Jihad and the Modern World
by Dr. Sherman Jackson,
[*1] I. INTRODUCTION
“Islam is a religion of peace.” This is certainly the mantra that has
inundated us from almost
every quarter since the horrifying events of September 11, 2001. From
President George W. Bush
to local, national and even international Muslim spokespersons, the
peaceful nature of Islam
has been reiterated time and again. Of course, this has not gone
unchallenged. Skeptics,
polemicists, even op****tunists of various stripes, have repeatedly warned
against accepting too
uncritically what they hint at being a “new-found, politically correct”
depiction of a religion
that includes, inter alia, a scripturally mandated institution of armed
violence and a holy
book that exhorts its adherents, at least on the face of it, to “slay
‘them’ wherever you find
them.” n1 Today, close to a year after the tragedy, emotions and rhetoric
on both sides have
subsided a bit. But there is still a perduring suspicion among many
Americans—including many
Muslim Americans—when it comes to the question of Islam, violence and the
relation****p between
Muslims and non-Muslims.
[*2] To be sure, the uneasy relation****p between the Muslim world and the
modern Western powers
has produced numerous polemical and apologetic false facts and half-truths
that are grounded
not only in misunderstandings of the other but of oneself as well. For
example, the polemically
invoked “Abode of Islam/Abode of War” (Dar al-Islam/Dar al-Harb) dichotomy
completely ignores
the hallowed Monroe doctrine of the United States. Similarly, the Muslim
critique of America’s
crass secularism, pur****tedly reflected in its separation between Church
and State, overlooks
the perennial effort of Muslim “clergy” to keep the Muslim state out of
the business of
imposing its interpretation of the religious law on the community. One
could easily add to this
list of dialectical misunderstandings such things as the conflation of
Arab with Muslim,
various uses of the terms “fundamentalism” or the habit of speaking about
“women” with no
regard to time, place, marital or kin****p status (i.e., whether a woman is
a wife, a mother, a
daughter, an aunt or a grandmother.) Indeed, so numerous are such
infelicities that one would
almost hope that Islam and the non-Muslim West could be re-introduced on
more informed and
objective terms.
In the present article, however, I shall limit myself to only one of the
products of the modern
encounter between the Muslim world and the West, namely the claim that
Islam is a religion of
peace. I propose to explore the credibility of this claim via a treatment
of jihad, as the
religiously sanctioned institution of armed violence in Islam. I shall
focus on jihad not from
the perspective of jus in bello, i.e., the rules and regulations governing
the conduct of
combatants in war, but rather from the perspective of jus ad bellum, the
causes and
justifications for going to war. My aim shall be to determine the
normative role, function and
status of jihad not in the abstract but, first, as an institution of
Islamic law, and, second,
in the very particular context of the modern world. This latter concern
implies, of course,
that context and cir***stances are relevant to the enterprises of
interpreting and applying the
rules of Islam. As such, following a brief excursus on a few pertinent
features of the Islamic
legal tradition, I will preface my treatment of jihad in the modern world
with a brief
statement on the concept of change in Islamic law, as well as the impact
of historical
experience and cir***stances on the substance and application of Islamic
legal injunctions.
II. ISLAMIC LAW: STRUCTURE, STATUS AND THE PROBLEM OF FREE SPEECH
With the exception of its claim to divine origins, perhaps the most
glaring contrast between
Islamic law and modern, secular systems is that Islamic law constitutes
what the late
Orientalist Joseph Schacht referred to as an extreme case of “jurists’
law.” Islamic law was
neither the creation nor the preserve of the early Muslim state. Rather,
it developed to a
large extent in conscious opposition to the latter. Private Muslims,
during the first two
centuries or so following the death of the Prophet Muhammad in 632 CE,
succeeded in gaining the
community’s recognition for their interpretive efforts as constituting the
most authentic
representations of divine intent. By the early decades of the 3rd Islamic
century/9th century
of the Common Era, a full-blown theory and methodology of legal
interpretation had developed,
with the Qur’an, the Sunna (or normative practice of the Prophet Muhammad)
and the unanimous
Consensus of the jurists (ijma’wink as the primary sources of Islamic law,
and analogy (qiyas)
as the primary method of extending the law to treat unprecedented cases.
During this same
period, the jurists began to organize themselves into interpretive
communities or schools of
law, called madhhabs, and by the end of the 4th/10th century, the madhhab
had emerged as the
exclusive repository of legal authority. From this point on, all
interpretive activity, if it
was to be sanctioned and recognized as authoritative or “orthodox,” would
have to take place
within the boundaries and under the auspices of a recognized school of
law. By the end of the
5th/11th century, based on the principle of survival of the fittest, the
number of Sunni
schools would settle at four. These were the Hanafi, Maliki, Shafi’i and
Hanbali schools, all
equally orthodox, all equally authoritative. This is the number at which
the Sunni schools of
law have remained down to modern times. The main branch of ****’ism, the
Imami Twelvers (with
whom I shall not have occasion to deal in this paper), had one main
school, the Ja’fari school.
These schools would continue their monopoly over authoritative legal
interpretation
unchallenged until the introduction of Western political, legal and
educational institutions in
the 19th and 20th centuries. As for the pre-modern Muslim state, to quote
the late Shlomo
Goitein, “with the exception of a few local statutes promulgated and [*4]
abrogated from time
to time, the [pre-modern Muslim] state did not possess any law [of its
own].” Islamic law, in
other words, was the only legal system available to the premodern Muslim
state, a system over
whose substance and authority the state itself exercised little control.
The introduction of Western political, legal and educational structures
would bring about
im****tant and far-reaching changes, legally and otherwise. For our
purposes, three of these
call for mention. First, the theory underlying the nation-state granted
the state a monopoly
over the enactment and interpretation of law, a development that
marginalized the traditional
role of the religious jurists. Second, the concept of citizen****p and
equality before the law
(and later the concern for predictability in the law) obliterated the
legal pluralism and
indeterminacy of the pre-modern period. The existence of four or more
authoritative laws
operating side by side gave way to a solitary “law of the land.” Finally,
the im****tation of
Western legal codes, particularly French, replaced whole areas of Islamic
law, partly due to
the colonial powers’ sense of a civilizing mission and partly due to gaps
and inadequacies in
the Muslim jurists’ deliberations. As a result, with the exception of
family law, there is
today scarcely an area of law in the Muslim world that is not influenced
by or the genetic
offspring of Western law and legal thinking.
On these developments, some have concluded that Islamic law is no longer
relevant to the legal
order of the modern Muslim world, with the possible limited exceptions,
that is, of Iran, Sudan
and Saudi Arabia. Most observers recognize, however, that while Islamic
law may be irrelevant
or marginal to the applied legal order, in the hearts and minds of ever
increasing numbers of
Muslims, it retains its religious (and even cultural) authority in terms
of the definition of
rights and obligations. Thus, while a court may refuse to acknowledge,
e.g., a marriage that
does not satisfy all the requirements of [*5] state-sponsored law, the
state cannot obliterate
citizens’ belief that they have a God-given right to engage in such a
marriage. In short,
Islamic law, embattled though it may be, continues to represent for the
m***** of Muslims
inalienable, God-given rights and obligations. It was, in fact, the uneasy
recognition of this
reality that implicated jihad in the attacks of September 11.
Not only has modern history displaced the sources and substance of Islamic
law, the religious
clerics, heirs of the classical tradition, have also forfeited their
monopoly over the
interpretation of Islamic law. This is partly a result of the attempt by
modern Muslim states
to marginalize the traditional ‘ulama’, viewing the latter as impediments
to progress. It is
also related, however, to the proliferation of literacy and the
unprecedented availability of
books. Whereas pre-modern ‘ulama’ were insulated by their near-monopoly
over the ability to
read and write, the spread of public education and the rise of the
printing press (and now the
internet), have denied them exclusive access to the sources and tradition
of Islamic law.
Instead, new, modern, revivalist interpreters, male and female, have
emerged. And these new
‘authorities’ have introduced their own methodologies and approach the law
with their own
presuppositions, proffering interpretations that differ, at times vastly,
from those upheld by
the classical jurists or their heirs. Still, the classical tradition
continues to enjoy the
advantage of in***bency, i.e., of having emerged during a period that
Muslims identify as their
Golden Age. As such, even modern revivalists, often referred to as
Fundamentalists, n6 * grant
the rules of classical [*6] Islamic law a prima facie presumption of
correctness and
authenticity. This is not always the case, however. And when the rules of
the classical
tradition are deemed to be incompatible with their priorities and
perspectives, the Revivalists
will jettison these in favor of interpretations that rely on a more direct
reading of the
Qur’an and Sunna.
One feature, however, of the classical tradition that even Revivalists
have not sought to
discard, at least not formally, is the aforementioned Unanimous Consensus
(ijma’wink of the
recognized Muslim community of interpreters, as the only authority capable
of terminating
disputes over interpretation. This is the source of what I refer to as
Islam’s “Problem of Free
Speech.”
Early in its theological development, Sunni Islam embraced a doctrine of
prophetic
infallibility (’ismat al-anbiya’wink. According to this doctrine, the
Prophet Muhammad, like
all prophets, was divinely protected from committing errors in
interpreting revelation. A
corollary to this doctrine was that only the Prophet was so divinely
protected, as a result of
which, in the period following his death, no individual, including the
Caliph, could claim
interpretive infallibility. Rather, this divine favor was deemed to have
passed to the
interpretive community as whole. In other words, only those
interpretations upon which there
was Unanimous Consensus were held to be binding on the entire community.
Where there was
disagreement, the various disputed views simply had to be left standing.
For in the absence of
the infallible Prophet (or any other individual) to declare this or that
interpretation to be
correct, there was no legitimate, and certainly no objective, basis upon
which to make the
claim that one view was correct to the exclusion of the other views.
This synergy between the classical doctrine of prophetic infallibility and
the juridical
principle of Unanimous Consensus produced in effect pre-modern Islam’s
“Free Speech” provision.
As long as a jurist’s view showed itself to be grounded in authentic and
authoritative sources
and based on recognized methods of interpretation,n8 no one could deny him
the right to express
it—regardless of substance—as long as it did not violate a pre-existing
[*7] Unanimous
Consensus.Concomitantly, while there might be many views that could
justifiably claim to
represent an Islamic position, the only views that could claim to
represent the Islamic
position were those that were backed by Unanimous Consensus. In the
present context, the
possibilities of this juridical pluralism raises a potential problem. For,
since the attacks of
September 11, friend and foe of Islam alike have taken to the practice of
holding up one or
another ("liberal" or “conservative") view as representing the Islamic
position, as part of an
effort to prove that Islam is either the best thing since the invention of
the wheel or an
imminent threat and an offense to humanity. Having no interest in playing
this game, I should
like to proclaim outright that the view I shall express herein represents
only an Islamic view.
The value of my effort resides not in any claim to categorical truth but
in establi****ng the
fact that those who declare Islam to be a religion of peace should be
taken at their word and
seen as representing an authentic interpretation of Islam, rather than
being accused of seeking
refuge in apologetic, politically correct falsifications under the
pressure of post September
11 anti-Muslim mania.
* Fundamentalism, Revivalism, Radicalism are capitalized is for the
purpose of high-lighting
the specific Muslim manifestations of these trends as opposed to the
general.
III. ISLAMIC LAW AND CHANGE
One of the most counterintuitive features of Islamic law is its
receptivity to change and
evolution. This idea runs counter to two widespread notions, one
scholarly, the other popular.
On the scholarly level, the theory of the so-called “closing of the gate
of ijtihad
(independent interpretation),” which enshrined taqlid (commonly [though
erroneously] construed
as “blind following") as the order of the day, is presumed to have led to
rigor mortis in the
law. On this understanding, there is presumably no such thing as change in
Islamic law. As one
scholar put it, “In practical terms ... any legal work composed between
[*8] 800 [CE] and 1800
[CE] may be cited as evidence of classical doctrine.” n11 As I have
established elsewhere,
however, such a depiction fails to appreciate that all legal systems,
including the American
one, are based on authority (and not simply the substance of a view) and
that taqlid is no more
synonymous with “blind following” than is the American institution of
precedent, or stare
decisis. Changes in legal interpretation are, as such, no less inevitable
under an Islamic
regime of taqlid than they are under an American one of stare decisis.n12
On the popular side,
there is the assumption that if God is transcendent and unchanging, so too
must be His law. At
the risk of oversimplifying numerous theological intricacies, suffice it
to say that there is
nothing necessarily contradictory about a transcendent, unchanging God
commanding the
commission of X whenever cir***stance Y obtains, and the abandonment of X
whenever Y changes or
disappears. Under such instructions, it would be, indeed, not change but
its absence that
reflected a disregard for God’s law.
For their part, Muslim jurists devised several interpretive tools and
mechanisms for dealing
with the enterprise of change in Islamic law. For our purposes (and in the
interest of keeping
the discussion simple) the most pertinent of these centers on the issue of
custom (’urf).
In an im****tant work on law, judicature and government, the great Egyptian
jurist of the Maliki
school, ****hab al-Din al-Qarafi (d.684/1285) is asked the following
question:
What is the correct view regarding those rulings upheld in the school of
Malik, al-Shafi’i and
the rest, which have been deduced on the basis of habits and customs
prevailing at the time
these jurists reached these conclusions? When these customs change and the
practice comes to
indicate the opposite of what it used to, are the legal rulings recorded
in the manuals of the
jurists rendered defunct, it becoming in***bent to issue new rulings based
on the new custom?
Or is it to be said, “We [*9] are mere followers of the independent,
authoritative jurists. It
is thus not our place to innovate new rulings, as we lack the
qualifications to do so.
Therefore, we issue rulings according to what we find in the books handed
down on the authority
of the independent, authoritative jurists?”.n13 In his answer, al-Qarafi
emphatically affirms
that a ruling remains valid only as long as the custom or cir***stances on
which it was based
remains in tact and retains the same implications it had at the time the
ruling was originally
reached. Thus, he responds:
Holding to rulings that have been deduced on the basis of custom, even
after this custom has
changed, is a violation of Unanimous Consensus and an open display of
ignorance of the religion.n14
In a more recent work,n15 a Saudi scholar, ‘Adil Qutah, expands on this
topic and notes that in
order to avoid mistakes and issue rulings that are based on sound
interpretations, a jurist
must know at least four things: 1) the meaning the relevant text[s] had
among the Arabs at the
time of revelation, along with the custom that informed this meaning; 2)
the customs prevailing
at the time the classical jurists handed down the rulings contained in the
authoritative
manuals; 3) the prevailing norms and institutions of the society in which
the contem****ary
jurist intends to apply his ruling; and 4) the habits, customs,
proclivities and the like of
the people whose situation the contem****ary jurist intends to address. n16
Qutah approvingly
cites the view of the aforementioned al-Qarafi to the effect that those
who blindly parrot and
apply the rulings contained in the standard manuals to cir***stances far
removed from the time
[*10] and place in which these rulings were reached are in violation of
Unanimous Consensus.n17
In addition to sup****ting statements by several classical and modern
jurists, he cites the
declaration of the Fifth Session of the Islamic Law Academy (Majma’
al-Fiqhi) of the
Organization of the Islamic Conference: “No jurist, neither as judge nor
as an issuer of
non-binding opinions (fatwa), may restrict himself to that which has been
handed down in the
manuals of the classical jurists, failing in the process to pay adequate
attention to changes
in custom."n18
In sum, contrary to the common misconception, neither taqlid (recognizing
the authority of
precedent) nor the divine origins of Islamic law preclude the possibility
of change. On the
contrary, whether it is sought or not, change is simply inevitable. In the
words of Qutah,
It is obvious that any leader (Imam) of any school of law, nay, any
independent jurist
(mujtahid), period, can only devise rulings for his particular time and
place. It is impossible
for him to extract rulings for all times and places. Rather, the most that
he can do is lay
down general precepts, universal rules and basic principles on the basis
of which his followers
and descendants can proceed (to extract rulings).n19
IV. JIHAD
Having now dealt with the basic structure and nature of Islamic law, along
with the principle
of change, we may now proceed to our discussion of jihad. Following the
procedural instructions
outlined by Qutah, we shall begin with the period of revelation and move
forward through the
classical period into contem****ary times.
A. Jihad Among the Arabs at the Time of Revelation
In 1991, professor Fred Donner of the University of Chicago published an
insightful article
under the title “The Sources of Islamic Conceptions of War.” This was part
of an edited volume
entitled Just War and Jihad: Historical and Theoretical Perspectives on
War and Peace in
Western and Islamic Traditions.n20 In this [*11] article, professor Donner
began by questioning
the propriety of relying solely on the Qur’an, the Sunna or the books of
Islamic law for an
understanding of the substance and the logic underlying the medieval
Muslim concept of jihad.
Rather, according to professor Donner, the Muslim valuation and
articulation of jihad was just
as much, if not more, a product of history as it was of religion. This
insight yielded two
extremely im****tant implications. First, just as Islamic theology,
philosophy and jurisprudence
had been informed by perspectives brought by Hellenized and other converts
from the world of
Late Antiquity, so had jihad, in its classical formulation, been informed
by such
Roman-Byzantine concepts as “charismatic victoriousness,” according to
which God would aid the
expansionist endeavors of the empire against all enemies of the religion
or the state.n21
Second, and more im****tant, the whole Qur’anic rationale undergirding the
verses on jihad could
be seen as resting on a particularly intractable reality in 7th century
Arabia. Speaking of
this reality, professor Donner writes,
In this society, war (harb, used in the senses of both an activity and a
condition) was in one
sense a normal way of life; that is, a ‘state of war’ was assumed to exist
between one’s tribe
and all others, unless a particular treaty or agreement had been reached
with another tribe
establi****ng amicable relations.n22
As an historian of Late Antiquity and early Islam, Professor Donner could
substantiate this
view on the basis of several historical sources. The Qur’an itself,
however, confirms this
reality and confers the additional advantage of providing a glimpse into
the early Muslim
perception of the world around them. It should be noted in this context
that it matters little
whether we accept the Qur’an as divine revelation or not. For whether it
came from God or
Muhammad or anywhere else, it certainly reflected the social, historical
and political
realities of 7th century Arabia.
Several verses of the Qur’an depict Arabia’s general “state of war.” For
example, “Do they not
see that We established a safe haven (in the Sacred Mosque) while people
all around them were
being snatched away?"n23 Similarly, “And remember [*12] when you were a
small, marginalized
group in the land living in fear that the people would snatch you
away...."n24 The 106th
chapter appears to be devoted entirely to the twin-themes of societal fear
and security:
For the comforting of Quraysh [the tribe of the Prophet], the comfort of
(being able to
complete) the winter and summer caravans. Let them, then, wor****p the Lord
of this House, Who
banished their hunger with food and their fear with security.
It was, indeed, Arabia’s endemic “state of war” that drove the pre-Islamic
Arabs in desperation
to institute the so-called Forbidden Months (al-Ashhur al-hurum), a
pan-Arabian treaty of
non-aggression, subsequently ratified by the Qur’an, that outlawed all
acts of war initiated
during the 11th, 12th, 1st and 7th months of the lunar year. This
particular sequence was
pegged to the time of the annual pilgrimage to Mecca, which took place in
the 12th lunar month.
The Forbidden Months gave potential pilgrims ample time to travel from
their homes to Mecca,
spend the needed time carrying out the rites of the pilgrimage, and then
make it back to their
homes unmolested by any and all raiders or brigands. The 7th Forbidden
Month provided the same
for those who wished to travel to Mecca during the off-season for a
“lesser pilgrimage.”
Other verses in the Qur’an suggest that part of the reason many of the
Prophet’s contem****aries
hesitated to follow him was their fear that they would lose the sup****t of
their tribes and
allies and thus be rendered fair game for all attackers. For example,
Qur’an 28: 57 reads:
“They say, ‘If we follow the guidance with you we shall be snatched from
our land’.” Similarly,
3: 173 describes the nascent Muslim community as, “Those whom the people
warned, ‘Verily all
the people have lined up against you, so fear them!’.” These and numerous
other verses clearly
indicate that war, as an activity or a condition, was the assumed status
among groups in the
Prophet’s 7th century Arabia. In a sense, one might say that Arabia only
survived as an entity
by virtue of a primitive version of the Cold War “balance of terror.”
The fact that certain groups and individuals in Arabia feared losing the
sup****t of their
tribes is actually much more germane to our discussion than appears at
first blush. For the
dynamic underlying this fear actually explains an [*13] often overlooked
aspect of the Qur’anic
discourse and rhetoric on jihad. Far from depicting the early Muslims as a
brave and warlike
people, one of the most consistent Qur’anic criticisms of them is directed
at their
unwillingness to fight. It is in fact, this need to overcome this
unwillingness that explains
in large part the pungency and urgency of the Qur’anic injunctions to
fight. “Fighting is
prescribed for you, but you despise it;"n25 “Say [O Muhammad], If your
fathers, your sons, your
brothers, your wives, your close associates or moneys that you have earned
or businesses whose
stagnation you fear or homes with which you are pleased are more beloved
to you than God and
His Messenger and waging jihad in His path, then wait until God sends
forth His command. And
God does not guide a people who are corrupt;"n26 “You shall not find a
people who (truly)
believe in God and the Last Day maintaining loving relations with those
who strive to undermine
God and His Messenger, be the latter their fathers, sons, brothers or
close associates;"n27 in
a similar vein, this time showing a sense of indulgence, “God does not
forbid you to have
friendly, mutually respectful relations with those who have not attacked
you because of your
religion and have not turned you out of your homes. God simply forbids you
to take as your
patrons those who attack you because of your religion or turn you out of
your homes or conspire
with others to turn you out of your homes."n28
What these (and numerous other verses) depict is the early Muslims’ deep
sense of divided
loyalties between Islam, on the one hand, and “the old order,” at the
center of which stood the
tribe, tribal alliances and the presumed state of war, on the other. What
the early Muslims had
trouble accepting was not fighting in general (to which they were as used
as anyone else in
Arabia) but fighting that pit them against kith and kin. Ultimately, their
wish was that they
would be able to reconcile the old and the new order in such a way that
enabled them to enjoy
the benefits of both. From the Qur’an’s perspective, however, this could
not be done without
lending sup****t, directly or indirectly, to the very forces whose
existence and way of life
included an active ideological and military opposition to Muhammad. Thus,
the Qur’an sets out
to break the early Muslims’ emotional, psychological and even material
dependency on the “old
order” by forcing them to affirm their commitment to Islam by way [*14] of
a willingness to
fight—in accordance with the existing norm—for the life and integrity of
the new religion.
In sum, by revealing those verses in which the believers are commanded to
wage jihad, the
Qur’an was not introducing the obligation to fight ab initio. On the
contrary, the Qur’an was
simply responding to a pre-existing state of affairs by effectively
redirecting energies that
were already being expended. Moreover, peace, i.e., the repelling of
aggression, rather than
conversion to Islam was the ultimate aim of this fighting. This is clearly
indicated by several
verses, scattered throughout the Qur’an, that clearly envision a terminus
ad quem other than
conversion or annihilation: “If they incline towards peace, then you
incline thereto, and place
your trust in God;"n29 and, “Fight them until there is no oppression and
religion is solely for
God. And if they desist, then let there be no aggression except against
the transgressors;"n30
or even more elaborately, this time speaking of a group of “interlopers”
who had made a career
of playing both ends against the middle, now sup****ting Muhammad, now
colluding against him,
They wish that you would reject faith as they have, so that you would all
be equal. Do not
accept them as patrons until they migrate to join you in the path of God.
If they refuse to
migrate, then seize them and slay them wherever you find them, and do not
accept them as
patrons nor as helpers. Except for those who arrive at the home of a tribe
with whom you have a
treaty, or who come to you in a state of contrition that will not permit
them to fight you or
to fight against their own… If they avoid you and do not fight you
and declare themselves to be in a state of peace with you, then these
people We do not give you
permission to fight.n31
Based on this admittedly narrow sample, it seems clear that the raison
d’etre behind the
Qur’anic injunction to fight was clearly connected with the very specific
necessity of
preserving the physical integrity of the Muslim community at a time and
place when fighting,
sometimes preemptively, sometimes defensively, was understood to be the
only way to do so. To
be sure, Qur’anic injunctions to fight often take on the appearance of a
call to Holy War,
i.e., war based solely on a difference of religion. But this is simply
because the only [*15]
people Muhammad and the early Muslims had to fear were non-Muslims. As de
Tocqueville writes of
19th century France, “The unbelievers of Europe attack the Christians as
their political
opponents rather than as their religious adversaries."n32 To the casual
observer, however, such
a conflict, though politically motivated, would simply show Christians on
one side and
unbelievers on the other, a Holy War to most eyes, if there ever was one.
Yet, when the Prophet
Muhammad died in Medina, at the height of his power, he died in debt to a
Jew. Famous
Companions of his, men like Hudhayfah b. al-Yamam, married Jewish women.
The second Caliph,
‘Umar, under whose reign the Muslim empire expanded more than it did under
any other reign, was
killed by a Christian in Medina. Clearly, on these facts, if the unbelief
of the unbelievers
rather than their real or perceived hostility towards the Muslims had been
the object of those
verses in which the Muslims were commanded to “slay them wherever you find
them,” certainly
Muhammad and his Companions would have understood this and, at the time,
there would have been
nothing to prevent them from carrying this order out.
In sum, even before the Prophet Muhammad, Arabia was characterized by an
overall “state of
war.” The advent of the Prophet’s mission only altered this by altering
the categories with
which the various groups and individuals identified. From this point on,
in the absence of a
peace-treaty (which the Qur’an both sanctioned and sanctified) there would
exist only the
blurriest of distinctions between “non-Muslims” and “hostile forces.” This
is the back-drop and
raison d’etre against which all the Qur’anic material on jihad must be
read.
B. Jihad in the Classical Juristic Tradition
Turning to the post-Prophetic era, classical jurists unanimously divided
jihad into two main
modalities. The first we may refer to as “aggressive jihad,” which is
pro-active, and according
to the majority, constituted a communal requirement to be carried out at
least once every year.
The second modality was the “defensive jihad,” which was waged whenever
Muslim lands were
attacked. This jihad was actually a much more serious affair than its
counterpart, inasmuch as
many of the stipulations and restrictions governing aggressive jihad were
dropped in the case
of defensive jihad. For example, the Muslim ruler did not have to announce
the obligation to
join the defensive jihad nor conscript [*16] soldiers for its prosecution.
Similarly, all those
groups who were normally exempt from participating in the aggressive
jihad, e.g., women,
minors, the elderly, young men who had not been granted permission by
their parents, were
required to participate in defensive jihad.
For our purposes of trying to determine the credibility of the claim that
Islam is a religion
of peace, we may ignore the defensive jihad. For no one would accuse
Islam, or any other
religion for that matter, of not being a peaceful religion simply because
it insisted on
defending itself. We shall thus restrict the remainder of our discussion
to the aggressive jihad.
As I intimated above, the aforementioned “state of war” was not restricted
to Arabia. It
characterized the pre-modern world in general. In his book, Violence and
Civilization, Jonathan
Fletcher writes of Europe in the Middle Ages: “individual lords had to
engage in warfare to
save themselves and their families. If they did not, then sooner or later
they would be
overtaken by another lord and have to submit to his rule or be killed."n33
As late as the 19th
century, Alexis de Tocqueville would reveal vestiges of this perspective
in the United States.
Relating the fears about how the country would be affected if Indians
monopolized the Western
frontier, he cites a contem****ary view to the effect that, “It is ... in
our interest that the
new states should be religious, in order that they may permit us to remain
free."n34 In other
words, according to this understanding, only Christians would permit other
Christians to remain
free. In the case of the Muslim empire, an identical assumption would
collude with the presumed
“state of war” and produce a sense of mission that was reinforced by the
overall medieval
thirst for conquest. Jihad, for its part, like the Roman-Byzantine
“charismatic
victoriousness,” would lend itself well to these ambitions and these
concerns.
Still, the Muslim conquests were neither for the sole purpose of
conversion nor annihilating
the infidel. In addition to the fact that non-Muslims paid higher
taxes—and thus non-conversion
operated to the financial advantage of the state—the rules of jihad
stipulated that non-Muslims
remained free to practice their religion upon payment of the so-called
jizya, or income tax, in
exchange for which the Muslim state incurred the responsibility to protect
them [*17] from
outside attack.n35 While the imperial quest for empire invariably informed
the policies of
every Muslim state, Muslim juristic writings continued to reflect the
logic of the “state of
war” and the assumption that only Muslims would permit Muslims to remain
Muslims. They
continued to see jihad not only as a means of guaranteeing the security
and freedom of the
Muslims but as virtually the only means of doing so. For even
peace-treaties were usually the
result of one’s surrender to demands that had been imposed by a real or
anticipated defeat by
the sword.
To take one example, the juridical writings of the Spanish jurist, Ibn
Rushd the Elder (d.
520/1122), a major legal authority and grandfather of the celebrated
Averroes of Western fame,
clearly reflect the influence of the perceived “state of war.” Because Ibn
Rushd perceived it
to be impossible for Muslims to live as Muslims outside of Muslim lands,
he insisted that it
was forbidden for Muslims to take up residence abroad. In fact, he even
banned travel to
non-Muslim countries for purposes of commerce, going so far as to urge the
ruler to build
check-points and light-houses to stop Muslims from leaving the lands of
Islam. As for
individuals in non-Muslim countries who converted to Islam, Ibn Rushd
insisted that they were
religiously obligated to migrate to a Muslim polity. On this
understanding, it comes as no
surprise that Ibn Rushd endorsed the traditional doctrine on aggressive
jihad as a communal
obligation. During the course of his discussion, however, it becomes clear
that his ultimate
consideration was the security of the Muslims rather than either conquest
or conversion. After
exhausting the point that jihad is a communal obligation, Ibn Rushd comes
to the following
conclusion:
So, whenever we are placed beyond the reach of the enemy and the outlying
districts of the
Muslim lands are secured and the gaps in their fortifications are filled,
the obligation to
wage jihad falls from all the rest of the Muslims ....n36
The purpose of jihad, in other words, is to provide for the security and
[*18] freedom of the
Muslims in a world that kept them under constant threat. This may be
difficult for many,
especially Americans, to appreciate today. But we should remind ourselves
that throughout the
Middle Ages, while one could live as a Jew in Morocco, a Christian in
Cairo, or even a
Zoroastrian in ****raz, one could not live as a Muslim in Paris, London or
the Chesapeake Bay.
Indeed, the “Abode of Islam/Abode of War” dichotomy, cited ad nauseam by
certain Western
scholars as proof of Islam’s inherent hostility towards the West, was far
more a description of
the Muslim peoples of the world in which they lived than it was a
prescription of the Islamic
religion per se.n37
C. Jihad in the Modern World
As we proceed to our discussion of the legal status of jihad in modern
times, I should like to
clarify the meaning of the claim that Islam is a religion of peace.
“Religion of peace” does
not imply that Islam is a pacifist religion, that it rejects the use of
violence altogether, as
either a moral or a metaphysical evil. “Religion of peace” connotes,
rather, that Islam can
countenance a state of permanent, peaceful coexistence with other nations
and peoples who are
not Muslims. In other words, contrary to the belief that Islam can only
accept a world that is
entirely populated by Muslims and, as such, Muslims must, as a religious
duty, wage perpetual
jihad against non-Muslims, Islam can peacefully coexist with non-Muslims.
This position, I
shall argue, is no more than the result of an objective application of
principles of Islamic
jurisprudence which no jurist or activist, medieval or modern, has claimed
to reject.
We have seen that a perennial “state of war” informed both the Qur’anic
and the classical
articulations of jihad. In effect, this “state of war” constituted what
Muslim jurists refer to
as the custom or prevailing cir***stances underlying the law. The assumed
relation****p, in
other words, among nations and peoples in both the Qur’an and pre-modern
Islamdom was one of
hostility. In such a context, jihad emerged as the only means of
preserving the physical
integrity [*19] of the Muslim community. The 20th century has introduced,
however, major
changes to this situation. Beginning with the Covenant of the League of
Nations after WWI and
culminating in the signing of the United Nations Charter after WWII, the
territorial integrity
of every nation on earth has been rendered inviolable. In effect, this
development dismantled
the general “state of war” and established peace as the assumed and normal
relation****p between
all nations. This was an unprecedented development in the history of the
world, certainly as
Muslims had known it. For, again, the assumed relation****p between Muslims
and the peoples
surrounding them had always been one of hostility. This fundamental
difference between the
prevailing reality of premodern and modern times both justifies and
requires a different
interpretation and application of all scriptural and juridical injunctions
that command Muslims
to wage jihad against non-believers. Contrary to the situation dictated by
a prevailing “state
of war,” under a “state of peace,” there is no obligation to wage
aggressive jihad. Classical
law manuals do not reflect this view (Ibn Rushd being the exception that
proves the rule); nor
should one expect them to. For not only was peace not the prevailing
medieval order, it was
part of the medieval “unimaginable.” By contrast, numerous modern jurists,
from Ra****d Rida to
‘Abd al-Wahhab Khallaf to Wahbah al-Zuhayli, have confirmed Islam’s
commitment to peaceful
coexistence with non-Muslims.n38
To be sure, this manner of argument will appeal to many liberal-minded
observers, Muslim and
non-Muslim alike. It is in fact a common practice among those who argue
for change and reform
in Islam to insist that this or that change wrought by modern developments
requires a different
interpretation and or application of Islamic law. It should be noted,
however, that the ****ft
from a “state of war” to a “state of peace” is much more easily achieved
on paper than it is on
the ground. And, according to the relevant principle of Islamic
jurisprudence, the only changes
in prevailing cir***stances that can serve as a cause for changes in the
law are those that are
actually realized in the lives of the people. The fact that a community of
lawyers or Muslim
intellectuals, based on the state of discussion in their respective
fields, conclude that the
[*20] world has ****fted from a “state of war” to a “state of peace” is not
sufficient to
establish this as a probative change in custom. This is clearly
established by the
aforementioned al-Qarafi in a passage dealing with the effect of custom on
the status of
expressions used as formulae for divorce:
It is not enough that the jurist believes that a particular expression has
become customary (as
a formula for divorce). For his belief of what has become customary may
stem from his training
in the madhhab and his persistent study and disputation in the law.
Rather, for an expression
to become customary is for the common folk of a particular locale to
understand one thing only
whenever they hear it, not from the mouth of a jurist but from one of
their own and according
to their use of this expression for this particular purpose. This is the
“becoming customary”
that is sufficient to transform the literal meaning of an expression to a
legally binding
meaning based on custom.n39
Two im****tant implications emerge from this. First, the ****ft from the
“state of war” to the
“state of peace” cannot be simply asserted but must be confirmed on
ground. As such, there may
arise disagreements among Muslims regarding the obligation to wage jihad,
not over whether or
not jihad remains an obligation even under a “state of peace,” but over
whether or not an
actual “state of peace” exists. Second, the major powers, especially the
United States as the
lone superpower, bear an enormous responsibility towards the world
community, inasmuch as their
policies and actions, more than those of others, have the capacity to
confirm or undermine the
newly established and admittedly fragile “state of peace.” To the extent
that powerful nations
flout Article I of the UN Charter, they actually contribute to the
re-emergence of the medieval
“state of war,” with all that that implies in terms of relations among
nations.
[*21] 1. The Counter View
The terrorist attacks of September 11 have put Muslim leaders and
intellectuals, especially
those in the West, on the defensive, a corollary to which has been a rush
to extirpate all
traces of violence from Islam. This is understandable, given the enormous
pressure being
applied by the media and government agencies in search of assurances from
Muslims. But there is
also a dangerous side to this approach. For it carries the potential to
radicalize the Muslim
m***** by undermining the credibility of Muslim leaders and intellectuals,
who come to be seen
as being more interested in appeasing the government-media complex than in
defending the
integrity of Islam and Muslims. In the end, the very people who are being
pressured by the
government-media complex to explain away and provide alternatives to
extremist and wrong-minded
views end up losing the m***** and thus consigning them to the very views
that they are
supposed to be displacing.
The views of the so-called Muslim Radicals cannot be simply ignored out of
fear of bringing
Islam under indictment. Nor can they be dismissed as the mindless rantings
of a tiny,
vociferous fringe or the politically motivated dribble of simpletons who
just don’t understand
the grand and glorious tradition of classical Islam. For, rightly or
wrongly, these views
constitute the going opinion in many quarters. And, the authors of these
views are often men of
immense standing who wield enormous authority in the Muslim world and
beyond. If the American
government-media complex or American Muslim apologists can condemn or
dismiss these views as
extreme or unfounded, it should surely be no more difficult for the latter
to dismiss their
detractors as un- or insufficiently Islamic. Clearly, a more productive
approach would be to
search for ways of drawing Muslim Radicals into a logic that is both
shared and esteemed by
them and capable of serving as a basis for moving them beyond the blind
and reckless radicalism
that often characterizes their views.n40
[*22] Given the limitations of space, I shall be able to engage the view
of only one such
Radical, by many accounts, the most im****tant of them.n41 This is the
redoubtable Sayyid Qutb,
chief ideologue of the Muslim Brotherhood, who was executed by the
Egyptian government in 1966
and whose commentary, In the Shade of the Qur’an is perhaps the most
widely-read Qur’anic
exegesis in the Muslim world. Indeed, for those who think that I might be
conveniently avoiding
Usamah b. Ladin, a child born in the Arab world twenty years from now will
probably know little
more of Usamah than his name. At some point in his life, however, if he is
religious, that
child will probably be exposed to, if not imbibe, the writings of Sayyid
Qutb. Whereas Usamah
b. Ladin’s effectiveness is linked almost exclusively to his ability to
tap into the shared,
negative experience of modern Muslims, Qutb grounds his views in a
meticulously crafted
methodology of Qur’anic interpretation, which he holds up as the best, if
not the only, way to
read the Qur’an. Perhaps more than any other Muslim thinker in modern
times, his interpretive
efforts have succeeded in sustaining the argument that the heirs of the
classical tradition
have bowed to the modern secular state’s attempt to “domesticate” Islam,
to borrow the term of
Stephen L. Carter. According to Carter, in response to religion’s higher
calling, on the basis
of which it may oppose the material interests of the state, “the state
tries to move religion
from a position in which it threatens the state to a position in which it
sup****ts the
state."n42 This is largely the basis upon which Qutb has been able to
appeal to the m***** as
an alternative to the classical tradition.
As a modern Revivalist, Qutb all but ignores the classical tradition of
the madhhabs and relies
almost exclusively on the Qur’an. Based on his reading of Qur’an 9:29, he
insists that waging
jihad against the People of the Book (Jews and Christians) is a permanent,
communal obligation
upon the Muslims.
Fight those who do not believe in God and the Last Day and do not forbid
that which God and His
Messenger have forbidden and do not [*23] practice proper religion, among
those who were given
the Book until they pay the poll-tax and they are subdued.
According the Qutb, the ninth chapter, in which this verse appears, was
among the last to be
revealed. As such, this verse constitutes the last and final stage of
development in the
Qur’anic doctrine on Muslim-non-Muslim relations. While Qutb was not a
jurist trained in the
classical tradition, contrary to the popular stereotype about Muslim
Radicals, he was also not
a literalist. Rather, he insists on a “dynamic” reading of the Qur’an,
reminiscent of the
position of the classical jurists exemplified in the above-cited al-Qarafi
and Qutah. According
to this “dynamic” reading, the concrete cir***stances on the ground are to
inform both the
interpretation and application of the text. In Qutb’s own words,
The legal rules of Islam are, and always will be, subject to a certain
dynamism in accordance
with the Islamic approach. And it is not possible to understand the texts
of scripture in
isolation from this reality. Indeed, there is a fundamental difference
between reading the
verses of scripture as if they existed in a vacuum and reading them in
their
dynamic context in accordance with the Islamic approach.n43
In this particular case, however, Qutb insists that as an historical fact
Jews and Christians
have always proved themselves to be hostile to Muslims. As proof, he
adduces several verses
from the Qur’an, which he takes to constitute scriptural evidence of the
inherent beliefs and
attitudes of Jews and Christians (rather than as a scriptural description
of the attitude of
particular Jews or particular Christians at particular places and times).
In addition, he
relates a series of historical events, from the Crusades to modern
colonialism. From this it
becomes clear that it is Qutb’s belief that Jews and Christians (which one
senses he uses as a
catch-all for the West) are inherently hostile towards Muslims that
informs his reading of 9:
29. This belief, moreover, is so strong and overpowering that it preempts
all other
possibilities, including those established by the Qur’an itself. For
example, at 5: 82, the
Qur’an states, “You will find those who are most closely drawn to the
Believers in love to be
those who say, ‘We are [*24] Christians’.” Similarly, speaking this time
of both Jews and
Christians, Qur’an 3: 113-14 states, “They are not all the same. Among the
People of the Book
are those who stand at night reciting the words of God and prostrating.
They believe in God and
the Last Day, they command what is good and forbid what is evil and they
strive in the path of
righteousness. Indeed, they are among the righteous.”
What all of this suggests is that Qutb’s understanding of the Qur’anic
doctrine on Muslim-
non-Muslim relations is as informed by his own reading into the text as it
is by his attempt to
extract meaning from the text. For the Qur’an clearly establishes a range
of possible attitudes
and behaviors on the part of Jews and Christians towards Muslims.
Moreover, at least as many if
not more exegetes, classical and modern, hold chapter five (which speaks
of Christian love for
Muslims) to be the last-revealed chapter as hold chapter nine to be so. As
such, on purely
formal grounds, one could just as rightly argue that chapter five reflects
the final teaching
on Muslim - non-Muslim relations. What brings Qutb to privilege 9: 29 and
to construe it in the
manner he does seems to be his historical *****sment, based in part on his
own experience, of
the attitude of Jews and Christians towards Muslims. On this *****sment,
one would have to
admit that whether we employ his “dynamic” method or the classical
jurisprudence exemplified by
al-Qarafi, Qutb is certainly correct in the conclusion he draws. But, it
is equally true, on
both approaches, that this conclusion could be overturned, assuming a
different historical
*****sment. In other words, assuming that Jews and Christians are no
longer active enemies of
Muslims, or that there are political mechanisms in place that prevent them
from acting on this
hostility, even Qutb (or his followers), on his own methodology, could be
convinced to modify
his interpretation of 9: 29. In sum, assuming an overall “state of peace,”
even Qutb might be
forced to concede that there is no obligation to wage jihad against Jews
and Christians.
Having said this much, there does appear to exist one potential stumbling
block. This is Qutb’s
insistence that the only realities to which Muslims are obligated to
respond in adjusting their
interpretations and applications of scripture are those that are the
result of Muslim efforts.
n44 In other words, developments such as the League of Nations or the
United Nations, which
were not the products of strictly Muslim efforts, are of no probative
value in interpreting the
Qur’an or deducing the rules of Islamic law. To be sure, [*25] there is a
glaring (and
redeeming) weakness in this position. For even the most casual
acquaintance with the sources of
Islam reveals that this principle cannot claim to derive from the Qur’an
or the practice of the
Prophet. Indeed, the Prophet can easily be shown to have endorsed all
kinds of realities that
were not the products of Muslim efforts, from the system of tribal
alliances to “the Forbidden
Months” to honoring pagan marriages contracted before Islam. In short,
what matters in legal
deliberations is, ceteris paribus, the concrete situation on the ground,
not the agency via
which that situation is brought into being. As such, the transformations
effected by the U.N.
Charter should be deemed no less probative than those effected by the
pre-Islamic pagan Arabs.
V. CONCLUSION
I have argued that Islam is a religion of peace. I have based this
argument on the assertion
that a prevailing “state of war,” rather than difference of religion, was
the raison d’etre of
jihad and that this “state of war” has given way in modern times to a
global “state of peace”
that rejects the unwarranted violation of the territorial sovereignty of
all nations. Assuming
the factual verity of this “state of peace,” even Radicals like Sayyid
Qutb could be convinced
of the veracity of my argument affirming Islam’s fundamental commitment to
peace. Ironically,
however, it is precisely here that a super-power like the United States is
put in a position to
contribute directly to the Muslim valuation of jihad in the modern world.
Lamentably, U.S.
actions such as the 1999 bombing of Sudan and Afghanistan, its
acquiescence in the face of
Israeli incursions into south Lebanon and the Occupied Territories, its
talk of an impending
invasion of Iraq and its sabre-rattling with Iran all undermine the
credibility of any
presumption of a new world “state of peace.” Still, I would argue, these
unfortunate challenges
notwithstanding, the principle of territorial inviolability continues to
enjoy general
recognition throughout the world community. And it is this general
recognition that sustains my
commitment to the doctrine that Islam is a religion of peace.
In the end, however, whether Islam actually functions on the ground as a
religion of peace will
depend as much on the actions of non-Muslims as it does on the religious
understanding of
Muslims. Muslims will have to make a more courageous and assiduous
commitment to the principle
that recognizes changes in cir***stances as a basis for changes in the
law, what Sayyid Qutb
[*26] himself referred to as the “dynamic” method of interpretation.
Muslims will also have to
avoid the fallacy of assuming that the realities of yesterday pass
automatically into today or
that the factual or historical *****sments of the Muslims of the past
constitute authoritative
doctrines that are binding on the Muslims of the present. As for
non-Muslims, they will have to
make a more conscious and sustained effort to conduct their military,
economic and political
affairs in a fa****on that actually confirms the new world order of the
United Nations Charter,
by respecting the dignity and territorial integrity of Muslim and other
nations, including
variations on what the U.N. Charter refers to as “Trust Territories."n45
They will have to
refrain from acting in a manner that expresses or implies aggression and
pushes the world back
toward the dark ages of the “state of war.” For under the latter
condition, the aggressive
jihad of the premodern world will find both practical justification and
religious sanction. In
these our times of weapons of mass destruction, spiraling conflicts and
renewed aggression, let
us hope that all of us, Muslims and non-Muslims alike, will recognize just
how quickly we may
be moving toward the abyss and, in light of this, seize the op****tunity to
make our respective
contributions to a better, safer world.
FOOTNOTES:
n1 Qur’an, 2: 191. All translations of Qur’anic material in this essay
will be my own.
n2 See his Introduction to Islamic Law (Oxford: Clarendon Press, 1961), 5.
One should note that
many of the views in this work are now dated.
n3 A Mediterranean Society, 4 vols. (Berkeley: University of California
Press, 1967-83), 1: 66.
n4 The state preserved, however, certain discretionary powers to
supplement the law with edicts
designed to fill gaps or accommodate the unanticipated, e.g., requiring
licenses to practice
medicine. These edicts, however, were not the result of any “legal
interpretation,” and
generally lasted no longer than the regime that issued them. The madhhab,
on the other hand,
transcended political regimes and reigned as the most permanent
institution in Islam. On some
of the discretionary powers of Muslim governments, see my Islamic Law and
the State: The
Constitutional Jurisprudence of ****hab al-Din al-Qarafi (Leiden: E.J.
Brill, 1996), 133-41; see
also Frank Vogel, Islamic Law and Legal System (Leiden: E.J. Brill, 2000),
169-308.
n5 That is, the fact that the attacks had obviously not fulfilled the
formal obligation that
jihad be initiated by the Caliph or Imam (the tem****al leader of the world
community of
Muslims) did not stop anyone from assuming that the attackers were acting
on some construction
of their religious obligation as Muslims. One should also note, however,
the distinction (see
note 38, below) between jihad and terrorism.
n6 This appellation has acquired a certain currency, due to its popularity
in discussions of
certain Christian groups. One should note, however, that while literalism
among Christian
groups generally results in views considered by society at large to be
socially conservative or
even extreme, literalist interpretations proffered by Muslim Revivalists,
especially women,
often result in liberal alternatives to traditionally held views. For
example, literal readings
of the Qur’anic verses on polygyny have been endorsed by some women either
to place unbearable
restrictions on the institution or to ban it altogether.
n7 More recently, the significance of this doctrine has reemerged in
disputes over the Salman
Rushdie affair. For an informative and insightful treatment of both The
Satanic Verses and the
classical doctrine of ‘ismah, see Shahab Ahmed, “Ibn Taymiyya and the
Satanic verses,” Studia
Islamica vol. 87 no. 2 (1998): 67-124, esp. 70-74, 86-90, 100 and passim
n8 These were defined under the discipline of usul al-fiqh (lit. the
sources of knowledge and
understanding of the law).
n9 For a real sense of the seriousness with which this principle is taken,
see I. K. Nyazee,
The Distinguished Jurist’s Primer (a translation of Ibn Rushd’s, Bidayat
al-mujtahid wa nihahat
al-muqtasid) (United Kingdom: Garnet Publi****ng, 1995), where the
different views of all four
Sunni schools, plus the Zahirites and ****ites of classical times are
catalogued.
n10 Modern Muslims, especially Revivalists, often attempt to get around
the Rule of Consensus
by raising their voices or resorting to ad hominem diatribes or
emotionally charged invectives.
Recognizing, however, that the modern state is the only likely candidate
to replace Unanimous
Consensus as the final arbiter, even the Revivalists tend to fall short of
disavowing ijma’ as
the only repository of infallibility.
n11 Patricia Crone, from her Roman, Provincial and Islamic Law cited in W.
Hallaq, “Usul
al-Fiqh: Beyond Tradition,” Journal of Islamic Studies vol. 3 no. 2
(1992): 176. The assertion
of Professor Crone can be easily proven, incidentally, to be patently
false. See, e.g., my
Islamic Law and the State, 96-102.
n12 See, e.g., my State, 79-102; idem, “Kramer versus Kramer in a
Tenth/Sixteenth Century
Egyptian Court: Post-Formative Jurisprudence Between Exigency and Law,”
Journal of Islamic Law
and Society vol. 8 no. 1 (2001): 27-51.
n13 Kitab al-ihkam fi tamyiz al-fatawa ‘an al-ahkam wa tasurrufat al-qadi
wa al-imam, ed. ‘Abd
al-Fattah Abu Ghuddah (Aleppo: Matba’at al-Matbu’at al-Islamiyah,
1387/1967), 231.
n14 Tamyiz, 231.
n15 Al-’Urf: hujjiyatuhu wa atharuhu fi fiqh al-mu’amalat al-maliyah ‘ind
al-hanabilah (Custom:
Its Probative Value and Implications in the Islamic Law of Monetary
Transactions According to
the Hanbalite School) 2 vols. (Mecca: al-Maktabah al-Makkiyah, 1418/1997).
n16 al-’Urf, 1: 59-72. It should be noted that Qutah is speaking about the
rules of criminal
law, civil transactions and the like (mu’amalat) that are reached on the
basis of the scholarly
efforts (ijtihad) of the jurists, not those for which there are explicit,
univocal texts or
those involving religious observances (’ibadat), such as fasting and
prayer.
n17 al-’Urf, 1: 64.
n18 al-’Urf, 1: 66.
n19 al-’Urf, 1: 60.
n20 Ed. J. Kelsay and J.T. Johnson (New York: Greenwood Press, 1991),
31-70.
n21 Just War and Jihad, 34.
n22 “Sources,” 34. Emphasis added.
n23 29: 67.
n24 8: 26.
n25 2: 216.
n26 9: 24.
n27 58: 22.
n28 60: 8.
n29 8: 61.
n30 2: 193.
n31 4: 89-90.
n32 Democracy in America 2 vols. (New York: Vintage Books, 1990), 1:314.
Emphasis mine.
n33 J. Fletcher, Violence and Civilization: An Introduction to the Work of
Norbert Elias
(Cambridge: Polity Press, 1997), 33. Emphasis not added.
n34 Democracy, 1:307.
n35 The jizya is an income tax levied on non-Muslim men who are exempted
from military but gain
the right of the protection of the Muslim State.
n36 Al-Muqaddimat, 4 vols. (Beirut: Dar al-Fikr, N.d.), 1: 374 (on the
margins of al-Mudawannah
al-kubra).
n37 Indeed, the concept and function of the “Abode of Islam/Abode of War”
dichotomy has been
grossly exaggerated and often misrepresented. For example, the towering
Shafi’i jurist, Abu
al-Hasan al-Mawardi (d. 450/1058), includes among the definitions of the
“Abode of Islam” (Dar
al-Islam) any land in which a Muslim enjoys security and is able to
isolate and protect
himself, even if he is unable to promote the religion. See al-Hawi
al-kabir 18 vols. ed. A. M.
Mu’awwad and A. A. ‘Abd al-Mawjud (Beirut: Dar al-Kutub al-’Ilmiyah,
1414/1994), 14: 104.
n38 See, e.g., Muhammad Ra****d Rida, Tafsir al-manar 12 vols. (Beirut: Dar
al-Kutub
al-’Ilmiyah, 1420/1999), 10: 257-91 (and compare his exegesis of 9: 29
with that of Sayyid Qutb
(see below)); ‘Abd al-Wahhab Khallaf, al-Siyasah al-shar’iyah (Cairo:
Matba’at al-Taqaddum,
1397/1977), 64-84; Wahbah al-Zuhayli al-Fiqh al-islami wa adillatuh 9
vols. (Damascus: Dar
al-Fikr, 1417/1996), 9: 925-41.
n39 Tamyiz, 243. Divorce in traditional Islamic law was not a judicial
proceeding but was
initiated by the husband’s uttering a “pronouncement of divorce.” Since
the expressions used in
these pronouncements were not dictated by scripture, much ink was spilled
over the question of
which expressions constituted “pronouncements of divorce.” This is the
point of al-Qarafi’s
argument.
n40 One should note that even if it should be concluded that jihad against
America is a
communal obligation, this would not justify the terrorist attacks of
September 11. For the law
of jihad does not condone terrorism, which Islamic law basically defines
as publicly directed
violence against which the reasonable citizen, Muslim or non-Muslim, is
unable to take
safe-keeping measures. For a treatment of terrorism in Islamic law, see my
“Domestic Terrorism
in the Islamic Legal Tradition,” The Muslim World vol. 91 no. 1 (2001):
227-51. This article,
incidentally, was the result of lectures delivered before September 11 at
the University of
Michigan Law School in November of 1999 and Georgetown University Law
School in February, 2000.
n41 For a radical view from a more traditional perspective, see ‘Abd
al-Malik al-Barrak, Rudud
‘ala abatil wa shubuhat hawla al-jihad (’Amman: al-Nur li al-I’lam
al-Islami, 1418/1997).
n42 God’s Name in Vain: The Wrongs and Rights of Religion in Politics (New
York: Basic Books,
2000), 30.
n43 Fi zilal al-qur’an 6 vols. (Cairo: Dar al-Shuruq, 1417/1996), 3: 1631.
n44 For Qutb’s entire discussion on 9: 29, see Zilal, 3: 1619-50.
n45 Article 77 reads: “(1) The trustee****p system shall apply to such
territories in the
following categories as may be placed thereunder by means of trustee****p
agreements: (a)
territories now held under mandate; (2) territories which may be detached
from enemy states as
a result of the Second World War; and (3) territories voluntarily placed
under the system by
states responsible for their administration.” For a commentary on these
provisions see B. Simma
(ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford
University Press, 1994),
948-62.
Originally published in Journal of Islamic Law and Culture, Spring /
Summer, 2002 and online at
http://users.tpg.com.au/dezhen/jihad_and_the_modern_world.html
Reprinted in TAM with permission of the author.
** Posted from http://www.teranews.com
**
|
