued that Abb Bakr's instructions were specific to the Levant since Muslims were promised the territory by God. According to this reasoning, Abb Bakr in­structed his men to refrain from destruction in this particular case because it would have disadvantaged Muslims as the future rulers of the territory.92 But the Hanafis make no such attempt, which might lead us to conclude that they were unaware of the tradition. Although the tradition is widely cited in al- Muwatta^[11] narrated by Yahya b. Yahya,93 al-Shaybani's narration lacks a jihad. section, so makes no reference to it.94 Controversy over authorship of al- Muwatta^l and presumed editing by later Malikis do not offer much insight into al-Shaybani's knowledge of the tradition. Nevertheless, in his rebuttal of the critique offered by Abb Ybsuf to Siyaral-awza1, al-Shafi^tr states that al-Awzar cites this particular tradition.95 Thus we can fairly assume that Abb Ybsuf and al-Shaybani came across this tradition. But even if we were to assume that al- Shaybani and Abb Ybsuf were unaware of the tradition, we are left with the fact that the Hanafis instruct Muslim warriors to destroy enemy territory despite the Qur'an's neutral language on the matter.

A clearer example of the tendency to expand the enemy's destructive power is al-Shaybani's approach to the treatment of enemy livestock. Al-Shfr and Ibn Hazm relied on the prophetic tradition, “Whoever kills a sparrow or above96 without a right will be questioned by God”97 to hold that animals may not be killed for military gain.98 However, the Hanafis argued that if animals acquired as part of the spoils were difficult to subdue and constituted a burden, they should be killed to prevent the enemy from using them.99 It is again possible that al-Shaybani was unaware of the tradition relied on by al-Shafr^ti and Ibn Hazm. But the fact that the question was raised suggests that the issue was to some extent contentious and that a rationalization was needed for the disposi­tion of animals, and it is clear that al-Shaybani decided in this case that the primary interest was maximizing military gain through denying the enemy the opportunity to make use of this important asset.

Al-Shaybani's interest in a strong army is also seen in his approach to legiti­mate targeting when besieging a city. Like other Muslim scholars, al-Shaybani allowed the Muslim army to use relatively wide-ranging and indiscriminate weapons to attack a city, regardless of the damage likely to be inflicted on un­targetable groups. While this position is not a novelty to Muslim jurisprudence and is proof of military realism,!٥٥ the approach reflects an interest in maxi­mally expanding the power of the military. Targeting a besieged city in such a manner, even if there were slaves, old men, women, children, and Muslims in it, was approved unconditionally. But when it came to Muslim children, the interest in a strong empire and a powerful army was mitigated, although not overruled, by the need to attempt to limit “collateral damage.”!٥i In this case, it is stipulated in al-Asl that “warriors should aim at the inhabitants of the terri­tory of war and not the Muslim children.''!92 Like other matters, the issue is put in the form of a question to Abh Hanifa. In the case of Muslim children, he was asked if he approved of the use of indiscriminate weapons that are still on some level subject to human control of targeting, namely catapults and arrows. In the case of other categories, the tactics included methods that inevitably lead to indiscriminate destruction (for example, flooding with water and burn­ing). Moreover, the precise targeting qualification in the case of Muslim

96 i.e. “or a more sophisticated animal.”

97 al-Shafi'i, al-Umm, 4:369.

98 Ibn Hazm, Muhalla, 7:295.

99 al-Shaybani, Siyar, 99.

100 Kelsay, “al-Shaybani,” 71.

101 John Kelsay, “Religion, Morality and the Governance of War: The Case of Classical Islam,” TheJournal OfReligious Ethics 18, no. 2 (1990), 129.

102 al-Shaybani, Siyar, 102.

children, contrasted with the unconditional approval in other cases, reflects a weaker inclination to protect other groups normally immune to targeting in the school's jurisprudence. In other words, gaining control of the city seems to have been more important than protecting adult Muslims and non-Muslim women and children.103 That need in this particular case is not inferred from the reasoning, but was clearly and explicitly stated: “If the Muslims stopped attacking the inhabitants of the territory of war for any of the reasons that you have stated, they would be unable to go to war at all, for there is no city in the territory of war in which there is no one at all of these you have mentioned.’’i٥4 Whereas more caution is necessary if Muslim children are involved, as in­ferred from Abh Hanifa's position cited above, this caution is still outweighed by an interest in a strong and continuous jihad, operation, as reflected in the reluctance to stipulate that Muslim warriors pay the diyya (blood money) for the loss of lives of un-targetable groups, including Muslim children. This reluc­tance is indeed in line with the general reluctance to hold any party to the conflict liable for damages, but one must also consider the fact that personal liability would have seriously disrupted the zeal of the warriors, an outcome that al-Shaybani did not favour.

1.4.2 Asserting the Caliph's Authority

As mentioned earlier, al-Shaybani's text displays a strong interest in consoli­dating the power of the caliph, which is not necessarily the same as allegiance to the caliph's person or assertion of his reign as an individual. Rather, the text seems more like an attempt to legitimize and establish the power of the insti­tution itself, both as a representative of the Muslim nation as well as a domes­tic authority. This objective might have been heavily influenced by the interest in a powerful Muslim caliphate with the belief that centralized power is a nec­essary precondition to dominance internationally and enforcement of the reli­gious law domestically, but it might also have been an outcome of exposure to a more centralized and stronger political institution during the Abbasid era. What is evident is that this objective seems to have dominated the text more than any other interest.105

One of the areas most reflective of this emphasis on central authority is the division of the spoils. For example, it is argued that if a slave is captured and is likely to be divided among the warriors, a warrior may not manumit that slave,

103 Nesrine Badawi, “Sunni Islam: Part I: Classical Sources,” in Religion, War and Ethics: A Sourcebook, ed. Gregory Reichberg and Henrik Syse (Cambridge: Cambridge University Press, 2014), 311.

104 al-Shaybani, Siyar, 102.

105 Badawi, “Sunni Islam,” 313.

because he does not know for certain that this particular slave will be in his share, even if his share exceeds the value of this slave.106 This position is con­trasted to an analogically similar position, where a share of the booty is as­signed collectively to a group of warriors by the imam. In this particular case, it is permitted for the warrior to offer manumission to the slave before certainty of ownership. When asked about the similarity between the two situations, Abb Hanifa is said to have argued that “the two situations are analogically the same, but in the first I would prefer to abandon analogy and follow Istlhsan [juristic preference] and hold that the emancipation before the division of the spoil is not permissible."“؟ Clearly, the difference between the two positions was not caused by a difference in certainty of ownership. In both cases, the individual warrior is entitled to a share of the booty that exceeds the “value" of the slave but cannot exclusively claim ownership. Rather, the primary differ­ence is the need to defer to the political authority of the imam, who decides on overall division.

The early Hanafis' awareness of the artificial distinction of the permissi­bility of manumission before and after division of the spoil is made evident in their approach to the legal consequences of challenges posed to authority through “usage" of undivided booty. If a warrior were to have sexual inter­course with a slave girl before the division of the spoil, the punishment for zina would not apply, and parentage of the child would not be established, but the warrior would be expected to pay compensation for the unauthorized inter- course.108 If the warrior were to steal something from the spoil, the hadd for theft would not be applied to him, because “he is entitled to a share,"i09 which shows that the tendency to emphasize the authority of the caliph could only go as far as limiting ownership, depriving slaves of manumission and, for the fe­male slave and her child, parentage rights, but not to the extent of subjecting a Muslim to what appears to have been perceived as an illegitimate punishment for “consumption" on the basis of a semblance of ownership. This approach is hardly a deviation from Hanafi jurisprudence on the avoidance of hudud in case of doubt. As a matter of fact, many jurists across the spectrum of Islamic jurisprudence have generally rejected any imposition of hadd punishment in instances where the law does not seem to apply neatly to the sanctioned situa­tion or where the evidence is insufficient to establish the commission of the proscribed act, including analogous situations where a man engages in sexual

106 al-Shaybani, Siyar, 114.

107 al-Shaybani, Siyar, 116.

108 al-Shaybani, Siyar, 115.

109 al-Shaybani, Siyar, 115. intercourse with a mukataba slave (a slave with whom a conditional manumis­sion contract exists).٥؛؛

Al-Shaybanrs tendency to emphasize the need for an established bureau­cratic state-centric system is also clear in his requirement that warriors register in the diwan (army register) whether they were cavalrymen or infantrymen, in order to determine their share of the booty. The early Hanafis agreed that cavalrymen were entitled to a larger share of the booty.؛؛؛ Thus, if a cavalryman registered as an infantryman and then bought a horse and fought, he would not be allotted the cavalryman's share.2؛؛ This rule was an innovation in evi­dentiary rules in Islamic law, where oral testimony and prevailing evidence, rather than formal registration, generally sulficed to establish evidence of a right. It further affirmed the authority of the caliphate in determining the share of the booty and in controlling and managing the army, and it recognized the need for stability in allocating financial resources.

Al-Shaybani was equally reluctant to challenge state authority with regards to granting a security pact, aman. It is true that he acknowledged the legiti­macy of aman granted by any member of the army, even if that member were a slave, relying on the prophetic tradition that “Muslims should support one another against the outsider; the blood of all Muslims is of equal value, and the one lowest in status [i.e. slave] can bind [all] the others if he gives a pledge of security.”3؛؛ However, he did not acknowledge an aman granted by a Muslim merchant or a Muslim captive to inhabitants of the territory of war, because “they are living undefended in the territory of war.”4؛؛ This position shows a degree of internal contradiction because the merchant or captive still enjoys Muslim identity and should accordingly enjoy advantage equal to other Mus­lims. After all, the text of the tradition does not offer any qualifications for aman granting by Muslims. Al-Shaybani's unwillingness to acknowledge such an aman arguably came out of a fear that the merchant or the captive might be coerced by the inhabitants of the territory of war, as evidenced by his use of the term “undefended.” However, suspicion of potential coercion would not normally amount to evidence in this particular case, especially since the testi­mony of the merchant or the captive can be sought to understand their moti­vations for granting aman. But for some reason, al-Shaybani was not even

110 Intissar Rabb, “Islamic Legal Maxims as Substantive Canons of Construction: Hudud- Avoidance in Cases of Doubt,” Islamic Law and Society 17, no. 1 (2010), 81.

111 al-Shaybani, Siyar, 106-7.

112 al-Shaybani, Siyar, 108.

113 al-Shaybani, Siyar, 93.

114 al-Shaybani, Siyar, 158.

willing to acknowledge aman granted by Muslims to their war captives if both parties testified to that effect. He was willing to acknowledge aman in that case only “[i]f a group of Muslims known to be ofjust character testified that a safe­conduct had been given by a party of warriors to the prisoners of war who were still capable of resistance.”ii5 In this case, it is clear that afShaybni is attempt­ing to restrict a supposedly egalitarian individualist mechanism of aman, de­spite the lack of authority to justify this attempt. Aiguably, this position reflects the general inclination to treat non-Muslim lands as territories outside Muslim jurisdiction, leading to non-recognition of the legal act of aman in the territory of war. However, as later established, a non-Muslim ruler's ownership over slaves is recognized despite the different jurisdiction. Moreover, as mentioned above, aman granted in such situations may be recognized, but with the higher burden of proof of external testimony. So, if neither fear of the enemy nor non­recognition of legality in the territory of war are likely reasons for restricting aman granted by those who are in the territory of war, it would be fair to assume that the primary objective of the restrictions is the assertion of the need for the imam's approval. In the case of approved aman, a slave is a mem­ber of the army, so may act on behalf of the state, but in the other mentioned cases, those individuals have failed to receive the formal proxy from the state to grant it.

Acquisition of legitimacy as a consequence of living under the banner of the Muslim state is further affirmed in the treatment of a Muslim living in the territory of war. Whereas a Muslim is generally allowed to maintain his mar­riage to a woman from the People of the Book, Hanaffs appear to have been reluctant to grant that privilege to such a person. According to them, if a man converted to Islam before Muslims assumed control over his city, his minor children followed his religion, and they were regarded as Muslims, but his wife became fayد (boofy)i Although the wife's religion is not mentioned, one can fairly assume she was envisioned to belong to the People of the Book, because the marriage was not dissolved upon the man's conversion to Islam (before Muslims took over the city). But even if that assumption is unsubstantiated, it is at least reasonable to expect a distinction between a woman who belongs to the People of the Book and a woman who does not. However, the statement that the woman becomes fay is general and appears to apply to all women.

Additionally, if the woman was pregnant, her child became fay, because the “[unborn] child who is [still] in the womb would have the same status” as her.117 The treatment of the child is odd when compared to other areas of Islamic law,

115 al-ShaybTnI, Siyar, 101 (my italics).

116 al-ShaybSni, Siyar, 139. Also in Asl, 7:457.

117 al-ShaybSnl, Siyar, 139. (The clarifications in brackets are in the original translation.) where the relationship between the unborn child and the father was not sev­ered if the child was conceived in marriage. For example, the death of the fa­ther did not challenge parentage and did not deprive the child of inheritance. In fact, the father's inheritance was to be kept undivided until the child was born and the sex determined.

But in this case, the father and his family were deprived of the advantages that a family would normally enjoy in the territory of Islam, again arguably for absence of the political authority. As Ayoub notes, “The concept of dar is deep­ly interrelated with the political and legal dominance of the political leader over the jurisdiction of dar al-Islam.^l,ιi8 One can argue that this deprivation is a deviation from Islamic legal reasoning in its approach to applicable regimes, where religion is the primary criterion in determining the treatment of the in­dividual. By contrast, in this case, the treatment is determined by the location of habitation. Kelsay argues that the weight given to location is a natural out­come of the religiously minded legal system, because “the mission of a reli­gious community (Muslims) is so conceived that a distinction is made between various territories.''119 Ayoub agrees that Hanafis have been largely consistent in their insistence on the regime of ikhtilaf al-darayn, whereby “dar al-harb is a legal concept designated to territories that are not under the political sover­eignty of dar al-Islam or jurisdictions that do not hold any treaties with dar al-Islam.”i2٥ Thus, it might be argued that such a differential treatment is an outcome of the school's reluctance to recognize the legal authority of acts committed in the territory of war, such as debt incurred in the territory of war.121 But marriage between people in the territory of war seems to be recognized. For instance, if a woman is captured in the territory of war, her marriage is recognized for the duration of the ^cidda (waiting period during which the woman is not allowed to marry in order to ensure she is not pregnant, and to ascertain parenthood if she is), and if the husband is captured during that pe­riod, their marriage would remain valid.122 It might also be argued that there is a hadith that allows for some differential treatment between those living in the territory of war and those living in the land of Islam, but this differential treat­ment was limited to shares in spoils and did not extend to marriage and

118 Samy Ayoub, “Territorial Jurisprudence, Ikhtilafal-Darayn: Political Boundaries and Legal Jurisdiction,” Contemporary Islamic Studies 2 (2012), 13.

119 Kelsay, “Religion,” 131.

120 AyraubItafJw

121 al-Shaybani, Siyar, 171.

122 al-Shaybani, Siyar, 182.

parenthood privileges. This hadith was one of the hrst traditions used by al- Shaybani in this text.

You should then invite them to move from their territory to the territory of the emigres [Madina]. If they do so, accept it and let them alone. Oth­erwise, they should be informed that they would be [treated] like the Muslim nomads (Bedouins) [who take no part in the war] in that they are subject to God's orders as [other] Muslims, but they will receive no share in the ghanima (spoil of the war) or in the fay'.123

The Ikhtilaf al-darayn regime was thus undeniably a primary influence in al- Shaybdnis treatment of marriage in the territory of war and its annulment, as argued by Kelsay and Ayoub. As Ayoub argues, a desire to assert the caliph's political authority and jurisdiction may also have been at the core of Hanafi thought. However, the relative inconsistency in the application of the doctrine of the non-recognition of legal acts committed in the territory of war leading sometimes to outcomes that are disfavourable to Muslims due to their resi­dence in the territory of war outside the realm of caliphal authority may give us an insight into the early instances of articulation of such regime. It can also provide an indication of how such articulation may not have been as consist­ent as believed. It is perhaps telling that Sharh al-Siyar al-kabιr↑-24 distinguishes in this way between People of the Book and polytheists, where it is argued that a marriage to a woman from the People of the Book is acknowledged. This dis­crepancy supports Khadduri's argument that the Sharh is more indicative of the doctrine as understood, and perhaps reformulated, by al-Sarakhsi and may be seen as evidence that the doctrine was developed over time.125

Al-Shaybani's interest in the centralization of political authority is also evi­dent in his approach to the caliphate's conflicts with Muslim rebels. Although his regime offered a degree of protection and legitimacy to rebels, clearly it was also interested in affording a certain level of freedom, though limited, to the political auhority.126 The book refers extensively to the conduct of Ali (the fourth caliph) with rebels and his unilateral promise to rebels that “whoever flees [from us] shall not be chased, no [Muslim] prisoner of war shall be killed, and no wounded in the battle shall be despatched.''!27 Nevertheless, al-Shaybani

123 al-Shaybani, Siyar, 76. (The clarifications in brackets are in the original translations.)

124 al-Shaybani's book compiled by al-Sarakhsi.

!25 SeeAyovb,''Htffi S.

126 Badawi, “Sunni Islam,” 314.

127 al-Shaybani, Siyar, 231. (The clarifications in brackets are in the original translations.) adopts an innovative approach to limit the power of the rebels and set a condi­tion of the non-existence of a group of rebels “with whom reftrge might be taken, but if a group of them has survived with whom refuge might be taken, then their prisoners could be killed, their fugitives pursued and their wounded dispatched.''!28 Abou El Fadl argues that this position is too advanced for the Hanafi doctrine at al-Shaybani's time, but he acknowledges that “the idea that a rebel group that has access to reinforcements or that has a group with which it can take reftrge is to be treated more harshly” probably circulated at the time.129 It is unclear why Abou El Fadl considers this position too advanced for the Hanafis and accepts a!-Shafi'i's systemization of the legal regime on rebel­lion, despite the chronological proximity between al-Shafi'i and al-Shaybani. In fact, al-Shafi'i - whose debates in al-Umm on rebellion are understood by Abou El Fadl as debates with an imaginary Hanafi InterlocutorO - refers to an adversary who argues that if the defeated rebels have a group they may reunite with, their captives and fugitives maybe killed and theirwounded dispatched.131 Therefore, barring strong evidence to the contrary, views on rebellion ex­pressed in al-Asl are treated as early Hanafi views just as much as the rest of the arguments therein.

Al-Shaybani does not explain why he deviates from the above-cited practice of 'Ali and allows for more excessive force with rebels who may reunite with their companions, but evidently the rationale is to prevent these groups from reuniting with other rebels and continuing to fight the imam. This attempt is further proven by the unique willingness to use indiscriminate weapons against rebels. Unlike Ibn Hazm, who insisted on leaving an exit route for re­bels during fighting,!32 the Hanafis did not find it objectionable if the imam “used arrows, inundated [their positions] with water, attacked them with manjaniqs (mangonels), and burned them with fire.''!33 This approach is alarm­ing not only because it deprived the rebels of the opportunity to repent and cease fighting but also because it allowed the deaths of Muslims who might have been in the rebel camp, including Muslim women and children, in contra­vention of the general principle that a Muslim soul enjoys Usma (prohibition of killing).

128 al-Shaybani, Siyar, 232.

129 Abou El Fadl, Rebellion, 145.

130 Abou El Fadl, Rebellion, 155.

131 al-Shafi'i, al-Umm, 4:316.

132 Ibn Hazm, Muhalla, 11:117.

133 al-Shaybani, Siyar, 236. (The clarifications in brackets are in the original translation.)

Furthermore, limits were set to ensure that only those who had a religious or political cause and who were sufficiently numerous enjoyed the advantages of rebellion. So, although rebels needed to be muta^,awils↑34 (i.e. possessing taWil, an alternative religious, political, or legal interpretation that allowed them to challenge the authority of the imam), they also needed to amount to a significant threat as evidenced by their number, which meant that two muta’awils would not enjoy the privileges of rebelion.135 Both conditions are not justified textually in al-Asl, and it seems that they were both meant to lim­it arbitrary access to advantages of rebellion for public security reasons. True, later generations of jurists accepted those two conditions to varying degrees, but it is significant that early instances of the promotion of the conditions were not textually inevitable and fit the objective of limiting avenues for chal­lenging the political authority. The regime proposed in al-Asl clearly also re­quires significantly strong dissenters, as established by the numerical requirement but also, more important, by the assertion of the need for a taWil, which Abou El Fadl perceives as a collective attempt by jurists to guarantee the subjection of the political authority to legal authority and the creation of a space for jurists to have a say over whether a ta^twll existed in the said situation of dissent.136

Attempts to expand the powers of the imam, however, were often weighed against other interests. The interest in granting the imam privileges in his con­flict with rebels, for example, was balanced by an attempt to offer some legiti­macy for rebellion. The Hanafis' position as detailed in this text - with its insistence on rejecting rebels' criminal responsibility for damages to life and property and the sanctity of rebel propertyi37 - is one of the earliest positions on rebellion. As detailed by Abou El Fadl, Muslim jurists were faced with a wide variety of potential approaches to rebellion, and they collectively resort­ed to the regime most protective of rebels, thus mitigating the need for obedi­ence to the leader against the competing need of granting a certain level of legitimacy to rebels.138 Abou El Fadl argues that this position was in line with the general Hanafi position of establishing separate spheres of jurisdiction, a position guided more by an interest in public order and stability than by an ideological inclination to attach legitimacy to rebellion. According to Abou El Fadl, the Hanafis' acknowledgement of the separatejurisdiction of rebels in

134 al-Shaybani, Siyar, 250.

135 al-Shaybani, S،yar,247.

136 Abou El Fadl, Rebellion, 130

137 al-Shaybani, Siyar, 238.

138 Abou El Fadl, Rebellion, 326. other areas, such as taxation and adjudication, is proof that liability matters were simple extensions of the logic of separate spheres. Furthermore, al- Shaybani argued that rebels should, like unbelievers, not be held accountable for damages. Such a comparison with unbelievers is far from an attempt to le­gitimize rebellion. Finally, the separate spheres of jurisdiction approach was interested primarily in stability and order.139 Public order and stability were undeniably considered, but that does not rule out the potential for promoting other interests. In fact, Abou El Fadls argument disregards thejustification provided in the book for not holding rebels liable for damages. In the section on highway robbery, men who do not possess a ta^,wιl are to be held accounta­ble for damages because they “are not regarded as muta’awils but as marauding adventurers.”i40 Hence, the Hanafis make it explicitly clear that their interest in waiving liability is not out of pragmatism but because ta^,wιl provides rebels with legitimacy. Arguably, one can see a correlation between the insistence on some sort of legitimacy for awl-based rebellion and Abfi Hanifa's sympa­thetic attitude to wars of rebellion waged by 'Ali's descendants and his keen­ness to mobilize people to fight on their side.141 This sympathy appears to have influenced al-Shaybani, not only as a jurist but also as a judge, as documented in the above-mentioned rift between himself and al-Rashid, triggered by al- Shaybani's reluctance to acknowledge the breach of a security pact with pro- Ali rebels.

Another example is the relationship between the tendency to expand the military's freedom in its conduct of armed conflict with the enemy juxtaposed against the interest in asserting the political authority of the caliph. Whereas those interests often ran hand in hand, sometimes they did not fit smoothly together. For example, in the case of the treatment of non-Muslim prisoners of war, the text appears to lean towards destruction of the enemy at the expense of the caliph's discretion. Al-Shaybani relies on an incident where Abfi Bakr was asked “whether a prisoner of war taken from the Rfim (the Byzantines) [might be ransomed]. He replied that he should not be ransomed, even at the price of two mudds of gold, but that he should be either killed or become a Muslim.”i42 The book refers to the views of al-Hasan al-Basri and 'Atta) b. Abi Rabah holding that a “prisoner of war should not be killed, but he may be

139 Abou El Fadl, Rebellion, 146-47.

140 al-Shaybani, Siyar, 250.

141 Abfi Zahra, AbuHanlfa, 180.

142 al-Shaybani, Siyar, 91. (The clarifications between brackets are in the original translation.) ransomed or set free by grace.”i43 But it places stronger emphasis on the imper­missibility of freeing male captives. For example, if male prisoners of war con­stituted a transportation burden, the imam was expected to kill the men but spare the women and children.144 When explicitly asked what choices the imam had with regards to male captives, Abd Hanifa said that “the Imam is entitled to a choice between taking them to the territory of Islam to be divided [among the warriors] and killing them [while in the territory of war].”i45

Neither al-Hasan al-Basri nor Atta' was a Companion of the Prophet, which means their positions were not binding as per the early Hanafi position. But as Schacht points out, al-Shaybani's approach to al-Basri is inconsistent, often treating his opinion as a binding source of law.146 Moreover, aside from the Hanafis' reluctance to adopt al-Basri's position, their tendency to limit the dis­cretion of the imam in dealing with the lives of enemy males faced a major obstacle, the Qur'an. A Quranic verse addressing the issue of prisoners of war lists ransom and grace as legitimate alternatives to consider when dealing with prisoners of war: “When you meet the disbelievers in battle, strike them in the neck, and once they are defeated, bind any captives firmly - later you can re­lease them by grace or by ransom - until the toils of war have ended."!47 Given how clearly relevant the verse is, it is odd that there would be no reference to the verse when addressing the issue of prisoners of war, even to refute the obvi­ous interpretation of the verse and to prove that grace and ransom are imper­missible with male captives. This approach can only be understood as an attempt to reinforce the power of the Muslim caliphate, even at the expense of the caliph's power, and to limit the possibility of leniency with the enemy.

1.4.3 Recognition of the Territory of War

The roles of Abd Ydsuf and al-Shaybani as judges and their proximity to the management of public affairs appear to have led, in some instances, to their adopting a pragmatic attitude to “the other” and a certain degree of recogni­tion of the relationship with those in the territory of war. For example, it is stated that if the slave woman of a Muslim were captured by the enemy and taken to the territory of war and that Muslim entered it under aman, the Mus­lim might not usurp her, because the non-Muslims “had taken her to a place of

143

144

145

146

147

al-Shaybani, Siyar, 91. al-Shaybani, Siyar, 98. al-Shaybani, Siyar, 100. Schacht, Origins, 32.

Q 47:4.

security.''i48 Of course, part of the consideration is a general juristic aversion to treachery and violation of aman, but this case also indicates some level of rec­ognition of reciprocity and the obligation to the other if entering the territory under an aman pact. Additionally, despite the claim that actions in the terri­tory of war do not carry weight in the territory of Islam, a peace agreement with a ruler in the territory of war recognizes his right to his slaves, which means that even if these slaves were captured by a third party then bought by the Muslims, the ruler would be entitled to reclaim them.149 These examples prove that early Hanafis were, to some extent, pragmatic in their approach to non-Muslim territory. This pragmatism may have been influenced by contin­ued exposure to the 'Abbasids' need for diplomatic relations with other em­pires and a recognition of the need for some degree of acknowledgement of those rival political entities. Holding an official position and involvement in the caliph's decision making must have shown the two judges that it was im­possible to rule out diplomacy as an alternative to dealing with the “other,” even if that “other” was a perpetual enemy of the caliphate, in line with the Abbasid resort to diplomacy, as detailed earlier in this chapter.

1.4.4 Assumed Social Hierarchy and Its Influence

The need to recognize the other and the above-mentioned interests was shaped to a great extent by the dominant view of class and gender at the time. The influence of those factors is hardly surprising considering the Hanafi ac­commodation of^ru٠ustom and historical legal traditions as sources oflaw).i5٥ One of the areas where gender impacts the regulation ofjihad is in the distinc­tion between free men and women, on the one hand, and slaves on the other. For example, slaves are deprived of a share of the spoils on the basis of two prophetic traditions. In the first, a slave asked the Prophet for a share of the spoils, but the Prophet did not give him a share, rewarding him instead with something of meaningless value.151 The second tradition is traced back to Ibn Abbas, who said that the Prophet did not give slaves a share of the spoils and only gave them compensation.i52 Ibn Hazm criticizes this ruling and argues that Hanafis have not always adhered to Ibn Abbas's views and that the first tradition was reported by an unknown transmitter.i53 He also mentions other

148 al-Shaybani, Siyar, 137.

149 al-Shaybani, Siyar, 152.

150 Boynukalin, introduction, 224.

151 al-Shaybani, Siyar, 81.

152 al-Shaybani, Siyar, 81.

153 Ibn Hazm, Mufaalla, 7: 332. prophetic traditions that prove the Prophet gave slaves a share of the booty.154 It is again difficult to ascertain the early Hanafis' knowledge of the traditions reported by Ibn Hazm. Yet, the selective reliance on Ibn 'Abbtis arguably indi­cates an inclination towards denying slaves shares in the spoils.

Another incident of differential treatment was earlier mentioned as evi­dence of acknowledgement of the legitimacy of the territory of war, where a Muslim may not usurp his female slave captured by the enemy. But if the wom­an were a freedwoman, an umm walad (a slave who has given birth to her own­er's child), a mudabbara (a slave whose slavery ends with the owner's death), or his wife, he would be entitled to pursue any means to restore her, which clearly supports the notion that status influenced the level of protection guaranteed to the individual.i55 Although slaves were entitled to protection because they were perceived as dhimmls,156 such protection was not strong enough to chal­lenge the need to respect an aman pact. However, if the woman were a freed­woman, the need for protection outweighed the aman.

Sometimes perception of women as vulnerable and inferior worked to pro­tect them, as they were perceived as equally vulnerable as children, so enjoyed a higher degree of protection than other categories. As mentioned earlier, kill­ing female prisoners of war was strictly prohibited, even if was impossible to transport them, whereas there was a readiness to accept such an alternative with un-targetable adult males. Arguably, this protection stemmed from the prophetic tradition that explicitly prohibits the killing of women and children, which accordingly entitles those two categories to the highest degree of pro­tection. But the prophetic tradition relied upon in the book instructs Muslims not to “kill children, women and old men.”i57 For some reason, old men are disregarded in this case, and protection of life is guaranteed only to women and children, which leads us to fairly assume ascribed vulnerability to those two groups. Although this assumption ensures the protection of women, gen­der roles undeniably played a major role in this reasoning.

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