Abstract
According to the classical Muslim doctrine, the “raison d’être” of the Islamic state is to achieve the universal rule of Islam. Hence, it conceived the Islamic state as a universal state by its very nature. As a corollary to this idea, Muslim caliphs were determined to wage a constant war of conquest in the name of Islam, which they carried out, successfully, during the first century of the Islamic era. This claim for universalism gave rise to the establishment of the doctrine of Jihad as the instrument of the Islamic state to perform its function, whenever peaceful methods fail.
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References
The Encyclopedia of Islam — new edition — 1962, edited by B. Lewis, Ch. Rellat and V. Schacht, Leyden and London, under the term “Jihad” p. 538.
Ibn Athir, al Mubarak ibn Muhammad ibn Mubammad Jazri, Al Nihaya fi Gharibel-Hadith wal-Athar, quoted by Maulawī Muhammad Ali in his “The Religion of Islam,” Lahore 1936, pp. 45-6.
Lane’s Arabic-English Lexicon.
The verse reads So obey not the disbelievers, but strive against them herewith a great endeavour.
Khaddurri, The Law of War, op. cit., p. 59.
Klein, F. A., The Religion of Islam, Madras 1906.
Khadduri, The Law of War, op. cit., p. 62.
For instance the Jihad against international highwaymen could not, in our view, be included in the international types of Jihad. International highwaymen, or deserters and pirates, are treated as international criminals and the punishment of their crimes, called the “great theft” by Muslim jurists, enters into the domestic jurisdiction of the Islamic state and is punished under its municipal law, whether the highwaymen were Muslim subjects or foreigners. See Tabari, Tafsir, op. cit., vol. VI pp. 132-33. The punishment prescribed by Muslim law corresponds to the seriousness of the act committed. It is included in the Qur’ānic verse: “The only reward of those who make war upon God and His Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be banished from the land…” (Qur’ān; V: 33). Jurists differ on the banishment mentioned in this injunction. Malik held that the criminal should be banished from the state, while others maintain that he should be deported from his district or imprisoned.
Muslim jurists add another type of jihad, namely the ribat or safeguarding of frontiers. Malikites, particularly in Spain, emphasized the importance of the defensive significance of the ribat, considering it as a vital obligation incumbent on Muslims. This attitude is due to the fact that the Spanish borders were constantly raided by Christian forces. To us, the ribat is not a separate type of jihad in the proper sense of the term. It is rather a measure of security, like any other internal preventive measure, which a vigilant state has to take for the preservation of its independence.
Qur’ān; IV: 48.
A polytheist is a pagan who has no sort of revealed book.
This meaning, it seems, is not very clear in the classical theory if we consider some of its details.
This principle was literally enforced in Arabia, but later on, when the Islamic state became an empire, the principle was somewhat relaxed.
The wars of jihad undertaken by the caliph Abu Bakr, and alluded to before, are the earliest and most serious incidents in the history of Islam in that respect.
Strictly speaking, this seems to be the view of Shafi’i and ibn Hanbal. The Hanafis and Zayd b-Ali maintain that the choice of paying a jizya could be accorded to the pagans provided that they are not Arabs. Malik professes that, apart from the Qurayshites, the jizya may be imposed on the pagans. Ibn Rushd, Al Muqaddemāt al Mumahidāt, Cairo 1325 A.H. (1907), vol. I, p. 285. Al Mawardi, Al Ahkam al Sultaneyah, Cairo 1380 A.H. (1960), p. 143. Sahnun, Al Mudawana al Kubra, Cairo 1356 A.H. (1938), vol. III, p. 46.
Hamidullah, Muhammad, Muslim conduct, op. cit., pp. 163-4.
The Scriptuaries are the Jews, the Christians, the Sabians and the Magians (Zoroastrians). However, it is doubtful if the Arab scriptuaries could be treated as ahl al kitab (Al Shafi’i, vol. IV, p. 194).
Qur’ān; XLIX: 9.
When Ali was elected caliph, Aisha, the mother of the Faithful, Talha and Zubair led a hostile movement taking Basra as their seat. In face of this,’ Ali moved to Iraq, attacked Basra and defeated his opponents in the Battle of the Camel, “So called because it raged round the camel of Aisha (9 December 656).” Wellhausen, Arab Kingdom and its Fall, translated by Margaret Graham Weir, Calcutta 1927, P-53.
Quoted from Hamidallah, Muslim Conduct of State, op. cit., pp. 171-2.
However, Dr. M. Badr takes up an extreme view with regard to the jihad. He maintains that “if the Sultan or the Khalif calls on believers to defend the faith, the men called on are judges of the righteousness of the command whether it is to the defence of Islam they are called or to the help of the Sultan’s special territory.” Quoted by Gardener, W. R. W., in his article about “Jihad,” published in “The Moslem World” Review, 1912, p. 351.
Islam disqualifies — as fighters — disabled men such as the blind, the crippled and the sick.
The last call to the jihad against non-Muslims “made as late as the autumn of 1914 by the Ottoman Sultan — Caliph Muhammad Rachad, proved an utter failure.” Hitti, op. cit., p. 139. Presently, similar attempts have been tried out with regard to the stand of the Arab States towards Israel.
The Zaydi sect does not recognize this dogma and adopts the sunnite view with regard to the jihad.
Al Shafi’i, Kitab al Umm, a collection of works by al-Shafi’i, Arabic text, Boulac 1322 A.H., vol. IV, p. no.
Al Sarakhsī; Muhammad ibn Ahmed, Shark al-Siyar al-Kabir; A commentary on al Shaibani’s treatise on the Muslim laws mostly relative to war, entitled “Al Siyar al-Kabir”; Arabic text: Hayderabad 1335 A.H., vol. I, pp. 57-8.
“In the early Muslim conquests the commanders often waited for three days after the invitation had been sent before actual fighting took place.” Khadduri, The Law of War, op. cit., p. 56.
Arabi, op. cit., p. 19.
Shihata, Ibrahim, “Islamic Law and the World Community,” Harvard International Club Journal, vol. 4 No 1, December 1962, p. 111.
Al-Sarakhsī, op. cit., vol. I, p. 58.
Al-Sarakhsī, op. cit., vol. I, p. 59.
The views cited below do not essentially differ from those on the same topic of both al-Shaibani in his Al Siyar al-Kabir (al Sarakhsi, op. cit., vol. II, p. 125) and al-Shafi’i in his Kitab al-Umm.
Nuraddin Ali of Murghinan (died in 593 A.H.), The Hedaya (or a commentary on the Muslim Laws) translated by Charles Hamilton, vol. II Book IX, Ch. I p. 141.
The Hedaya with its commentary called “Kifaya,” Calcutta 1834, vol. II, p. 708. The author of the Kifaya flourished in the seventh century of the Hegjira.
Ainee, “Binayah,” a commentary of the Hedaya, vol. II, Part II, p. 789.
Ainee, op. cit., vol. II part II, p. 790.
Ibn Hajar, Shehabuddin Ahmed Makki (died in 855). Tahafutul Muhtaj Fi Sharhel Minhaj, part IV, p. 137.
Al Halabi, Nureddin’ Ali (died in 1044 A.H.), Insanul-Uyūn (a biography of the Prophet), part II, pp. 289-91, (chapter on Campaign).
Muir, Sir William, Life of Mahomet, vol. IV pp. 251-52.
Stephens Mey. W. R. W., Christianity and Islam, The Bible and the Koran, London 1877, pp. 98–9.
Smith, R. Bosworth, Mohammad and Mohammedanism, lectures delivered at the Royal Institute of Great Britain in February and March 1874, 2nd ed., London 1876, p. 137.
Qur’ān; XXXIII: 50.
In division, a general principle is not to separate a wife from her husband nor a child from his parents.
On the emancipation of the Hawazinites the Prophet was to compensate, from the public treasury, the Muslims who were reluctant to free their slaves.
Islam prevents slavery that occurs after embracing the Faith by the individual concerned.
Qur’ān; XXIV: 33. Ameer Ali states that the Prophet — and not’ Umar — ordered that slaves should be allowed to purchase their liberty by the wages of their service, and that in case the unfortunate beings had no present means of gain and wanted to earn in some other employment enough for that purpose, they should be allowed to leave their masters on an agreement to that effect. Ameer Ali, op. cit., p. 263.
The Prophet enslaved the Arabs of Banul-Mustaliq in the battle of the Muraisī. Upon the Prophet’s marriage of Juwayriyyah who happened to be the daughter of the chieftain, the Muslims were persuaded to free their slaves. Hawazin was faced by the same fate. On account of their conversion to Islam and their kinship six thousand of them were set free. Banul Anbar were released, some ransomed and some gratuitously. Abu Bakr, also, enslaved the Arabs of Banu Najiba.
We mean by civil inhabitants those who do not engage in active war.
Ex-enemy subjects of occupied territory are expected to remain peaceful, law-abiding and in no way hostile to the conqueror. But they are not forced to become subjects of the new state if their district or country is finally annexed; but they are given a year in which to quit the territory or become the subjects of the Muslim state, their new master. It is not necessary to accept all the inhabitants as subjects; some of them might be expelled. The caliph’ Umar deprived the Jews, the Greeks and the bandits of the choice of living in Jerusalem. Hamidul-lah, Muslim Conduct, op. cit., p. 214.
In the earlier years of the Islamic state some Arabs, the best known of whom is Taglib, were still Christians. Those Christian Arabs felt it a denigration for them to pay a jizya. In view of this they were allowed to pay the zakat, only doubled. Yet’ Umar, who considered it a disgrace that those Arabs are clinging to their Christianity, was not lenient in their treatment “For they are Arabs and not people of the book.”
The Sabians were regarded as believers in the true God in accordance with the Qur’ānic verses that referred to them, (II. 59, V; 73, XXII, 17).
Hamidullah, Muslim Conduct, op. cit., pp. 102-3. See also Al Shaibani, op. cit., vol. I, p. 127.
Fattal gave convincing reasons to prove the non-authenticity of that document. See Fattal, Antoine, Le Statut Légal des non-Musulmans en Pays d’Islam, Beyrouth 1958, pp. 60–69.
Hitti, op. cit., p. 234.
The translator means a “deceased.”
This expression refers to adults since hair growing in certain parts of the body is a sign of the maturity of the individual.
Quoted from Tritton, A. S., The Caliphs and Their non-Muslim Subjects, Mysore City, 1930, pp. 12–16. However, in certain incidents, such as that of the Nubians, the dhimmis, as we will argue below, were treated on equal footing with the Muslims.
The Prophet is reported to have said: “If anyone wrong a man to whom a treaty has been granted, or burdens him above his strength, I am an advocate against him till the Day of Judgement,” and, “Who so kills a dhimmi will not smell the scent of paradise, and its scent spreads a journey of forty years.”’ Umar, in his will to his successor, said: “I charge the caliph after me to be kind to the dhimmis, to keep their covenant, to protect them and not to burden them above their strength.”
In obedience to tradition “Two religions shall not remain in the land of the Arabs,” the dhimmis, since’ Umar’s reign were not allowed to settle permanently in Arabia.
It is noteworthy that the dhimmis are exempt from the zakat, the surplus property tax, which every Muslim, regardless of sex and age, pay. The zakat is a heavier burden than the jizyah since it is paid at the rate of 2 1/2%. Moreover, the dhimmi is exempted from the jizyah if he renders military service, whilst all Muslims are subject to compulsory military service and still have to pay the zakat.
“The only exception was those districts whose inhabitants had voluntarily surrendered on the approach of the Arab army on condition that they are allowed to retain possession of their lands,” Shorter Encyclopaedia of Islam, edited by H. A. R. Gibson and S. H. Kramers, London and Leyden, 1953, p. 96. See also, on this footnote, Al Sarakhsi, op. cit., vol. IV, p. 284.
Tritton, op. cit., pp. 16-17.
Al Shawkani, Naylul Awtar; 2nd ed., Cairo 1952, pp. 28–9.
Jurists differed about the nature of this tribute. Some considered it as kharaj and others qualified it as jizya.
The Encyclopaedia of Islam, edited by M. Th. Houtstma, T. W. Arnolds, R. Bassot and R. Hartwam, Leyden and London 1913, p. 919.
‘Theodomir agreed to pay yearly tribute to the Arab conquerors of the first century of Higrah while at the same time he retained his independence. So also under the Abbassid al-Mansur and all his successors down to al Mu’tasim, the Emperors of Constantinople paid tribute more or less regularly to Baghdad. Caliph al Mahdi received tribute from the Empress Irene and Harun al Rashid not only received tribute but also capitation tax (jizyah) from the Emperor Nicephorus and his family.” Hamidullah, Muslim Conduct, op. cit., pp. 91-2.
Inevitably this interpretation engenders the exclusion of the doctrine of neutrality in its legal sense from classical international law of Islam.
Actually classical doctrine did not emphasize a sharp distinction between hudna and muwada’ah due to the fact that both institutions are of temporary character.
“And if anyone of the idolaters seeketh thy protection (O Muhamed), then protect him so that he may hear the word of Allah, and afterward convey him to his place of safety. That is because they are folk who know not.” Qur’ān; IX: 6.
Article 15 of the Covenant of Medina, it is to be recalled, states that the security dhimma) of God is one, the granting of neighbourly protection), yugir, by the least of them the believers) is binding on them…
The Encyclopaedia of Islam, new edition vol. I, 1960, Leyden and London, p. 429. That is why, in its defined legal meaning, the term aman could be translated as: protection, safe-conduct, and quarter. The aman given to a Muslim in a non-Muslim territory is called idhn, permission.
The slave, according to most doctrines, is qualified to give the aman.
“The treaties which gave later rise to the Capitulations did not develop out of the Islamic concept of aman but represented a type of treaty which had already come into being between the trading cities of Italy and the Byzantine Empire and the states of the crusaders.” The Encyclopaedia of Islam, ibid., p. 430.
Ambassadors who are known or can prove their diplomatic mission enjoy amam ipso facto.
According to Shafi’i the maximum period of the aman is four months.
Qur’ān; IX: 51, 55-7.
Al Shafi’i, op. cit., vol. IV, p. 111.
Qur’ān; IX: 1, 2.
Al Shafi’i, op. cit., vol. 4, p. 110.
Hamidullah, Muslim Conduct, op. cit., p. 261.
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© 1968 Martinus Nijhoff, The Hague, Netherlands
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Al Ghunaimi, M.T. (1968). Muslim Classical Conception of International Law. In: The Muslim Conception of International Law and the Western Approach. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9508-9_8
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