Al-Shaybani and the Islamic Law of War

Transcription

1 Journal of Military Ethics (2003) 2(1): Editor s note: In this special column of the Journal of Military Ethics we highlight important historical contributions to the ethics of war, peacemaking and military affairs. In this issue Professor of Religion at Florida State University John Kelsay examines the development of the Islamic law of war as represented by Muhammad ibn al-hasan (al-shaybani) and the Hanafi school. Al-Shaybani and the Islamic Law of War John Kelsay Princeton University Center for Human Values, 5 Ivy Lane, Princeton, NJ , USA Tel: , Fax: , jkelsay@princeton.edu One of the ways Islamic tradition addresses questions of military ethics is through inquiries into the shari a, indicating the ideal way of life and usually rendered as Islamic law. Discussion of the shari a includes an extended conversation concerning the justification and conduct of war. The work of al-shaybani (d. 804) and other early scholars in the Hanafi school illustrates an important moment in this conversation, establishing precedents to which subsequent generations of Muslims (including contemporary Muslims) must respond. Further, the accomplishments of these scholars provide an important example to all those engaged in thinking about military ethics. KEYWORDS: al-shaybani, Islam, law of war, just war tradition, military ethics. Introduction In recent months, if not before, readers will have come to know the Arabic term jihad, particularly in association with the program of al-qa ida and other radical groups. Given this association, some may be surprised to learn that the term does not mean holy war. It is better translated as effort, struggle, or striving. In its typical presentation, jihad is further joined with the phrase in the path of God. Muslims who speak of the duty of jihad are thus referring, in the first place, to a moral duty. Given this general formulation, jihad admits of numerous applications. Prayer, worldly work, faithfulness in keeping promises all these can be, and have been associated with the symbol of jihad. That said, there can be no question that one of the approved modes of struggle in the path of God has a military cast. This is indicated, for example, at Qur ān 2:190: 2003 Taylor & Francis

2 64 J. Kelsay Fight in the path of God Those who are fighting you; But do not exceed the bounds. God does not approve transgressors. 1 Throughout the history of Islam, jihad and military action have been associated. Under certain conditions, the latter is an approved or even a required activity. Under certain conditions this phrase needs special emphasis. The current identification of jihad with the phrase holy war suggests to many a struggle that knows no bounds. As even a cursory glance at Islamic sources will show, nothing could be further from the truth. Qur ān 2:190 (above) catches this quite well: fight against those who fight you, but in the process do not go beyond approved limits. The text suggests a kind of warrior code already known to fighters in the time of the Prophet Muhammad (d. 632). For subsequent generations of Muslims, the text presents a challenge. As the face of war changes, what are the bounds warriors may not transgress if they are to consider themselves as fighters in the path of God? In this paper, I focus on the answers provided by one group of Muslim scholars whose work is associated with the name of Muhammad ibn al-hasan, also known as al-shaybani, who lived from 750 to 804. The work of al-shaybani s school constitutes one of the first great contributions to the siyar. Sometimes identified with the law of nations, the category of siyar includes discussions of the justification and conduct of war. Following a discussion of the contributions of al-shaybani s school, I turn to subsequent developments. I conclude with some comments on recent events, in which bands of irregular fighters (for example, al-qa ida) appeal to the tradition of the siyar in justifying their actions. Al-Shaybani and the Art of Shari a Reasoning Al-Shaybani lived in Iraq. Born in al-wasit, a military town (his father was a soldier), al-shaybani displayed an early gift for learning. He became a part of the circle of scholars gathered around Abu Hanifa (d. 767) and Abu Yusuf (d. 795). By the time of his death, al-shaybani s name would be mentioned along with these as one of the early masters of the Iraqi or Hanafi school (Khadduri 1966, Chaumont 1997). All through the 8th and 9th centuries, such circles of scholars grew in association with the spread of Islam. Each displayed a characteristic approach to answering questions about the shari a, the Islamic law or more properly the ideal path in life. For example, al-shaybani and his colleagues paid special attention to the role of juristic reasoning. The Qur ān and the practice of the early Muslims (that is, Muhammad and his companions) established a base of precedent. For the Iraqi or Hanafi school (with which al-shaybani was associated), shari a reasoning 1 See, among other verses, 2:191, 2:216, and 22: The translation reflects that of Yusuf Ali, with some alterations to reflect my sense of the Arabic text.

3 Al-Shaybani and the Islamic Law of War 65 could not proceed without reference to this. There is an inevitable gap between precedents set in the 7th century and the questions of subsequent generations, however. That space is filled by the reasoning of the learned, or so this school argued. Given this, the opinions (fatawa) of established scholars provide a new set of precedents, built on the foundation of the example of the early Muslims yet extended to provide guidance in new and different situations (Schacht 1950, Khadduri 1966). With this line of thought, al-shaybani and his colleagues began to establish shari a reasoning as a trans-generational conversation among Muslims. Eventually, scholars associated with the recognized schools of Sunni Islam would agree that their common task of providing guidance concerning the shari a involved answering the questions of their day by means of interpretation of the Qur ān and reports of Prophetic practice, consideration of precedents set by earlier generations of scholars, and scholarly reasoning. 2 The masters of the Iraqi school practiced the art of shari a reasoning during the early years of the Abbasid caliphate. Al-Shaybani and Abu Yusuf served as advisers in the court of Harun al-rashid, who ruled in Baghdad from 786 to 809. Most typically associated (in the minds of Europeans and North Americans) with the courtly tales collected in the Thousand and One Arabian Nights, al-rashid presided over a far-flung, unwieldy empire. The conquests of the 7th century gave Islam hegemony over most of the Near East. By the latter third of that century the center of power came to be located in Damascus, from whence successive members of the Umayyad clan wielded power. In the 740s a number of local opposition parties joined together under the umbrella of the Abbasid clan, and by 750 the Umayyads were in permanent retreat, their power restricted to the shadow empire based in the Iberian Peninsula (Hodgson 1974: vol. 1, ). At the time of al-rashid, consultation with learned men of religion was an established mode in the legitimation of policy. The caliph asked scholars like al-shaybani for opinions regarding the administration of the army and the treatment of dissidents. Such consultation gave a practical dimension to the art of shari a reasoning. It also carried the possibility of the rulers disapproval. Thus we read in the History of al-tabari (d. 923) of the disagreement between al-shaybani and Abu al-bakhtari (another Iraqi scholar) concerning the treatment of Yahya b. Abdallah b. Hasan. Frustrated with the behavior of this early leader of the Shi a, al-rashid wanted to treat Yahya as an enemy of the state. This was made difficult by al-rashid s earlier grant of an aman or writ of safe conduct to Yahya. The caliph sought the advice of his lawyers regarding the status of the writ. Al-Shaybani argued that it remained valid; Abu al-bakhtari argued that Yahya s behavior rendered the aman void. Abu al-bakhtari carried the day, and al-shaybani lost his official post! Interestingly, al-shaybani would later be restored, and died serving al-rashid during a campaign against rebels in Khurasan; his judgments would become standard precedent in the Iraqi/Hanafi school. From the standpoint of history, Abu al-bakhtari is a less significant figure (Bosworth 1989: 125). 2 Here, sunni simply indicates the majority perspective. Shi i scholars always insisted that reports of Prophetic practice be validated by a designated Imam or leader, and thus that the practice of the imams was an authoritative source for shari a reasoning (Sachedina 1988).

4 66 J. Kelsay Our subject is thus the work of a scholar, or really a circle of scholars, who contributed to the development of normative Islamic thought in the early years of the Abbasid caliphate. Our information regarding their judgments is limited. In the case of al-shaybani, traditional sources inform us that he was a prolific author, not least on the subject of the siyar. Most of these works are unavailable to us, however. The primary exception is the chapters on the siyar contained in a larger work on the fundamentals of shari a reasoning. Conveniently translated into English (Khadduri 1966), this material provides an important illustration of the reasoning of these early masters, and also of important precedents with which subsequent generations of Muslims had (and have) to deal. Indeed, the form of the text demonstrates that it was meant to be read by scholars looking for established precedents. The work is basically a compendium of judgments rendered by Abu Hanifa, Abu Yusuf, and al-shaybani in response to specific questions. Should Muslim troops employ hurling machines against a fortified city? Must a warrior pay blood money to atone for the foreseen but unintentional killing of noncombatants? The answers given are the opinions of the school of Abu Hanifa, inclusive of al-shaybani. The way the text worked is demonstrated by its source: the 11th-century Hanafi scholar known as al-sarakhsi preserved it, and appended an extensive commentary on the precedents of the masters. One generation looks back to the wisdom of its predecessors; as it explains its understanding of such precedent, and also of its sense of the issues of the present day, the art of shari a reasoning is preserved for a generation yet to come. 3 Reading in al-shaybani s Siyar What is it that al-shaybani (or, as indicated, the early masters of the Hanafi school) had to say? In answering this question, two general points are significant. First, the topic is set as al-siyar or movements of people between and within specific territories. This already sets discussions of war in a particular political context. For al-shaybani, the world is divided into territory governed by Muslims (dar al-islam or the house of Islam, also called a place of security throughout the text), and territory governed by others. Given that this last is designated as dar al-harb (that is, the house of war ), the movements of greatest concern are those that involve Muslim fighters crossing the borders in an effort to open non-muslim territory to the civilizing influence of Islam. Interestingly, the text seems completely unconcerned about the prospect of non-muslim fighters crossing into Islamic territory a topic with which later generations would be preoccupied. For al-shaybani and his colleagues, the overriding issue then is the relationships between groups of people living in one or the other of these territorial designations. Muslim fighters who cross into the territory of war relate to harbiyya or war people, who may then be subdivided into groups of fighters (all men able to bear arms) and non-fighters (women, children, the old, and the disabled are prima facie in this 3 This is the place to mention the very important questions raised by Calder (1993) regarding the dating, transmission, and thus the historical location of this and other shari a texts. I cannot go into the topic in this paper, though I hope to take account of these matters in future work.

5 Al-Shaybani and the Islamic Law of War 67 category, unless and until they take up arms). Within the territory of Islam, there are Muslims; these relate in the first place to the non-muslim groups designated as ahl al-dhimma or protected people. The latter have obligations of tribute to specified Muslim rulers, which, so long as they are fulfilled, keep the protected peoples free from harm. There are also ahl al-bughat or rebels ; these are Muslims who challenge the authority of the established ruler. Al-muharribun are brigands or highwaymen from whom the residents in the territory of Islam, Muslim and dhimmis deserve protection. And ahl al-murtadd are apostates, Muslims who turn away from Islam and thus must be called to repentance and/or punished. Al-Shaybani s siyar attends to each of these groups. The specific rules related to the conduct of armed force differ according to which of the groups is involved. To put it another way, the rules differ according to territorial context. Concern with territoriality and group relations run throughout the text. These represent religiopolitical realities that are fundamental to Hanafi reasoning. A second general point: as already mentioned, al-shaybani s text is a mine of information regarding the conduct of war. However, any reader opening the text will immediately be struck by the predominance of administrative issues in the questions addressed. Thus, early on we read that: Abu Yusuf said: I asked Abu Hanifa concerning the food and fodder that may be found in the spoil and whether a warrior in need may take from that spoil for himself and his mount (Khadduri 1966: 96). 4 As we are given to understand, the underlying concern is whether spoil or booty should be taken prior to general distribution, which must wait until the Muslim forces (and the treasure they have seized) are taken to a place of security. In relation to this concern, the text emphasizes the importance of a just distribution of booty. The idea is that spoil collected belongs to the entire force, and is to be distributed in proportionate shares. No doubt, there are other considerations at stake as well, which require attention to the shifting makeup of Muslim armies. In the earliest period, Muhammad and his companions fought along organizational lines characteristic of Arabian tribal custom. The prophet took one-fifth of the booty garnered from fighting, which he then distributed for Islamic purposes. The remainder was divided among the fighters. When the Muslim armies moved out of the Arabian peninsula, they were quickly established as a permanent warrior class residing in fortified cities designed to serve Islamic governance of the conquered territories. Particularly following the initial period of conquest, these fighters came to be supported through a combination of stipends paid by the territorial governors or the caliph, and shares of spoil from campaigns into the territory of war. With fighters still organized along the lines of Arab tribes, there was always the possibility of tension between various army factions and the political rulers they ostensibly served. The concern of al-shaybani and his colleagues mirrors that of al-rashid and other Abbasid rulers, who were in the process of formalizing relations with the armies. Eventually this concern would lead to the recruitment of 4 Citations throughout are based on the translation in Khadduri (1966), with some alterations by the present author. Schacht (1950) and Calder (1993) deal in greater detail with relations between the siyar and administrative law. My information on the changing shape of Muslim armies is drawn from Parry (1970).

6 68 J. Kelsay non-arab fighters fully reliant (and thus supposedly loyal) to their political sponsors; these would bring their own military traditions to the developing practice of Islamic warfare. In short, the emphasis on fighters waiting until the end of a campaign for their share of spoil appears to be connected with the development of a professional military, with the attendant possibilities for discipline and organization. Now, how does a professional army behave? What are its guiding tenets? Here, we come to the heart of our concern with al-shaybani s text. It begins with the citation of more than 50 reports of the practice or sunna of Muhammad and his companions. The most comprehensive comes first. Whenever God s messenger (that is, Muhammad) sent forth a fighting force He charged its commander personally to fear God, the Most High, and he enjoined the Muslims who were with him to do good. And he said: Fight in the name of God and in the path of God. Fight those who refuse to acknowledge God. Do not cheat or commit treachery, nor should you mutilate anyone or kill children. Whenever you meet your idolatrous enemies, invite them to adopt Islam. If they do so, accept it and let them alone. You should then invite them to move from their territory to the territory of those who have emigrated to a place of security. If they do so, accept it and let them alone. Otherwise, they should be informed that they will be like the Muslim nomads in that they are subject to God s commands as Muslims, but will receive no share in the spoil of war or the booty. If they refuse your invitation to Islam, then call upon them to pay tribute. If they do, accept it and leave them alone. If you besiege the inhabitants of a fortress or town and they try to get you to let them surrender on the basis of God s judgment, do not do so, since you do not know what God s judgment is, but make them surrender to your judgment and then decide their case according to your own views. If the besieged inhabitants of a fortress or a town ask you to give a pledge in God s name or the name of God s messenger, you should not do so. Rather give the pledge in your names or in the names of your fathers, for if you should ever break it, it would be an easier matter if it were in your names or the names of your fathers (Khadduri 1966: 75 77). This report constitutes a standard (in some ways, the most standard) precedent in Islamic discussions of war. Those that follow deal with the distribution of booty, the responsibilities of fighters in procuring horses and other equipment, the granting of writs of safe conduct for travel in the territory of Islam, further specifications of the classes of enemy noncombatants, and the treatment of prisoners of war. One could learn a great deal about Islamic conceptions of war simply from a consideration of these collected reports. The practice of the early Muslims is not the only source of precedent for the Hanafi scholars, however. Recalling that the school specially emphasized the judgments of established scholars as an independent source for shari a reasoning, readers should understand that they cannot simply study the report cited above. It must be read in connection with the reasoning of al-shaybani and his colleagues. And thus, following the section detailing accounts of early Muslim practice, we read the most general statement of the early Hanafis regarding the behavior of Muslim fighters who attack the territory of war:

7 Al-Shaybani and the Islamic Law of War 69 If the army attacks the territory of war and it is a territory that has received an invitation to accept Islam, it is commendable if the army renews the invitation, but if it fails to do so it is not wrong. The army may launch the attack by night or by day. It is permissible to burn fortifications with fire or to inundate them with water. If the army captures any spoil of war, it should not be divided up in enemy territory until it is brought to a place of security and removed to the territory of Islam (Khadduri 1966: 95 96). Putting this account together with the Prophet s directives (above), we may begin to discuss the substance of al-shaybani s siyar. Let us consider how the text answers the questions: When is fighting justified?; Who is the target of fighting?; and How is fighting conducted? When is fighting justified? The shari a perspective assumes that war is a rule-governed activity. In the opening lines of Muhammad s directive, one ascertains that the rules stipulate that war is justified when there is a just cause and the presence of a righteous intention ( Fight in the name of God and in the path of God ). There must also be a directive from a legitimate authority. Muhammad stands here as the head of the state; he further gives the order first to the commander of the forces, then to the fighters themselves. One notes that the content of just cause is not further delineated at this point. Elsewhere in the siyar, however, we learn that the early Hanafi jurists believed the following conditions constitute just causes for war: (a) fighting to spread Islamic hegemony, through enhancement of the territory governed by Muslims and/or arrangements by which other political entities agree to pay tribute to the Muslims (Khadduri 1966: ); (b) fighting to discipline dhimmis [ protected peoples] who violate their agreements with the Muslim authorities (Khadduri 1966: ); (c) fighting that seeks to bring Muslim rebels back into the fold that is, fighting that seeks to limit rebellion, but does not violate God s order that Muslims should always seek reconciliation with other Muslims (Khadduri 1966: , ); (d) fighting that disciplines brigands and secures the safety of lives and property entrusted to the Islamic state (Khadduri 1966: ); (e) fighting that brings apostates to repentance and/or to justice (Khadduri 1966: , ). 5 Of these conditions, a) raises important questions as to whether those in the territory of war must pose an active, military threat to the Muslims, or whether it is sufficient that they refuse the invitation to accept Islam or to enter into tributary relations. The report says explicitly: Fight those who refuse to acknowledge God. In connection with the other statements made, it would appear that this means that the war people refuse to accept Islamic religion or Islamic hegemony, and that this justifies war against them. Al-Shaybani s siyar does not address this further; rather, the Hanafi jurists say: 5 Each of these deserves more commentary than is possible here. I hope to deal with each in further papers on al-shaybani s text.

8 70 J. Kelsay If the army attacks the territory of war and it is a territory that has received an invitation to accept Islam, it is commendable if the army renews the invitation, but if it fails to do so it is not wrong (Khadduri 1966: 95). Thus, in addition to just cause, righteous intention, and legitimate authority, an invitation is essential. The point is the spread of Islamic hegemony. Conquest can serve that end, but it is not the only or primary means of moving toward the goal. War is fought for a purpose, and in this case, the purpose is best served by means other than war persuasion or diplomacy, in particular. War is thus justified only when non-military means are refused. The Hanafi scholars add to the Prophet s words with their opinion; namely, if the people of the territory of war refuse the invitation, it need not be repeated. The wording implies that war has commenced, and that Muslim fighters might consider renewing the invitation. In effect, the enemy, having tasted the steel of the Muslims, might want to reconsider. The early Hanafi scholars say that an army which gives a second chance acts commendably. But the second invitation is not required. Who is the target of fighting? Something of the answer to this question is indicated by our delineation of circumstances that yield just causes of war. In the Prophetic report, Fight those who refuse to acknowledge God ; that is, as indicated by their refusal of an invitation to accept Islam or its hegemony. This has to do with the people of the territory of war. In the case of dhimmis, groups who violate agreements are the objects of armed force; rebels, brigands, and apostates can also become the object of military action. Thus the general answer with respect to who? is: groups whose behavior indicates resistance to the legitimate aims of the established leader(s) of the house of Islam. As soon as one says this, one must issue a qualification, however. Not everyone among the enemy is a legitimate target of deadly force. Only those who pose a military threat may be targeted for direct and intentional killing. Thus, the Prophetic dictum stipulates: Do not cheat or commit treachery, neither should you mutilate anyone or kill children (Khadduri 1966: 76). From other reports collected in the opening section of al-shaybani s siyar, we learn that early Muslim practice also forbade the killing of women and old men (Khadduri 1966: 86 87, 91 92). By the time of the early Hanafis, it seems that this prohibition included the disabled and the insane as well (Khadduri 1966: ). The line of thought is clear: in the conduct of war, certain classes of people are not considered legitimate targets for direct and intentional killing. How is fighting conducted? To a great extent, this depends on the identity of the enemy. Fighting against Muslims (for example, in the case of those groups of dissenters called al-bughat or rebels ) is more restricted than that against non-muslims (Abou El Fadl 1990, Kelsay 1993: 67 69). Indeed, such would seem consonant with the justification of this particular kind of fighting, which as noted above is always reconciliation. The location of fighting is also a consideration, at least with respect to enemy persons taken captive. Those taken captive in the territory of war are distinguished according to combatant status. Male captives may be killed or not, depending on the commander s judgment of which course of action is in the best interests of the Muslims (Khadduri 1966: 100). If they are spared, these captives become part of the booty, and are to be transported to the

9 Al-Shaybani and the Islamic Law of War 71 territory of Islam along with the other captives (for example, women and children) for distribution to the Muslim fighters. In this regard, it is interesting to note: (1) that transport for women and children is considered an obligation, so much so that if a means of transport is not immediately at hand, and the captives are unable to walk, the commander must hire transport for them; and (2) that considerations of territoriality affect familial relations, so that the marital status of captives can be altered, depending on whether and when a husband and wife are brought into Islamic territory (Khadduri 1966: 97 98, 116). Of more immediate interest for our purposes is a line of thought that one might describe as military realism, however. Al-Shaybani and his colleagues issued a number of opinions in response to questions about military options and the immunity of noncombatants from direct and intentional killing. Their judgments try to balance considerations of military necessity with the restrictions characteristic of early Muslim practice. Thus in a passage already quoted, we read that: The army may launch the attack by night or by day. It is permissible to burn fortifications with fire or to inundate them with water (Khadduri 1966: 95). These sentences already suggest a wide latitude terms of acceptable means. More complicated, however, is the following: Would it be permissible to inundate a city in the territory of war with water, to burn it with fire, or to attack with hurling machines, even though there may be slaves, women, old men, and children in it? Yes, I would approve of doing all that to them. Would the same be true if those people have among them Muslim prisoners of war or Muslim merchants? Yes, even if they had Muslims among them, there would be no harm in doing all of that to them. Why? If the Muslims stopped attacking the inhabitants of the territory of war for any of the reasons that you have stated, they would be unable to go to war at all, for there is no city in the territory of war in which there is no one at all of these you have mentioned (Khadduri 1966: ). The closing sentence indicates the strong interest of al-shaybani and his colleagues in seeing that the Muslims are able to carry out their legitimate mission of extending the territory of Islam. While war is not the first or most desirable means in this regard, it does seem that the early Hanafi jurists assumed there would be cases in which it is necessary. In such cases, Muslim fighters should conduct themselves in a manner consistent with early Muslim precedent. This should not inhibit them from pursuing their legitimate goal, however. In some sense, it would seem that the legitimacy of the goal authorizes the use of those means necessary to its pursuit. The text does not suggest that necessity should actually override restrictions on targeting, however. Instead, it appears that the early Hanafi masters were thinking in terms of the problem just war thinkers address under the category of collateral damage or through the deployment of double effect reasoning. For example, consider the following:

10 72 J. Kelsay If the Muslims besieged a city and its people (from behind the walls) shielded themselves with Muslim children, would it be permissible for the Muslim fighters to attack them with arrows and hurling machines? Yes, but the warriors should aim at the inhabitants of the territory of war and not the Muslim children. Would it be permissible for the Muslims to attack them with swords and lances if the children were not intentionally aimed at? Yes (Khadduri 1966: 102). In just war thinking, noncombatants are immune from direct and intentional killing. That does not mean they are immune from all harm, however. Similarly in al-shaybani s siyar: Warriors who utilize weapons necessary to attain a legitimate goal may foresee that their actions are likely to result in the deaths of innocents. That does not mean the warriors are at odds with early Muslim practice, however. The text suggests that, provided care is taken to aim at the enemy rather than at the children in question, any deaths of the latter should be regarded as a kind of secondary or indirect effect of a legitimate action. That this is so is further supported by the judgment that follows: If the Muslim fighters attack with hurling machines and arrows, flood the city with water or burn it with fire, thereby killing and wounding Muslim children or men, or enemy women, old men, blind, crippled, or lunatic persons, would they be liable for blood money or atonement? They would be liable neither for blood money nor atonement (Khadduri 1966: 102). For al-shaybani and his colleagues, fighters engaged in legitimate military actions do not incur guilt for the foreseen, yet unintended consequences that follow. The goal of expanding Islamic hegemony is good, and actions necessary to attain that goal are also good, so long as they do not involve direct and intentional killing of proscribed groups. Fighters are required to conduct themselves with good intention, and thus to try to avoid such killing. But the enemy cannot be allowed to take advantage of these good intentions through measures that would circumscribe the ability of the Muslims to carry out their legitimate goal. Developments Subsequent to al-shaybani s Siyar The judgments of al-shaybani and other early masters of the Hanafi school constitute one moment in an ongoing discussion of military ethics. The generation following al-shaybani s death would see the rise of new schools of thought, some of which would alter the form of shari a reasoning. The school that gathered around al-shafi i (d. 820), for example, forged a new consensus regarding the sources to which scholars would appeal. The precedents set by early Muslims was revised so that only those precedents traceable to the Prophet himself could stand as authoritative. The precedents set by the rulings of scholars, so important to the early Hanafis, were similarly restricted, in the sense that only precedents expressing the consensus of the Muslim community would be viewed as binding for

11 Al-Shaybani and the Islamic Law of War 73 scholarly judgment. And the varieties of reasoning by which a scholar could fill the space between an established precedent and his own ruling came to be restricted to qiyas or analogy, by which a contemporary case was shown to be related, as a matter of underlying principles, to precedent. Traditional accounts credit al-shafi i and his school for the received Sunni version of the sources of comprehension in shari a reasoning. In this theory, the Qur ān, the example of the Prophet, the consensus of the community (or, in a still later development, the consensus of scholars associated with a recognized school), and analogical reasoning came to be understood as authoritative among the majority of Muslims (Schacht 1950, Kelsay 1994). In the siyar, similar differences became apparent. The Shafi i school, for example, dealt with territoriality in a different way than al-shaybani and his colleagues. For the newer school, the entire world was the abode of Islam, at least in theory. This meant that the question of just cause of war and the requirement of a formal invitation took on a different cast. For the disciples of Shafi i, no enemy provocation was required for the commencement of hostilities, and all human beings could be presumed, on the basis of natural capacity, to have heard the invitation to Islam. Further, the peculiarities of this school regarding territoriality led to greater leniency concerning the division of booty no need to wait for a return to the place of security so emphasized by al-shaybani and his colleagues (Khadduri 1966: 57 60, Ibrahim 1998). In these ways, it appears that later developments made recurrence to war as a tool of statecraft an easier matter. Yet, for the school of Shafi i, as for others, the Hanafi jurists military realism seemed to contravene authoritative precedent. This was particularly so in the case of fire as a weapon. Since fire was the ultimate weapon of the Almighty, who would on Judgment Day consign the wicked to eternal burning, its use as a weapon of warfare was judged a usurpation of divine prerogatives (Hashmi forthcoming). Later generations would bring their own concerns to the practice of shari a reasoning. The great Ibn Taymiyya (d. 1328), for example, would address questions of resistance to invaders. During the so-called middle periods of Islamic history, scholars of all schools would speak more about wars between Muslims, a concern correlative with the existence of three well-established Muslim empires (the Ottoman, the Safavid, and the Moghul states. Cf. Lambton 1981). Concluding Remarks The last two centuries have seen an increased emphasis on resistance, conceived in terms of a kind of homeland defense, as a concern for shari a reasoning. A full discussion of this will have to wait for another paper. I should like to close, however, by mentioning some of the declarations issued by groups of irregular fighters over the past two decades, each of which tries to establish a norm for action by way of referring to established precedents acknowledged by figures like al-shaybani. The Neglected Duty, presented as the confession or creed of those who assassinated Egyptian President Anwar Sadat in 1981 displays a rigorous

12 74 J. Kelsay attempt to justify the execution of established leaders who fail to implement shari a as the law of the state. Its authors draw in particular on Ibn Taymiyya, seeing in his situation a set of issues analogous to their own. In particular, that 14th-century scholar s judgments about the duty to resist a ruler who institutes a mixed regime of public law, in which precepts derived from shari a reasoning are set alongside of norms derived from other sources, are taken as guides for present-day Muslim (Jansen 1986, Kelsay 1993: ). The Declaration concerning Armed Struggle against Jews and Crusaders issued by Osama bin Laden and other members of the World Islamic Front in February 1998 is a further contribution to this discussion. In the service of explicating the context in which their judgments are forged, the Declaration appeals to a state of emergency, which is then taken as justifying the judgment that fighting the enemy in question is a duty incumbent on every individual Muslim. No longer are we dealing with the confident and dominant voice of al-shaybani and his colleagues, whose siyar never mentions a case involving defensive war. These contemporary developers of the tradition speak of nothing but defense, and that in a context of grave danger. The Declaration further judges that fighters may aim at civilian and military targets, without distinction. If we may take various interviews granted by bin Laden as commentary on this judgment, this rather obvious contravention of earlier precedents is justified on the basis of a notion of reciprocity: the enemy (that is, the United States and its allies) have engaged in direct and intentional targeting of civilians in the pursuit of their aims, and now those Muslims who comprehend their duty to resist may conduct themselves similarly (World Islamic Front 1998, cf. Kelsay 2002). How such reasoning will stand in the great conversation to which al-shaybani and his colleagues contributed remains to be seen, though it is important to note that thus far, even scholars normally sympathetic to the cause of irregulars have condemned the tactics of al-qa ida and associated groups on the grounds that these violate precedents that prohibit the direct and intentional targeting of civilians. The story of shari a reasoning about war, as the story of the just war and other traditions, is one of continuous conversation. Organized around agreed-upon sources, and rules governing the interpretation of those sources, this conversation reflects the changing shape of political and military engagement over the centuries. In our time, as in that of al-shaybani, the siyar requires careful reflection, as human beings try to maintain connections between principle and power, humanity and the conduct of war. References Abou El Fadl, Khaled, Ahkam al-bughat: Irregular Warfare and the Law of Rebellion in Islam, in J. T. Johnson & J. Kelsay, eds, Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic Tradition. Westport, CT: Greenwood Press ( ). Bosworth, C. E., The History of al-tabari, vol. XXX: The Abbasid Caliphate in Equilibrium. Albany, NY: State University of New York Press.

13 Al-Shaybani and the Islamic Law of War 75 Calder, N., Studies in Early Muslim Jurisprudence. Oxford: Clarendon Press. Chaumont, E., Al-Shaybani, in C. E. Bosworth et al., eds, The Encyclopedia of Islam, rev. edn, vol. IX. Leiden: Brill ( ). Hashmi, Sohail, Forthcoming. Islamic Ethics and Weapons of Mass Destruction. Hodgson, M. G. S., The Venture of Islam, 3 vols. Chicago, IL: University of Chicago Press. Ibrahim, Yasir, A Translation of al-tabari s Book of the Disagreement among Muslim Jurists: The Book of Jihad, Sections MA thesis, Florida State University, Tallahassee, FL. Jansen, J. J. G., The Neglected Duty: The Creed of Sadat s Assassins and the Resurgence of Militant Islam in the Middle East. New York: Macmillan. Kelsay, J., Islam and War: A Study in Comparative Ethics. Louisville, KY: Westminster/ John Knox Press. Kelsay, J., Divine Command Ethics in Early Islam. Journal of Religious Ethics 22 (1): Kelsay, J., Bin Ladin s Reasons, The Christian Century 119 (5): Khadduri, M., The Islamic Law of Nations: Shaybani s Siyar. Baltimore, MD: Johns Hopkins University Press. Lambton, A. K. S., State and Government in Medieval Islam. Oxford: Oxford University Press. Parry, V. J., Warfare, inp. M. Holtet al., eds, The Cambridge History of Islam, vol. 2. Cambridge: Cambridge University Press ( ). Sachedina, A. A., The Just Ruler in Shi ite Islam: The Comprehensive Authority of the Jurist in Imamite Jurisprudence. New York: Oxford University Press. Schacht, J., Origins of Muhammadan Jurisprudence. Oxford: Clarendon Press. World Islamic Front, Declaration Concerning Armed Struggle against Jews and Crusaders. [on-line translation] available from Internet. Biography John Kelsay is Richard L. Rubenstein Professor and Chair in the Department of Religion, Florida State University, Tallahassee, FL, USA. He is the author of Islam and War: A Study in Comparative Ethics (1993). Currently a Laurance S. Rockefeller Fellow at the Princeton University Center for Human Values, Professor Kelsay is the recipient of a John Simon Guggenheim Fellowship for

14

15 Copyright of Journal of Military Ethics is the property of Routledge and its content may not be copied or ed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or articles for individual use.