KHADDURI Majid, War and Peace in the Land of Islam, The Johns Hopkins Press, Baltimore, 1955, p. 37.

WAR and PEACEin the Law of ISLAMMAJID KHADDURI

The Johns Hopkins Press Baltimore

Had thy Lord pleased, lie would have made mankind one nation; but those only to whom thy Lord bath granted his ~I p mercy will cesse to dilter... l' Qu'rân XI, 120,

CHAPTER IV

INTRODUCTIONThe state which is regarded as the instrument for universelizing a certain religion must perforce be an ever expanding state. The Islamic state, whose principal function was to put Cod's law into practice, sought to establish Islam as the dominant reigning ideology over the entire world. It refused to recognize the coexistence of non-Muslim communities, except perhaps as subordinate entities, because by its ver' nature auniversal state tolerates the existence of no other state thanitself. Although it was not a consciously formulated policy, IMuhammad's early successors, after Islam became supreme inArabia, were determined to embark on a ceaseless war of con-quest in the naine oE Islam. The jihâd was therefore employedlas an instrument for both the universalisation of religion andthe establishment of an imperial world state? The mission of1See chap. 5, below.51

1

52 THE LAW o- WARii fa

Islam was rapidly and successfully carried out during the first century of the Islamic era—although the peaceful penetration of Islam continued—and the empire extended over a Iargeportion of tue OId World and became as large as the Roman Empire.But the expanding Muslim state, not unlike other universal States, coula flot extenci ad infinitum. The hitherto victorious Muslim warriors were defeated in the West at Tours (A,D. 782) and in the East found they could not proceed further than the Indian borders.2 Thus the wave of Muslim expansion, strong as it was, could not complete the Sun's circle; it imperceptibly subsided where it reached its utmost limits at the Pyrenees and the Indus, The Muslim (world) state consequently did not correspond to the dieu known world. Outside it there remained communities whiclr the Muslim authorities had to deal with,though in theory only temporarily, tlroughout ail the subsequent history of Islam.

The world accordingly was sharply divided in Muslim lawinto tilt: dom. al-Islàm (abode or territor}, of Islam) and the dàral-haro (abode or terdtory of war) These tenus may be ren-dered in lest poetic ivords as the "world of Islam" and theof W I The first couesponded CO the territory underversion, and ithabitants were Muslims, by birth or con-dhimmis 0e Communities. of the tolerated religions (thewho preferred to holà fast to their own cuit, at the price of paying the jizya (poli tax). The MusIims enjoyed full zThe Musüms suffered anethcr defeat before the battie of Tours atConstantinople (AD 717-16).'Edward Gibbon maintains that had the Muslims been suceessf& at Tours the Qur'sn would bave beeninstead of the Bible (Gib)mn eRom taught at Oxford and Cambridgem Egpw cd. Bury [Lon nst 8 of Vol,Depi 15); but fnttfz t the Musliire, due toi ] l. VI,forces, reached its utmost limita.INTRODUCTION53rights of citizenship, the subjects of the tolerated religions enjoyed only partial rights, and submitted to Muslim rule in accordance with special charters regulating their relations with the Muslims.4 The dàr al-barb consisted of ail the states and communities outside the world of Islam, Its inhabitants were Olten called infidels, or, better, unbelievers.aOn the assumption that the ultimate aim of Islam was worldwide, the dàr al-Islàm was always, in theory, at war with the dur al-1}arb. The Muslims were required to preach Islam by persuasion, and the caliph or bis commanders in the field to offer Islam as an alternative to paying the poil tax or fighting; but the Islamic state was under legal obligation to enforce Islamic law and to recognize no authority other than its own, superseding other authorities even when non-Muslim communities had willingly accepted the faith of Islam without fighting. Failure by non-Muslims to accept Islam or pay the poli tax made it incumbent on the Muslim State to dedare a jihàd (commonly called "holy war") upon the recalcitrant individuals and communities. Thus the jihàd, reflecting the normal war relations existing between Muslims and non-Muslims, was the state's instrument for transforming the dur • •al-barb roto the dàr al-Islàm. It was the product of a warlikepeople who had embarked on a large-scale movement of e» pansion, Islam could not abolish the warlike character of the Arabs who were constantly at war with each other; a it indeed reaflirmed the war basis of intergroup relationship by institu-t tee chap. 17, below.° Por more precise dermitions of dur al-Islam and dâr al-barb, see pp. 1554, 170-1, below.° "The primitive nomad of the desert and steppes,- says Quincy Wright, "ha, a bard environnent to conquer.... Ffis terrain, adapted te distant raids and without naturel defenses, leads him to institutionaiizc war for aggression and defense" (Q. Wright, A Study of War [Chicago, 1942], Vol.1, P. 64).V'

1Hs54 THE LAW OF WAR

tionalizing war as part of the Muslim legal system and made use of it by transforming war into a holy war designed to be ceaselessly declared against those who failed to become Mus-lims. The short intervals which are not war—and these in theory should not exceed ten years—are periods of peace.7 But the jihàd was not the only legal means of dealing with non-Muslims since peaceful methods (negotiations, arbitration, and treaty making) were applied in regulating the relations of the believers with unbelievers when actual fighting ceased.'flic Muslim law of nations was, accordingly, the product of the intercourse of an ever•expanding state with its neighbors which inevitably led to the development of a body of rules and practices followed by Muslims in war and pence. The practices followed by the Arabs before Islam in their intertribal warLare were regarded as too ungodly and brutal, because they Were motivated by narrow tribal interests. Islam abolished all war except the jihàd and the jurist•theologians consciously formulated its law subordinating all personal considerations to raison d'état, based on religions sanction.b 7'F 'Flic Coides that intergroup relationsbips were normally unpeaceful goesAntiquity (Plate, The Laa,s, Bk. I, 2) and it recurred in thewxitings of Medieval and modem thinkers. Sec Ibn IMaldnn, al-Muged-Chaa, Id. Quatremère (Paris, 1858), Vol. II, Pp. 65-79; Hobbes, Leviatha',P 8; Elements of Leu, Pt. I, drap. 14, 2. Sec also Q. Wright, op. cit-, Vol. I, draps. 6 and 7.

"Evert' nation lias its monasticism, and the monasticism of this [Muslim] nation is the jihâd." a badith.CHAPTER VTHE DOCTRINE OF JIHADThe Meaning of JihadThe term jihàd is derived from the verb jàhada (abstract noun, juhd) which means "exerted";t its juridical•theological meaning is exertion of one's power in Ailah's path, that is, the spread of the belief in Allah and in making His word supreme over this world. The individual's recompense would be the achievement of salvation, since the jihàd is Allah's direct way to paradise. This definition is based on a Qur'ànic injonctionwhich runs as follows:0 ye Who believel Shall I guide you te a gainful torde which will cave yen from painful punishment? Believe in Allah and His APostie and carry on warfare (jihâd) in the path of Allah with yeux possessions and your'For the literai meaning of jiltid, sec Fayrilzabâdi, Qamics a&Muhit (Cafre, 1933), Vol. I, p. 286. For the Quar'ànic use of jihàd in the sens of exertion sec Q. VI, 108; XXII, 77.5556 THE LAW or WAR THE DOCTRINE or JIHÂD 57htl

persuos. Thar is becter for you. If ye have knowledge, He wil] forgive gour sins, and will place you in the Garden beneath which the streams Slow, and in fine bouses in the Gardens of $den: that is the great gain.2The jihàd, in the broad sense of exertion, does not necessarily mean war or fighting, since exertion in Allah's path may be achieved by peaceful as well as violent means, The jihàd May be regarded as a form of religions propaganda chat can lie carried on by persuasion or by the sword. In the early Makkan revelations, the emphasis was in the main on persuasion. Muhammad, in the discharge of his prophetic fonctions, seemed to have been satisfied by warning his people against idolatry and inviting them to worship Allah. This is evidenced by

such a verse as the following: "He who exerts himself (jàhada), exerts only for his own soul;'s which expresses the jihàd os terras of the salvation of the soul rallier than a struggle for prosels i n.4 In the Madinan revelations, the jihad iscften expreressesed in terras of strife, and there is no doubt that in certain verses the conception of jihàd is synonymous with the words war and fighting.sThe juriste, however1 have distinguished four different ways in which the believer may fulfill his jihad obligation: by his heart; bis tangue; his bands; and by the sword .° The first iss 8410 18' Sec aise Jurjân1, Kitàb al-Ta'rq at, cd. Gustavus rlagel(Leipzig,pzig) 84.a 5. Q. XXLY. 5.•Sec Shifi'i, Kitrsb al-Umm (Cairn, A.H. 1821), Vol. IV, pp. 84.65; 'Abd Shayben; ai-flag a4gabirab U,cùj al-Diu (Istanbul, 1928) vol. I, P. 198; 1335). Vol. I, P. 126. wrth Sarakhl's Commontary (Hyderabad, A.H. e 8cc Q. 11, 215; IX, 41; XLIX, 15; LXI, 11; LXVI, 9.AHSec Ibn Ha.IV, P.S 35 t-I " Ji ai.Mital wa'l-Ahwl' wa'1-Nihat (Cairn.AH. 1321), . (Cairn, A.H- 1825 Rushd, Kitdb al-Mugaddimlt al-Mumah-Mata aLlgna, (Cairn, AH. 1566) Vol. 9p 28.Kashshif al-Qina 'Anconcerned with combatting the devil and in the attempt to escape his persuasion to evil. This type of jihâd, so significant in the eyes of the Prophet Mubammad, was regarded as the greater jihâd.r The second and third are mainly fulfilled in supporting the right and correcting the wrong. The fourth is precisely equivalent to the meaning of war, and is concerned with fighting the unbelievers and the enemies of the faith.8 The believers are under the obligation of sacrificing their "wealth and lives" (Q. LXI, 11) in the prosecution of war.9

The jihàd as Bellum JustumWar is considered as just whether commenced and prosecuted in accordance with the necessary formalities required under a certain system of law, or waged for justifiable reasons in accordante with the tenets of the religion or the mores of a certain society. In Islam, as in ancient Rome, bath of these concepts were included in their doctrine of the bellum justum since a justifiable reason as weli as the forinalities for prosecuting the war were necessary. In both Islam and ancient Rome, not only was war to be justum, but also to be pium, that is, in accordance with the sanction of religion and the implied commands of gode 10T Ibn al-Humim, Sharh rath al-Qadir (Cairn, A.H. 1316), Vol IV, p. 277.s Ibn Hazm distinguishes between the jihâd by the tangue and the jihad by m'y and tadbir (i.e., reason) and he maintains that the Prophet Muhammad showed preference for reason over the sword. Ibn $azm, Vol.IV, p. 135.aDukhiri, Kitab al-Jrsmi' al$ahib, ed. Keehl (Leiden, 1864), Vol. H, p. 199; Aba DKBd Sunan (Cairn, 1935), Vol. III, p. 5; D3rimi, Sunan (Damas-Cils, A.H, 1849), Vol. II, p-218.ro Sec J. Von Elbe, "T1te Évolution of the Concept of the Just War in International Law," American Journal of international Law, Vol. XXXIII (1939), pp. 665-88; and Coleman Phillipson, The International Law and Custom uJ Anoient Greece and Rome (London, 1911), Vol. II, p. 180.

58 THE LAW OF WAR

The idea that wars, when institutionalized as part of the mores of Society, are just may be traced back to antiquity, It was implied in the concept of vendetta as an act of retaliationS by one group against another. In the Politics, Aristotle refers to certain wars as just by nature?1 The Romans instituted the jus fetiale, administered by a collegium fetialium (consisting of twenty members, presided over by magister fetialium), embodying the proper rules of waging war in order to be just-' In medieval Christendom, both St. Augustine and Isodore de Seville were influenced in their theory of just war by Cicero. St. Thomas Aquinas, who was acguainted with Muslim writings, formulated his theory of just war along unes similar to the Islamic doctrine of the jihâd.la St. Thomas and other Medieval writers influenced in their turn the natural law theories of the sixteenth, seventeenth, and eighteenth centuries. Grotius, the father of the modern law of nations, developed his system under the impact of the natural law theory of just war, and his ideas remained predominant until the end of the eighteenth century,14 Although the doctrine of war during the nineteenth century was by far less influenced by natural law than in previous centuries, the concept of just war mea? peared after the First World War in the form of a doctrine of outlawing war, Save that against an aggressor.u Politics, Bk. I, chap. VIII.12 In the Ofjtces, Cicero, who may be regarded as the representative Iegal philosopher et ancient Rome, bas discussed the cules and formalitiaswhich constitute the bellum justum, Sec Cicem, Offices, Essaye and Let tors (Everyman's editiun), Bk. I, § 11-12,ta Sec A. P. D'Entreves1 Aquin. Selected Political Writings (Oxford,e) pp. 59-61; John Epstein, The Oct holic Tradition of the Law o Na- Lian(London, 1935); William Dallis, The Legal Position of War: Changes in ira Practice and Ti,eory (The Hague, 1987), pp. 32.60.19 Hug° Or°hus, De Jure Eelfl cc Pacis, firse published in 1625 (Oxford,1925).T11E DOCTRINE OF JIILkD 59Recurring as a pattern in the development of the concept of war front antiquity, it assumed in Islam a special position in its jurai order because law and religion formed a unity; the law prescribed the way to achieve religions (or divine) pur-poses, and religion provided a sanction for the law.In Muslim legal theory, Islam and shirk (associating other gods with Allah) canot exist together in this world; it is the duty of the imâm as well as every believer not only to see that God's word shall be supreme, but also that no infidel shall deny God or be ungrateful for His favors (nï am) 15 This world would ultimately be reserved for believers;16 as te unbelievers, "their abode is hell, and evil is the destination."17 The jihâd, in other words, is a sanction against polytheism and must be suffered by all non-Muslims who reject Islam, or, in the case of the dhimmis (Scripturaries), refuse te pay the poli tax. The jihâd, therefore, may be defined as the litigation between Islam and pblytheism; it is also a fort of punishment to be infiicted upon Islam's enemies and the renegades front the faith.ls Thus in Islam, as in Western ChristendOm, the jihâd isthe bellum justum.In Islam, however, the jihâd is no less employed for punish-ing polytheists than for raison d'état. For inherent in the state'srs The Prophet Muhammad is reported to have said: "I am ordered to fight polytheists until they say: 'there is no god but Allah."' The validity ol the rule of fighting polytheists is aise based on a Qur'inic injonction, in which Allah said to Bis A'postle, as follows: "slay the polytheists wherever you may find them" (Q. IX, 5). sec aise Tâj ni-Dia al-Subki, Xitdb Muid

al-Ni'am wa Mubid al-Nigam, ed. David W. Myhrman (London, 1908),p. 27."The idea that Islam would ultimately replace other religions (except perhaps the tolerated religions) is not stated in the Qur'in, but it is implied in the objective of the jihéd and expressed in the hadith. Sec note15, above.rv Q. IX, 74.rs For the forma or types of jihâd, sec Chap. 6, below.y.

60 THE LAW Or WAR THE DOCTRINE OF JIHAD 61action in waging a jihàd is the establishment of Muslim sovereignty, sine the supremacy of Gods word carries necessarily with it God's politicai authority. This seems to be the reason why the jihàd, important as it is, is not included—except in the Khàriji legal theory-among the five pillars of Islam. The renon is that the five pillars are not necessarily to be enforced by the stase; they must be observed by the individuals regardless of the sanction of authority. The jihàd, in order to achieve raison d'état, must, however, be enforced by the state. In the technical language the five pillars—the basic articles of the faith—are regarded as individual duties (faz¢ 'ayn), like prayer or fasting, whiclt each believer must individually perform and Bach is field liable to punishment if fie failed to perform the duty. The jiltàd, on the other hand--unless the Muslim community is subjected to a sudden attack and therefore ail b& lievers, including women and children, are under the obligadon to fight—is regarded bydon, as a collective obligation tion)ofIthe wholee Muslimecom- munity.io It is regarded as fazçl al-kifàya, binding on the Mus-liras as a collective grou not individually. If the duty is fui- orer by a part of the community it ceases to be obligatory on others; the whole community however, faIls into error if the duty is not perfotmed at all.20The imposition of the jihàd duty on the community radier than on the individuel is vety significant and involved at least Thawri, ib aLMadv b said Chat the jihad duty is far4 'ayn. Awzâ'i andhowever,both 5t and an extrrenyClY and e Pacifist sect5zknovnhâd as( the M iyàriyya, dmpped See •Abe ]zhad a polytheists and

al-Qihir al-ga fasting articles of £tith•summarized by al-Raea n Mukktamr Kitdb db a a!-FarFar Ban ai-lira l.'0 For a defioition n, dited by Hitti (Cairn, 1924), p. 163. of1935)• pp. defini Chia tezm, see Suycti, al-Ashbdh wa'l-Nazn'fr Cairn,1867), Vol, vil,, 3, Ibn Qudsua, al.Mughni, cd. Rashid Rida (Cairo, A.H. PP• 345.6• Ibn al-Humâm op. ait„ P. 278.

two important implications. In the first place, it meant that the duty need not necessarily be fulfilled by aIl the believers. For the recruitment of ail the believers as warriors was neither possible nor advisable.21 Some of the believers were needed to prepare food and weapons, while the crippled, blind, and sick would not qualify as fighters.aa Women and children were as a rule excused frotn actual fighting, although many a woman contributed indirectly to the war effort.In the second place, the imposition of the obligation on the community radier than on the individual made possible the employment of the jihàd as a community and, consequently, a state instrument; fis contrai accordingly, is a state, not an individual, responsibility. Thus the

head of the state cari in a more effective way serve the commun interest of the coinmunity than if the matter is left entirely to the discretion o£ the individual believer. Compensation for the fulfillment of such an important public duty fias been amply emphasized in both the authoritative sources of the creed?s and in formai utterances of public men.24 Ail of them give lavish promises of martyrdom and eternai life in paradise immediately and without trial on resurrection and judgment day for those who die21Q LX, 123: "The believers must not march forth ail to war."22Q. XXIV, 60: "There is no blame on the blind man, net on the lame, nor on the sick......as Q. IH, 163: "Court flot Chose who are killed in the path of Allah as dead; they are alive with their Lord." A woman complained te Muhammad about the death of heu son in the battie of Bath, and then site asked whether ber son avent to hall or paradise. Muhammad replied: "Your son is in the higher Paradiset" (Bukhâri, Vol. II, p. 202.) Anotbec hadith suas as follows: "There are one huadred stages in Paradise Chat are provided by Allah for those who fight in lais path" (Bukhazi, U. p. 200). See aise Ibn Hudhayl, Tuhfat «l-infus nia Shilar Sukkên al-Andatus, ed. Louis Merder(Paris, 1936), chaps. 10 and 20.aa See a speech given by Caliph Abc Bakr ta Syrian expedition in Tabari, Ta'rikh, cd. de Goeje (Leiden, 1890), Sertes L Vol. 1V, p. 1850.62 THE LAW Op WARin Allah's path. Such martyrs are not washed but are buried where they fail on the battlefield, not in the usual type of grave, after washing in a mosque. It is true that a promise of paradise is given to every believer who performs the five basicduties, but none of them would enable him to gain paradise as surely as participation in the jihâd?sThe Jihad as Permanent WarWar, however, was not introduced into Arabia by Islam. It was already in existence among the Arabs; but it was essentially a tribal war. Its nature was peculiar to the existing social order and its mies and procedure were thoroughly integrated as part of the sunna. Since the tribe (in certain instances the clan) was the basic political unit, wars took the fonn of raids; mainly for robbery or vendetta (tha'r). This state of affairs had, as observed by Ibn Khaldun, developed among the Arabs a spirit of self-reliante, courage, and co-operation among the members of the single tribe.2s But these very traits intensified the character of warfare and rivalry among the tribes and created a state of instability and unrest,The importance Of the jihad in Islam lay in shifting die Locus of attention of the tribes front their intertribal warfare to the outside world; Islam outlawed ail forms of war except the jihad, that is, the war in Allah's path- It would, fndeed, have been very difficult for the Islamic state to survive had it nos been for the doctrine of the jihad, replacing tribal raids, and directing that enormous energy o£ the tribes front an in•evitable internai conflict to unite and fight against the outside world in the naine of the new faith.Heil'geaOorlo op C1t' Vol• 1, P. 20; and Herman Theodorus Obbink, Pe Ibn %ha dünlg ai-Mu Kor¢n (Leiden,1901), pp, 110-1.app• 220-1. ~addima, ed. Quatremère (Paris, 1858), Vol, ILTHE DOCTRINE OF JIHAD 63The jihàd as such was not a casual phenomenon of violence; it was rather a product of complex factors while Islam worked out its jurai-doctrinal character. Some writers have emphasized the economic changes within Arabia which produced dissatisfaction and unrest

and inevitably led the Arabs to seek more fertile lands outside Arabia-27 Yet this theory—plausible as it is in explaining the outburst of the Arabs front within their peninsula—is net enough to interpret the character of a war permanently declared against the unbelievers even after the Muslims had established themselves outside Arabia. There were other factors which created in the minds of the Muslims a politico-religious mission and conditioned their attitude as a conquering nation.To begin with, there is the universal element in Islam which made it the duty of every ablebodied Muslim to contribute to its spread. In this Islam combined elements front Judaism and Christianity to create something which was not in either: a divine nornocratic state on an irnperialistic basis. Judaism was net a missionary religion, for the Jews were God's chosen people; a holy war was, accordingly, for the defense of their religion, not for its spread. Cbristianity on the other hand was• a redemptive and, at the outset, a non-state religion. Even when it was associated with poli.tics, the Church and state remained apart. Islam was radically different front both. It com-bined the dualism of a universal religion and a universal stase. It resorted to peaceful as well as violent means for achieving that ultimate objective. The universality of Islam provided a unifying element for ail believers, within the world of Islam,ar The economic factors are discussed by Cari H. Becker in The Cambridge Medievai Histary (Cambridge, 1913), Vol. II, pp. 329 if; Henri Lammens, Le Berceau de l'islam (Rome, 1914), Vol. I, pp. 114 if; the 8emitic migratory theory is discussed in Prince Caetani, Annati dell'Islam (Milan, 1907) Vol. H, 831-61.

ICI64 THE LAW OF WARand its defensiveoffensive character produced a state of war-lare permanently declared against the outside world, the world of war.Thus the jihâd may be regarded as Islam's instrument for carrying out its ultimate objective by turning ail people into believers, if not in the prophethood of Muhammad (as in the case of the dhimmis), at least in the belief in God. The Prophet Muhammad is reported to have declared "some of my people will continue to fight victoriously for the sake of the tiuth until the last one of them will combat the anti-Christ "2s Until that moment is reached the jihâd, in one form or another, will remain as a permanent obligation upon the entire Muslim community- It follows tint the existence of a dâr al-1)arb is ultimately outlawed under the Islamic jurai order; that the dâr al-Islam is permanently under jihâd obligation until the dar a1-harb is reduced to nonexistence; and that any coin• munity whirll prefers to remain non-Islamic—in the status of a tolerated religions cornmunity accepting certain disabilities —must submit Islamic rule and reside in the dâr al-IslAmclients be bound as clients to the Muslim community. The universalism of Islam, in its all-embmcing creed, is imposed on thebeIievet-s as a continuons protes of warfare, psychological and Political if not strictly military,Although the jihad was regarded as the permanent basis of Islam's relations with its neighbors, it did not at ail mean continuo us fighting, Not only could the obligation be performed by nonviolent means, but relations with the enemy did not necessarily mean an endless or constant violent conflict with gym• The jihid, accordingly, may be smted as a doctrine of a Permanent stase of war, not a continuons fighting. Thus soute of the jurists argued Chat tare mere preparation for the jil>âd

28 Abc Di'8d, Sunaxi (Cairn, 1985), Vol. III, p. 4.THE DOCTRINE OF JIHRD 65is a fulfillment of its obligation?° The state, however, must be prepared militarily not only to repel a sudden attack on Islam, but also to use lis forces for offensive purposes when the caliph deems it necessary to do so.Iu practice, however, the jihâd underwent certain changes in its meaning to suit the changing circumstances of Iife. Islam often made peace with the enemy, not always on its own terms. Thus the jurists began to reinterpret the law with a view to justifying suspension of the jihâd, even though temporarily. They seem to have agreed about the necessity of peace and the length of its duration.so When Muslim power began to dedine, Muslim publfcists seem to have tacitly admitted that in principle the jihâd as a permanent war had become obsolete; it was no longer compatible with Muslim interests. The concept of the jihâd as a state of war underwent certain changes. This change, as a matter of fact, did not imply abandonnent of the jihâd duty; it only meant the entry of the obligation into a period of suspension—it assumed a dormant status, from which the imâm may revive it at any time lie deems necessary. In practice, however, the Muslims came to think of titis as more of a normal condition of life than an active jihâd.The shift in the conception of the jihâd from active to dormant war reflects a reaction on the part of the Muslims from further expansion, This coincided with the intellectual and philosophical revival of Islam at the turn of the fourth century of the Muslim era (tenth century A.D.), when the Muslims were probably more stirred by the contrOversy between orthodoxy and rationalism than by figliting Byzantine encroachments on the frontiers, To certain Muslim thinkers, like Ibn I{haldûn (d. 1406),81 the relaxation of the jihâd marked the29Ibn Hudhayl, ap. cit., p. 15.en See chap, 18, below.8111n Xhaldfn, op. cit., Vol. I, pp. 899 If.a

ÿ:.66 THE LAW Or WARchange in the character of the nation from the warlike to the civilized stage. Thus the change in the concept of the jihàd was not merely an apologia for weakness and failure to live up to a doctrine, but a process of evolution dictated by Islam's interests and social conditions.The Shi'i and KhàrijS Doctrines of the JihadGenerally speaking, the Shi'i law of the jihàd is net different frein the Sunni; but in linking the special duty of prosecuting the jihàd with the doctrine of walàya (allegiance to the imàm), the concept of jihàd assumed in Shi'ism a special doctrinal significance 82 In Shi'i legal theory, not only would the failure of a non-Muslim to believe in Allah justify waging a jihàd, but also the failure of a Muslim to obey the imàm would make him liable for punishment by a jihàd. While to a Sunni the jihàd is the sure way to Heaven, a jihàd without an allegiance to the imàm would not censtitute an imàn (a necessary requirement for salvation) in the Shi'! creed.The jihàd is regarded as one of the chief furetions of the rereq e, the performance of which would fulfill one of theui.quirements for the best (afdal) qualified perron for this position. If the imàm fails to fulfill the jihàd obligation, he disqualifies his claim as the best candidate, according to the Zaydi creed a4 The imàm, as an infallible ruler, is the only one who can. judge when the jihàd should be declared and under what circumstances it would be advisable net to go to war s% For an exposition of the Shr i law of the jihad, see Tdsi, Kitdb Masd'ilal-Khiiùj (Teb iE i nH. 1810), Vol. Il, pp. 196.9; and Qà¢I Nu'mân, Da'd'im a6lsldm,

'AI! yFor a translation of the Shi'ilaw of the jihad, see A. V Qul. I, Recueil 399.466.tais coneernani les Musulmans Sehyites (Paris, 1881), Vol. pp. 21.53 dej -, "*Abd-Allah ibn Muftah, Skarhp. 525, ai-Azhar (Cairq A.H. 1358), vol. V,91 See R. Strothmann, Dan Staatreckt de Zaiditen (Strassburg, 1912), p. 61.rG^THE DOCTRINE OF JIHXD 67with the enemy. If the imàm finds it necessary to coure to tenus with the enemy, he may do sa; he may even deem it necessary to seek the support of non-Muslims (including polytheists) inorder to avoid risking defeat by the enemy.85 Under no circumstances, however, should the imàm risk a jihàd if he considers the enemy ton powerful for hitn te win a victory, namely, if the enemy is at least twice as powerful as the Muslims.ssThe disappearance of the imàm, however, bas left the duty of declaring the jihàd unfulfilled.87 Opinion differed as to the capacity of the mujtahids to act in the naine of the imàm in fulfilling the jihàd obligation; but since the duty of calling the believers to battle is a matter in which an infallible judgmentis necessary—since the interest of the entire community would be at stake—only an imâm is capable of fulfilling such a duty-Further, it is deemed impossible to combat evil during the absence of the imàm; the jihid, accordingly, is regarded uncon-sequential. Thus in the Shi'i legal theory, the jihàd has entered into a dormant stage—it is in a state of suspension. In contrantte the Sunni doctrine which requires the revival of the dormant jihàd when Muslim power fs regained, the resumption of the jihàd in the Shi'i doctrine would be dependent on the return of the imàm tram bis ghayba (absence), in the capacity of a',' Mandi, who will triumphantly combat evil and re-estahlishjustice and righteousness.ssIn contrant to the Shi'i doctrine of the jihâd, the Khârijis maintafn that the jihàd is a fundamental article of the lattiswhich could not possibly be abandoned or relaxed, Te them%s Ibid., p- 105.as Qàdi Nu'màn, Vol. I, p. 434; IIi1Ii, Tnbsirat al-Muta'allimin fi AAkdm al-Din (Damascus, A.H. 1342), p. 103; Strothmann, p. 91.sr This situation has net arisen among the Zaydis, since technically they elect their imàms.seEor an exposition cf the Shri doctrine of Mandism, see Dwight M. Donaldson, The Shiite Religion (London, 1933), Chap. 21.

ela68 TRE LAW OF WARthe jihàd is a sixth pillar of the faith, binding individually on every believer and on the community as a whole se They aiso go as far as to enforce imàn on all who do not accept their version of Islam, Muslims as well as non-Muslims, hy the jihàd; for, they argue, that sine the Prophet Muhammad had spent almost all his life in war, all truc believers must also do sa.

Their strict belief in their religion and their fanaticism made them uncompromising in the fulfillment of their jihàd duty. Thus their conception of the state was that of a garrison state; an ever-ready community, led by its imàm, to wage war on the enemies of the faith. Even if the imàm does not lead in wax, the jihàd is incumbent on each believer to fulfill by himself, for he falls in error if lie fails to do so.The Yhàriji conception of the jihàd, in contrast to the Sunni doctrine is that of violence rather Chan strife or religions propagande?a To them true belief is a natter of conviction which should be imposed on reluctant individuals, not a subject of debate and argumentation; for, if evil is to be exterminated and justice re-established, obstinate heretics must be either forced to believe or be killed by the sword. This is based on a hadith in which the Prophet Muhammad is reported to have said: "My fate is under the shadow of my spear."41Strict and fanatical, the Khàrijis were as tierce and brutal in war as their desert life was austere and puritanical. The humane and moral aspect of religion made Little impact on their tribal character, In war they ldlled women and children and condemned to death prisoners of war, Although these rules were not always followed, the extrernist Khârijis, such as the"The Rhàrijis do not actually add a sixth piller to the already recognized five pillars of the Sunnis, because they substitute jihàd for im6n(which ta the, is syonymous with Islam) and thus the number of the Pillua is net increased,es sec p. 12, note 19, above. et Bukhazi, Vol. II, p• 227.THE DOCTRINE OF JIHAD 69followers of Nàfi' ibn al-Azraq (A.H. 686), insisted Chat they should always be enforced.92The jihàd and Secular WarIslam, it will be recalled, abolished ail kinds of warfare except the jihàd. Only a war which bas an ultimate religions purpose, Chat is, to enforce God's law or to check transgression against it, is a just war. No other form of fighting is permitted within orwithout the Muslim brotherhood.Throughout the history of Islam, however, fighting between Muslim rulers and contending parties was as continuons as between Islam and its external enemies. The casus foederis of a jihàd was frequently invoked on the grounds of suppressfng innovations and punishing the leaders of secession front the faith. Not infrequently the naked ambition of opposition leaders who resorted to war for the sake of a throne or high political offices was too apparent to be ignored. When the caliph's prestige and power declined, lack of respect for and opposition to the central authority became fashionable among local rulers. This state of affairs accentuated the struggle for power and created instability and anarchy in the world of Islam- Ignoring existing realities, the jurists continued to argue—folIowing the example of al-Màwardi—that ultimate authority belonged to the caliph and Chat no one else had the right to renounce it even if the caliph proved to be. unjust and oppressive, since tyranny, it was then contended, was preferrable to anarchy48—a sad comment on existing conditions.A few publiciste, in their reflections on the state of affaira as they then existed, have said Chat wars, in forms other than the*e Shahrast ni, Kit86 al-Mitai wa'i.NiLal, ed. Cureton (London, 1840),PP- 90, 93; and Ras'ant's Muhhtasar, pp. 78, 80, 97.ss Badr al-Dia Ibn Jam3'a, Tahrir nbAAh&m ji Tadbir Ahi aFlsIdm, cd.H. Ruefler in Islam jas, Vol. VI (1934), p. 365.nlil ii U,IIn a r d'

q d, xt

riv:dIdl, I,,.1I,rda i,f.. .,. uf.., o "~1_/zJ_ .'rP.~L`e70 THE LAW OF WARjihàd, had often recurred in the Islamic society. Paying lip service to the jihàd as a religious duty, they looked upon wars as dangers which Muslim rulers should avoid. Al-Turtùshi (died A.H. 520) described "war crises" as social anomalies44 and al-Hasan ibn 'Abd-Allah compared them to diseases of society. 15 Both of these writers, who expatiated on the ways and means of conducting fighting, advised their rulers that the best way to win wars, if they found it impossible to avert them, was to be adequately prepared militarily. Thus Muslim publicists, like their Roman predecessors,,seemed to have been convinced that si vis pacem, Para bellum.It was, perhaps, Ibn Khaldùn (A.D. 1332-1406) who for the first time recognized that wars were not, as his MusIim predecessors thought, casual social calamities. He maintained that war has existed in society ever since "Creation." Its real cause, which accounts for its persistence in society, is man's will-torevenge. Man, in other words, is by nature warlike. He is forever moved to fight either for his own selfish interests or by such emotional motives as jealousy, anger, or a feeling of divine guilt. Thus the members of one group or nation, in order to attain their objectives, combined against others andthe inévitable resuit was war.Wars, according to Ibn Khaldùn, are of four kinds. First is"Turçùshi, Sirâj ai-Mulùk, pp. 150-153.+e Ibn 'Abd-Allah, who wrote his book in A.H. 708, gives seven reasons for the recurrence of wax in society; First, for the establishment of a new stase (dawla) or dynasty; second, for the consolidation of an atready estabtished stase or dynasty; third, the wars of a just state (dawla 'àdita) againer rebels and dissenters; fourth, wars between two nations or tribes in the brin of raids; Eifth, the annexation of one stase by another, regardless of whether the latter ivas just or unjust; sixth, wars for the purpose of ancre robbery, nos for any political purpose; seventh, intertribal warfare as those existed in pre-Islamic Arabia. AI-Hasan ibn 'Abd-Allah, fthâr al-Uwai fi Tarlib al-Dawa! (Cairo, A.H, 1295), pp, 167-8.THE DOCTRINE OF JIIIZD71the tribal warfare, such as that which existed among the Arabian trilles; second, feuds and raids which are characteristic of primitive people; third, the wars prescribed by the shah a, i.e., the jihâd; fourth, wars against rebels and dissenters, Ibn Khaldun contends that the first two are unjustified, because they are wars of disobedience; the other two are just wars ('adl).Ibn Khaldùn was not of the opinion, asTurtùshi contended, that victory could be attained by sheer military preparedness. He believed that there are always deeper causes for victorymore important than arms and armaments—which he called al-asbàb al-khafiyya, that is, the hidden causes. He does not mean, however, by khafiyya the morale of the army (although he regards this as absolutely necessary); but rather the application of certain skills and tactics which enable an army to attain victory, such as making use of certain highlands which helps to start an offensive, and deceiving tactics which tend to mislead the enemy.46It is to be noted that Muslim thinkers, from the rise of Islam to the time of Ibn KhaIdùn, regarded secular wars as an evil to be avoided since they were inconsistent with God's law which prohibited all forma of war except Chose waged for religious purposes. A close

examination of society taught Muslim thinkers that secular wars were not easily avoided by fallible human beings; peace within the Muslim brotherhood needed the in spiring influence of a Prophet or the prestige and power o£ an 'Umar I. When the caliphs departed front the sunna of the Prophet, holy wars were no longer the only kind of warfare waged; nor were they always devoid of secular purposes. A war, called harb, in distinction from a holy war (jihàd), was looked upon as. an unnatural phenomenon which befell society only because of man's carelessness and sins. Ibn 'Abd-Allah, it willes Ibn Khaldun, P. cit., Vol. II, pp. 65-79.JP

12 THE LAW OF WARbe remembered, described wars as diseases; but Ibn Khaldun thought that their frequency in society, arising front the very nature of man, males their recurrence as permanent as 50021 lift itself. Ibn Khaldun based bis conclusions net only on bis own personal observations on the state of constant werfare that existed among the petty Muslim states in North Africa, but also on the experiences of varions nations with whose bis-tory he was acquainted. Ibn Khaldnn's observation, which shows keen insight in understanding human society, is con roborated by modern research, which bas demonstrated that early societies tended to be more warlike and that peace wza by no means the normal state of affairs.47 As Sir Henry Maine stated, "it fs not peace which was naturai and primitive and old, but rather wax. War appeaxs to be as old as mankind, but peace is a modern invention?' 49 Islam, unlike Christianiry, sought to establieh the Kingdom of Heaven on earth; but, likeTHE DOCTRINE OF JIHÀDChristianity, couId not produce that world brotherhood and God-£earing society which would. live permanently in peace. War was as problematic to our forefathets as Co ourselves; the)'less titan weedo by eux own Mth in the scciie fic PProacb.noiij1+T Ibn Khaldun le ont the first thinkev Who said chat warfare is the normal stase in Society, but Le was the fier Moslim thinker to say so. llato (The Laws, Bk. L q) before him as Weil as others alter in Medieval and modern rimes have expressed Similar ideas. Hobbes, in an often gnoted statement, said: '$ereby it is manifest, that during the cime merl live without a common power m keep them ail In awe, they are in that coach' tion which is called war; and such a war, as is of every man, agalnst ever9 man. For wxr, consisteth not in battle only, or the act of fighting; but In a tract of aime, wherein the viii to contend by battie ie sufiicientty knoa'n: and thcrefore the notion of cime, is to be cunsidered in the nature of wa[; as it is in the nature of weather. For as the nature of foui weather, lieth nos in a shower or two of tain; but in an inclination thereto of rnaoy days together: so the nature of war consisteth nt in actual fighting; but in the known disposition thereto, during ail the Urne there is no assurance to tue contrary, Ail uther cime le peaœ," (liobbn, Leoiathan, Chap. 13). Set also Leo Strauss, The Political Philosophy of Hobbes (Oxford, 1936), pP, 160"3•+sSir Henry Maine, International Laya (London, 1888), P. 8. Set also Quincy Wright, A Study of War (Chicago, 1942), Vol. I, Chapters 6, 7'appendices, 6, 8, 9, and 10.

J Lf' e C %"TYPES or JIHAD 75

The Jih¢d Against Polytheists"Allah gave the Prophet Muhammad four swords [forfighting Lite unbelieven]; the first against polytheists, whicbMuhammad himself fought with; the second against apostates,which Caliph Abri Bakr fought with; the third against LitePeople of the Book, whieh Caliph 'Umar fought with; endthe fourth against dissenters which Caliph 'Ali fought with."Shaybâni, Kit&b al-Siyar al-Kabir, 1, 14-5.CHAPTPR VI

TYPES OF JIHÂDMuslim jurists distinguished between the jihàd against nonbelievers and the jihàd against believers who either renegaded front the faith or, professing dissenting views, renounced the authority of the imàm or bis lieutenants. While the jurists agreed that war tuas just when waged against such people, they disagreed ils conduct and termfnation, Al-Màwardi sub- divided thee jihàd against believers fnto three categorfes: first, the jihàd against apostasy, (al-ridda); second, the jihàd against dissension (al-baghi); and third, the jihàd against secession (al- or the bizn).r Other jurists added a category known as al-rihà4, or the safeguarding of frontiers. There may be added sti11 an-other type the jihàd against the People of the Book or the Scripturaries.' Màwardl Kitab al-Ah/aùm al-Su/;aniyya, ed. Enger (Bonn, I853), p. 89. 74No compromise is permitted with those who fail to believe in God, they have either to accept Islam or fight. In several Qur'ànic injunctions, the Muslims are under the obligation to "fight the polytbeists wherever ye may find them;"2 to "fight those who are near to you of the polytheists, and let them find in you sternness";s and "when you meet those who misbelieve, strike off their heads until you have massacred them. ... "4 In the Hadith the Prophet Muhammad is reported to have declared: "I am ordered to fight polytheists until they say: 'there is no god but Allah.' "5 Ail the jurists, perhaps without exception, assert that polytheism and Islam cannot exist together; the polytheists, who enjoin other gods with Allah, must choose between war or Islam. The definition of a polytheist, however, has not been precisely given by any jurist. They exclude not only Scripturaries (who believe in Allah though not in His Apostle) but also the Magians (Zoroastrains) whose belief in Allah is obscure, but they had some sort of a book. Polytheism seems to have been confined narrowly to paganism, with no implied concept of a supreme deity.In the $ijàz the principle was carried out to the letter, but in certain parts of Arabia, like al.Yaman, Jews were permitted to reside. No 'one was permitted to reside within Arabia, save those who either adopted Islam or remained Scrfpturaries. Alter Muhammad's death, however, the Christian of Najràn, who were given a pledge of security, were required by the i Caliph 'Umar to leave for settlement in the Fertile Crescent.as Q. IX, 5.Q. IX, 124.4Q. XLVII, 4.5Bukhhri, Kitab al-JBmi' a1-Saï. ed. Krehl (Leiden, 1864), Vol. II, p-236; and Abri Da'Gd, Sunan (Cairn, 1935), Vol. III, p. 44 o See Chap. 17, below.

I 76 THE LAW OP WAx•

TYPES OP JIHnn 77

Lacer, die ride was relaxed and at the present erning, a war with the people of dàr al-barb.e Neither

Scriptmaries meforbidden Irom

their

residing unly in Makka.T Outsid Ame the bian

propertÿ nor themselves hectare subject to the general tale cf

penlnsnla polytheista were rarely te be found, except perhaps!.I Zoroastrians in persia

4stibmi ssson of unbelievers, namely, they and their avives are net

and pagan elements in the distant prov-inces of the bordera

liable te be condemned inta slavery, nor their properry con-

of Islam in Ma and Aftica. ftsrated or divided as spail. The property of Chase killed in

The)(Rdd Againet Apostasy is taken over by the state as fafar.Sonie juts, such ashattle risthe $anafu, maintain chat the apostate wife should become a

Apostasy may take place in one of taro forma: (a) either thebeliever reverted

sai tirait is, condemned te be a slave woman and taken as abut

Emm-tr tadd

spoil en born alter a star , theor sold. Se are the dtildr YP P°

Îi ( n, Y tuhe d ha batha Sin f[era]i g st) Islam wfth no intention cf joining the dar a41}arb,b)r a

majority of juris[s do not think chat is necessary.

• ~up of believers, having rcnounced Is )am , joined theharo

The outstanding case of apustasy was the secession of the

or separated themrelves in a territory constitutingtheir cavai dit.

trilles of Arabia alter the death of Muhammad• Ab b Bakr, theho

The laitlatter situation is relevant m car discos-n on the

Fust caliph, warned them lits[ to return to Islam, and [pose w

jihàd; the former, which relates to the iaw of did not zeturn were severely fought, especially by lihâlid ibn

• peace, mail be discussed lacer under'alurisdiction.If the apostates

al-Walid, who humai a grisas number cf [hem in spire of ob-

were numerous and powerful enough te defy• authority, the

jtctions raised regarding the penalty of burning- The leaders

imàr¢ was under obligation to invoke the jihàagainst them. The 'utisss, however,

oF the apostate tribes avare severel unished and mon cf [hemP y Peminent

dvise negotiation belote were alain. cler, a1-Balàdlrurc chat ta[

fighting begins, see is matit y succeed in permading dicta teretmn to Islam

nobody wcaped death save chose who retumed to Islom•io

• Neither peace nor tribute nor poil tax la at-ceptable, sine the law tolerates

The Jihad Against Baghi

no accession front Islam. TMapostates must either retum to Islam or accept the challengeof jihad. As in

Baghi is an attempt at dissension. If the dissenters did not

the case of unbelievers, they should be notificd(in the course

renounce Lite authority of the imam, the' avare Soc faught and

• of negotiatfuns) will follow. This•satisfies the tale of a chat fighting

Were allowed to reside Scala]] in ths al-Islàm• dissen nm,peacefullydissenting

Should the ttonofwar-a

anhowever, should persuade [hem to abandon chair

governi P°seates refuse and fighting begin, the rodes •ng dre conduct of war

ideas and to conform to orthodoxy; if they refused and failedm fought against. If dissen-

Would be the same as Chose goy-' Tne Hanbau jn

conforta to the law, tien they weresien were which did not tourtethe resait of certain grievanees

the Hliae, lndudin~t M bn Qndama P° 0111 SQiptnrzries to pals through" ', Pruvlded

the creed, such as agaimt their cm n governor, an attempt should

Qudma, nb i they do net lntaod te rende (IbnMughn; ed. Raaryid Rist. [Cei.,

be made ro reconcile [hem. If tiare were very few so chat they -

A.H.15653, vol. Vilf, p. 580•albwinnene partia farblde Saiptursdafrontrntedng Mekke alose,6 non-1tuslime to trnvN

10 ses Chop,

eSec Gry,ap,aeelawhere and aven to roide in Jidda-

Helüdhmi, Fvtilh aFHUldfirs, cd. de Catie Leiden, 1966]. PP 165'6%I,Hlttil tranileulon, pp. 1596[.

/ l 1 ~. ~lv/V .i !// `a//1~~I1

M,u78 TFr£ LAW Or WAncould be controlled without difliculty, there was no need for a jihad. The Khirijis were a case in point. When they disagreed with the Caliph'Ali, tltey were offered three propositions; they were permitted to say their proyers in the masques, they were not a[tacked by the caliph, and were allowed to live in the dur alds19m n But once they opposed the caliph, 'Ali marchai egainst them and cruslred their power in the battle ni ai- Nahruwkn (A.D. 658).

White, in early Islam, Muslim public opinion was not in- dined to support an imam who himself seemed ta have de- parted from the law, clic 'urist-[lreo]ailY tended to support the authority of the iarfim have gra~u-'., clament revolting agxinst him. They upheld the thé ry Ébatthe imAm, aven if lie committed an orme, must be obeyed. The• Ash'aris and almost ail the lacer Sunni jurists supportai su-[hority against dissension an hanar ued isorlew g that rage orleTann rah y- To Cham once the baya (bornage or Eealty) was given to the new imAm there was no legal way of taking it back. For, according ta a Qur'dnic injunction, the believers must "obey Allah and the Apostle and [hase in authority among Y" ; if the iduslims differ front the imAm on an issue, "bring it before Allah and the Apostle, if you believe in Allah and in the lait dxy."rs But wlren Allalis Apostle bas died then the imém taites bis place, 'flue in practice the imam bas the ulti- mate authority in the s[ate, and lie car invoke the jihad to• enlorce hie commands. It follows that bagh[, in the sevse ofdissension would ermstitute the negation of the imâm's au-d ms1û vld2udnw,vana aYXubrn (Cars, A.H. 1929), Vol. In, pp, 47.50; and M3xrrdr, p, 97,v' Mh'ari, K5/, ailtem (Hyderabad, 2nd, cd., AH, 1967), p 9; and Ihn 11mF°, "Taper al 4 A kam fiVoL VI (1938 Tatlblr Ahi al-Islam" cd. Koncr in frlamiro,1d Q. IV, 62. PP 4d, i'.

TVPEs OF JIHAD 79thority; hence both the imAm and his subject must oppose the dissenters in order co re.establish the unity of the intimate.The raies governing the conduct of war against dissertonsare sumewhat different from Chose of fighting the unbelievers; the main differences being Chat the disserter prisoners arc net fiable for killing nor their property for confiscation as spoils. Their arma and a:maments should be returned co them after their submission ta the imAm. Suai destructive measures as burning the coule or an attack by the mangonels and fire shnuld rot be resorted to unless deemed absolutely necessary.

The Jihad Against Deserters and Highway Rob beauActa committed by deserters front the community of believers and highway robbers are caltai the great chefs. The law concerning their treatment is provided in the Qur'ân as folfows:The punWoocnt o[ Chose who .mat Allah and nia Apeatle, and gu ahom to courrai[ disordev on esse mrtl, thcy sbauld be 11cia or wdficd or have their hands and their test eut o& or be banished from tlse land;this shah l be as a disgcace fox Cham in this world, and in the nexc theyshah have a Mat tormenU°The juriste agree, on tire basis of the foregoing Qur'anic verse, khan deaerters and highway robbers should be punished by the imAm; but they disagreed on the degree of punishment. Sonne ordered siaying and crucifieation; others cutting off their bands and feeq still others were satisfied sailli banishment. The punishment depended on the character of the aiminal as well as the seriottsness of bis acc10 There was also a difference of

vs 6R0.fi'i, kilab aYVmm (Cairn, AH. 1921), Vol. IV, pp. 199 It; Maw°rdi,P? 94)6 pp.; 5920; Qud5ma'Id Mugh 4a BeaS (Laides°d' 1Wah[d P.vaa(Cafta. A.H. 1967), Vol. VIH, pp. 104.22; Maxghlniei, a68'd°y° (Cairn, 1996), Vol. II.pp. 126.8.15Q. V, 37.vo Miwardt, pp. 102-9.r J o. . 1 _°/ 1 ~~ .y viï

.-I ''Ii .._.. .il 80 THE LAW OP WAAX11' opinion regarding banishment, Mtlik contended that the crimi.ii mal should be banished to the dar al-bath;other jurlsts insisted that lie sbould ha kept in the dàr al-Islâm, but banished from hie own town (according te the Caliph'Umar ibn'Abd ai-Aile) or thrown into prison (according te Abû kanifa).In Gghting surir groups, the imam bas the droite of treating them on the saure footing as the bughàt (singular, baghi) or being mare fenient te them, depending on the degree of the seriousness of their conduct.r+I i l The Jihàd Against Scrii turariesThe People of the Book or Smiptumries (Ahl al-Kitâb) are the Jews, Sabians, and Clristians who believed in Allah but, according to the Muslim aeed, Who distorted their Salpmres- and fell into Allah's disfavor. When Allah sent the jase of Hie Pmphets to rail ehe u to the truth they accepted belief in Allahrai but mot in Ris Prophet or the Qui ân. Rance, the Saipturaties, hke the polytheists must be punished; but tiare they believe in Allah, they are only partially ]fable to punishment. The jihadingly, is invoked but flot in dise saine degree of effective- mess asness as against polytheistsThe polytheists have the timited choim between Islam or the liard; the Scriptuflfes nen chasse one of titres propositions: Islam, the poli tax, or the jihad. If they accept Islam, they are entitled under the law to full citizensbip as other believers; if• they prefer 10 rems n Scriptes at the sacrifice of paying [he poll tax, they suifer certain disabilitles which redore dieu• te second-dass citizen; if they fight they aze to be treated in war on the saure îooting as Ypal theists.1+Mkxlrt5, p, 505.5; and M. $amldullnk Mwtim Conduit of Stak (Whor, ,19es), pp. 177.9.TYPES OF JIHAD 81The Ri&dtThe rib5p is the safeguarding of the frontiers of the dit al-Islam by stationing forces in the harbors and frontier-tocans (thughûr) for defeuse purposes. This type of jihad, although based ana Qur'Snic injonction, dcveloped at a tune when the Islamic state was on the defensive. The Qur'snic rule, making no distinction between defensive or offensive purposes, states: "Prepare ye against them what force and companies of horst ye can, to malte the enemies of Gad, and gour enemies, and others beside them, in dread thereof."19 But the juriste, especially the Miliki jurists of Spain and North Africa (whose frontiers had becnme constantly the targets of attack from Buropean forces), emphasized the defensive purpose of the ribât• In the hadith,

the defensive cbaracter of the ribit is emphasized, probably because thase hadiths were circulated at the tune [he ribit was fulfilling defensive purposes. Thus one hadith runs as follows: "'Abd-Allah ibn 'Umar stated that the jihad is for combatting the unbelievers, and the ribé( for safeguarding the believers." In Spain the ribâl assumed in the eyes of the Muslims more significance shan the jihad since their (rentiers were constantly under attack by Christian force. It was for tais resson that Ibn Hudhayl, writing bis treatise on the jibâd in the twelfth century of the Christian era (when Islamic ride in Spain had been reduced te the southern part), devuted tire second chapter ta tuba; and stressed thé defense Of Spain agame[ die unbelievers, icone, land and ses, as the most essential obligation open the believers. hadiths, ascribed te the Prophet Mubammad, with references tu Andalus as die Western fronder of Islam, are cited te stress die significance of citaitor the protection of Spain from European attack10 Thev Q. mit M vo Iba Hudhnyl, TuhJat a64n(u+wa Shiar Sukhan abdndaius, cd. LouisMerde (Passa. 1956), 'p. 9.10.III