Jihad in Legal Works

Medieval Muslim jurists, usually in contradistinction to exegetes of the Qur'an, Hadith scholars and ethicists, primarily discussed jihad as one of the obligations of the Muslim ruler and of his Muslim subjects in the context of external relations with non-Muslim polities.

The gradual formulation of fairly monolithic classical juridical views of jihad owes considerable impetus to the rise and consolidation of the imperial Umayyad and Abbasid states and the establishment of a strong military during these periods. This is reflected in the way that some jurists working in the heartlands of Syria and Iraq, such as the previously mentioned Makhul al-Shami, in the eighth century, and the later jurist al-Shafi‘i, in the ninth century (see further below), were often willing to defer to realpolitik. As a result, they were willing to interpret the military purview of jihad in ways that were at times downright contradictory to Qur'anic injunctions, for example, in their endorsement of offensive military campaigns. Support for statist policies of territorial expansion provided the impetus, at least partially, for this juridical development. Other early jurists, like Abu Salama ibn Abd al- Rahman (d. c. 722) and Sufyan al-Thawri (d.

By the Abbasid period (750-1250), the term jihad had essentially become conflated with qital (‘fighting'), collapsing the distinction that the Qur'an frequently maintains between the two. As the jurists and religious scholars of all stripes became consolidated as a scholarly class and acquired considerable religious authority by the tenth century, they arrogated to themselves the right to define jihad authoritatively and circumscribe the range of activities prescribed by it. To this end, they did not hesitate to wield the powerful theory of abrogation (naskh) at their disposal. As a result, some of the jurists effectively rendered null and void the positive injunctions contained in specific Qur'anic verses that explicitly permitted the conclusion of truces with foes and counselled peaceful co-existence with in particular the ‘People of the Book'.

In deference to hard-headed political realism, a major legal development occurred in the ninth century when the Abbasid era jurist Muhammad ibn Idris al-Shafi‘i (d. 820) hypothetically divided the world into dar al-islam (‘the abode of Islam') and dar al-harb (‘the abode of war', referring to non-Muslim territories). He also allowed for a third realm called the dar al-ahd (‘the abode of treaty') or dar al-sulh (‘the abode of reconciliation'), to which abode non- Islamic states that had entered into a peace treaty with the Islamic state by rendering an annual tribute might be admitted.^[911] None of these concepts has any basis in the Qur'an or in the Hadith literature. Rather, they were the result of al-Shafi‘i's independent legal reasoning (Ar., ijtihad). In the absence of actual hostilities, the Shafi‘i school of law posited an existing state of ‘cold war' between the abodes of Islam and war, which required constant vigilance on the part of the former against the latter.^[912] Many jurists after al-Shafi‘i would enshrine this concept in their writings by averring that one of the duties of the caliph was to launch the military jihad at least once a year; although others were of the opinion that this duty could be fulfilled by simply being in an adequate state of military preparedness to forestall enemy attacks.^[913]

Al-Shafi‘i's perspectives on jihad were, in many ways, a marked departure from earlier juristic thinking and reflect a certain hardening of attitudes towards non-Islamic states by his time. This is quite evident when his views are compared with those of jurists from the earlier Hanafi school of law.

inhabitants of a territory which had concluded a truce with the Muslims and paid tribute to the latter became part of the abode of Islam and entitled to the protection of the Islamic government.^[914] The Hanafis also adhered to the position that non-believers could only be fought if they resorted to armed conflict, and not simply on account of their disbelief.^[915] This remained a principle of contention between later Shafi‘i and Hanafi jurists.

Thus we find that the eleventh-century Shafi‘i jurist Ali ibn Muhammad al- Mawardi (d. 1058), in his famous legal work The Ordinances of Government, articulates a theory of offensive jihad by applying the hermeneutic principle of abrogation to Qur'an 2:190 which, as we learned before, categorically prohibits Muslims from commencing hostilities. Al-Mawardi was aware of the position of the early Meccan jurist Ata ibn Abi Rabah (d. 733), who had asserted on the basis of this verse that it was never permissible to fight those who do not fight. Al-Mawardi, however, takes exception to this view and comments instead that Qur'an 2:190 may be understood to be abrogated by later verses, such as Qur'an 9:5, which, in his understanding, permits offen­sive warfare. But al-Mawardi considers the obligation to fight the non­Muslim enemy as a collective rather than an individual one: as long as there is a sufficient number of Muslims carrying out the military jihad, others are exempt from undertaking it themselves. This view became prevalent in the other Sunni schools of law as well.

Early and later jurists, however, typically held firm on the issue of just conduct (ius in bello) during battle and emphasised the immunity of non­combatants based on precedents set by the Prophet and his Companions, as well as by other early Muslims. Thus the previously mentioned eighth­century jurist Malik ibn Anas quoted a report from Abu Bakr (d.

Hiraba was the term (borrowed from Qur'an 5:33-4) used by the premo­dern jurists to refer to illegitimate violence, whether on the basis of intent, or on the basis of conduct during its commission, or both, and its perpetration by extra-state rogue elements.^[920] A legitimate military jihad could only be proclaimed by the recognised ruler of the Muslim polity - the caliph or, in later periods, the sultan. In the premodern juridical literature, hiraba was typically associated with brigandage and highway robbery, piracy, sedition, and the more general concept of ‘causing corruption on earth'. In modern parlance, hiraba may be considered to be the equivalent of ‘terrorism', whose perpetrators show callous disregard for the sanctity of civilian life and instil widespread fear among the general population.^[921]