62-4186

GABER, Mohamed Hosny Mohamed, 1922— THE EARLY ISLAMIC STATE WITH SPECIAL REFERENCE TO THE EVOLUTION OF THE PRINCIPLES OF ISLAMIC INTERNATIONAL LAW, 632-750 A.D.

The American University, Ph.D., 1962 Political Science, international law and relations University Microfilms, Inc., Ann Arbor, Michigan THE EARLY ISLAMIC STATE WITH SPECIAL REFERENCE TO THE EVOLUTION OF THE PRINCIPLES OF ISLAMIC INTERNATIONAL LAW, 632-750 A.D.'

by , i /Ujm mfd Hosny M'.1 Gaber

Submitted to the

Faculty of the Graduate School

o f The American U niversity

in Partial Fulfillment of

the Requirements for the Degree

of

Doctor of Philosophy

in

International Relations

Signatures o f Committee:

Chairman: j j \ . graduate Dean:

AMEP'CAN u n iv e r s it y I Y June, 1962 MAY 2 2 1962 The American University T h e s i S Washington, D. C. Washington , a c . V 82.^ TABLE OF CONTENTS

CHAPTER PAGE

I . AN HISTORICAL BACKGROUND ...... 1

Pre-Islam ic World ...... 1

Pre-Islamic Arabia ...... U

The Rise of the Islamic State: The Republican Period . . . 9

The Omayyad S t a t e ...... 16

I I . INTERNATIONAL ISLAMIC LAW: NATURE, SOURCES AND

DEVELOPMENT...... 2U

N a t u r e ...... 2U

Relation to Previous International Laws...... 30

S o u r c e s...... 3h

Development in the Republican and Omayyad P eriods ...... k3

I I I . STATE'S THEORY, RIGHTS AND DUTIES...... k9

T h e o r y ...... 50

Rights and D u t ie s...... 58

Form of Government...... 59

International Principles of the State ...... 62

IV. JURISDICTION OF THE STATE...... 66

Territory ...... 66

Jurisdiction over Subjects: Minorities ...... 72

The Jizya ...... 85

Nationality ...... 91 i i i

CHAPTER PAGE

V. TREATIES ...... 97

P rocedure...... 100

Treaty T ypes ...... 1°3

Peace T r e a t i e s ...... 10U

Cases of Peace T reaties...... I l l

Termination of Peace Treaties ...... 118

Treaties of Conciliation ...... 120

Guarantee of Safety ...... 122

VI. THE LAWS OF WAR...... 126

Concept of W ar...... 126

Military Organization ...... 136

Qualifications for Military Service ...... lh7

Conduct o f W a r ...... lU9

Actions Allowed and Forbidden...... 160

Giving Quarter ...... 168

The Termination of W ar...... 11h

VII. SPOILS OF WAR...... 176

Immoveable S p o i l ...... 185

The Fa^’ ...... 189

Prisoners of W ar...... 190 iv

CHAPTER PAGE

VIII. ENEMY- ALIENS...... 197

Access to Muslim C o u r t...... 201

Custom D u t i e s ...... 203

Termination of Am an...... 206

Muslim Aliens in Foreign Countries ...... 208

IX. CONCLUSION...... 210

APPENDIX...... 2lU

BIBLIOGRAPHY...... 216 PREFACE

A comprehensive stuc^y of international lav; in early Islam is rarely in evidence in books on the history of the laws of nations. It seems that such a study is regarded as of speculative, rather than of practical, interest and has received attention from relatively few specialists and scholars.

Such a h isto rical study is not without significance toward a balanced understanding of the present Islamic and Middle Eastern culture, an understanding which could not be achieved if it did not in­ clude a knowledge of classical Islamic international law and its development based on original source material.

This writer plans to trace the early development of international

law of early Islam both in theory and practice. The investigation will be centered almost entirely on the Republican and Omayyad periods in early Islam, for this was the time in which the Islamic state laid its foundations in all legalistic and administrative systems. Also, this era witnessed a better application of the Islamic theories of inter­ national relations. The departure of practice from theory was seldom

due to the conduct of the state by rulers who, by their cohesive and

animating power, set an amazing record of achievement with the applica­

tion of the pure Islamic systems.

In undertaking this task, the present writer relied mainly on

original Arabic sources of law and history. I t must be stated, however,

that these books are not classified so as to facilitate the investigation of the researcher. Laws on international questions are often given hypothetical cases, themselves dispersed among many other cases in different branches of laws of worship and transaction. On the other hand, the books on Islamic history, naturally, do not elaborate on the incidents of history which invoke application of the theories of in ter­ national Islamic law.

This research could not endeavor to treat all aspects of inter­ national law which are of vital concern at the present time. Substan­ tive rules of international law, jurisdiction over private and public vessels, the law of the sea, jurisdiction over the air above national territory, laws of neutrality, and other important issues cannot be treated in the same way which is followed in this research. For, if the student of Islamic law wants to cover all these important questions and, at the same time, tries to limit himself to one stage of Islamic history, he will find but few instances derived from custom and usagesj and even

if there is sufficient material from the annals of a specific stage of

Islamic history, one has to account for what the jurists did not treat.

New maxims must be deduced from the texts of laws, without losing sight of the minor sources of the law, in order to set a standard for what is

in accordance with the spirit of the Islamic law and what is not. INTRODUCTION

International law arises from the actions o f nations one toward another. It comes into existence from the demands of every nation for reciprocity and equality in treatment by other nations. These demands have produced an extensive body of international law which is s till being expanded.

At the present time, there are many factors that have contributed to the expansion of international law. Absence of those factors were responsible for the retardation in the growth of international law in the past. In the case of the early Islamic state, limitation in the scope of international law was due to the situation which restricted international intercourse. National practices and views differed so widely that agreement in many cases was impossible. Activities and aims of the early Islamic state, being mainly religious, made difficult its relation with other states. For if the laws and practices of nations are left to reach their fullest fruition, they must be comprehensive and general in character. There was no ground for agreement between secular states like Byzantium and Persia and a highly religious Islamic state.

On the other hand, the Islamic state which emerged from national isola­ tion inside Arabia did not acquire the requisite condition for the growth of the considerable system of present international relations and laws.

Before Islam, there was not sufficient degree of previous contact be­ tween the Arabs and the Byzantines and the Persians, except the rela­ tionship of colonial domains. Aside from the issue of religion, there were other factors which further lessened homogeneity between the Islamic viii state and other big powers. Important among these factors were the poor economic conditions of the Islamic state, ideological differences, and differences in governmental systems.

In its conduct of international relations with other states, the

early Islamic state was guided by international principles and maxims which were set forth in the sharirah (divine law), or deduced from those

texts. Rights and duties of the state vis-a-vis other states, which

were also recognized as applicable to other states, were similar in some

respects to the present concept. First among these rights is "equality

of treatment." This right was derived from religious and ethical priit-

ciples that men who are created into different tribes and nations should

become interested in each other's culture on the basis of equality

(Q. U9:13).

The right of international existence was emphasized in the time

of early Islam by all nations—not by legal principles, but by force.

Self-defense was taken as an excuse to anticipate the attack of another

state. The world situation at that time might justify this policy as

the only alternative in maty situations. The continued existence of a

state depended upon its own ability to protect itself in a community of

nations which had no sense of collective security or no machinery for

the settlement of international disputes.

The right to independence was acquired by the powers of the states.

The term "independence" was not used by the Muslim jurists; they spoke

about "sovereignty" in almost the same sense as modern independence. On

the part of the early Islamic state, independence, or rather sovereignty, ix was construed as absolute freedom from control by other states, except the limitations which restricted the freedom of the state by religious

international principles (see pp. 62-65), and by treaties. Internal

sovereignty was also subject to religious rules which gave the minori­

ties full civil rights and qualified political privileges. The principle of "equality of treatment" restricted the internal sovereignty of the

state with regard to resident aliens, as is explained in a special

chapter in this dissertation.

Title to territory had been obtained by the early Islamic state

through the acquisition of land belonging to another state either by

forced cession (conquest) or by cession of territory in a peace treaty,

as it is explained in this work (see p. 66). Other modes of title to

territo ry which are known in the modern laws o f nations had no prece­

dent in that era. In theory, however, the jurists applied by analogy

the rules of the shari-ah to the modes of titles which had no precedent

in the early era of Islam. They argued that natural accretion, for

example, if it happened at the expense of another state, the qiyas

(analogy) to legal maxims "gain without sufferance" and "injury must be

removed," would rule that the accretion must go to the sta te in whose

possession it has happened, yet it must pay compensation to the .suf­

ferer in proportion to its gain.

The Islamic state did not know the custom of resident diplomats;

only messengers or heralds were sent for temporary purposes. The dip­

lomatic missions were sent mainly to negotiate peace before battles, or to d irect warning before attack, or to discuss payment o f trib u te.

Foreign em issaries to the Islam ic sta te enjoyed:diplomatic immunity and were received with lavish ceremonies. They did not need to obtain aman

( o f f ic ia l document o f safe conduct) before entering Islam ic territo ry .

Arbitration and negotiation, as two types of diplomacy, had little or no bearing on international politics of the state. Negotiation was a religious obligation in advance of an appeal to force. Arbitration, which was practiced widely in Arabia before Islam, and which contributed to the settlement of disputes among tribes, was recognized by Islam. It was lim ited to internal disputes between Muslim and non-Muslim communi­

ties under the jurisdiction of the Islamic state, or among rival rulers and trib es. The Quran made i t an obligatory rule that i f two Muslim

groups or states fell into a quarrel, the whole community must fight the

aggressor if he refused peaceful settlement (Q.

Muslim ju r ists did not elaborate on the law o f the sea . There is

no adequate material to construct a legal theory of the sea. The Muslim power was e ss e n tia lly a land power. Some modem w riters remarked that

the collapse of the Persian Empire was rapid and complete because Persia was a land power which Islam could beat; but when the Muslims faced the

Byzantines, the former were met with stiff resistance because Byzantium

was both a land and sea power. Muslim j u r is ts , however, at a la ter

stage of Islamic history, when the Islamic state was a sea power by the

tenth century of the Christian era, applied by analogy the rules govern­

ing land warfare to naval warfare. For instance, they ruled that if the

enemy shielded themselves or their vessels with Muslims, the same rule xi as in the case of a besieged castle or a vanguard of an army on land would be applicable (see p. 63). The manner of the division of the booty on land is also applicable after a naval battle. Many other rules which were followed in land warfare were applied, by analogy, to naval warfare.

Neutrality in the modern sense, which means the right of a state

to declare her neutrality toward two or more belligerent powers, was not

known among states in the era of early Islam. Big powers, as some writers observed, guaranteed to small states their neutral status; thus,

these states were neutralized rather than neutral. This attitude on the part of the Islamic state took the form of friendly relations and im­ munity from attack against a state which showed her good w ill toward the

Islamic state. No official guarantee or international agreement was

follow ed.

The foregoing important international questions form a gap in the

scope of international law of the early Islamic state. Such a gap, as

it has already been explained, is due to the international situation in

that era, or to the nature, scope, and concept of the Islamic inter­

national law in contrast to the modem one. The student of Islamic

international law, on the other hand, has to deal with different sub­

jects which, in present times, have more bearing on internal policy or

art of war, rather than on international politics.

One of the two chapters in this dissertation (chapters II and

III), which are dedicated to the fundamental concepts of Islamic law, x ii deals with the theory and the nature of the state. This subject now conies under the domain of p o litic a l theory rather than international law.

In the case of the Islamic state, the law precedes the state, and the head o f the sta te was the means whereby the law was translated from

"eternal divine" rules into action and provided with temporal sanctions.

The head of the state enforced the law which regulated the relation of the sta te with other sta tes during war and peace. He decided when war had to be continued or stopped, and he advised when the Muslims had to accept peace and come to terras with the enemy. The treaty-making power rested in his hands. Even i f he delegated th is power to his agents, he

retained a veto by his right to refuse to ratify a treaty or repudiate any agreement if it proved harmfbl to the state’s interest.

Many municipal rules were interwoven with questions of inter­

national p o lit ic s . There was no difference in the Islam ic law between

the term "law" as limited to rules of conduct enacted by religious authority, and international law which had been relegated to the domain of ethics. Both municipal rules and international principles are de­

rived from the same sources. On the other hand, the ancient Arab idea

of sunna, of precedent or tradition, reasserted itself in Islam. The

Arabs were bound by tra d itio n and whatever was custom was righ t. Islam

accepted many traditions and customs and incorporated them in the

shari*ah as long as there were no religious or moral objections against

them. These two factors contributed to the existence of many municipal

rules and ancient customs which were inseparable from the rules of

international conduct of the Islamic state, particularly in the laws of warfare. Many of the military techniques were not explicitly regulated by the shari^ah; they were practices which were permitted by the law,

since they were in conformity with such broad principles as "war is

trickery” and certain injunctions which advised alertness and perse­

verance in war. CHAPTER I

AN HISTORICAL BACKGROUND

I. PRE-ISLAMIC WORLD

Arabia, at the advent of Islam, early in the seventh century was bordered on the north by two mighty empires: the Persian Empire and the

Eastern Roman Empire.

In the course of the fifth century, the Roman Empire lost its western territories to the Germanic barbarians. The whole of the west was a mosaic of barbarian kingdoms: Ostrogoths in Italy , Vandals in

Africa, Suevi in Galicia, Visigoths in Spain and to the south of the

Loire, Burgundi in the valley of the Rhone, and the Anglo-Saxons in

Britain. Thus, at the beginning of the sixth century, there was not an inch of soil in the west still subject to the Emperor of the Western

Roman Empire. 1

The Emperor s till had a legal existence. The Anglo-Saxons alone 2 ignored him. The German kings acknowledged his primacy. Odoacer was 3 the first to acknowledge the Byzantine Emperor in Constantinople.

At the end of th eir powers, the Goths appealed to the Franks for aid. The latter responded to their appeal but were defeated by the

^•Henri Pirenne, Muhammad and Charlemagne (London: George Allen and Unwin L td., 190>b), p. 33. 2 German Conqueror of the Western Roman Empire (li35-^93).

■^Pirenne, _op. c i t . , pp. 10-11. Byzantines near Capua in 55U. The rest of the Goths were sent to Asia to fight the Persians. Italy was reorganized as a Roman province.^

Africa and Italy once reconquered, Justinian I, the Byzantine

Emperor (527-565), turned to Spain, and the Mediterranean was once more a Roman lake.

The Byzantine Empire had made a prodigious effort. In order to triumph, it had to fight upon two fronts; for, while it was battling in

Italy, the Persians had declared war upon the Byzantine Empire; and, in the Balkans, the Slavs had to be driven back from the frontiers which they were attacking.-’

The period that followed the reign of Justinian, from 565 to 610, was one o f the most depressing o f Byzantine h istory. War was raging on all frontiers; the Persians and the Slavs flung themselves upon the Em- £ pire; and in 568 the Lombards invaded Italy from the north.

Justinian had been dead five years (after a reign of thirty-eight years) at the time of the birth of Muhammad, the Prophet of Islam.

During the first forty years of Muhammad's life, the throne of Constan­ tinople was occupied successively by Juslin II (565-578), Tiberius II

(578-582), Maurice (582-602), and Phocas (602-610), while Heraclius reigned right through the prophetic period of Muhammad's life (622-632).^

^Ibid. , p. 67. ^Ibid. , pp. 68 - 6 9 . ^Ibid. , p. 6 9 .

‘^Haroon Khan Sherwani, Studies in Muslim P o litic a l Thought and Administration (Lahore: Sheikh Muhammad Ashraf, 1959), pp. 6-7. Heraclius reigned 610-6U0. Everything was in favor of the Lombards, for Byzantium was para­ lyzed by the war against the Persian and the Slav invasions. Their appearance in Italy forced the Papacy to fa ll back on Byzantium, for i t saw no hope of support except from the Emperor. From this moment, the

Pope, in his ruined city, became the true governor of Rome, but he held i t for the Empire.®

The imperial diplomacy endeavored to maintain, between the Franks and the Lombards, the antagonism which alone might preserve Ita ly for

Byzantium, so the Empire still retained a formidable prestige. In 629

Heraclius triumphed over the Persians.

In short, despite its losses, the Byzantine Empire was still the only world power, and Constantinople was the greatest of civilized c itie s.^

Before the adoption of C hristianity by the Byzantine Emperors, it was the Christians who were persecuted; but, after Christianity had be­ come the faith of the Emperor, no stone was left unturned to uproot classical learning, the Jewish faith, and all that had a tinge of heresy against the personal religion of the Emperor. In A.D. 529 Justinian finally closed the schools of rhetoric and philosophy, shutting forever the Academy of Plato, the Lyceum of Aristotle.'*'®

Pirenne, o£. c i t . , p. 70.

^Ibid. , pp. 71-73.

10Sherwani, op. c i t . , pp. 8-9. See also Jo rji Zaydan, Tarikh at- Tamaddun al-Islam i(first edition; Cairo: Matba'at al-Hilal, 1902), vol. 1 , pp. 29-35- The Persian Empire, under the Achaemenids, the Parthian Kings, and then the Sassanids, had always maintained its e lf as an independent force confronting the Greco-Roman world; and, early in the seventh century, it seemed as if this Empire might succeed in detaching the southern half of Byzantine domain. After passing through an internal crisis late in the fifth century, the kingdom of the Persians had been rebuilt under Khosru I (531-579)11 and had risen to be a great power.

Under Khosru II (590-628), in an unparalled series of victories (613-

6l5)j the Persians advanced into Palestine and Syria; Egypt fe ll under th e ir hands in 619, and Asia Minor, too, appeared to be in danger.

However, one of the greatest of the Byzantine Emperors, Haraclius, after reorganizing the Eastern Roman Empire and summoning the last forces at his c a ll, overcame the Persian Empire in two mighty campaigns during the years 6 2 3 -6 2 5 and 627- 6 2 8 , and compelled it to retrocede its newly won 1 O territories.

II . PRE-ISLAMIC ARABIA

Far from being confined to a splendid isolation, as is often supposed, Arabia had been open to external influences for a very long time.

11Noshirwan

■^Bertold Spuler, The Muslim World (Part I I ,The Age of the Caliphs). (Leiden: E. J. Brill, I960), p. 1. In Arabia, sometime before the sixth century, the fight between

Judaism and Christianity started in southern Arabia with the latter as challenger. Yet, we hear no hint of any serious conflict between the two until the beginning of the sixth century when Dhu Muwas, the Jewish

King of Sabs’, took up the cudgels in favor of the state religion and made his famous effort to stamp out the rival creed. About A.D. 522,

the King opened a vigorous offensive against the Christian Najrin and

gave its inhabitants the choice between apostacy and martyrdom. Finally

they were exterminated mercilessly. A thrill of horror ran through

Christendom, and the Christian King of Abyssinia was called upon by the

Emperor of Byzantium to take m ilitary action against the perpetrators of

such an atrocity. An Abyssinian army landed on Arabian soil to make war

on Saba’. The issue was fin a lly decided in A.D. 525> and Dhu Nuwas was

murdered by his own subjects."^

Aryat, the Abyssinian viceroy, reigned for ten years from A.D. 525

un til 535. He was succeeded by the Abyssinian viceroy Abraha, who de­

termined to spread Christianity throughout the land. However, the desert

Arabs, whose communal center was the great city of Mecca and-the Shrine

ascribed by trad itio n to Abraham, s t i l l clung to th e ir pagan gods. The

objective of Abraha was this key point of the rival paganism, and tra­

dition represents him marshalling his legions for an attack on Mecca in

A.D. 570. This city was delivered in the year of Muhammad's birth, as

Abraha was constrained to raise the seige of Mecca in order to hasten

*^H. St. J . B. Philby, The Background of Islam (Alexandria, Egypt: Whitehead Morris, I9h7), pp. 119-120. back with his host to meet a crisis near home; Sana® His Meccan adven­ ture had, in fact, sealed the fate of both paganism and Christianity in lii Arabia.

The pagan Arabs had appealed to the Persian Emperor Khosrus I about the extremity of the Abyss ini ans. Abraha disappeared from the scene, unregretted by the Arabs whom he had ruled for more than thirty years; but the Arabs, far from recovering their independence, found that they had merely changed masters. Wahriz, the commander of the invading

Persian forces, assumed office as the first viceroy of Arabia, then a province of the Persian Empire (as it was to remain for nearly sixty y ea rs). Ju stin ian , the Byzantine patron o f Abraha, had passed from the scene five years before the fall of his protege, and his insignificant successors made no attempt to challenge the dominance o f Persia in the east. Persia herself experienced a similar, but shorter, twilight be­ tween the death o f Khosru I in A. D. 579 and the accession in 590 o f h is grandson Khosru Parviz. The world had become accustomed to the long 15 struggle fo r power between Byzantium and P ersia.

The political condition in Arabia at these times can best be il­ lustrated by the analysis of the tribal structure of the Arabs at that period. The Arabs divided themselves into three main divisions: (1) the krabul-Ba’idah or the Hamitic colonies of the north; (2) the

‘Arabul-‘Aribah or the Semetic descendants of Qahtan, who vexyearly

1^Ibid., pp. 121-123.

Iglbid., p. 123. superimposed themselves on the ‘Arabul-Ba ’idahj and (3) the ‘Arabul-Musta’ ribah, the descendants of Abraham, who originally came from the north and settled among the former. The f ir s t group had long ceased to exist as a separate entity, and the peninsula had come to be divided among the other two sections of the population. The homeland of the Qahtanis was Yemen

in the south, while the Abrahamites migrated from the north. The

Qahtanis migrated northwards, occupied the Hijaz and Yemama, and moving north, settled in Syria and founded the Kingdom of Ghassan near Damascus about the beginning of the Christian era. This Kingdom was soon domi­ nated by the Byzantine Empire, its ruler becoming Christian, and per­ sisted until the time of the Caliph ‘Umar (A.D. 6 3 6 ). Another branch of

the Qahtanis went northeast, settled on the banks of the Euphrates, and

founded the Kingdom of Hira about A.D. 195. Like the s iste r state of

Ghassan, this Kingdom, also, could not remain independent for long and

soon came under the influence and suzerainty of Persia. At last, it was

absorbed by the Persian Empire in A.D. 610.^

These two monarchies, Ghassan and Hira, were too insignificant

and subservient to make any mark on the administrative history of the

country. Eastern Central Arabia fared no b etter, for its Yemenites also passed under Persian suzerainty; although, being distant from the center

of the culture of Persia, they could exercise greater autonomy. The far

south, the homeland of the Qahtanis, was in the throes of a war of in­

dependence against its neighbors, the Negus of Abyssinia, a quarrel

which arose out of the religious animosity of the Christian Abyssinians

^Sherwani, op. cit. , pp. 10-11. and the Jewish King of Yemen Dhu Muwas about A«D. 522, as was shown above.

Mecca, the birthplace of Islam, had been under the authority of the Yemenite family of the Jurhumites, who held sway there until the third centuiy A.D. They were succeeded by the Qahtanite Banu Khuza'a who became masters of Mecca and the southern H ijaz. In turn, these were driven out by Qusay, who was descended in the seventh generation from

Fihr, surnamed Quraish, the progenitor o f the famous trib e o f that nam e.^

While the rela tio n s between the Arabs and Abyssinia and Persia were deep and complicated, the Byzantines had had p ra ctica lly no dealings with the Arabian peninsula. It contented itself with building a wall to protect Syria against the nomadic bands of the desert. The Byzantine

Empire had never regarded this as one of its vulnerable points, nor had it ever massed there any large portion of its military forces. It was a frontier of inspection, which was crossed by the caravans that brought 1 ft perfumes and sp ices.

The year of the Prophet*s birth coincided with a Persian invasion of Syria, and Aleppo was in Persian possession. When Muhammud was not yet thirty, a Byzantine army was marching into Persia to place its own protege on the throne. A little later, the Persians were back again, overrunning Syria and Palestine, invading Egypt and Asia Minor. The

17 Ibid., p. 13. See also Ameer Ali, A Short History of the Saracenes (second edition; Londons Macmillan and Co., 1900), pp. 7U-75$ and Jorji Zaydan, o£. c it., fourth edition; 1927, vol. U, pp. 11-13. 18 Pirenne, o£. c i t . , pp. 1U7-1U8. Persians were followed shortly by a Byzantine army which advanced through Armenia and entered the royal city of Dastagird. In the course of six months, six sovereigns ascended the throne of Persia, so split was she by internal dissension* 19

During the missionary period of the Prophet of Islam, Byzantium had regained by battles its prestige which was culminated in the victory of Heraclius over the Persians. However, the provinces which Persia had just surrendered were suddenly wrested from the Byzantines by the Arabs.

Heraclius was doomed to be a helpless spectator of the first onslaught of th is new force which was about to disconcert and bewilder the Western world.1.4 2 0

III. THE RISE OF THE ISLAMIC STATE: THE REPUBLICAN PERIOD

In the closing decades of the sixth century, the youth Muhammad

had been growing up in the fam iliar pastoral and commercial a ctiv itie s; 21 and he was already forty when he began his call about 610 A.D. Within

the remaining twenty-two years of his life, he had not only promulgated

•^Bertram Thomas, The Arabs (New York: Doubleday, Doran and Co., Inc., 193U), pp. 69-70.

20Pirenne, og. c i t 0, pp. ll*8-lU9<,

21-In A.D. 622 the Prophet left Mecca and made his migration to al- Medina. The Muslims do not date th eir era from the b irth of Muhammad or even from the year he commenced his ministry. They date it from the year of his migration (from the h ijra , hence A.H.) which he made a t the age of fifty-tw o. 10 ipjfuir the principles of a new dispensation, but had rescued Arabia from the century-long humiliation of foreign rule and united it as never 22 before—to form the nucleus of one of the greatest empires of history.

As long as Muhammad lived, he performed the functions of prophet, religious leader, chief judge, commander of the army, and civil head of the state. After his death in A.D0 632, his role as a prophet could not be succeeded, but the Islamic state was in need of a religious and civil leader who was at the same time the commander of the army. This leader was known as the Caliph (the successor).

The first Caliph was Abu Bakr, who ruled from 632 until 634. He was followed by 'Umar (634-644), ‘Uthraan (644-656), and “Ali (656-661).

The era of these four orthodox Caliphs may rightly be called the

"Republican Period," for they were elected by the consent of the majority o f the distinguished elements o f the community and not by the modem system of the universal stiff rage.

At the time of the first Caliph, Abu Bakr, all Arabia outside *

Hijaz broke off from the newly organized state due to the lack of com­ munication and the absence of organized methods of missionary activity.

But in a ser ie s o f sharp b a ttle s, Abu Bakr conquered the seceders, one after the other, and his commander Khalid ibn al-Walld displayed great talent for generalship.^

22Philby, og. c it., pp. 124-125.

2%hiT'ip' K, H itti, The Arabs: A Short History (third edition^ Princeton University. P ress,. 1944), pp. ]>2-53o . 11

Before his death, the Prophet had planned an expedition against the Byzantine borderlands. Abu Bakr allowed this to go forward under the command of the famous hero Khalid ibn al-WalTd. Khalid, at that time, was engaged in a successful military operation at Hira. His arrival at

Hira coincided with an upheaval in Persia, which compelled Hira to buy off the invaders and promise to pay henceforward annual tribute as the price of peace. The Arabs thereupon withdrew, while Khalid and the nucleus of his force turned north up the Euphrates to join forces with

other Medinite elements operating in Syria, one faction of which was under ‘Amr ibn al-'As, a leader whose generalship in the annals of the p). conquest stands second only to that of Khalid himself.

Damascus surrendered after a six month siege. In order to repel

the invaders, Heraclius came in person to Hims and from there sent for­ ward four separate armies to crush the Arab generals. At the f ir s t news

of this move on the part of the Byzantines, the Arabs concentrated all their forces on one point? and, accordingly, all the four divisions united in the month of April 63I4 at Jaulan near the river Yarmuk, a

tributary of the Jordan. The two armies watched each other for two months until the Caliph Abu Bakr, getting tired of the waiting game, sent

Khalid ibn al-WalTd from Chaldea into Syria. He joined the armies before the Byzantines knew of his approach. The Byzantines had already

lost heart and at la st on August 30, 63U, they fought the Arabs. p

^Thomas, op. c i t . , p. 72.

2^Ameer A li, op. c i t . , pp. 37-38. The native population of Syria were alienated from their masters, the

Byzantines. Embarrassed by financial d ifficu lties arising out of the

Persian wars, they appear to have made common cause with the Medina

w a rrio rs .^

At this stage, after two years in office, the Caliph Abu Bakr

died in al-Medina on August 23, 63b. Again a successor had to be chosen.

Abu Bakr's nominee was ‘Umar ibn al-Khattab who also won the consent of

“the majority, for he was a religious zealot and a man of resolute action

whose sincerity won the approbation and the esteem of the faithful. 27

Under *Umar the campaigns in Syria and Mesopotamia, which had

hitherto been left in practice to the discretion of the army commanders

on the spot, were systematically organized and coordinated. After the

conclusion of the conquest of Syria, which eUmar marked by a personal

visit to that province and to Jerusalem, the main attention of the

central government was claimed by the struggle against the Sassanid

'- Empire.* i 28

So, it was Persia!s turn next. The conquest of Syria, the

Persians saw, would liberate a strong force for use against them, and

.. soon an Arab army was marching down the Euphrates to join hands with

another from Arabia that was biding its time west of the Euphrates.

Thomas, op. c i t . , p. 72.

^ I b i d . , p. 7b.

28 Spuler, op. c i t . , p. 20. 13

Q adisiyya^ was the Persian stronghold. Here the Arabs attacked through a sandstorm. Rustem, the Persian general, was killed and his force was routed. The Arabs swept across the heart o f Mesopotamia and crossed the river Tigris to storm Mada'in, the twin cities of Seleucia and

Ctesiphon, the Persian winter capital. King Yezdegird, whose hold on the throne was already precarious, had fled fearing assassination.3^

The two battles of Yarmuk and Qadisiyya in Iraq represented a turning point in the whole Arabian movement. From that time on, a steady migration flowed out of Arabia, never to return. The idea of de­ pendence upon al-Medina faded into the background and a quickening ideal ■ai of Arabian Empire took its place.

Meanwhile, another Arab force operating from Basra was over­ running the southern provinces of Khuzistan, and a sea assault was made from Oman on the islands of the Persian Gulf and on the Persian coasts.

An Omani force marched inland to Persepolis and this city fe ll, as did many others.

The capture of Nihavand in A.D. 6Ul gave the Arabs a strong

Persian foothold, though it was not until several years later that they scaled the mountain barriers and brought about the fall of Isphahan,

Hamadan, and other garrisoned centers in the interior. The pacification of Persia was not to be the easy matter that the pacification of

29 South of the present-day Kajaf, Iraq.

^Thomas, og. c i t . , pp. 78-79*

31Ibid., p. 79* lh

Palestine and Syria had been. In the Levant, the Arabs met with a wel­ coming reception from Semetic-speaking peoples long subjected to foreign mastersj in Persia they met with stubborn resistance bom of a different 32 cultural consciousness and of a proud imperial past.

The Arabs were conquering Egypt at the same time as they were so successfully prosecuting their Persian campaign. In 628, after Emperor

Heraclius had wrested the country away again from its Fersian conquerors, he attempted to unite the Monophysite Copts with the Imperial church.

In 631 he had in sta lled Cyrus (the Muqawqis o f the Arabs), who up to then had been bishop of Phasis in Caucasus, both as Patriarch of

Alexandria and head of the civil administration at the same time. His ecclesiastical policy and his tax demands weighed so heavily on the

Copts that they necessarily greeted the Arabs as emancipators. In

December 639 f.Amr ihn al-'As, the in itial commander of the army sent to

Palestine, made an attack from there on the fertile Fayyum plain with in su ffic ie n t troops. Then ‘ Umar sent az-Eubayr, a companion o f the

Prophet, to Egypt with five thousand reinforcements. In June 6h0 ‘Amr lured the Byzantines out of their fortress into an open battle and con­ quered them at Heliopolis. Cyrus entered into negotiations with ‘Amr and then went to Byzantium to secure the Emperor’s approval o f the concessions he had made to the Arabs. Heraclius, who treated him as a traitor, died on February 11, 6Ul. The regents of the new Ercperor,

?ilbid, p. 80. 15

Constans II,33 at this time only eleven years old, were compelled to allow events in the Orient to take their gloomy course; their troops were needed in the capital itself against the threat of a revolution and, also, were tie d down in Ita ly by the wars with the Lombards. The Byzantine government, consequently, sent Cyrus to Egypt again to negotiate with fAmr. In return for the promise of a fixed payment of tribute, the Arabs bound themselves to leave the Christians in possession of their churches and not to interfere in the administration of their communal life. In fulfillment of this treaty, Alexandria was evacuated by the Byzantines on September 17, 61*2, and occupied by the Arabs.3^

'Umar's great task was completed before he fe ll, stabbed to 35 death by a Magian slave of Persian origin. His successor in the cali­ phate was 'Uthraan, an aristocrat and a man o f great p ie ty , but con­ spicuously in e ffe c tiv e . Under him the wars o f conquest had come to a temporary halt. Mo new worlds were being conquered except the remote fringes of Persia and Turkestan. Moreover, the Arab conquerors in his tim e, supreme on land, saw the sea power o f Byzantium unchallenged and the Byzantine f le e t on Cyprus, a menace to th eir Syrian and Egyptian shores. They were ready in 61*9 to launch a successful attack on the 36 enemy*s sea base. By th is sin gle stroke Cyprus f e l l into th eir hands.

33Emperor of the Byzantine Empire (630-668). He succeeded after an interval due to the usurpation of Heracleoans, in 61*1, with Valentine as regent. See Encyclopaedia Britannica (1956 edition), vol. 6, p. 298.

3i|Carl Brockelmann, History of the Islamic Peoples (New York: Capricorn Books, I960), pp. 56-57.

November 3, 61*1*. 36^ ]^ ^ ^ pp. 83-81*.

/ The wave of conquest under Abu Bakr and fUmar carried the Arab tribes into different parts of the world. The Modarites settled at

Basra, while Kufa was occupied chiefly by the Himyarites. In Palestine and in the province of Damascus, the Modarites were preponderant, while the Himyarites held the northern part of Syria, like northern Arabia.

In the eastern provinces, the two.tribes were dispersed more or less equally.11 37

'Uthman’s rule was marked by internal strife due to his lack of administrative ability and his being subjected to the influences of his clan. The dissatisfaction became grave and culminated in his murder

(656).

The fourth Caliph,*Ali, who transferred his residence from al-

Medina to Kufa, Iraq, suffered the same fate. He was assassinated after a long fight with the Omayyads for temporal supremacy within Islam.

IV. THE OMAYYAD STATE

Mu'awaiya proclaimed himself a caliph at Jerusalem in A.D. 660 and founded the Omayyad Caliphate in Syria, whose capital was Damascus.

Under the Damascus Caliphate, the Arab armies carried on their campaign in eastern Persia with the same indomitable spirit that had carried them there. Within twenty years of the fall of Wihavand, they had overcome the two eastern-most provinces of Khurasan and Sejistan and

37Ameer Ali, on. cit., p. 76. 17 were raiding into Afghanistan. Al-Haj jaj ibn Yusuf, the strong governor o f Iraq, had been the moving s p ir it o f these d istan t a ctivities.^ ®

Mu'awiya always regarded the war against the Byzantines as one

of his most important tasks. His .troops arrived twice before the gates

of the capital of the Byzantine Empire, but the latter was able to ward

off the attack. In 671; Mu*awiya made one more energetic attempt to penetrate into the heart of the Byzantine Empire. He dispatched a 39 mighty fleet, which succeeded in establishing itself in Cyzicus. From

there he harassed the capital for seven years, but nothing was of any

avail against its powerful fortifications. Finally he gave up the

struggle and concluded peace with Byzantium

Mu'awiya died on A pril 18, 680. He was follow ed by h is son YazTd.

Within a generation the invincible Arabs had overrun the entire province

o f Transoxiana and annexed the mighty c it ie s of Samarkand and Bukhara.

At this point, Arab military expansion into Asia reached its uttermost

lim it.

The most important achievements of the Omayyad Caliphs after

Mu‘awiya were these: the resumption of the fight against Byzantium by

the Caliph‘Abduli-Malik after a quiescence of about fifteen yearsj the

continued conquests in central Asia, Asia Minor, Iraq, North Africa, and

3®Thomas, 0£ , c i t . , pp. 90-91.

-^Ancient city of Asia Minor, on Cyzicus Peninsula (Modern Kapidapi Peninsula), NW Turkey.

^°Brockelmann, 0£ . c i t . , pp. 73-71;. Spain under the reign of al-Walld—conquests which continued throughout the reign of his successor ‘Umar II; the resumption of hostilities against Byzantium; and the greater pressure in the advance westward in

Spain during the rule of Hisham.^

At the time of the Arab invasion in Worth Africa, the Byzantines were masters of the coasts; a prefect o f the emperor ruled from Tripoli to Tangier. However, i t is thought that outside the garrisoned towns, the Berbers had never been at any time fully subjugated, whoever the k Z invader—Byzantine, Vandal, Roman, or Phoenician.

In 670 ‘Uqbah built the famous military city of Qayrawan to the south of Tunis to keep in check the fierce, unruly Berbers, and also to guard against the Byzantine ravages from the sea.^3

Carthage fell in 697-698, and with it fell the power of the

Byzantines and that of their local allies of Tunis and Algeria. The

Arabs had obtained the command of the sea in the Mediterranean about this time, and their fleet played an important part in the siege of

Carthage. Thereafter, its cooperation was to afford effective assistance

in the movement westward to the shores of the Atlantic and northward UU across the straits into southern Europe.

^1See Brockelmann, 0£. c it. , pp. 78-100; Sir William Muir, The Caliphate, I ts R ise, Decline and Fall (fourth ed ition ; Edinburgh: John Grant, 191f>), Chaps. 'XLIX-LV; and Muhammad As*ad T allas, TSrikh al-Umma al- ‘Arabiyya: al-Dawla al-Omawiyya, (first edition; Beirut: Dar al-Andalus l i - t i b a ‘a wa an-Washr 1958).

^^Thomas, op. c it. , pp. 9h-95.

^Ameer Ali, 0£. cit., p. 79. ^Thomas, o£. cit., p. 96. 19

Spain at that time was ruled by a Visigothic aristocracy, but it was not a united country. As in Persia before its fall, the state had been undermined by internal dissensions and traitorous factions and was

ready to collapse before a conqueror possessing the military powers of

the Muslimso V isigoth ic and Spanish-Roman antagonism had only la te ly been composed} s tr ife between Visogoth nobles themselves s t i l l continued}

the Jews were utterly estranged by persecution} and the enslaved classes

did not care who ruled them.^

Encouraged by the success of the first raid and by the dynastic

trouble in the Visigothic Kingdom of Spain, Musa ibn Nusayr in 711 dis­ patched his Berber freedman, Tariq ibn Ziyad, into Spain with seven

thousand men, most of whom were Berbers. Tariq landed near the mighty

rock which has since immortalized his name (Jabal Tariq), Mount of Tariq

or Gibraltar. With his forces supplemented, Tariq, at the head of twelve

thousand men, was met on July 19, 711, by the armies of King Roderick at

the mouth of the Salado River on the shore of the lagoon of the Janda.

Though numbering tw enty-five thousand men, the V isigoth ic army was ut­

terly routed. After this decisive victory, the march of the Arabs U6 through Spain amounted almost to a promenade.

What was the real spirit and incentive behind these conquests?

How did the warriors of the desert spring up suddenly to create, in

little over one century, a mighty empire that swept two giant empires, with their established force and might, and dominated the world

U$ibid., pp. 96-97. ^ itti, og. cit., p. 70 20 throughout several centuries? In the year 7U3 when Hi shim, the tenth

Omayyad Caliph, died, the Arab Empire had reached its greatest lim it. In

Europe, the south of France and the whole of the Iberian Peninsula, ex­ cept some defiles in which robber bands maintained a guerilla warfare, belonged to the Arabs. In the Mediterranean they possessed Majorca,

Minorca, Ivica, Corsica, Sardinia, Crete, Rhodes, and Cyprus, with a part of Sicily, and many of the islands of the Grecian Archipalago. In Africa th eir sway was recognized from the S tra its o f Gibraltar to the Isthmus of ...... I *7 Suez; in Asia, from the deserts of Sinai to the Steppes of Mongolia.

Some writers think that these conquests were not clearly prose­ lytizing missions, for the Jews and Christians subjugated were allowed to keep their own religion if they cared to. What they had to do, however, U8 was to pay tribute. "Islam was primarily a political allegiance."

Some writers lay stress on the economic causes of the expansion. "Wot fanaticism but economic necessity drove the Bedouin hordes, and most of the armies of conquest were recruited from the Bedouins, beyond the con­ fines of their arid abode to the fair lands of the Worths

In fact, none of these explanations is sufficient. The Islamic movement was a religious one. The warriors waged a holy war and were anxious to die in "the cause of God" and not to seek tribute. Once a land was conquered, proselytizing and political allegiances were sought

^Ameer A li, og. c i t . , p . If>8-159« ^^Thomas, og. c i t . , p . 71.

^Philip; K. H itti, History of the Arabs (sixth edition; Londons Macmillan and Co., 1956), p. lUu 21 among those who were w illin g to respond. This movement was encouraged by the decline of Arabia's powerful neighbors, the Byzantines and the

Persians. Their ancient rivalry had grown into a death struggle of con­ tinuous warfare. Tribute was required only from the followers of the divine religions who cared to keep their faiths in return for their protection by the Islamic state and their exemption from military

s e rv ic e .

It must be taken into account that the Arabs had to avert the

repeated attacks of the mighty border neighbors. Sir William Muir re­

cords in his The Caliphate that when a certain general Ziyad, after the

conquest of Iraq, asked eUmar's permission to advance to Khurasan in pursuit of the Persian forces, *Umar forbade him saying: "I desire that between Mesopotamia and the countries beyond, the hills shall not be

able to get at us, nor we at them. The plain of Iraq suffices for

our wants. I would rather secure the safety of my people than thousands

of spoils and further conquest." There is no doubt about the fact that

at the very outset, when the Arabs took a firm stand in the soil of

Arabia, Persia and Syria viewed this rising power in their neighborhood

with jealousy and alarm. From that very time, these powers were anxious

to crush the young power and subjugate Arabia. Persia openly sent re­

inforcements to the rebels of Bahrain. From Iraq, the country under the

sway of Persia, came Sajah, with pretensions to prophethood, who marched

to attack the capital of the new Arab Empire. This could not be done

without the instigation of Persia, the ruling power in Iraq. Later,

however, when Persia opened direct hostilities, the Arabs carried their 22 defensive attacks to its last effects. When Rustem, the famous Persian general, came out for battle on the field of Qadisiyya, he declared:

"The whole of Arabia w ill I smash.

Sir Thomas Arnold gives a full account of the success of the early Arab Muslims in carrying out their religion and culture to other nations. Simplicity of faith, religious tolerance, and the lack of an organized church made every individual a missionary for his religion— these, among other causes, made the new empire successful from its b i r t h . ' ’1

The total duration of the Omayyad rule from the assassination of the Caliph ‘Ali to the death of the last Omayyad Caliph Marwan II was K2 little less than ninety-one years.

During the first half of the eighth century, the internal unrest had been mounting. The most difficult problem for the Omayyads was to integrate the social structure of the Arab state, as organized after the conquests, w ith the a g ric u ltu ra l economy of the conquered provinces, and to do so in a manner consistent with the ethical principles of Islam.

What gave the problem a p e c u lia r in te n s ity was the movement of conver­ sion to Islam among both landowners and cultivators, who continued, nevertheless, to suffer from their former social and economic disabilities.

£°Muhammad A li, "A Study of Muslim Conquests During the Early Caliphate," The Islamic Review, (November, 1950), pp. 5-8.

Z^Sir Thomas.Arnold, The Preaching of Islam, (Lahore: Shirkat- i-Qalam, 1956), Chap. XIII, pp. U0d-U27, and pp. 30-31.

^Araeer Ali, op. c it., p. 18U.

) The problem was solved eventually toward the end of the Omayyad period, but only after bitter struggles which integrated new Arab landowners with non-Arab landowners and exempted converted cultivators from the poll tax payable by all non-Muslim subjects. Both measures led toward an assimilation of Arabs and Muslim non-Arabs, and at the same time, toward uniformity of administrative practice in the Arab Empirej but they came too late to check the sense of grievance against Omayyad rule which stood for the political domination and social privilege of the 53 Arabs. Internal unrest in Persia was growing. The Persian nation was making demands which could not be satisfied within the frame of the

Omayyad rule. Here in the east, propaganda for a new ruling house fell on a fertile soil. & The Alids, who always looked upon the Omayyads as illegal rulers, who were responsible for the murder of *Ali and who took away the rule from his legitimate descendants, were the initiators of agitation. Later on, the uprising was carried not by the ‘Alids but by the Abbas ids,^ who established the Abbas id state after the fall of the Omayyads in A.D. 75>0.'*^

^S ir Hamilton A. R. Gibb, An Interpretation of Islamic History (Lahore: Orientalia Publishers, 1957), pp. 11-12.

^Spuler, o£. c it., p. 1*8.

'’'’The descendants of a l-‘Abbas, an uncle of the Prophet.

■^For a comprehensive account of the fall of the Omayyads, see Chapter 11 on "the causes of the Omayyad collapse" in M. A. Tallas, op. c i t . , pp. 177- 1 8 2 . CHAPTER I I

INTERNATIONAL ISLAMIC LAW: NATURE,

SOURCES AND DEVELOPMENT

International law in the Islamic state did not attempt to find out by observation the rules actually followed by states in their mutual intercourse as do modern systems of international law. It was a law determined by infallible religious sources. Application and observation came later and were operated within the spirit of those general rules.

It was a "law" in the real sense of the word, not in the sense in which some modern writers tend to exclude the word "law" and substitute the word "rules"; thus they define international law as: the "rules" which determine the conduct of the general bocfy- of states in their dealings with one another.

I . NATURE

In contrast to the modern concepts, international law in the

Islamic state, like other branches of law, was respected and observed; and due to the presence of the coercive force which compelled rulers and peoples to its obedience, it was rarely violated. Its binding force was not merely the "consent" of the state, which is the basis of treaties, nor was it obeyed because it was the alternative to anarchy. Since it was a part of religion, Islamic international law was purely of a subjective character* It was a divine law, the violation of which would

invoke the divine punishment. Thus it implied, of necessity, the principle of the good faith of treaties.

The Islamic system of international law, moreover, was neither "a priori" inquiry into what the rules of international intercourse ought to be, nor was it an historical investigation of what they are. It pro­

ceeded from divine revelation from which were deduced some maxims that were conformable to justice and humanity. They were applied to cases within the spirit of those maxims.

Being a branch of an all-comprehensive system of law, the inter­

national Islamic system did not suffer from the modem problem of

conflict between international law and municipal law. Both municipal

and international law were conformable, since they were subject to the

principle of good faith which was prescribed by the religion.

Unless nations subject their sovereignty to the universal interest

of the community of nations as a whole, there w ill not be one system of

international law, but several systems. The rules will differ at dif­

ferent times and among different groups. Their nature w ill be determined

by the ideas current upon the subject of international intercourse and

the practices permissible in warfare. In these matters the nations of

the classical Islamic era differed immensely from those of modem times.

Though there are several systems of international law in modem times,

there is but one important systemj it grew up in Christian Europe,

though some of its roots may be traced back to ancient Greece and

ancient Rome. It has been adopted by most of the civilized states. In early Islamic era there were also several international systems; the

Islamic system was the most elaborate and important because the Islamic

state was the most powerful in the world during the Republican and

Omayyad periods. Still this system of international law was not appro­ priated by other states since it was based on religious sources that

demanded first of all the adoption of the Islamic faith.

The sphere o f law is much wider in Islam than it has ever been

with modern laws. A Muslim is told by his code not only what is re­

quired under penalty, but also what is either recommended or disliked.

In consequence, actions are divided by Muslim jurists into five classes:

Firstly, a necessary act (fard or wajib); a duty, the omission of which

is punished and the performance of which is rewarded. Secondly, a

recommended act (mandub or mustafrabb); the performance of which is

rewarded, but the omission of which is not punished. Thirdly, a per­

mitted act (ja ?iz or mubah). Fourthly, a disliked act (makruh);

disapproved by the law, but not under penalty. Fifthly, a forbidden act

(haram); an action punishable by law. 1

Law in the eyes of the Muslim scholars was not, in fact, an in­

dependent or empirical study. It was the practical aspect of the

religious and social doctrine of Islam. For the early Muslims there was

little or no distinction between "legal" and "religious." In the Quran

the two aspects are found side by side, or rather interwoven one with

■^Duncan B. MacDonald, Development of Muslim Theology, Jurisprudence and Constitutional Theory (Lahore: The Primier Book House, I960), p. 73. 27 the other, and so likewise in the Traditions of the Prophet.^ So the basic and most obvious distinction between Islam and Western law is that

the latter is essentially secular, whereas the former is essentially

religious and, as such, is basically immutable.^ It is obvious, of

course, that much of this law could never be enforced by human courts.

For example, it is only those actions which are specifically commanded or

forbidden which could be so enforced; and we find a great deal, even

within these two decisive categories, which is left, insofar as any sanc­

tion is concerned, to the bar of Eternity. It is readily understandable,

then, to find that Islamic law has been aptly described as a "Doctrine of

Duties.Law as a system of commands enforced by the sanction of the

state is a concept wholly alien to Islamic theory. The law of God re-

mains the law of God even though there is no one to enforce it.

Since Islamic jurisprudence is both a religious and a legal

system at the same time, the reason for its separation into two broad

divisions becomes evident. One of these divisions deals with religious

observances and is concerned with the affairs of the hereafter, such as

belief, prayer and so on. This is called‘ibadat. The second division

H. A. R. Gibb, Mohammadanism (London: Oxford University Press, 19510, P. 89. 3 j. N. D. Anderson, Islam ic Law in the Modern World (New York University Press, 1959), p> 2.

W d . , p . 5»

'’S. G. V esey-Fitzgerald, "Nature and Sources o f the Shari rah," Law in the Middle East, Majid Khadduri and Herbert J . Liebesny, ed ito rs, (Washington, D. C.i The Middle. East Institute, 1955), vol. I., p. 85. is concerned with the affairs of this world and is called mutamalat. It is subdivided into sections such as criminal law, family law, transaction,

(which covers the rules of sale, hire, gift, etc.), laws of legal pro­ cedures, and the laws of the siyar or jihad or international laws that govern the relation of the Islamic state with other states. These laws contain rules of war and peace, rules for those outside or inside the countries ruled by Islam, rules on quarters, booty and poll tax, tithing, land tax, slavery and liberation of slaves.

Religious regulations which are binding upon a Muslim in the mat­ ters of worship, family life, and all events of any importance in social, transactional and political life, form together a code of law which in

Arabic is called shari‘ah or shar*, literally, "the way." The scienti­ fic study and elucidation of the sharlrah is called fiqh.

To Muslims, the sharifah or sharcis promulgated by God through

His Prophet. The First Legislator, therefore, is God alone Who revealed the Islamic sharl^ah, including the religious and the legal system. It was natural that the science of jurisprudence or the science of sharl* ah should deal with religious observances along with all other social trans­ actions and that the doctors of this science should consider it as a £ part of religious science. Thus we might define Islamic international law in this way: "the subdivision of transactional laws that guide the

Islamic state in its defense and external relations, which sprang from

6 s. Mahmassani, F alsafat al-T ash rT fi a l- Islam, trans. Farahat J. Ziadeh (Leiden: E. J. B r ill, 19&I), p. 9. 29 the holy texts of Islam, the maxims of the spirit of these texts and usage operating upon consensus and deductive analogy, extended itself to all the subjects of the Islamic state."

There are some writers who would call Islamic international law

"Muslim law of nations," since the modern law of nations presupposes the existence of a family of nations composed of a community of states en­ joying full sovereign fights and equality of status. The Muslim law of nations, they think, recognizes no nation other than its own, since the ultimate goal of Islam is the subordination of the whole world to one system of law and religion to be enforced by the supreme authority of the imam. Similar to the law of ancient Rome and the law of Medieval

Christendom, the Muslim law of nations is based on the theory of a 7 universal state.

This view is untenable since the Quran, the first source of

Islamic law, states clearly that among the laws of nature is the creation of people into different nations, and that differences will never cease to exist. It says:

And if thy Lord had pleased, He would have made people a single nations And they cease not to differ.

This verse shows in unmistakable language that the concept of a universal state will not be realized because it is against the immutable

?See Majid Khadduri, War and Peace in the Law of Islam (Baltimore: The Johns Hopkins Press, 19^577 PP* UU— U5•

8 Q. 11:118. 30 divine law. The Quran exhorts the Islamic state to treat with justice and friendly relations all other states that are not hostile.^ The theoiy of the universal state means that the call of Islam for Muslims is considered an extra-territorial consideration. The Muslim, wherever he happens to reside, is obedient and loyal to the imim or the head of the state. Those who think of the Islamic state as universal in the sense of enforcing its authority on the whole world are also led to be­ lieve that Islamic international law is temporary, since a time will come when the whole world will be converted to Islam. S till those who hold this opinion believe that modern international law is permanent, since it presupposes the existence of a family of different nations which needs permanent regulations in the conduct of their international affairs. They, on the other hand, call for universal government which,

if realized, will set aside most of the rules of international law in favor of the authority of the universal government. No one can say that the hopes about this government will lessen the importance of the present rules of international relations.

Relation to Previous International Laws

From the earliest times to the establishment of the universal

dominion of Rome under the Caesars, the distinguishing feature of inter­ national relations has been the belief that nations owed duties to one another if they were of the same race, but not otherwise. States as such possessed no rights and were subject to no obligations. The Greeks

9Q. 60:8 . 31 recognized no duties toward those nations which were not of Hellenic descent. Among themselves, they had a rudimentary international law based upon the idea that all Hellenic peoples, being of the same race and similar religion, were united together by bonds which did not sub­ s i s t between them and the rest o f the world.*0

Among the Romans of the Republic, there was perhaps less trace of a true international law than among the Greeks. Rome stood alone in the world. She was not one of a group of kindred statesj therefore, in her dealings with other states, she was rarely restrained by any notion of rights possessed by them as against herself. The regulations of the international code of Rome sprang partly from religious feeling and partly from the love of order which so distinguished the ancient Romans.

They were in no respect due to any idea that Rome had obligations toward other nations. This international code neither claimed for Rome nor gave to other states the benefit of any idea of mutual obligation, except with regard to the faith of treaties and the safety of the persons of ambassadors.**

Islamic international law was ordinarily binding upon individuals rather than territorial groups. For Islamic law was obligatory upon

Muslims as individuals or as a group regardless of the territory they resided in. Piety and obedience to God were the criteria of a good

10T. J. Lawrence. The Principles of International Law (Boston: D. C. Heath & Co., 1899),. pp. 27-28.

Hlbid., pp. 29-30. 32 citizen under the Islamic ideology, rather than race, class, or attach- 12 ment to a certain home or country.

There were schools of the Roman law in Syria at Caesarea and

Beirut, but we need not imagine that the Muslim jurists studied there.

Rather, it was the practical school of the courts as they actually existed which they attended. These courts were permitted to continue in existence until Islam had learned from them all that was needed. We can still recognize principles that were carried over, such as the legal maxim which declares that the burden of proof lies upon the plaintiff, and the right of defending himself with an oath lies upon the defendant.

These, as expressed in Arabic, are almost verbal renderings of the 13 permanent utterances o f Latin law0 However, the mere existen ce o f similarities is generally not sufficient to prove influence. It is necessary to make a distinction between fundamental principles and sub­ sid iary r u le s. Fundamental p rin cip les stem from the prin cip les o f primary justice. They are, therefore, eternal and invariable. Such principles are similar in ancient as well as in modem times. Subsidiary rules, on the other hand, are not always similar. In most cases they differ depending on such things as time, place, and peculiar social conditions.

There is no doubt that the Muslims were not acquainted with Roman books of jurisprudence, that they did not translate any of those books,

l^Khadduri, o£. cit., pp.

•^MacDonald, og. c i t . , p« 8U« 33 and that they did not make any reference to them. If they had knoxm these books, they would have acknowledged the fact in their works, as they acknowledged the translation of Greek and Persian books on science and philosophy. The reason why the Muslim jurists refrained from study­ ing Roman law was their firm conviction that the shari4ah was divine, that it was fundamentally founded upon the Quran, and that it was the example of perfection in jurisprudence,^

The Italian orientalist, C, A, Wallino, discussed this problem and gave his reasons for not accepting the view that Roman law had an in­ fluence on Islamic law. He held that, if Islamic law was based on anything, it could in abstract theory be on Sassanid law; but there is not evidence to support it. For him, those who support the dependence of

Islamic law on Roman law have first to establish more or less clearly the way in which this dependence or this great influence would have taken place. Before any hypothesis, it is necessary to propose and to resolve serious historical problems: What was the real condition of the judicial organization in Palestine, in Syria, and in Egypt at the moment when the Arabs subjugated these countries? Were they still functioning, or were they not rather in many places already abandoned to ecclesiastics whose knowledge of legal matters, as we know, was very scant?*5 Among the advocates of this view is Professor Gibb who holds that although some of the formulae and contents of Roman law percolated into Islamic law,

^M ahm assani, o£, c i t . , pp. 136-11*2,

C. A, Nallino, "The Influence of Roman Law on Muslim Law," The Islamic Review, December,. 1953 > pp<> 9-12, the principles upon which the latter was constructed and the spirit of its application were entirely unrelated to those of the Roman ju rists.^

As for Islamic law’s relation to pre-Islamic Arabian law, there are some writers who believe that there is ample evidence to show that

Islamic law evolved from Arab customary law and that, after expansion of the Islamic state, Islam absorbed the local customs and practices of conquered territories as did other religious systems. 17 But to say that

Islamic law evolved from Arab customary law is unwarranted, since it is a well-known fact that the new religion prohibited many bad practices and accepted some good ones. Although there was customary law, it was pro­ tected by no sanction and enforced by no authority. The law of custom appeared in the system of Islam, but it was backed by the sanction of l 8 God working through the authority of the state.

I I . SOURCES

The sources of international law of the Islamic state were:

1. The sh arl* ah .

2. Treaties which were concluded between the Islamic state and other states, and instructions issued by the state for the guidance of its own officers.

Gibb, o£. cit., p. 8 9 . For full and comprehensive comparison between Roman and Islamic laws, see Dr. Sufi Hasan Abu-Talib, Bayna al-SharI{ah al-Islamiyya wa al-Qanun al-Romani (Cairo, Matba'at Nahdat Misr, n.d. )$ and’’Abdullah Husein, Ad-Dawlah al-Islamjyya (Cairo: Matba'at al-Shabab al-Haditha, 19U8), pp. 175-22ii, and pp. 300-7.

^Majid Khadduri, "Nature and Sources of Islamic Law," The George Washington Law Review, vol. 22, October 1953, p. U-

•MacDonald, ojd. cit., p. 68. 3. Custom, which was a secondary source working outside the fields of the holy texts and within their spirit. This source, however, is one of the most important origins of modern international law.

The second source will be dealt with in the chapter on treaties; the third will appear throughout the chapters on the laws of war and peace; the first is the law proper, to which we turn now.

Foundations of the shari^ah have four fundamental infallible bases: (l) God’s word—the Quran; (2) the words and deeds of the

Prophet—The Traditions; (3) the general agreement among orthodox scholars—ijma{; and (U) the legal analogy—qiyas. Each of these bases supplies a guarantee that the doctrine of the law schools is really in agreement with the will of God. They are called'usul al-fiqh ("roots of the law").*? Duties and doctrine can be accepted as binding only when imposed by, or derived from, a source that is beyond human questioning.

Directly or indirectly any regulation should go back to the Lord Himself.

The Quran, as the collection of all preserved revelation or the direct speech of the Lord addressed to Muhammad, is marked as the foremost authority. To the Muslim, the Quran treats every subject, but more specifically matters of faith, legal prescriptions, and prophetic h is to ry .

The Traditions, which concern the deeds and the sayings of the

Prophet, are an indispensable supplement to the Quran.

^jam es Hastings (e d .) "Law (Muhammadan)", Encyclopaedia of Religion and Ethics (Hth dd., Edinburgh: T & T Clark, 1957), vol. 7, p . 061. Originally, the oral Traditions were handed on from one generation to another® In addition to the te x t o f a tra d itio n , the names o f the persons who had handed it on, from the latest narrator to the Prophet, were accurately learned by heart® The trustworthiness of these narra­

tors was the guarantee for the correctness of their narrative; therefore,

the portion of the tradition containing the names of the narrators was

called tiie isnad or sanad, i.e ., the support (viz. for the credibility

of the Traditions)., S till, many of the Traditions were deliberately

invented.^0

There are three main categories: sound, safrih; good, hasan; or weak, da*lf. A sound tradition is one whose chain of authority is

carried back without interruption to a companion by a chain of narrators

each of whom is trustworthy; a good tradition is one whose sanad, though

complete, has one weak link but is confirmed by another version. Within 21 each class there are further subdivisions.

Ijma* means a consensus of opinion of the Muslim jurisconsults of

an age on a question relating to Islam. The question may be a theologi­

cal one or one relating to worldly affairs, like the administration of a

country, war, peace, etc.

20I b id ,, p . 859.

2*Gibb, op. cit., pp. 77-78; see also for more classification H. A. R. Gibb and J. H. Kramers (ed.), Shorter Encyclopaedia of Islam (Leiden: E. J . B rill., 1953)* Po 118, and Abdur-Rahman, Etne K ritisohe Prtifung der Quellen des Islamischen Rechts (Oxford University. Press, 1 9 lli), pp. 112-121*. A fter the death o f the Prophet, some o f the leading companions residing at al-Medina served informally as a consultative body to help the caliph in solving any complicated question which did not find a solu­ tion directly in the Quran or in the Traditions. It was accepted as the

third source of Islamic law. It is sanctioned by the Quran‘S itself and by the Traditions of the Prophet, for he is reported to have saids "fty 23 — people will not agree on an error. Consensus, or ijma*, in one -

age can be repealed by another ijma* in a later age.

There is a certain resemblance between the settlement of doctrine

by "consensus” in Islam and the Councils of the Christian Church,: in

spite of the divergence of outer form; and in certain respects, the 2k results were very similar.

The spirit behind ijma‘ has been to meet the ever-growing problems

of a progressive society and to keep pace with the times. This very

source of flexibility was mistakenly taken by some orientalists as the 25 factor of rigidity in the Islamic law. They thought that this prin­

ciple was another kind of dictatorial rule that gives the sanction of

legitimacy to the political structure of the state. They forgot that

the p o litic a l structure and the people are both subject to one law$ and

22Q. U :ll5 .

^ \a tif Rahman, ”The Institution of Ijma--Its Scope in the Modern Society," The Proceedings of the Pakistan History.Conference (Karachi: Pakistan.Historical Society, 1953)/pp. 103-ioU.

2i«jibb, op. cit., p. 98*

2*Ibid., p. 95. if the former should violate it, the latter must declare disobedience.

Moreover, ijma* works within the framework of the holy texts and cannot violate their spirit:

These three main sources of law could not meet all situations.

Law and justice went with the Muslim armies everywhere. Jurists accom­ panied each army and were settled in the great camp cities which were built toehold the conquered lands. Basra, Kufa, and Fustit, the parent of Cairo, owe their origin to this, and it was in these new seats of

Islam that speculative jurisprudence arose and molded the Muslim system.

The jurisconsults had to resort to ijtihad, which means literally exertion to the utmost degree to attain an object; and technically: the exercise of intelligence by a scholar in order to form an opinion on the interpretation or application of a provision in the shari‘ah to be applied to a case which is not expressly covered by a provision in the shari* ah. Through ijtihad, the scholars discovered one source which brought the number of the original infallible sources to four: qiyas, legal analogy. Besides these main sources, there were some minor dis­ putable sources. They were ra>y, legal opinion; *urf, custom; istifrsan, legal preference; istiglafr, public interest; and istighab, deduction by presumption of continuity. All these sources were operative in the

Republican and Omayyad periods, although they were not given their technical titles until the establishment of the law schools in the

Abbasid period. 39 Qlyas is the fourth source of the Islamic law. The jurists

derived this new source from the fundamental juridical premise that all

ru les are based upon ob jectives and in te r e sts, and that such objectives

and in terests are the causes for the r u le s. Hence, from the rules they

deduced their causes. Having done so in any particular problem, they were able to apply the same rule to another problem2^ whenever the case

for both was identical. It needs the investigation of the411a, the

motive of law, ratio legio, and the resulting reduction of doubtful 27 cases to a rational point of view. To prove this, the jurists cited a

tradition in which the Prophet had instructed Mu‘adh, his governor in

Yemen, to keep to the Quran and the Traditions but, in cases in which

this was not possible, to behave according to the analogy of these 28 sacred texts. The nearest thing to qiyas in Western law is legal

fic t io n .

The use of Opinion, ra'y, became equity in the strict sense; that

is, the rejection of the letter of the law for a view supposed to be

more in accordance with the spirit of justice itself. Equity, in the

English sense, is the law administered by the Court of Chancery and

claims to override the older jurisprudence of the country on the strength

of an intrinsic ethical superiority, lit Roman law, it was the law of

nature, the part of law which natural reason appoints for all mankind,

2^Mahmassani, op, c i t . , p . 79* and Abdur-Rahman, o£. c i t , p . 1I49.

2?Shorter Encyclopaedia of Islam, p. 103.

^Hastings, op. c it.. p. 863. Corresponding to this recognition of ra*y as an approved source of law are the instructions ascribed to the Prophet and the early caliphs, which they gave to the officials sent to administer justice in the conquered provinces, 29 and contained the principles to which they gave their approval, insofar as they were actually implied in the holy texts or the other legal sources. This, however, was not what jurists meant by qiyas, which implidd technical rules for the legal exactitude of individual reasoning. The conditions for the course and validity of individual opinion is that it may be resorted to only in the absence of a text of the shari'ah . ^ 0

cUrf is the custom and the usage of a particular society. If

*urf contradicts a holy text, it cannot be followed. If not, it super­ sedes an old rule formulated by former jurists and based on the customs of their timesj for, had the former jurists lived in later times, they 31 would have based their rules on the new jjurf.

In order for it to be effective, eurf must satisfy certain condi­ tions. Foremost among them is that a custom be recurrent and w611 known.

Another is that it be of general application throughout Islamic coun- 32 tries. A third is that it not contradict the shurces of the shari c ah.

29 Gibb and Krafters, (ed.), op. c it., p. 103.

^°Said Ramadan, Islamic Law (London: P. R. Macmillan, 1961), p. 6 8 .

-^Ali al-Khaftf, "Al-Osus allati qama ealayha at-Tashrl‘ al- Islami," Al-Azhar Magazine, Moharram, 1372 A.H., pp. 30-37*

32Farahat J. Ziadeh, " *Urf and Law in Islam," The World of Islam, James Kritzeck and R. Bayly Winder, editors (London: Macmillan & Co., 19$9), PP. ^0-67. Istihsan, legal preference, is defined as "a source for law, when a principal source is lacking, which sparks in the soul of the inter­ preter, and which he finds himself unable to express by words or to bring out by other means," or "the setting aside of legal analogy and seeking what is more suitable for the people.For example, the legal analogy would require that the non-Muslim citizens of the Islamic state cannot trade in alcoholic drinks or the meat of the swine,, in analogy to the other Muslim citizens. But this legal analogy is set aside in favor of legal preference that since the non-Muslim citizens do not believe in the prohibition of these articles of trade according to their faith,

they are given permission to deal in these articles which are finan­

cially valuable to them.

Istislah, public interest, is called also al-ma?alih al-mursalah.

Such interests are not covered by any text from the Quran and the

Traditions and, therefore, are considered mursalah, i.e ., "set loose"

from such texts. This method relates a particular rule to the appro­ priate meaning which is consonant with the general practices of the

Islamic law—in other words, to consider the reasonable meaning which

conforms to the public interest and to the intent of Islamic lax*, and

then to formulate a rule that such meaning requires. For example, if the

enemy in a war should shield themselves in their advance by placing

Muslim prisoners of war in the front ranks, public interest permits the

killing of the Muslim prisoners of war in the course of fighting the

^•^Al-Amidi, Al-Ahkam (Cairo, Matbafat Sobeih, 13U7 A.H.), vol. 3, pp. 136-137. enemy, i f such action should be found e sse n tia l to ward o f f the enemy and to protect the interests of the Muslim people as a whole.^

Both istislah and qiyas are used in cases on which there is not a te x t. However, the qiyas is supported by texts from which there are 35 deduced principles, whereas the istiglah is not.

Istigfrab, or deduction by presumption of continuity, is a rational source which may be resorted to in the absence of any other source. The literal meaning of istishab is permanency. Technically, it is used to

Indicate that things whose existence or non-existence has been proven in the past should be presumed to have remained as such for lack of estab­ lishing any change. This principle is expressed in such rules as: "it is reasonable to assume freedom from obligation u n til the contrary is proved"j "a general provision should be generally applicable until it is made! limited to certain situations"; "a legal established fact is con­ tinuous until the contrary is proved"; "a text as a source of law is held to be continuously true until it is repealed"; "freedom from liability

is a fundamental principle."

Analyzed in terms of the modern law of nations, the sources of the Islamic law of nations conforms to the categories defined by modem jurists and the statute of the International Court of Justice; namely,

^Mahmassani, og. cit., p. 88. 35 ^ Zaki Sha'aban, "Masadir ash-Shari ah an-Nazariyya," Al-Azhar Magazine, JumSda a l-‘UlS,. 1377 A.H., p. 1*32.

^Mahmassani, og. cit. , p. 90. agreement, custom, reason, and authority. Agreement corresponds to ijma* , custom to 'urf, reason to ra’y, and authority to the sharl*-ah.

I I I . DEVELOPMENT IN THE REPUBLICAN AND OMAYYAD PERIODS

The age of the Prophet constituted the first period in Islamic law; it commenced with the beginning of the mission of the Prophet

Muhammad in A.D. 610 and came to an end with his death in 632. During this period, the Quran was the principal source of law. It was re­ vealed by God to Muhammad. The period of revelation extended a little over twenty-two years, twelve of which were spent in Mecca before the migration of Muhammad to al-Medina, and the remaining ten in al-Medira.

The Traditions were the second source o f law a fter the Quran.

They were comprised o f what had come forth from the Prophet in the form of speech, deeds, or approval of practices.

The next period of legislation was the period of the four Caliphs of the Republican period and the Omayyad Caliphs. In this age, the learned from among the Companions of the Prophet continued to adjudicate cases among the people in accordance with the Quran and the Traditions.

They followed either consensus or analogy whenever there was no text covering the case. From these cases arose the principles of ijma*' and qiyas as two additional sources o f law, making four princip al sources.

The pioneers in issuing opinions and deciding cases were the

Orthodox Caliphs—Abu Bakr, ‘ Umar, ‘ Uthman, and ‘A lio ffUmar, second only

^M&jid Khadduri, "International Law," Law in the Middle East, p. 352. . . to the Prophet as the great founder of the Islamic state, had an insight

into the spirit of the sharl‘'ah, and enforced it with determination and magnanimity. To him goes the credit for organizing;;the state and its

various bureaus in accordance with the needs and developments of the

tim e.

In that era and after, the Companions of the Prophet and the

generation which immediately followed, dispersed into the various Muslim

provinces, and their legal opinions in a particular province achieved 38 prominence in that same area. So it was not until the death of the

Prophet in A.D. 632 that the process of collecting, arranging, correlat­

ing, and developing the law began.

When the Abbasids came to power in Baghdad in A.D. 750, the

integrated schools of law were established. These schools established

their systems on legal methods already in practice throughout the

Republican and Omayyad periods. The first of these schools and the most

important among them, the Hanifite school, established most of its work

in the shadow of the Omayyads. Abu-Hanifa, the founder of this school,

died in A.D. 767.39

Since the opinions of scholars regarding the rules to be deduced

from the Quran and the Traditions disagreed in many respects, there grew

3%ahmassani, og. c it., pp. 15-17.

•^For a complete list and biographies of the jurists who lived in the Omayyad periods and were the pioneers of the Islamic schools of law later in the Abbas id period, see Muhammad al-Khudari, Tarikh al-Tashri* al-Isl5mi (Cairo, Essa al-Halabi, 1930), pp. lhU-166j and ‘Ali Abdul- QSdir, Nazra'Amraa fi Tarikh at-Tashrl' al-Islhmi, (Cairo: Maktabat al-Qahira al-ljSaitha, 1956), pp. 137-157. up in a short time different law schools, each.having its own views as

to questions of detail. Such a school was called madhhab (party).

There were at first a great many of these schoolsj each faqlh (jurist)

had his own madhhab.^ In the course of time most of the old schools

lost their significance; finally they had no followers at all. Only the

four schools of Abu-Hanlfa (d. A.H. 150-A.D. 767), Malik ibn Anas (d,

A.H. 179-A.D. 795), Ash-Shafi‘T (d. A.H. 20ii-A.D. 820), and ibn Hanbal

(d. A.H. 2iU-A.Do 855) have retained the adherence o f the orthodox lil Muslim world down to the present day.

In spite of their formal differences and divergencies of detail,

the schools of law achieved substantial agreement on the more important

problems. All recognized each other’s system as equally orthodox.

Thus, they are not to be distinguished as different sects but merely as

distinct schools. Any scholar or ordinary believer might belong to any k2 one. Several scholars, although they associated themselves in general

with the opinions of an already established school, still considered

themselves qualified to depart in some points of secondary importance 1 A from the views of its founder. For example, Abu Yusuf and Muhammad Mi ibn al-Hasan ash-Shaibani, who belonged to the followers of Abu-

Hanlfa, had in many cases concepts different from those of their master.

^Hastings, o£. £it., p. 859. ^Ibid., p. 858.

^Gibb, og. cit., p. 103.

U3d. A.D. 797.

^d. A.D. 805. The differences between the various schools of Islamic law first arose with regard to the interpretation of certain provisions of the

Quran and of the Traditions. These differences touched upon such matters as the methods of verifying the accuracy of reports of the

Traditions and the conditions upon which they were to be accepted as authoritativeo In al-Medina, Malik ibn Anas had the reputation of making use of the Traditions of the Prophet to a larger extent than the

Iraqi school of Abu-Hanifa. Also, he considered, in exclusion to other schools of law, a local kind of ijma‘, that is the agreement of the in­ habitants of al-Medina in the era following the death of the Prophet, since al-Medina was the true home of Muhammadan Traditions. He depended to a great extent upon the practice of the Medinite jurists. He used the Traditions more copiously and took refuge in analogy less frequently.

"When application of a rule would work general injury, it was set aside even in the teeth of a valid analogy, and the concept of the public interest was resorted to.

The schools of law differed over the extent to which legal analogy could be relied upon. The Hanifite jurists used it extensively; the

Malikites used it only sparingly; the Hanbalites used it only in dire necessity. The anti-analogy groups alleged that there was no need for it because the Quran and the Traditions were sufficient. They protested b$ that analogy was a guess and could not be depended upon.

^Mahmassani, 0£. c it,, p. 80. The pro-analogy groups justified their acceptance of it on the grounds that the Prophet himself approved it when he dispatched fifu‘adh ibn Jabal and Abu-Musa al-Ash'arl as judges to Yemen. Furthermore, they held that legal analogy is based upon a real and clear cause and is com­ patible with the objectives of Islamic law.

Consensus, according to the majority of jurists, is the agreement by all Muslim jurisconsults in any particular age on a ruling. Thus, it was not enough for them just to follow the behavior of the citizens of al-Medina alone as Milik held: that al-Medina was the home of the

Prophet’s emigration and the abode of the Companions; that its people, therefore, were more intimately acquainted with the revelation and the life of the Prophet than others and that their consensus should be adhered to, to the exclusion of others.^ Milik's idea is untenable because the learned Companions of the Prophet were not concentrated in al-Medina but were scattered in various countries after the conquests.^

Ash-ShaficT tried to limit the use of analogy to questions of detail when there was no relevant text in the Quran, the Traditions, or consensus. He established a balance between those who used analogy i g extensively and those who rejected it as a source of law. He rejected

^6Ibid., pp. 77-78.

k^See al-Amidi, _op. c it., vol. 1, pp. 12U ff., for a full dis­ cussion of the view of the majority of the jurists in refutation of Malik’s idea about ijma*■

^Khadduri, "Nature and Sources of Islamic Law," The George Washington Law Review, vol. 22, October 1 953, p. 1*8 the principle of legal preference of Abu-Hanlfa and the principle of public interest of Malik. Ife held fast to analogy, whether based on the

Quran or on the usage of the Prophet. Ibn Hanbal minimized the prin­ ciple of consensus and legal analogy and tended toward literal interpre­ ta tio n o f the Quran and the T raditions. Abu-Hanlfa leaned upon the highly authentic T raditions, and instead o f depending on what he considered weak T raditions, he depended much more upon analogy from the li9 Quran and limited groups of the Traditions.

Apart from its intellectual preeminence and scholastic function, Islamic law was the most far-reaching and effective agent in moulding the so cia l order and the community l i f e o f the Muslim peoples. By its very comprehensiveness it exerted a steady pressure upon all private and social activities, setting a standard to which they conformed more and more closely as time went on. Moreover, Islamic law gave practical expression to the ch aracteristic Muslim quest for u n ity. In a ll e sse n tia ls it was uniform, although the various schools differed in points of detail. To its operation was due the striking convergence o f so cia l ideals and ways o f l i f e throughout the medieval Muslim world. It went far deeper than Roman law, by reason of its religious basis it was the spiritual regulator, the conscience, o f the Muslim community in a ll it s parts and a c t i v i t i e s .^

^%acBonald, og. cit., pp. 95-96.

^°Gibb, og. cit., p. 10. CHAPTER I I I

STATE'S THEORY, RIGHTS, AMD DUTIES

The state is a politically organizedbody o people, f occupying a definite territory, living under a government, and incorporating sovereignty. Modem states are territorial; their governments exercise 1 control over persons and things within their frontier. If we keep this modem concept of the state in mind, we find that the Islamic state during the Republican and Omayyad periods carried the modem concept to its full meaning, both in political theory and in the marks of statehood 2 according to modem international law. The Islamic state was a political community, the members of which were bound together by the tie of common subjection to the central authority, the Caliph or the imam, whose command the m ajority o f them obeyed.

Most of the features of statehood were lacking before the estab­ lishment of the Islamic state by the Prophet and the early caliphs. The social structure of ancient Arabia was founded upon blood kinship or tribal confederations. The new religion changed this element and con­ stituted a community which was united under one system of faith, worship, and government, and removed a ll tr ib a l or ra cia l d ifferen ces.

■1-Charles 0. Lerche, Principles of International P olitics, (Oxford University Press, 1956), p. 13j and J. L. Brierly, the Law of Nations, (fifth edition, Oxford,University Press, I960), p. lTH..

2For the juristic and philological definitions of the Arabic words of "state," "nation," "nationalism," "umma" see J. Hans, Dynamik und Dogma.im Islam, (Leiden: ,E0 J. B rill, .1960),.pp. 30-33* 5o

I . THEORY

Government in the Islam ic sta te was founded upon the in su fficien cy of the individual, who was unable to protect himself against the aggres­ sion of other individuals unless supported by the power of the state, obedience to which was a religious prescription# The Quran says: 3 "Go forth, some of you are the enemies of others." and

"Were it not for God*s repelling some men by others, the earth would certainly be in a state of disorder.

Man is born naturally good. By bad influence and evil environ­ ment, he becomes greedy and aggressive. Human society would not have been able to subsist had God not checked people by the authority of the government. Once the government is estab lish ed , i t can work only on the basis of cooperation and trust among the governed. In the Traditions,

Muhammad is reported to have conceived of the Islamic community as a 5 "single hand, lik e a compact w all whose bricks support each other," and in the Quran, the Islam ic community is referred to as a d istin c t 6 "one brotherhood," ummatun wahidah, bound by common obligations. The conception of the brotherhood constituted the basis of the Islamic community. Ibn Taymiya (A.D. 1263-1328) conceived o f the Islam ic

3X3. 2:36. ^Q. 2:250.

'’An-Wurman on the authority of al-Bukhari.

6Q. 23:52. government as essentially a cooperative association composed of those who have the power and those who are governed, the imam being really helpless without the active cooperation of the people.?

The source of the strength in the state was the supreme and holy g importance of the Lavrgiver. The successful Islamic state was founded on one law which determined the national and international character of the people. This sole divine law established the same standard of conduct for the statesman and the private citizen, except that the former was vested with the necessary powers for his position. The state depended upon religious authority. Temporal and spiritual government were identical. Individuals and institutions were regulated by govern­ ment for the good of all, and within the framework of the sharifah which made the group a community.

God is the supreme ruler of the state. His rule is immediate and direct. It is stated in the Quran that "Allah^ is the Owner of the

Kingdom. He gives a u th o rity to whom He p le a s e s ." ^ The government was a trust from God to the human sovereign.

?Haroon Khan Sherwani, Studies in Muslim Political Thought and Administration (third edition, Lahore: Ashraf Publications, 195>9), pp. 199-200. g Compare th is to the conception o f "sovereignty" according to Jean Bodin, and also the principle of "The Omnipotent Legislator" of Miachavellij see George H. Sabine, A History of Political Theory, (New York: Henry Holt and C o., 1955), pp. uO'F-7, and 3llU-3U7.

^Allah is an Arabic word meaning "God"; it has no other meaning nor implication.

^Q . 3 : 2 ^, in part; see also 12: 1+0 , 7 : 10 . The Traditions of the Prophet declare clearly that the sovereignty is a trust. It is reported by Abu Dhar^ that the Prophet said: "It /the headship of the state/ is a trust, and surely on the Day of Judgment it will be a source of' shame and regret except for those who took it with truth and gave it full rights." This is one of the important basic principles of the Islamic state. Everything was held by man in trust for God, in whom all dominion rests, and man was merely the usufructuary of all he possessed. In verse after verse, the Quran emphasizes that it

is God Who is the dispenser of authority, and that He, therefore, shall change possession and hand over a u th o rity to whomever He lik e s . 12

Some writers believe in the resemblance of the Islamic theory to modern theories of contract under which the citizen of the state com­ pletely surrenders his rights and freedoms to the ruler, a view held by some western political thinkers, such as Hobbs and Locke. Islamic theory does not deprive people of rights nor freedoms. The citizens are responsible individuals who have "delegated" to some of their fellow citizens the right to coordinate and guard their interests. So, the bay^a^ is a contract which binds the ruler by the observance of the sharx^ah and defines for him his field of authority.^

11On the authority of Muslim.

^Read for example Q. 3:25.

^Oath of allegiance given by the ruled to the ruler after his election to the presidency of the state.

^•^Mahmud Fayyad "Al-Fiqh as-Siyasi *anda al-Muslimln," Al-Azhar Magazine (Rajhb, 1370 A .H .), pp. 6U7-61i8. The office of the caliphate derived its legal character through the principle of ijmac, which holds that the appointment of an imam is

incumbent upon men. Moreover, the institution of this office is neces­ sary according to pure reason; for all wise men entrust their affairs to a leader able to keep them from being molested and capable of adjudging between them in case of conflict.^ Some modern Muslim thinkers, how­ ever, hold that it is a common fallacy to believe that the caliphate is the only possible form of government, and repudiate the idea of its es­ tablishment upon the ijma*', since it was not mentioned either in the

Quran or the Traditions. For them, the headship of the state is no more

than social necessity.

The imam^ was a religious leader having the authority to enforce

the sharT*ah on the community. He was not a pontiff, for Islam has no

hierarchy nor apostolic succession. As a sovereign leader, he acquired

no absolute authority, for he was bound to rule according to the shari*ah under consultation with the notables in the community . ^ Professor Hitti

says:

In this regard analogies drawn from the headship of the Holy Roman Empire and from the modern Christian distinction between

^Ibn Khaldun, al-Muqaddima (Cairo: Lajnat al-Bayan Al- 'Arabi, 1959), vol. 2, pp. 19-5>20; see also al-Mawardi, al-Afrkam as-Sultaniyya, (Cairo: al-Matba‘a al-Mahmudiyya, n.d.), p. 3.

l^The imam, or the leader of the Muslim community, was given different titles in different times, such as caliph, sultan, king, prince e tc .

^S ee D. de S a n tilia n a , "Law and Society" in The Legacy of Islam , Sir Thomas Arnold and Alfred Guillaume, editors, (Oxford University Press 1931), PP. 298-299. The spheres of temporal and religious powers are misleading. As amir al-mu*minln, commander of the b e lie v e rs , the m ilita ry o ffice of the caliph was emphasized. As imam (leader in public prayer) the caliph could and did lead the religious service and pronounce the Friday khutbah (sermon)j but this was a function which the humblest of Muslims could perform. Succession to Muhammad, khilafah, meant succession to the sovereignty of the state. Muhammad as a prophet, as an instrument of revelation, . . . could have no successor. The caliph's relation to religion was merely that of a guardian. He defended the faith just as any European emperor was supposed to do ....

The representative and executive power of the state was centered

in the caliph. He could make war or peace, send agents to foreign powers or receive agents from them, conclude treaties with other states,

issue charters and declarations of rights and duties of the minorities within the state, and instruct the officers of the state. He might or might not submit to the will of other states, and might modify the course of his actions against the wishes of other states. The caliphs, for necessity of administration, delegated some of their powers to their

agents, to the provincial governors, amirs, army chief, ql*ids, tax collectors, jabis, and judges, qatjis.

The caliph possessed the judiciary power. The Prophet himself was a chief justice and so were the Republican Caliphs. However, when the burden of the administration became wide and varied, the caliphs had to

delegate their judicial power to the judges. The first caliph to appoint such judges was ‘Umar.^ However, the judicial discretion of the caliph

1 fl Philip K. H itti, History of the Arabs (London; Macmillan and Co., 1956), p. 185.

i^Umar appointed Abu ad-Darda' as a judge in al-Medina, Shoreih in B asra, and Abu-Musa al-A sh‘a ri in Kufa. was lim ite d and q u a lifie d . The scope of le g is la tio n was lim ited because the major part of legislation, mostly derived from the Quran and the

Traditions, was regarded as predetermined. Only questions on which the original sources were silent were required to be decided on the basis of ijma*, 20 qiyas, or ra’y (personal opinion of the caliph or the legisla­ ture). The legislature was composed of the notables in the community who were distinguished by their religious knowledge or social position, ahl al-frail wa al-*aqd, "those who bind and loose." Their verdicts on problems which were not explicitly covered in the sharl*~ah were called shura (consultation). The Prophet avoided doing anything arbitrarily and used to consult his chief companions in serious matters. The shura was carried out on an informal basis by the distinguished leaders of the community; only the eighth Omayyad Caliph '"Umar ibn ‘Abel-'Aziz estab- lished a council of consultation from the leading jurists. 21

The head of the state had to be endowed with the qualifications which would enable him to fu lfill his duty. These qualifications are

2®For instance, when the question as to whether or not the con­ quered lands in Iraq and Syria should be distributed among the warriors was to be decided, representatives from all sections in and around the capital of the state, al-Medina, were called in and the session con­ tin u ed fo r sev eral days w ith the presence of the C aliph *Uraar. A lso, on the eve of the battle of Nihawand there was another important sitting of the council of shura. The Caliph ‘Umar wanted to command the army in person. The council went against the idea, and the Caliph was restrained by the majority from going in person.

^S. A. Q. Husaini, The Constitution of the Arab Empire (second edition; Lahore: Ashraf Press, 195h)> PP« 115-116. 56 physical, moral, and knowledge of the sharf*ah. Thus, he must be strong in body and sane in mind, just, brave, and well versed in all aspects of the religion. Some Muslim writers added the disputable condition that the imam should be from the Quraysh tribe. They based this condition on the Prophetic Tradition which says: "The imams are from the Quraysh.

This Tradition, however, cannot be understood exclusively in terms of the headship of the state. The word "imams" here may be taken as "those who are dedicated to the cause of the state." There are other Traditions which prescribe obedience to the head of the state even if he was an

"Abyssinian negro."

The choice of the imam was not carried on the basis of universal

suffrage, but by the judgment of the notables in the community. The

election was called bay* a which symbolized a contract between the head of

the state and the community. The latter delegated by the people to choose

the imam under two conditions: competence of the imam and his rule ac­

cording to the shari‘ah.23

After the election of the caliph, adult citizens were required

to take an oath of allegiance to him. This was necessitated by two

factors; first, not all of them had voted at the time of the election;

and second, all the citizens had to be bound by an oath of allegiance so

22 Al-Mawardi, op. c it., p. it; see also Santillana, op. c it., p . 296.

23santillana, _og. c it., p. 297. that they would always obey the orders of the head of the state and cooperate with him in the matters of the state. Once the oath of allegiance was taken by the citizens, it could not be broken unless, of course, the caliph violated the laws of the shari*ah. The oath of allegiance was purely a contractual affair between the head and the citizens.The latter had delegated the right of administration to the person of the elected head so that he would regulate the affairs of the state in accordance with the sharl^ah.

The essential function of the head of the state was centered around his civil position as the chief executive of the state, who ad­ ministers the internal and external relations of the state, and his religious capacity as the leader of congregational prayers. The founder of the Islamic state assumed these two positions by accident due to the necessity of legislation and religious guidance, for he was looked upon as a Prophet and Messenger. The heads of the s ta te in h e rite d from him all his functions except prophethood. Thus, they were given the title of khalifa, "caliph or successor," and imam, "leader."

After the election of the imam was over and the oath of allegiance to him was taken by the c itiz e n s , i t was customary fo r him to d e liv e r his

inaugural address in which he set forth his policy. The inaugural address of the first Caliph is significant in this respect. It shows

^Amir Hasan Siddiqi, "The Political System of Islam," Voice of Islam, VIII (February, I960), p. l 6 U.

2% nder the C aliph ‘Umar, the t i t l e of amir al-mu’minim "Commander of the Faithful," came into use. 58 obedience and cooperation from the citizens vie re not unconditional. If the caliph acted in accordance with the shari*ah, he could demand obedience, otherwise the citizens vrere at liberty to disobey him. He declared himself not to be the master but the servant of the state and, as such, he was open to correction. He could be criticized even by an ordinary person in the street, and his chief duty was to maintain

justice between the strong and the weak.^

I I . RIGHTS AND DUTIES

The foremost purpose of the Islamic state was to provide a politi­

cal framework for Muslim un ity and brotherhood. The sta te was not an

end in itself but only a means. The goal was to enable the community to

live morally, as well as physically, in accordance with the Divine Law.

The Quranic command, "Obey God and obey the Apostle," is iramedi- 27 ately followed by the words "and those in authority from among you,"

that i s , from among the Muslim community. Obedience to the government

is a principle of citizenship recognized as fundamental in all civilized

communitiesj but it is important to note that, within the context of an

Islamic polity, this duty remains a duty only so long as the government

does not legalize actions forbidden by the sharfah, or forbid actions

2&See the English text in Sir William Muir, The Caliphate, (Edinburgh: John Grant, 1?15)> pp« U-5«

27q. U:59. which are ordained by it. In such a contingency, obedience to the

government ceases to be binding on the community, as clearly stated by

the Traditions: "Hearing and obeying is binding on a Muslim whether he

likes or dislikes the order—so long as he is not ordered to commit a

sin; but if he is ordered to commit a sin, there is no hearing and no

obeying."'u • »28

The government was entitled to: (a) impose, over and above the

religious zakah tax laid down on Muslims in the Quran and the Traditions,

any additional taxes and levies that might be deemed necessary for the

welfare of the community; (b) impose, whenever necessary, restrictions

on private ownership of certain kinds of properties, means of production,

or natural resources with a view to their being administered by the

state as public utilities; and (c) subject all able-bodied Muslim

citizens to compulsory military service in defense of the state.^

Form o f Government

The Quran did not specify a special form of government for the

Islamic state. It laid down two principles only: the shura and the

obligation to rule according to the shari'ah. It would be an error to

compare the Islamic state in the Republican and Omayyad periods with any

28Muhammad Asad, The P rinciples o f S t a t e and Government in Islam, (University of California Press, 19&1), pp. 3£-36*

2? Ib id ., p . 70. modern state, as it fundamentally differs from all of them with regard

to the concept of sovereignty and, in that respect, occupies a unique p o sitio n .

Whether the Islamic state was theocratic depends upon the meaning

of the word. If it means that all temporal legislation flows from what

the community considers to be a Divine Law, then it was theocratic. How­

ever, it could not be described as such if theocracy is identified with

the endeavor to invest a priestly hierarchy with supreme political power,

for the reason that in Islam there is no priesthood or clergy. Since

every adult Muslim had the right to perform every religious function, no

person or group could legitimately claim to possess any special sanctity 30 by virtue of the religious function entrusted to them.

The Quranic verse which prescribes obedience to the possessors of

power "from among you" refers to the community as a whole and not to a

group or class within it. Therefore, some writers on Islamic political

theory believe that, in order to satisfy the requirements of Islamic

law, the leadership of the state must be of an elective nature and that,

consequently, any assumption of governmental power through nonelective

means, such as the birthright or hereditary kingship, becomes auto­

matically as illegal as an imposition of power from outside the Muslim

community. This view, in fact, suffers from some defects, for the Quran

and the Traditions did not specify election as the only way of choosing

the head of the state. It could be by designation either by one to another or by a hereditary system, so long as the consent of the com­ munity was secured.

Al-Mawardi acknowledges a second method by which the community may be provided with a caliphj namely, through *ahd, or appointment, by the preceding caliph. This is a method approved by ijma*, which serves to give legal sanction to the accomplished fact and which here is based upon the precedent established by Abu Bakr, who appointed ‘Umar to be O 1 Caliph. The consent of the people came afterwards through the oath of allegiance.

Professor al-Maudoodi^2 calls the Islamic state a "theo-democracy but this term is both vague and misleading. This is no more than saying

"divine democracy" or "religious democracy," which means nothing.

Probably the definition which comes very near the nature of the form of the Islamic state is the definition by Professor Khadduri. He calls the

Islamic state "a universal divine nomocracy." By nomocracy he means, according to the Oxford Dictionary, "a system of government based on a legal codej the rule of law in a community." It is distinguished as divine because it was based on divine legal order, and as universal because the state recognized the equality of all races before God and the common allegiance of all Muslims to one head of the state.^3

^^Al-Mawardi, og. c it. , pp. U and 8.

32See Abu al-A‘ala al-Maudoodi, Nazariyyat al-Islam as-Siyasiyya, (Galandahar, India: Dar al-Uruba, n.d.yi

-^See Majid Khadduri, War and Peace in the Law of Islam, (Baltimore: The Johns Hopkins Press, 19^5), pp. lU-17. 62

International Principles of the State

The Islamic state was guided in its international relations by the following principles and maxims set forth in the texts of the sharl*ah or deduced from those texts:

1. All people are equal in human rights, contrary to the theory of the chosen people found in some religions or nations.

2. Dealings between the Islamic state and other states must rest upon a basis of justice. In peacetime, all rights acquired by other states and their nationals are respectedj in wartime it is not possible to go beyond the limit necessary for repelling the mischief of the enemy.

Accordingly, it is not permissible to mutilate those killed, nor to torture the prisoners of war, nor to practice gradual killing, nor to destroy fruit-bearing trees, nor to kill an animal except for food and for a military necessity, nor to harm those men of religion in monasteries or those people who cannot carry arms, such as 'women, children, the aged, and the sick.

3. Treaties between the Islamic state and other states are respected and considered binding, like contracts between individuals.

U. Waging war is not perm issible before tran sm ittin g a c a ll of warning to the potential enemy.

£. Retaliation is not permissible except in a matter which violates Islamic principles. Some Muslim jurists, accordingly, ruled that, according to the Quranic verse which forbids punishment for a 63 crime committed by another, it was not permissible to k ill the Byzantine 3k hostages when the Byzantines violated a treaty with the Muslims.

6. The Quranic verse which says: "God forbids you not respecting those who fight you not for religion, nor drive you forth from your homes, that you show them kindness and deal with them!j u s t l y , i s in support of the doctrine of fundamental rights of the state said to be inherent in the very nature of the state. Among these rights are: the right to existence, to independence, to equality, to territory.

7. It is a duty of the state to prevent the formation upon its soil of military expeditions against a foreign state, unless the latter does the same. In this case, the formation of such expeditions should 37 be announced publicly to the foreign state.

8. The lesser of two evils should be preferred. For example, if,

in their advance, the enemies guard themselves with Muslims, the state’s

•Mustafa Zarka, "The Shari'ah and the Problems of Modern Life," Colloquium on Islamic Culture (September, 1953), (Princetbn-University Press, n.d.77 p. 7k. % 60:8 .

^Thus Islamic concept here is against the positive tradition in modern international law. Jurists of the so-called'"positive" tradition, - looking only to the facts of international life and to the members of the international community as they found them, saw no reason for intro­ ducing doctrinal concept into their discussions of current practice. According to them, rights were rights if they were recognized as such, and a state could only claim what custom had established or what specific treaties had prescribed. See Charles G. Fenwick, International Law (New York: Appleton-Century-Crofts, Inc., 1952), pp. 21^-216. 37q. 8 :58 . 6k army should fire on the entire enemy array, including Muslims, for killing a small group of Muslims is a lesser evil than complete defeat.

9. Peace is presumed to be the original state of society, and war is a necessity. Thus, war is a collective responsibility. If some of the community takes up this responsibility, the rest are not compelled to engage in war. However, in time of imminent danger, the imam has the authority to dedlare waras a personal responsibility for every indivi­ dual.

10. Legal obligation takes precedence over a moral "religious" obligation. So, women or slaves can participate in the actions of hostility only by permission from husbands or masters.-^®

11. The interest of the state is the foremost principle in the conduct of war. Thus, the imam may call for peace on his own initiative in the middle of war and seek a truce or peace treaty from the enemy, if such a peace would serve the interest of the state better than war.

12. "The Muslims are equal in th e ir blood, and the most humble among them are like any other: he may extend his protection to anyone."

This, in fact, is the meaning of a Prophetic Tradition. It implies that any ordinary Muslim citizen of the state can give a guarantee of safety to an enemy person and this will be binding on the whole community.

13. Equal treatment is a criterion of the conduct of the state in its international relations with other states. Thus, prisoners of war may be enslaved if the other state did the same with the Muslim

3®For an example of the application of this principle see pp. 1U8-1U9. prisoners of war. If the other state gives its alien subjects the right of inheritance from their relatives of the Islamic state, the latter in turn may do the same. The Islamic state may also exempt alien traders from custom duties if their home state does the same with the traders of the Islamic state. CHAPTER IV

JURISDICTION OF THE STATE

I . TERRITORY

At the basis of international law lies the notion that a state occupies a definite part of the surface of the earth, within which it normally exercises, subject to the limitations imposed by international law, jurisdiction over persons and things to the exclusion of the juris­ diction of other states.1 In the Islamic state the most important modes o f acquiring territo ry were by two means: conquests and tr e a tie s .

Under the tr e a tie s f a l l s what is now ca lled cessio n , which is a mode of transferring the title to territory from one state to another. It results sometimes from a successful war, and sometimes from peaceful negotiations. There was a third mode of title known as ihya, al-mawat

(revival of the waste land) which corresponds to the modern mode of title by occupation. It is a means of acquiring territory not already a part of other states. Title by accretion was not known at that time, 2 and it is even now of little importance.

The reviving of waste land had an international significance.

Although ownership was conferred on the person who cultivated the waste

•*\J. L. Brierly, The Law of Nations (fifth edition, Oxford University Press, i 960), p. l£o0

^Accretion is the addition of new territory to the existing territory of a state by operation of nature. land, it was brought into the territory of the state $ and the state was given the right to levy the zakah on the Muslim owners and the kharaj on the dhimmis, or protected c itiz e n s.

According to the Shafi'ite school, the person need not secure the agreement of the imam to revive the waste land. Abu-Hanifa, the founder of the Hanifite school, thought that the person had to ask the imam for permission. He supported his view by the ra'y (legal opinion) of the

Caliph ‘Umar. It was reported that the Prophet gave a piece of land to

Bilal to revive. When ‘Umar became the Caliph, he asked Bilal to revive the land or return it to the state, because all the citizens had a right to it. The imam could allot waste land only to a person who was able to 3 cultivate it.

Many writers on the Islamic concept of state deny territoriality as a feature of the Islamic state. They believe that, since the law of the state is a religious one, it can be applied to Muslims wherever they may reside as the religion transcends the boundaries of the state. This is true if we consider the consciousness of the individual Muslim who abides by the laws of his faith irrespective of the place of his resi­ dence. However, there is no authority to enforce these laws upon those outside the states territory. So we should distinguish here between individual consciousness and jurisdiction of the state.

^Ibn Qudama, a l- Mughni (Cairo: Matba‘a t al-M anar, 13U8 A.H.) Chapter "Ihya' al-MawSt," vol. 6, pp. 18U ff. 68

The territory of the state was called dar al-Islam and the world

was divided between dar al-Islam and dar al-harb. Par a1-Is lam was

defined as "the land in which the legal code of Islam is in effect and

in which the ceremonial activities of the religion are observed."^

Par al-harb, on the other hand, is the land which is characterized by

three things: (1) the observance of a non-Islamic legal code; (2) the

proximity of non-Muslim territory; (3) the absence of aman, or safety,

which is guaranteed by the Islamic state to all its subjects."’

Besides dar al-Islam and dar al-harb, there was dar as-?ulh which

was not under the state’s jurisdiction yet was in tributary relationship

to it. Under the Prophet, the example of the Hudaybiya treaty between

the Muslims and the Quraysh tribe was the origin of the concept of sulh.

The other example from our period is that of Nubia, which was somewhat

different. By their skill with the bow, the Nubians were able to hold

off the Muslim attack and to maintain their independence. In conse­

quence, ‘Abdullah ibn Sa'd^ entered into treaty with them, not requiring

tribute but only certain gifts of slaves in exchange for stable food

from the Muslims."^

^Such as the Friday services and the annual religious festivals.

Abdel-Rahman Khidr "Makan al-Islam f i Mafhum ad-'-Dawla," Al-Muslimum, (Kanun al-Awwal, 195>6), pp. 793-796.

^The Governor o f Egypt under ‘Uthraan.

^Shorter Encyclopaedia of Islam, H.A.R. Gibb and J. H. Kramers, ed. (Leiden: E. J. B rill, 193>37 > P- '6 9 . The land of dar al-Islam, constituting the state’s territory, was

divided into four types: (a) the land whose o rig in a l owners became

Muslims, called ‘ushr (tithe) land; (b) occupied territory, which was

divided among the Muslim so ld iers and also became ‘ushr landj (c) mawat

(waste) land which, revived by the Muslims, became *ushr land; (d) oc­

cupied territory, which was left in the hands of its original owners who

were required to pay the kharaj.

The second type was ruled out since the time of the Caliph fUmar who, after shura (consultation) with the distinguished companions, pre­

vented the land o f Iraq and Syria from being divided among the Muslim

troops and kept the land in the hands o f th eir o rigin al owners* The

last type needs additional elaboration, for it is the only type which

yielded the special tax of the kharaj,

The land in the conquered territories under c Umar and subsequent

caliphs was declared by the state to be a national domain; it was not

divided among the troops. The native population was allowed to culti­

vate the land as they had formerly done, but they had to pay part of the

produce as kharaj. The land which was declared to belong to the state’s

domain in conquered countries was called fay'3 and to secure the use of

the income o f the fa y ’- land to the s ta te , i t was arranged that kharaj

should be forever attached to the possession of that land. Even if the

population which cultivated the land went over to Islam, they must con­

tinue to pay the kharaj. The rule proved unworkable in practice; the

payment o f the kharaj was regarded as an act o f subjection. The new converts rejected this obligation and refused to pay more than the tithe

•which the Arabian Muslims were obligated to pay from the product of O their harvests.

The jurisdiction of the state over its territory centered around three main functions: political administration, tax collection, and religious leadership. These functions were directed, as a rule, by three different officials. The amir (viceroy) would appoint his own

•’amil (agent, prefect) over any particular district and simply forward his name to the caliph. The viceroy had full charge of political and military administration in his province, but quite often the revenues were under a special officer, sahib a 1-kharaj, responsible directly to the caliph. Mu'awiya was the first to appoint such an officer, whom he

sent to Kufa. Previously, the government of a province in the state

had meant chiefly its financial administration.^

Although there was no sense of precise geographical boundary of the territory, we see that the great territorial divisions under the

Omayyads had roughly some geographical meaning, and they were those that

nature delimited. They corresponded in general to the preceding

Byzantine and Persian empires. They comprised: (1) Syria-Palestine;

(2) al-Kufa, including al-Iraqj (3) al-Basra with Persia, Sijistan,

Khurasan, al-Bahrayn, ‘Uman, and probably Najd and al-Yamama; (U)

®Tr. VI. Joynboll, "Law: Muhammadan," Encyclopaedia of R eligion and Ethics, James Hastings, ed. (Edinburgh: T. and T. Clark, 1959), vol. VII, p. 882.

^Philip K. H itti, History of the Arabs (London: Macmillan and Co., 1956), pp. 2214- 2 2 5 . 71

Armenia; (5) al-H ijaz; (6 ) Karman and the frontier districts of India;

(7) Egypt; (8 ) Ifriqiyah; (9) al-Yemen and the rest of South Arabia.

Gradually combinations were made and five viceroyalties resulted.

Mufawiya combined al-Basra and al-Kufa into one viceroyalty, that of

al-Iraq, which included most of Persia and eastern Arabia and had al-Kufa

for its capital. Later, the viceroy of al-Iraq had a deputy governor

for Khurasan and Transoxiana, who resided at Marw, and another for Sind

and Punjab. Likewise, al-Hijaz, al-Yemen, and Central Arabia were com­

bined into another viceroyalty. Al-Jazlrah (the northern part of the

land between the Tigris and Euphrates) with Armenia, Adherbayjan, and

parts of eastern Asia Minor formed the third. Lower and Upper Egypt

constituted the fourth. Ifriqiyah, which embraced northern Africa wesL

of Egypt, Spain, Sicily and other adjacent islands, formed the fifth

viceroyalty with al-Qayrawan as its seat of government.

AtVthe end of the Omayyad period, the Islamic state was divided

into fourteen huge provinces of unequal sizes. Each of them was sub­

divided into several large districts. For example, the whole of Arabia,

a subcontinent larger than the Indian peninsula, formed a single

province; and the whole of Spain, one district."*^

10Philip K. H itti, loc. c it.: and also Harry W. Hazard (comp.), Atlas of Islamic History, (Princeton University Press, 19$h), pp. 7 and 9 .

■^For a complete list of all provinces and districts in both Republican and Omayyad periods, see Hasan Ibrahim Hasan and A li Ibrahim Hasan, an-Hozom al-Islaraiyya (Cairo: Makabat an-Nahda, 1939), PP. 195 f f . 72

I I . JURISDICTION OVER SUBJECTS: MINORITIES

M inorities o f non-Muslims in the Islam ic sta te were tinder two categories: 1 . Those who entered the sta te for a lim ited period, and whose status was subject to the regulations and conditions upon which the per­ mission of sojourn was granted. Neither in the Quran nor in the

Traditions is there any text against the granting of such permission.

On the contrary, there were precedents of non-Muslim foreigners visiting al-Medina in the Prophet's lifetime and doing business with the Prophet himself. Even with regard to subjects of a belligerent state, the

Islamic state ordained its full protection once an "a-posteriori" per­ mission of sojourn had been granted and the bona fides of the visitors had been established. The permission of sojourn could be given even by individual c itiz en s and thereby became binding upon the s ta te . A sojourner was termed musta’min, or "holder of a covenant of protection," and he was granted, as a rule, the right to live according to his 12 religious code.

2. Those non-Muslims who accepted being in hegemony with the state. Their consent took the form of a dhimma, an agreement by which the rights and duties o f both p arties were accurately described.

Dhimma agreements may be called treaties only in a formal sense. Almost

^Said Ramadan, Islamic Law (London: P. R. Macmillan, 1961), pp. 109-110. . . all parties to these agreements were groups and tribes which clearly did not rest upon the essential assumption of treaty negotiationsj namely, the independence of the contracting parties. S till, this does not change them from being treaties, at least formally. Many leading

European and American states have concluded agreements with native tribes or semi-civilized people dealing chiefly not only with the cession of territory, but also with such matters as the payment of tr ib u te , the rendering o f services o f one sort or another, and commer­ cial relations. The United States concluded five hundred treaties of this kind with the Indian nations prior to 1871, when the practice came to an e n d ,^

In the dhimma agreements, the terms were in the nature of pledges or guarantees given by the Muslims to the protected c itiz en s rather than between equals. Thus the dhimma agreements were in the form of con­ stitutional guarantees from the moment the dhimmi community ceased to be separate entities.^

An agreement of dhimma was concluded by the imam or his agents because it was an exclusive right of the executive. It was concluded on an indefinite basis on three conditions: (l) that the protected citi­ zens were followers of a divine religion, such as Christianity and

•^pitman P. Potter, International Organization (Wew York: Appleton-Century-Crofts, Inc., 19U9) p« i 6H,

^Khaddnri, War and Peace in the Law of Islam (Baltimore: The Johns Hopkins Press, 19557, P« 2257 . . . Judaism, or were a people of doubtful revealed religionj (2) that they agreed to pay to the state an annual poll tax called jizya; (3) that they had shown loyalty to the state. ^ They became in hegemony with the sta te and lo st any p o litic a l autonomy. However, they were excluded from military service in exchange for their payment of the jizya. If they so desired, they could enter military service, in which case they were exempted from those taxes. They only retained relig io u s and leg a l autonomy.

Should the imam conclude an agreement of dhimma with polytheists or a th e ists, the contract autom atically became void. Those who were born to a parent who was a scriptuary and the other who was a polytheist could enter into the terms of the agreement if they followed the religion of the parent who was a scriptuary.^ Those who reached the age of maturity among the children of the protected people were automatically covered by the original agreement, and they needed no new agreement or change in the text of the original one.*^

The dhimma agreement sometimes provided for some minor conditions such as the entertainment of Muslim travelers, the maintenance of bridges, or paying blood money for a Muslim who might be found k ille d in

l^Al-Buhuti, Kashshaf al-Qinar(Cairo: Matbafat Ansar as-Sunna, 19U7), vol. 3, p. 92.

l 6 Ibid., vol. 3, p. 9 3 .

^ I b n Qudama, op. c i t . , v o l. 10, p . $ 83. their quarters. Such conditions were left to circumstances and were not necessarily included in the text.

Since dhimma agreements were perpetual, they did not need to he renewed. It is to be noted, however, that the dhimma agreement between the Prophet and the Christians o f Najran was renewed w ith the same con­ ditions by Abu Bakr, the first Caliph. Apparently, the Najranians sought the renewal fearing that the change of administration after the death of the Prophet would affect their situation. However, ‘Umar, the successor of Abu Bakr, terminated the agreement because the Najranians 20 violated one of its conditions; that is, practicing usury.

Typical examples of the dhimma agreements were those which were concluded by the Prophet, such as the agreements with the Christians of

Najran, ^ and with the Christians of Ayla (Aqaba).^

The best example in the Republican period is the agreement which the Patriarch of Jerusalem signed with the Caliph ‘Umar in A.D. 638.

The text reads as follows:

In the name of God, the Beneficent, the Merciful;

l8Ibid.. pp. 578-579.

^See Hamidullah, Majmu^at al-WathaJiq as-Siyasiyya (Cairo: Matba'at at-Ta'lff wa at-Tarjama wa an-Nashr, 1958), pp. Ill, ff. 20 _ Al-Baladhuri, Futuh al-Buldan (Cairo: al-Matba'a al-Misriyya, 1932), pp. 75-77.

^See the text in Hamidullah, og. cit., pp. 11-13# and the English translation in Khadduri, og. c it., pp. 179-180.

2^See the te x t in Hamidullah, o p . c i t . , pp. 5U-55#and the English translation in Khadduri, o g . c i t . , p . 180. This is what the servant o f God 'Umar, the Commander o f the Faithful, has guaranteed to the people of Ealia (Jerusalem);

He guaranteed their lives, property, churches;, and crosses...

Their churches will not be dwelt in by foreigners, nor will they be destroyed or ruined in any part. Nor will their crosses or property be destroyed:

They will not be persecuted for their religion, nor will they be molested;

The inhabitants of Ealia shall pay the jizya as much as that of the inhabitants of al-Mada’in;

They shall require the Byzantines and the thieves to leave the city. If they leave, they shall be secured in their lives and property until they reach their country. Those Byzantines who prefer to stay, shall be given security and should accept the same obligations as those of the inhabitants of Ealia concerning the jizya.

Those who prefer to go with the Byzantines from among the inhabitants of Ealia shall be secured in their lives and property, provided they leave their churches and crosses.

Those who were in the city from among the fanners, before the death of so-and-so, shall be allowed, if they wish, to stay in the city and shall have the same obligations as those of the inhabitants of Ealia concerning the jizya. Those who prefer to leave with the Byzantines may do so; those who prefer to go to their people and lands may do so until the time of their harvest;

This document is guaranteed by the assurance o f God, o f His Apostle, of the Caliphs, and of the believers, if the inhabi­ tants paid their duties of the jizya;

Witnesses are: Khalid ibn al-Walld, 'Amr ibn a l-cAs, ‘Abdul- Rahmah ibn 'Awf, and Mu'awiya ibn Abi Sufyan. I t was signed in l£ A.H. (A.D. 636),23

2& Khadduri, 0£, cit., p. 2lU. 77

Another example is the dhimma agreement between the Muslim com­

mander and the people o f Jorjan which reads:

In the name of God, the Beneficent, the Mercifulj

This is a document from Suwayd ibn Muqarrin to. the whole people of Jorjan:

You are under the liability of us and we have the duty of protection. You pay the annual tribute according to the ability of the able-bodied;

Whoever has chosen from you to aid us, he w ill pay no tribute.

They ^you7 are safe on their lives, property, religion and laws. ~

None of these /conditions7 w ill be changed so long as they pay trib u te, guide the ^Muslim7 wayfarer, entertain him, and abstain from spying and deceit.

Whoever w ill choose to stay with them, he is granted the same rights and duties, and whoever wants to depart, he is safe until he reaches his countiy.

Witnessed by Sawad ibn Qutba, Hind ibn ‘Amr, Simak ibn Makhrama, and Utayba ibn an-Nahhas who wrote the agreement in the year A.H. 18 (A.D. 6 3 9 ).^

The violation of the agreement of dhimma on the part of the pro­

tected subjects took place by two things: (1) The refusal to accept the

payment o f jizy a ; acceptance o f payment while fa ilin g , or refusing, to

pay did not violate the agreement. (2) Rebellion or starting acts of

ifamidullah, og. cit., p. 3260 This agreement is completely similar to another one concluded by Utbah ibn Farqad, a governor under Umar, with the people of Atherbayjan, see ibid., p. 327-328.

v 78 25 hostility against the state, or leaving for enemy's territory. These two conditions were unanimously agreed upon by a ll ju r ists o f the law schools. The Hanifite and Shafi^ite schools considered these two con- ditions as the only ones that breached the agreement of dhimma. The

Hanbalite school considered more causes of violation, such as committing adultery with a Muslim woman, entertaining an enemy spy, tempting a ?6 Muslim away from his r e lig io n , and others.

The dhimma agreement was concluded with the protected citizens on an individual, not collective, basis. Thus, if one of them violated the agreement by such action as noted above, or killed a Muslim, or destroyed

his property, he was himself held responsible and was no longer a pro­

tected citizenj the rest of his group were not held responsible.

In the dhimma agreement, the imam could not throw away the agree­ ment with the protected citizens because of his fear of their treachery,

as in the case of a peace treaty. ' Treachery on the part of the pro­

tected subjects was less dangerous since they were already in the

state's territory under the rule of the imam who could easily subdue

their rebellion.

^ Ib n 'Abdin, Radd al-Muhtar (Constantinople: Wazir Khanendah A li Bek Matba'ah, 129TT1 l7H.),~ v o l. 3 , P* U28.

2^Ibn Qudama of the Hanbalite school enumerates eleven such causes; see og. cit,, vol. 10, p. 601,

27see the chapter on "Treaties." By the agreement of dhimma, the protected citizens were given, in public and civil service, complete equality, the same as other citizens; they were employed as interpreters and guides in the army. They were not only remunerated for their work but sometimes were even rewarded for meritorious services. Once a Christian assisted the governor of Egypt in determining a suitable site for digging a canal to link the Kile with the Red Sea, so that food grains could be supplied direct to Hijaz. The caliph appreciated the suggestion so much that he exempted that Christian from taxation for l i f e . In the time o f the Omayyads, non-Muslim citizen s served in various institutions, such as the medical department, the tran slation bureau, e tc . They were, a lso , sometimes designated as rectors of Islamic educational institutions and curators of Muslim endowments. This p riv ileg e was allowed only to the extent that they pfl were not required to perform any religious functions.

The policy regarding the protected minorities was further im­ plemented by the caliph's instructions to the state's officials. For example, rUraar wrote to Utbah ibn Ghazwan, the governor of Basra:

Deter the Muslims from ill-tr e a tin g the dhimmis. Beware le st you be deprived of your sovereign power because of any breach of pledged word or injustice on your part and some other people be set over you. You have got this sovereign power under a promise to God to be just and honest and He has enjoined upon you to honor promises. So f u l f i l l your undertaking to him and act according to His wishes. If you do this, He will always help and assist you.29

2®A. K. Maqyi, "The Rights of Non-Muslims in an Islam ic State," Voice of Islam (August, 19$$), p. 382.

29Rhurshid Ahmad Fariq, "The State Letters of Caliph ^Umar," Islam ic Review (March, 1957), p. 27. 80

Even in his last testament, in which he enjoined upon his successor the duties o f h is high o ff ic e , * Umar remembered the dhimmis: "I commend to his care the dhimmis, who enjoy the protection of God and of the Prophet; let him see to it that the covenant with them is kept, and that no 30 greater burdens than they can bear are laid upon them."

Here we have to clarify a point which may lead to confusion for the reader who might come across some restrictive regulations to the non-

Muslim subjects of the Islam ic state which hampered them in the free exercise of their religion and which was attributed to ‘Umar by some writers. The so-called charter of ‘Umar forbade such subjects from erecting a new monastery or church, from making a show of Christian religion, imitating Muslims in their dresses, adopting their surnames, ■31 and so on. Sir Thomas Arnold, a Christian orientalist, says that a

later generation attributed that ordinance to ‘Umar. Other Christian orientalists, such as De Goeje and Caetani, have proved beyond doubt 32 that it was the invention of a later age. Encyclopaedia of Islam 33 described it as: "a production of a later epoch." ^

•^Thomas Arnold, The Preaching of Islam (Lahore: Shirkat-i- Qalam, 1S>£6), p. 57. 31 See the full text in Arnold, og. cit., pp. 57-59.

32Ib id . . p. 59.

33P. 17. The Arab historian, Jorji Zaydan, believed that this charter was really the work of * Umar. He presented several arguments in support of h is view.3^ He thought, however, that the charter was enforced only on the Christians of Syria and not on the Christians of other provinces:

Our idea is that ^Umar made the conditions . . • with the intention of guarding the Syrian country against a return of the Byzantines brought about by the machinations of the Christians there, who might well act as the spies of the Byzantines against the Muslems.35

The non-Muslims and the Muslim subjects were equal before the law o f r e ta lia tio n for murderj a Muslim was to be k ille d for the slaying o f 36 a dhimmi, as was the la tte r i f he slew a Muslim,/ I f a Muslim spoiled the wine and the swine of a dhimmi, he had to pay their value as esti­ mated by the dhimmi himself, for these have no value in Islam. If a

Muslim un intentionally k ille d a dhimmj, he had to pay blood money.

During the reign of *Ali, the last Republican Caliph, a case of murder came up in which a Muslim had been charged w ith the murder o f a non-

Muslim c itiz e n . 'Ali gave his judgment according to the sharl'ah, but the heirs of the deceased appeared before the Caliph and explained to him that they did not want the murderer to be put to death as they knew that could not get th e ir murdered rela tiv e back. The Caliph asked them whether they had been coerced, intimidated, or menaced in any way by the

Muslim c itiz e n s . They said that they were neither coerced nor menaced

3^fSee Umayyads and Abbas ides from G. Zg&an's "Islamic C iv iliz a tio n , trans. D. S. Margoliouth (Leiden: E. J. B rill, 1907), pp. 127-130.

3^Ibid., p. 132.

3^This is the view of the Hanifite school which is agreed upon by 82 by any Muslim but that they themselves wished to be recompensed with blood money. The caliph allowed them the a ltern a tiv e, and then he made

a speech addressing all non-Muslim subjects whether present or absent:

This should be known to all whose honor and life are our responsibility that after the covenant their blood is as sacred as our_blood and the price of their blood is equal to that of ours.

The ju diciary had to do with Muslims only, a ll non-Muslims being

allowed autonomy under their own religious heads. Dhimmis were under

the jurisdiction of their religious leaders. The Muslim judge had

jurisdiction in cases concerning the dhimmis of different creeds. The

question arose whether the Muslim judge had to tiy the case if two

dhimmis brought it before him. On this point the opinions vary: the

Hanifite school held that the judge had to try the casej whereas the

Malikite and the Shafi'ite schools decided that the judge had a choice.^®

There was no inheritance between the subjects of dar al-Islam,

whether Muslims or dhimmis, and the subjects o f dar al-harb. In dar

al-Islam itself there was no inheritance between a dhimmis subject and

some other schools. See the different views of the Islamic law on this question in ibnrRushd, Bidayat al-Mujtahid (Cairo: M. al-Halaby, 1950 ), vol. 2, pp. 398 ff.j and otner books on Islamic law under the chapter of jinayat, "criminal punishment." ^ilaqvi, og. cit., p. 38lu

3®Choucri Cardahi, "Conflict o f Law," Law in the Middle East, Majid Khadduri and Herbert . J . L ieb en sy,. ed .. (Washington, D. C.: The Middle.East Institute, 1955), pp. 336-337. an alien from dar al-harb. Although the latter was residing in dar al-

Islam,, his residence was temporary and conditional3 so it was regarded as though he was residing actu ally in his home s ta te . However, inheri­ tance between a Muslim subject in dar al-Islam and a Muslim in dar a l- harb was possible, since nationality was considered by religion.

The inheritance between a dhimmi subject of the Islamic state and a non-Muslim subject of another state was a matter of divergence of opinion among Muslim jurists. The Hanifite school did not allow such inheritance, while the Malikite and the Hanbalite schools permitted such inheritance if the other state allowed it, according to the principle of

"equal treatment.

If a dhimmi left a will for the construction of a mosque, it was not allowed to operatej while if he left a will for the construction of his own place of worship, it was regarded as perfectly lawful.^ The property of an estate in the case of a dhimmi was to devolve upon the members of his own community3 while in the case of a Muslim, it went to the public treasury.

■^See Ahmad Taha Sanusi, " Ik h tilaf ad-Dareyn, " Al-Azhar Magazine (January 195^)*PP« 5>80-fjSU, and (February, 195U), p p ..696- 672,

^°See Qadi Zadah, Takmilat Fath al-Qadir (Cairo: Matba‘at Mustafa Muhammad, n.d.) vol. 8, p. WV. It should be noted, however, that non- Muslim subjects were precluded from building new churches or temples in a place exclusively inhabited by Muslims. "Wo new churches or temples" said ‘Abdul-L&h ibn ‘Abbas, one o f the companions o f the Prophet, "can.be erected in a. town ex clu siv ely inhabited by Muslims but as regards other places where dhimmis live from before, we must abide by our contract with them." See Naqvi, og. c i t . , p . 383. 8U

Non-Muslims could not particip ate in shura (le g is la tio n ). The right to discuss any controversial point of the sharl*ah was vested in the Muslim subjects only. As non-Muslim subjects could interfere l i t t l e or participate in law-making business, the sharl*ah also did not apply to them in all its entirety. It did not change or modify their way of life, nor did it affect their religious beliefs—except such actions of theirs as involved the question of public good or decency. For instance, a dhimmi could drink and eat all such things which were strictly pro­ h ib ited by the sharl1'ah 3 he could also manufacture, import and export, s e l l and purchase them. Even i f a Muslim c itiz e n caused any damage to such articles, he was liable to the punishment prescribed by the sharl*ah fo r such o ffe n s e s .^ However, the exclusion o f non-Muslim c itiz en s from the shura was not final or arbitrary. They participated in it in order to enable the imam to be informed fully of their specific needs and de­ sires, and they were at liberty to put forth their views on problems exclusively or partially related to them. For example, in the time of

‘Umar, when the question of land revenue for Iraq was under considera­ tion, the Galiph invited the non-Muslim landlord citizens to elicit their views on that matter. Similarly, regarding the administration of

Egypt, al-Muqawqis (Cyrus) was consulted on many problems.

It is an undeniable fact that a non-Muslim citizen could not be the head of the state. Obviously he could not be trusted to guide the people in the light of the shari' ah. Obviously, too, he had neither the

^ 1 b id ., p . 381 the knowledge nor the will to understand and enforce it adequately. So,

the only differentiation in political rights lay in the confinement of

supreme authority to Muslim su b jects. This is not unique with the

Islamic state. The modern constitutions of such countries as Argentina,

Burma, Greece, Ireland, Norway, Spain, Sweden, Thailand, and the English

B ill of Rights, prescribe a specific religion to which the supreme head

of the state must belong. Some of them even stipulate the profession of

a particular sect of Christianity. Others exclude followers of a dif­

feren t s e c t, and even those who are married to one o f them, from li2 inheriting, possessing, or enjoying the crown.

The jurisdiction of the state over the subject of an enemy state

who entered the Islamic territory according to a-peace treaty for a

limited or unlimited period will be discuss _ iter in a special chapter.

I I I . THE JIZYA

The law of the capitation tax was originally laid down by the | A | Quran regarding ahl al-kitab. The term is interpreted as applying to

the Jews and the Christians. The Quran is silent in this connection re-

garding other non-Islamic creeds. The practice of the Prophet and that

of the four Republican Caliphs decided, however, that all non-Muslims may

be tolerated as subjects. So, the Caliph 'Uthman accepted capitation tax

Tlamadan, op. c i t . , p . 139.

^ Q . 9:89. 86 from Berbers and the Omayyad Caliph ‘Abdul-Malik, from Lingayats and

Brahmins o f India. Abu-Hanifa opined that " all non-Muslims w ill be con­ sidered as one category."^

The jizya ta x ^ was not imposed on the non-Muslim subjects as a penalty for their refusal to accept the Muslim faith, but because their

religions precluded them from serving in the armyj and they, in return, paid this tax for the protection secured for them by the arms of the state. When the people of HIrah contributed the sum agreed upon,

they expressly mentioned that they paid this jizya on condition that

"the Muslims and th eir leader protect us from those who would oppress us, whether they be Muslims or others." Again in the treaty made by

Khalid ibn al-WalTd with some towns in the neighborhood of HIrah, he wrote: "If we protect you, then the jizya is due to usj but if we do

not, then it is not due." Still another example in the reign of ‘Umar

is when the Emperor Heraclius had raised an enormous army with which to

drive back the invading forces of the Muslims. The Muslim General Abu-

‘Ubaida, accordingly, wrote to the governors of the conquered cities of

Syria, ordering them to pay back all the jizya that had been collected

from the c i t i e s , and wrote to the people, saying:

We give you back the money that vie took from you, as vie have received news that a strong force is advancing against us. The

^Muhammad Hamidullah, The Muslim Conduct of State (Lahore: Ashraf Publications, 1953), pp. 11-12.

^ It was already prevalent among the Persians under the name of g e z it, and among the Romans under the name tributum. agreement between us was that we should protect you, and as this is not now in our power, we return to you all that we took. But if we are victorious we shall consider ourselves bound to you by the old terms o f our agreement.**6

The .ilzya was too moderate to constitute a burden, seeing that it released non-Muslim c itiz en s from the compulsory m ilitary service that was incumbent on th eir Muslim fellow su b jects. Conversion to Islam was attended by a certain pecuniary advantage, but his former religion could have had but l i t t l e hold on a convert who abandoned i t merely to gain exemption from the jizy a ; and now instead of the jiz y a , the convert had to pay the legal alras^ levied annually on most kinds of movable and immovable property. The pecuniary temptation to escape the incidence of taxation by means of conversion was considerably lessened when financial considerations compelled the state, toward the end of the Omayyad period, to insist on the new converts continuing to pay the jizya even after they had been received into the community of the faithful.

The jizya was levied on the able-bodied males, in lieu of the military service which they would have been balled upon to perform had they been Muslims. Thus, when any non-Muslim people served in the

Muslim army, they were exempted from the payment o f th is tax. Such was the case with the tribe al-Jurajimah, a Christian tribe in the

^Arnold, og. cit., pp. 60-61.

^Legal alms are levied on Muslims on the accumulated net income at the rate o f two and one h a lf per cent on gold, s ilv e r , or merchandise; twenty per cent on hidden treasure or minerals found in the state; five per cent on the crops of fields if the ground is watered by hand and ten per cent if watered by rain; and cattle have special different propor­ tio n s. *Ushur was an import duty chargeable to a ll traders at the rate 88 neighborhood of Antioch who made peace with the Muslims, promising to be their allies and fight on their side in battle, on the condition that they should not be called upon to pay jizya and would receive their proper share of the booty.^ When the Arab conquests were pushed to the north o f Persia in A.D. 6H2, a sim ilar agreement was made with a fron tier tr ib e , which was exempted from the payment o f Jizya in consideration o f k9 military service. The tribe of Banu Taghlib did not pay the jigya because they rendered active service in the battle of Buwaib in A.D0

63U. The case of the people of Najran forms another instance of similar nature. The Caliph ‘’Umar insisted that no more jizya be taken from 50 eith er o f them in the fu ture.

Only those dhimmis who were of full age, free, male, and in full possession of their intellectual faculty, were obliged to pay jizya.

According to the Shaft'ite school, the amount of jizya depended on the

agreement made at the drawing up of the act of the consent to protection,

the imam or his deputy must demand at least one dinar per head;

according to the Malikite school, the imam had the right to act in the

o f two and one h a lf per cent on goods which exceeded two hundred dirhams. See any standard book of Islamic law under the chapter on Zakah.

^Arnold, og. cit., p. 1$9» ^Ibid., p. 62.

£°Naqvi, 0£. £ it.j p. 387.

^Modern commentators on the traditional books of Islamic law give equal values to the dinar in terms of the present currencies of different Islamic countries. According to these estimates, the dinar is equal to one dollar and a quarter. interests of the state according to his own judgment; and according to

the H anifite sch ool, he had no choice, but must demand from every poor

dhimmi one dinar, from each who is w ell-to-do two dinars, and from each tip who is rich four dinars.

Under a peace treaty, there was another kind of jizya called

jizya sulhiyya. gulhiyya means pertaining to gulh, or peace treaty.

The amount of this extra jizya was stipulated in the treaty and was 53 collective in nature.

While under the Prophet's regime, a uniform rate of one dinar was

levied per head per annum; it is to be noted that, in practice, the

Caliph *Umar had to modify this uniformity taking the prevalent customs

in Persia and other countries into consideration. The capitation tax was

universally in force and the Sassanids levied this tax in several grades.

‘Umar retained the grades out of practical necessity. It was generally

four dinars from the rich , two from the middle c la s s , and one from the

poor people with some income.^ In Egypt, ‘Amr ibn a l-‘As levied a

uniform rate of two dinars per head.^

^2See ibn-Rushd, op. c it., vol. 1., p. UOU; and ibn Qudama, al-Mughni, vol. 10, p. S>71i ff.

^Abul-Walid ai-Baji, al-Muntaqa (Cairo: Matba'at as-Sa‘ada, 1332 A.H.), vol. 3, p. 221. ^These grades were adopted later by the Hanifite school as it was explained above.

#S.A.Q. Husaini, Arab Administration (Lahore: Ashraf, 1956), p. 37. 90

Besides the jizya tax on the head, there was another tax called the kharaj which constituted the revenue derived from the conquered lands which were le f t in the possession o f non-Muslim c itiz e n s. Such lands were called kharaj land. A survey of such lands was taken by the

Caliph 4Umar and the soil for rent purposes was classified according to it s nature, q u a lity , and productivity.

Under the Prophet, the kharaj lands were very lim ited and i t did not require any elaborate machinery to administer them. By the end of the Republican period, the area yielding the kharaj comprised a consid­ erable portion of the Byzantine and the whole of the Persian empires.

Therefore, a very elaborate system was required to collect and admin­ ister the taxes. The first matter that confronted the Caliph ‘Umar concerning the kharaj was whether or not the conquered lands of Syria and Iraq should be considered enemy property to be distributed among the soldiers. *Umar himself was against depriving the children of the soil of their ancestral possessions for various reasons, as it will be shown

in another chapter.

Having thus established that the conquered lands should be left

in the hands of the former owners, ‘Umar proceeded to organize their administration. Instead of introducing a uniform system of such diverse countries as Arabia, Persia, Syria, and Egypt, he decided to retain the former systems as far as possible. The custom prevalent in Iraq since the Persian rule was that taxes varied according to the produce of the land. ‘Umar appointed ‘Uthman ibn Hunayf, the best available Arab knowing something about the survey of land, to survey the whole of

Iraq.^ The area surveyed covered more than thirty thousand square miles. Cultivable land alone was thirty-six thousand jarlbs.

‘Umar could not carry out the survey of any other country. He allowed the old arrangements to continue and also the old languages of administration.

All such revenues were deposited among other revenues in the public treasury. They were spent for the common expenses of administra­ tio n . Stipends were also assigned to the non-Muslims by the treasury.

In the reign of Abu. Bakr, Khalid, the great general, conquered HlraL .

After the conquest, he gave a charter to the conquered people of Hira which said:

I have given them th is right that i f any one of them becomes old, disabled, or he has been rich but becomes poor and his own people begin to support him, then no tax w ill be le v ie d upon him. B esides, he and h is family w ill be supported by the sta te treasury.5°

IV. NATIONALITY

The very term "nationality," which is a derivation from "nation," implies an historic attachment to the distinctions of race, common

-^See al-Balaflhuri, og. cit. , p. 268.ff.

^One jarlb was equal to thirty-six hundred square yards. Lands cultivated with barley were taxed one dirham per jarlb per year; wheat or sugar cane two dirhams; vegetables, three; cotton, five; sesame, eight; grapes or dates, ten. See ibid., p. 39 ff.

-^Muhammad Yusufuddin "The Islam ic State and I ts Non-Muslim Population,” Islam ic Review (November, 1950), p. 19. descent, language, history, or political institutions—all of which have contributed to the legal definition of "nationality." A distinction should be made between nationality in the sense of belonging by race to a particular nation, and nationality in the sense of citizenship of a certain state. There is no such confusion in Islam; of all this gradually-developed conception of nationality, only the administrative concept of nationality is acceptable to it, i.e. the necessary organiza­ tion which men need for their grouping, as well as for the interrelations between the various groups. Such an organization should be so admin­ istered that no prejudices and no considerations other than ideals and moral values are allowed to separate man from man or group from group.

Membership of a particular nation or state should only be determined by each member*s basic allegiance to his conscience. Once conscience is involved, religion steps in with its claim to authority. This allegiance to conscience or religion constitutes the characteristic structure of the

Islamic concept of nationality.^

On the basis of this wide concept of religion and upon the true conscience of every individual, the state designed the dignified rela­ tion sh ip between Muslim and non-Muslim c itiz e n s . This began with the relation sh ip between Muslims on the one hand, and Christians and Jews, on the other. The Quran called the latter ahl al-kitab, which means

^Ramadan, op. c it., pp. 103-10U. 93

"People of the Book."^ By the "Book," the Quran refers to the Bible and to the religious traditions attributed to Revelation, thus making faith the basis of their relation with the Muslims. This basis on the part of the Muslims is strengthened by the fact that they believe in all former Prophets and Revelations. Says the Quran:

Say (0 Muslims): We believe in God and that which is re­ vealed unto us and that which was revealed unto Abraham, and Ishmael, and Isaac, and Jacob, and the tribes and that which the Prophets received from their Lord. We make no distinction between any o f them, and unto Him we have surrendered.61

The Islamic law, in the Republican and Omayyad periods, in con­ trast to the legal definition previously mentioned, was well established that persons were nationals if they were born Muslims or converted to

Islam irrespective of the race or country. This general rule covered the large majority of the citizen body. Those who were not Muslims acquired nationality either by a contract of protection or by resi­ dence in the Islamic state more than one year. Since nationality was dependent upon the personal faith of the Muslim, the Islamic law of

The Sabians fell also in the category of ahl al-kitab. They were the Christians of St. John who still survive in the marshy district at the mouth of the Euphrates. They are mentioned thrice in the Quran (2:59, 5:73, 22:17). As to the Magians, they were not a Scriptuary community. They neither believed in God nor did they possess a Scripture; but since they believed in a certain deity, the Prophet and the early caliphs considered them in the same category as ahl al-kitab and treated them as a pro­ tected community. However, they were different in some social aspects from the rest of ahl al-kitab. Their women were legally forbidden to wed Muslim citizens, and the meat of their slaughtered animals was unlawful.

6lQ. 2:136. nationality was neither jus soli, by which mere birth upon the soil is sufficient to confer nationality, nor was it jus sanguinis, by which the nationality of children follows that of their parents.. However, in regard to the non-Muslim citizens under the contract of protection, the

Islamic state applied the principle of jus soli. So, any non-Muslim who was born upon the soil of the state to non-Muslim parents was a national irrespective of their place of birth.

In addition to nationality which is based upon birth, modern international law recognizes a nationality acquired by voluntary act in which a person, born a citizen of one state, obtains the status of an adopted citizen of another state. The procedure, by which such new nationality is acquired, is known as naturalization, and it is a matter regulated by each state according to its own conception of the degree to which its national interests will be promoted by extending its 62 citizenship to outsiders. In the Islamic state the procedure of naturalization was given to the foreigners who extended their residence in the Muslim te r r it o r y fo r more than one y ear, or through th e con­ tracts of protection in which the naturalized citizens recognized the authority of the head of the state and denounced their foreign alle­ giance. They were not bound to remain permanently in the state's territory if they wanted to obtain the nationality, as is the case now of the naturalization laws of the United States. The Islamic state in

6? Charles G. Fenwick, International Law (third edition, New York: Appleton-Century-Crofts, Inc., 19Ub), pp. 2^6-257. the Republican and Omayyad periods did not know the doctrine of

"indelible allegiance," Memo potest exuere patriam, which was followed in the early decades of the national life of the United States.^ Being a citizen of the Islamic state, or acquiring its citizenship, one could transfer his allegiance to another state without the consent of the state which had first claim upon him.

A wife acquired the citizenship of the country of her husband.

Thus, if a non-Muslim alien girl married a Muslim or even a non-Muslim su b ject of the Islam ic s ta t e , she became a c itiz e n . The same was the case if an alien couple came to the state’s territory and the husband acquired citizenship of the state, his wife automatically became a citizen. Obviously, if a non-Muslim alien married a girl who was a su b ject o f the s t a t e , he did not autom atically become a c itiz e n . His wife, however, would lose citizenship and acquire the citizenship of her husband. CHAPTER V

TREATIES

The rules of the shari*ah regulating contracts between individuals were the same as were used in developing rules of international law governing the contractual relations between the Islamic state and other states. For obvious reasons, modern writers on international law have resorted to these two forms of agreement. Before the development of constitutional governments, the contracts of absolute monarchs could scarcely be distinguished in their essence from similar obligations as­ sumed by individuals. In the Islamic state, the analogy was derived from another factor. It was the unified rules of the sharl

This is the reason why the treaties of the Islamic state in our period were bilateral in nature, and why they bore close analogy to the private contracts o f individual c itiz e n s . However, such b ila te r a l treaties were not merely private contracts between two states. Inter­ national agreement, being covered by the sharl*ah which also provides rules of municipal law, entered the field which formerly had been occupied by legislative enactments and executive functions. Though bilateral in nature, agreements by the Islamic state had some features of modern multilateral law-making treaties. They dealt with the same objects of political interest affecting two contracting parties and attempted to resolve conflicts in claims by defining their respective rights and duties. Also, such treaties formed statutory legislation tinder the sharTjah, and thus wielded more authority than modem international treaties. Since religion controlled the acts of the state,-the latter was bound by that principle of good faith which forms the a ctiv e bond o f any tr e a ty .

The sanctity of treaty obligations is the most fundamental rule of Islamic international law. In fact, the principle of good faith has, from earliest times, been regarded not only as a matter of common con­ cern to the whole community of states, but also as a matter of legal duty between the parties to the treaty.

To the Greeks, the rule of good faith formed part of universal law. To the Romans, it was part of the jus gentium which is common to every tribe and people: Pacta sunt servanda. To the Muslims, it was part of the sharl^ah or divine law, at-tafrarruz ‘an al-ghadr (refraining from deceit), which is set forth in unmistakable terms in both the Quran and the T raditions.

The sacredness of treaties, faithfulness to covenants, and ab­ stention from deceit are stressed in Quranic texts. Some of these texts are general, covering all kinds of situations in individual contracts, treaties between states, or agreements between groups. Other texts deal 98 with particular situations involving the relations between the Islamic sta te and other sta te s.

In the first category, the following verses give good examples:

You who believe, fu lfil any obligations /yo n may m ake/,1

And fu lfil your oathsj any oath will be inquired into /o n the Day of Reckoning.2

And f u l f i l the covenant o f God, when you have sworn i t , and do not break any oaths a fter making them fa st; you have indeed made God your surety. God knows what you do.3

Special texts regarding particular situations also stress the same principle. After a declaration of freedom from obligation to idolaters, and dissolution of treaty obligations with them, the Quran excludes those pagans with whom an alliance has been entered into by

Muslims:

Except those idolaters with whom you made an agreement, provided they have not fa ile d you in anything and have not backed up any one against youj so fu lfil their agreement to the end of their term. Surely God loves those who keep their duty.11

. . . Except those with whom you made an agreement at the Sacred Mosquej so as long as they are true to you,, be true to them. Surely God loves those who keep their d u ty . 5

After preaching not to make friends with the byprocrites who conspired against the Muslims, the Quran says:

. . . Except those who jo in a group w ith whom you have a treaty ^of peace7«

1Q. 5:1. 2Q. 17:3U, in part. 3Q. 16:91.

*>Q. 9:U. 3Q. 9 :7 . 6Q. U:90. The Quran also makes the compensation for manslaughter when the victim belongs to a people with whom the Muslims have a treaty o f a llia n c e , the same as the compensation for a Muslim who is killed by mistake:

. . . If he /the one killed by mistake7 belonged to a people with whom you have a treaty of alliance7 compensation should be paid to his family, and a believing captive be freed. 0 .7

The Quran, moreover, considers faithfulness to one's covenants as more important than coming to the aid of one’s brethren-in-faith who reside in enemy territo ry :

But if they seek your aid in religion, it is your duty to help them, except against a people with whom you have a treaty o f mutual a llia n c e .8

This verse states clearly that faithfully keeping treaties is prescribed even i f i t requires Muslims to abstain from aiding th eir brethren-in­ faith against the other party to the treaty against whom such help is sought.

In order to be valid, a treaty should have these conditions: (1) consistency with the laws of the sharlah, for the Prophet said: "Any condition that is not contained in the Book of God (the Quran) is invalid"

(2) mutuhl consent; and (3) clear terminology and precise definition of o the rights and duties of the contracting parties. The Quran rejects any motive for false and fraudulent covenants in this verse:

7Q. b:92. 8Q. 8:72.

?Mahmud Shaltut, Al-Islam AqSdah wa 5harl‘ah, (Cairo: Al-Aehar Presa) 1959), pp. 386-387. . 100

And take not your oaths to practice deception among your­ selves, with the result that one*s foot may slip after it was firmly planted, and you may have to taste the evil /consequences^.10

I . PROCEDURE

Negotiation was the f i r s t step in making a trea ty . At this stage, the proposals of the negotiating parties were made, discussed, and te n ta tiv e ly agreed upon. Then a trea ty was drafted embodying the substantive agreement. The preamble to each treaty consisted of the divine invocation basmalah ("in the name of God") and the names and titles of the representatives of all parties concerned. As a rule, the treaties were brief and general.

The sharl*ah limited the range of subjects upon which treaties could be concluded by the imam. Thus, he was forbidden to alienate national territory by the treaty, or make concessions to the opposite party if he was in a strong position, or change the laws of the sharlfah.

Finally, the treaty was to be witnessed by people representing both sid e s, to make the treaty o f f ic ia l . The treaty o f Hudaybiya was w it­ nessed by people from both parties. It was witnessed on behalf of the

Muslims by Abu Bakr, fUmar ibn al-Khattab, ‘Abdul-Rahman ibn eAmr, Sa'ad ibn abi-Waqqas, Mahmud ibn Sal amah, and 'Ali ibn abi-Talib, who drew up the treaty. The witnesses for the other side included Mukarrie ibn Hafs

10Q. l6:9U, in part 101 and others.11 The treaty of Najran was witnessed by Abu Sufyan ibn

Harb, Ghaylan ibn Amr, Malik ibn Awf, al-Aqra ibn Habis, and a l-

Mughira ibn Shu abah. I t was drafted by Abdullah ibn abu-Bakr.12

In early Islam, Muslims knew how to r a tify trea ties by writing and sealing. In fact, this was done under authority of the Quran itself which states:

It is more equitable in the sight of God, more suitable as evidence, and more convenient to prevent doubts among your­ selv es.-^

The Prophet himself recorded all treaties and agreements with groups and heads of states, and all letters of instruction to state officials.^ jt is said that the Caliph ‘Umar housed all such official papers in a special cabinet in his office.^

The negotiators of any treaty had to be acceptable to the other party. Each party had the right to refuse to negotiate w ith any par­ ticular person. When abu -‘Ubaida ibn al-Jarrah*^ surrounded Ealia

•^Muhammad Hamidullah, Majmu *at al-Watha * icr as-Siyasiyyah (Cairo: Matba'at at-Ta1I l f wa at-Tarjamah wa an-Washr, 195b), pp. 31-32.

12ttld., p. 112. 13Q. 2:282, in part.

^ It is reported that when he wanted to send a letter to the B yzantine.emperor to invite him to become a Muslim, the Prophet was inr formed that the Byzantines did not recognize official letters unless they were sea led . Thereupon, he had a se a l made and engraved: "Muhammad, the Messenger of God.” See al-Baladhuri, Futufr al-Buldan (Cairo: al-Maktaba at-Tujariyya, 1932), p. Ub7.

*%amidullah, og0 c it., introduction, p. 2.

^Commander-in-chief of the Islamic forces under the Caliph cUmar. 102

(Jerusalem), its people asked him for a peace treaty, provided that the caliph himself would negotiate the treaty. Ibn al-Jarrah wrote to the

Caliph 'Umar, who came from the capital al-Medina, to Jabiya near

Damascus i then he entered Jerusalem and concluded a treaty with its people in the year A.H. 17 (A.D. 6 3 8 ) . ^

The agents delegated by the government to negotiate a treaty had to have "full powers" to conclude a binding agreement. Since the caliph’s decision was final, he could authorize an agent to act in his bahalf. Communications were slow; and since an agent could not keep in close touch with his government, the caliph had to rely upon his skill as a negotiator and accept the results as final. The treaty was sub­ mitted to the imam before putting it into effect. The object of this ruling was to protect the imam against any violation of the shari°ah— primarily, as to action taken exceeding the power conferred upon the agent, and as to mistakes in policy. For example, when Khalid ibn al-

Walld, the commander-in-chief under the Caliph Abu Bakr, concluded a peace treaty with the people of Hirah and the people of cAyn at-Tamr, in

Iraq, he submitted its terms to the Caliph who gave his approval.^

There was no necessity to ratify it if the imam himself negotiated and concluded the trebty, since there was no constitutional disability such as sometimes results from powers of the executive and the legislative branch of government. Ratification was an executive act, performed by

^Al-Baladhuri, og. c it., p. lUU.

l 8 fflbid., p. 2k9. 103 the caliph, announcing formal acceptance of the treaty. However, the caliph could not ratify a treaty if it exceeded the limits of the

sharl^ah or failed to serve the best interests of the state.

I I . TREATY TYPES

Anyone who reads the annals of early Islam encounters confusion

in distinguishing between different types of treaties. A treaty of

peace stipulated the safety of lives and property and was hardly dis­

tinguishable from a guarantee of safety in its terms and content. A

guarantee of safety provided for the payment of tribute which was called

jizya. Since it provided for safety of lives and property, this was

confused with both dhimma agreement and a treaty of peace. However, it

is not difficult to reduce each treaty to its distinctive nature by

noting its key feature.

The treaties which are recorded in the annals of the Republican

and Omayyad periods may be classified as follows: (1) dhimma agreements]

(2) peace treaties; (3 ) treaties of conciliation; (I;) guarantees of

s a fe ty .

The dhimma agreement is not treated here, since it is called a

treaty only in a formal sense. Groups and tribes were parties to such

agreements, which clearly did not rest upon the necessary requisite of

treaty negotiations, namely, the independence of the contracting parties,

as has been shown above. I I I . PEACE TREATIES

A peace treaty is called by different names in the books of the sharl‘ah. It is named variously muwada‘ah (truce), mu‘ahadah (mutual agreement), musalamah (mutual peace), and gulfr (treaty of peace). The last term is used more frequently in the traditional books of history and law.

The legal character of gulh, or peace treaty, is established by the Quran in this verse:

I f they /th e enemy/ incline towards peace, do thou also incline towards it.

It is also established by the Traditions of the Prophet by his action in different situations. After the battle of Khaybar (A.D. 628), Muhammad sent an invitation to the people of Fadak20 to join Islam, but they re­ fused and preferred to enter into a peace treaty with the Prophet for 21 half of their lands. Another example is in the case of the people of

Tayma’.- 22 After they heard about the defeat of the people of Wadi - al-

Qura, the inhabitants of Tayma’ hastened to conclude a peace treaty with the Prophet. They remained in possession of their country and secured 23 their lands.

8:6l, in part.

2®See H istorical Atlas o f Muslim Peoples (Harvard U niversity P ress, 19f>7), p . 2.

21A1-Baladhuri, og. c it., p. U2.

^See Historical Atlas, p. 2. 2^Ibid., p. U8. The typical and the most important example of a peace treaty in the Traditions is that of -^Hiidaybiya. During the period from the battle o f Badr to the signing o f the treaty with Mecca (A.D. 62I4.-63O), the position of the Prophet Muhammad was firmly established in al-Medina, and te sought to bring the tribes surrounding the city under the authority of Islam. The defeat at Uhud (A. D. 625) did not have a last­ ing effect on his position, as he attained another success at Khandaq

(A.D. 627)o He crowned his success by concluding a peace treaty with the Quraysh, his bitter enemy. Circumstances on both sides indicated that temporarily, at least, things had reached a balance of power.

Muhammad sent ‘Uthman, the future third Republican Caliph, to carry his message o f peace to the Quraysh. The Meccans accepted the o ffer and sent Suhayl ibn ‘Amr to negotiate peace. This resulted in the signing of the peace treaty known as the treaty aof ' Hudaybiya. The text of the treaty reads:

In Thy name, 0 Godi

This is what Muhammad ibn ‘Abdellah has agreed upon peace­ fully with Suhayl ibn 'Amr:

They agreed p eacefully to postpone war for a period o f ten years. People shall be secured and guaranteed from attack by each other;

I f anyone from Quraysh wants to jg in Muhammad without the authorization of his protector he should be sent backj if anyone of Muhammad*s followers wishes to join Quraysh, he w ill not be refused.

Unbecoming acts between each o f us are prohibited} and there shall not be between us defection, nor treason; 106

Those people who want to join Muhammad’s alliance and his pact may do so; those who want to join Quraysh's alliance and his pact may do s o .^ U

Every peace treaty had to be concluded on behalf of the Muslims by only the caliph or his agents, for the conclusion of such a treaty needs the executive power of the state. Such a treaty was binding on Muslims as a whole and retained its legality even after.the death of the caliph or his agents who had been given the authority to ratify it. Hence, if one or more conditions of the peace treaty were violated, they had to be restored to their original provisions. The Omayyad Caliph ‘Abdul-Malik

ibn Marwan raised the annual tribute of the people of Cyprus to one thousand dinars more than had been stipulated by Mu‘awiya in the time of the Caliph ‘Uthman. Thus, when the Omayyad Caliph ‘Umar ibn ‘Abdul-Azlz 2< came into power, he restored the tribute to the original amount.

The majority of jurists contend that peace treaties are based on expediency and, therefore, are concluded for a definite time. They be­ lieve that the conclusion of any peace treaty for an indefinite time meant that jihad, or holy war, would be neglected. They cite several

instances, in addition to the Hudaybiya case, to support their view.

For example, under ‘Umar, the commander Ibn a l-J a rra h concluded a peace treaty for one year with the Byzantines before the war at Qinnasrln was

^See the text in Hamidullah, og. cit., pp. 31 ff, and the English translation in Majid Khadduri, War and Peace in the Law of Islam, (Baltimore: The Johns Hopkins Press, 19I?f>), pp. 210-212.

^Al-Baladhuri, og. c it., p. 15>9. 1 0 7 26 started. The governor al-Hajjaj ibn Yusuf, who worked under the

Omayyad Caliph ‘Abdul-Malik ibn-Marwan, concluded a peace treaty with the king of Khurasan, on the condition that the Caliph would not attack 27 him fo r seven y e a rs. However, a d istinction should be made between a temporary truce and a treaty of peace. The first was subject to the discretion of the imam, under the advice of army leaders, whether it was in the interest of the state to prolong or shorten the term of truce. A treaty of peace was permanent as long as the enemy felt inclined to peace, according to the Quranic verse which has been given above (8:61). Ibn Hanbal and Abu-HanTfa were in favor of th is opinion.

Peace treaties were lacking the consent of the vanquished. In connection with them, as in connection with modern peace treaties, the question of acceptance of a.dictated treaty was an international problem.

From earliest times, rulers defeated in war have been obliged to sign treaties of peace, fixing the terms upon which the conqueror was willing to bring hostilities to an end. Grotius recognized the validity of such treaties, regarding them as an exception to the general principle of

"equality" in the making of treaties. Vattel applied the principle of

good faith to treaties of peace as well as to other treaties, arguing that they should be regarded as the prudent choice of the sovereign when his country is confronted with the alternative of complete destruction.

^^Al-Waqidi, Futuh al-Buldan (Cairo: Maktabat al-Jumhuriyya, 1955 ) t v o l. 2 , pp. 70 -72".

^Al-Baladhuri, op. c it. , p. 391. 108

This conception of the "voluntary" character of peace treaties was taken up by later writers of international law and became the standard argument

in favor of considering these treaties as binding obligations. War, they reasoned, was a legal remedy for the redress of wrongs. A treaty of peace was the price paid by the defeated party for redress of the injury 28 that led to the war. Lack of consent does not invalidate a peace treaty, as it does in the private law of contract. A dictated treaty is as valid legally as one freely entered into on both sides. However, a

dictated treaty is a contract only in outward form. Modern international

lav; looks forward to the establishment of international machinery to en­

sure that when coercion is used, it shall be in a proper case and by due 29 process of law.

In order to conclude a peace treaty, it was necessary that both

the parties make an unambiguous declaration to this effect. Concluding

an agreement with the enemy without using the required formulas and phrases could not bring about peace at all, Ash-Shaybani quotes the

following example in his Siyar: When an enemy army lays siege to a

Muslim town, and they tell the enemies: "We shall give you a certain

amount of money so that you may withdraw from here into your own terri­

tory" and the enemy agrees and accepts the tribute thus offered, then

the Muslims have granted them security in this case, but have merely

ransomed themselves and their children with their own money and property.

^Fenwick, International Law (New York: Appleton-Century-Crofts, Inc., 1952), p. UI4O.

^ I b i d . , p 0 h39} and J . L.. B rie rly , The Law of Mat ions (Oxford University Press, I960), pp. 2UU-2U5. 10?

Muslims were at liberty to pursue the withdrawing enemy at any moment and resume the fight. State of peace had not come about and, thus, it was not necessary to give notice when Muslims ^ranted to terminate this agreement. The case would have been entirely different, however, had the Muslims said: "Vie enter into an agreement with you to the effect that we shall give you a certain amount of money so that you may with­ draw from here into your own territory," or the enemies said: "L.et us enter into an agreement to the effect that you should give us a certain amount of money so that we may withdraw from you«" In this case, Muslims were not allowed to attack the enemies unless a notice had been sent to them terminating the said agreement. To resume fighting without notice, once such an agreement had been entered into, would amount to a breach of promise, which was strictly forbidden.

Similar is the case where one party tells the other: "We want to live in peace with you (nusalimukum), or we desire that we should leave each other in peace (nutarikukum), or we wish to maintain peaceful rela­ tions with you (nuwadi^ukum), or that you grant us security or we grant you security. When one party ejqjressed this, or something like it, to the other party, and the latter accepted it which, of course, was indis­ pensable, no fighting should take place thereafter. Fighting was fo r­ bidden, and it could only be resumed after the Islamic state had given notice of the termination of peaceful relations. In this connection, it was immaterial whether any payment of tribute fihd been agreed upon or not. However, if the necessary and indispensable formulas and phrases were not applied, then the obligation accepted by Muslims even to pay HO tribute could not bring about a state of peace. In case, however, Muslims received any kind of service or payment in return for a promise of main­ taining certain conduct, it was incumbent upon them to keep this promise as long as it had not been terminated by due notice given. Keeping such a promise was required by the law which we have called "refraining from 30 deceit" (at-taharruz an al-ghadr).

To sum up, any agreement which provided for an exchange of serv­ ices or payment, over and above withdrawal, was to be considered a peace treaty only if one of the formulas and phrases mentioned above was used at the time when the said agreement was reached. Exchange of services or payment in itself was only a kind of business transaction or purchase, and these were not proof of a promise of security between the partners.

An exchange agreement and a peace treaty are two entirely different legal actions. The inclusion of a business transaction or a bargain 31 within a peace treaty does not change the legal effects of the latter.

The legal effects of a peace treaty were, in principle, those of a collective aman (guarantee of safety). The territory inhabited by non-Muslim partners to the treaty, became dar al-muwada‘ah or dar as- guljjt (treaty territory), in which security prevailed against bellicose and other violent acts by Muslims.

Since a peace treaty implied that the other party would be granted safety from attack, all subjects of the Islamic state, whether Muslims

3°Hans Kruse, The Foundation of International Islamic Juris­ prudence,. (Karachi: Pakistan Historical Society, n.d.), pp. 22-21;.

31Ibid., p. 2S. I l l or protected citizens, were bound to observe it. If any subject of the state destroyed any property belonging to a people who were a party to the peace treaty, they were held responsible and should pay an indemnity for it. But the treaty did not provide nor imply the protection of any other party nor their assistance by Muslims against attack by a third state. Should they be attacked by a third state and their prisoners of war enslaved, Muslims could not buy any such slaves because such en­ slaved prisoners of war would still be considered a party to the treaty which gave them the right of safety from attack, enslavement, and other hostile acts on the part of Muslims.

A peace treaty gave the other party the privilege of entering

Islamic territory without a document of safe conduct. They might have thought, however, that they would still enjoy such a privilege even after violating the treaty. Should this happen, they would have been returned to their lands unharmed and could not stay in Islamic terri­ to r y .33

Cases of Peace Treaties

A. Peace treaties were sometimes concluded with no tribute. In this case, the other party voluntarily promised to give intelligence and

3^Ibn Qudama, og. c it., vol. 10, p. 522. Abu-Hanifa thought that Muslims in this case are allowed to buy such slaves, because enslavement was performed by others, and their status had changed and thus they were no longer considered as being party to the ?ulh treaty. See ibid., vol. 10, p. 523.

-^Al-Buhuti, Kashshaf ad-Qina' (Cairo: Matba^at Ansar as-Sunna, 19h7), v o l. 3, p. 9 0. 112 aid in the interest of Muslims against their own enemies. Khalid ibn al-WalTd concluded a peace treaty with the people of 01lays, Iraq, to this effect only.3^ Also, when Ibn al-Jarrah approached Antioch, the people of Daluk and Rucaban, near Antioch, sought peace, promising to help the Muslims against the Byzantine armies and to send reports in 35 th is regard to the Muslim general.

B. Sometimes peace treaties were concluded on the payment of money only once, when the treaty was concluded. Abu-Ubaida ibn al-

Jarrah ordered Khalid ibn al-Walld to wage war on Hims following the conquest of Damascus. After some fighting, the people of Hims sued for peace on the payment of one hundred seventy thousand dinars.—

C. To insure that the terms of treaties would be carried out, hostages (raha*in) were often given or exchanged. The practice of taking hostages was common among the nations of antiquity and was even practiced in countries as far apart as ancient China and Rome. In medieval times, treaties were frequently strengthened not only by oaths and the pledging of places and forts but also by the giving of hostages.

There was a definite rule that, in the case of failure of performance on the part of the debtor, the hostage must be further detained. Muslims regarded hostages as inviolable and treated them with consideration and kindness. If the treaty was violated and war declared, the Muslims either

^Al-Baladhuri, og. c it., p. 2UU.

35rbid., p. 155.

36 ib id . , p. 136. 113 sent the hostages back to their own country, or kept them to be exchanged as ransom for Muslim prisoners. Since they were not the guilty party, reprisals were not resorted to against them as a means of punishment or revenge. ^ Caliph Mucawiya asked for peace with the Byzantines, receiving some hostages from them as a guarantee against possible violation of the treaty. The Byzantines later violated the treaty, but Mucawiya released the hostages unharmed, saying: "faithfulness in return for deceit is oft better than deceit in return for deceit."

D. In many cases, peace treaties were confirmed either by the caliph or his agent to the other party if the latter harbored fear or suspicions, or renewed the treaties with the same conditions after the violating party had been defeated. An example of the confirmation of a previous peace treaty was the case of the people of Tiflis. Caliph

‘Uthman wrote to Mu'awiya, then his governor of Syria and Jazira39 (the upper part of Iraq lying between the Tigris and Euphrates) and the future first Omayyad Caliph, to send Habib ibn Maslamah al-Fihri to con­ quer Armenia. Habib conquered many parts of that country, and concluded a peace treaty with the people of T iflis, which read as follows:

In the name of God, the Beneficient, the Merciful^

This is a document from Habib ibn-Maslamah to the people of Tiflis that they are given safety of their lives, their shrines, and their religion;

^Arthur Nussbaum, A Concise History of the Law of Nations, (New York: The Macmillan Co., 19$U)', p. 2lij and Khadduri, op. c it., p. 218.

^Al-Baladhuri, og. cit., p. 163. ^Ancient Mesopotamia. Ill*

They accepted paying jizya trib u te and sh a ll not combine people of different families to lessen the amount of tribute. We shall not divide the people of single families to increase such amount.

We have a right to your^ advice and aid against a third state3 a right that you entertain any Muslim who may pass by your territo ry for one nightj a right that i f any Muslim has lo s t h is way, you have to conduct him sa fe ly to the nearest Islamic territory.

If you accept Islam, you will be our brothers-in-faith and no tribute shall be levied on you.

If you are attacked by a third state, while we are engaged in a war, being unable to come to your aid, we will not be respon­ sib le and i t w ill not be considered as a v io la tio n o f our trea ty .h i

At a later date, the people of T iflis, fearing that the change of administration might affect their situation, asked for a confirmation of the previous peace treaty. They were given assurance by al-Jarrah ibn

'Abdullah in the follow ing document:

In the name of God, the Beneficent, the Merciful;

This is a document from al-Jarrah ibn 'Abdullah to the people o f T if lis from Mangalis to Jorzanh^ who brought to me a document of peace, that they had accepted the payment of tribute of . . . /mentioning amounts and kinds/;

I order hereby that no increase in tribute shall be levied on them.^

vuThat is: their device. Changing the second person to the third person or the reverse is common in Arabic style.

^Hamidullah, og. c it., pp. 336-337.

h2probably these were two bordering towns around T if lis at that tim e.

^Hamidullah, og. pit., p. 338. 1 1 5

Cases of peace treaties being reconfirmed on the same conditions as existed previously are numerous in the annals of early Islam. Just one case is given here as an example. In A.H. 2b (A.D. 6UU) during the reign of the Caliph ‘Uthraan, al-Walld ibn 'Uqbah reconquered Adherbayjan and Armenia following their violation of the peace treaty which had been concluded with the Islamic state under the Caliph ‘'Umar. Fighting was concluded with a peace treaty under the previous conditions.^

E. Although a peace treaty might be concluded with no mention of tribute paid by the enemy, as the Prophet did in the Hudaybiya treaty,

it could be concluded with the payment of such tribute by either party.

However, the case in which Muslims were the party who paid the tribute was a debatable question among the jurists. Ibn Hanbal and ash-Shafi‘T forbade such action because it symbolized weakness and humiliation on the part of Muslims. Some other jurists permitted this on the authority of

the Traditions of the Prophet, who offered a tribute to ‘Uyayna ibn Hisn

during the battle of Ahzab. The jurists who prohibited payment of tribute

on the part of Muslims argued that what had been done by the Prophet in

the case of Ahzab was just a single occasion of expediency and could not

serve as a rule. Practice during the Omayyad rule, however, was to

allow such action as happened in the case of the Omayyad Caliphs Mutawiya

and ‘Abdul-Malik ibn Marwan. These two C aliphs concluded tr e a tie s with

the Byzantines in which they paid tribute in order to avoid attack while

^At-Tabari, Tarikh al-Umam wa-al-Muluk (Cairo: Matba'at a 1- Istiqamah, 1939), vol. 3, p. 307-B.

^ I b n Qudama, o£. c i t . , v o l. 10, p . 510. 116 the Muslims were engaged in civil war. Mu'awiya, b e f o r e he had been proclaimed caliph and was still busy in his struggle with Caliph *Ali, came to terms with the Byzantine emperor, Constans II, and signed a treaty on his own authority (A.D. 658) in which tribute was paid to the emperor. Likewise, Caliph ‘Abdul-Malik (A.D. 685-705) was obliged to conclude peace treaties with the Byzantines while he was fighting insur­ gents in Iraq.^

The jurists who allowed the conclusion of peace treaties on the payment of tribute by Muslims supported their view, apart from the

Prophet’s action during the battle of Ahzab, by using the legal principle of analogy which makes it a rule that "the lesser of two evils should be accepted." For, if Muslims did not offer the enemy peace on the payment of money, there would be done more harm to them, involving the loss of

I rt Muslim lives or the enslavement of their children.

F. Peace treaties did not bind a third state, since such treaties did not imply any agreement for mutual defense against a third state. At the time of the Caliph ‘uthman, the peaceful people of Cyprus were attacked by a Muslim fleet under the command of Mu'awiya. They previously had entered into a truce or peace treaty with the Byzantines on the payment of some tribute. They sued the Muslims for peace on payment of an annual tribute of seventy-two hundred dinars, provided

^Khadduri, o£. c it., pp. 215-216; see also al-Baladhuri, o£. cit., p. 165.

^Al-Buhuti, o£. cit., vol. 3> P» 88. 1 1 7 that Muslims should not prevent them from paying tribute to the

Byzantines as well. The Muslims accepted on the condition that they should not be responsible if Cyprus were attacked by the Byzantines.

G. Sometimes peace treaties imposed severe coercive conditions similar in certain respects to some modern peace treaties. Toward the end o f the y e ar (A.D. 7k3), *Anbasa ibn Suhayra, the viceroy of Andalusia

(Spain) under YazTd ibn abi-Muslim, the governor of Morth Africa, marched to the northeast of Spain with a big army until he reached

Arbuna (Narbonne in southern France). HSe fortified the city and left it garrisoned by an Islamic army. Then he headed west to Qarqashuna

(Carcassone) also in southern France, early in A.H. 106, (A.D. 733 )» where he besieged that city until he forced the enemy into a peace treaty which included the following conditions:

1. The people of Carcassone shall yield half of their lands to the Muslims;

2. They shall release all Muslim war prisoners, together with their arms and belongings;

3. They shall pay tribute;

U. They s h a ll be obliged to assume the sta tu s o f dhiromis in ju s t one respect, that is, they shall be allied with Muslims, fight those who are at war with the Muslims, and seek peace with those who are at peace with the Muslims.^

Umar Farrukh. Al- Arab wa-al-Islam (Beirut: Manshurat al- Maktab at-Tujari, 1959) / P» 120. Compare th is tre a ty w ith modem peace treaties such as the treaty of Versailles, whose provisions included 118

Termination of Peace Treaties

A peace treaty would lapse once its terms were fulfilled; a truce expired according to the time limit set in the terms. Both might be terminated by being denounced. This took place, on the part of Muslims, when it was discovered that a peace treaty or truce was no longer serving the interest of the state, or there had been signs of treachery by the other party, or they had failed to perform their obligations under the treaty. The presence of fraud in making a treaty would render it invalid, as in the case of contracts of the sharl*ah under municipal law s.

Peace treaties and truces were entered into under certain implied conditions, the violation of which would terminate them, such as killing

Muslim citizens or destroying their property. In the present day, international law states as a general rule that all international con­ tracts are entered into under certain implied conditions which accompany the express conditions of the treaty and are equally part of the

"valuable considerations" which form the essence of the contract. Every contract, according to Roman law, carried with it the implication rebus 1,9 sic stantibus. Thus, when some of the other party violated any of the expressed or implied conditions of a treaty, and the rest of them who

indemnity to the victor, military occupation, demilitarization, and other provisions of unique severity.

^See Fenwick, op. c it., pp. U53-U5U. 119 observed the conditions of the treaty did not interfere to stop or pro­ test, or they did not inform the head of the Islamic state of their disapproval, then all of them were considered collectively responsible for violating the treaty, and the Islamic state was no longer bound by Ko its provisions.

If the imam feared treachery on the part of the other party to the peace treaty, he then had to denounce the treaty, informing all of them about it, since it was forbidden to attack them, even in case of a truce, by surprise, according to the Quranic verse:

And if thou fearest treachery on the part of a people, throw back to them ^h eir treat^Z on terms of equality. Surely God loves not the treacherous.^

A reasonable time should lapse between the denunciation of any treaty and the resumption of hostilities. The law books do not specify any particular time. It must be sufficient time to allow the head of the other state to inform the people all over his country of such de- 52 nunciation. If the party to the peace treaty or to the truce attacked any Muslims, the imam had no choice but to retaliate without any 53 declaration or warning. As an example, Sharahbil ibn Hasanah, who was a commander under General K halid ibn al-W alld during th e reig n o f Abu-

Bakr, had conquered all of Jordan except Tiberias, whose people

^9A1-Buhuti, op. c it. . yol. 3* p. 89.

^ Q . 8:58.

^2Ibn al-Humam, Sharh Fath al-Qadlr (Cairo: Matba'at Mustafa Muhammad, n .d ,) , v o l. U, p . 29lj.. 53 Loc. c i t . 120 concluded a peace treaty with him on half of their lands. In the time of ‘Umar, they violated the conditions of the treaty and fought Muslims.

The commander of the army, 6Ubaida ibn a l-J a r ra h , ordered ‘Amr ibn al-^As to conquer Tiberias, with no official warning.^

IV. TREATIES OF CONCILIATION

Treaties of conciliation did not provide for a temporary truce, permanent peace, or agreement of protection. They simply set up a situation of friendship and sometimes provided for exchange of certain courtesies and gifts. They were established by the Traditions. The best example in the Traditions is the treaty of conciliation between al-Medina tribes and the Jews, which was concluded by the Prophet in

A.D. 632. It reads in part:

In the name of God, the Beneficient, the Merciful;

This is a document from Muhammad, the Apostle of God to the b elievers and Muslims of Quraysh and Yathrib /al-M edina7, and a ll who followed them and fought w ith them. They constitu te one umma ^nation/ in d istin ctio n from the rest o f people;

The believers should not leave any possibility to be followed graciously for paying ransom for their relative prisoners.

The protection of God is one and equally extended to the humblest of the believers. The believers are supported by each o th e r;

^Al-Baiadhuri, o£. c it., p. 123. 121

The Jews who may follow us will have our support equally, without suppression, nor do we intend to combine and turn against them.

The believers make peace together. No believer should con­ clude peace, after a battle in the path of God, except with the others on the basis of equality and justice among the believers.

The Jexirs shall contribute to the expenditure of battle as long as they fight with the believers;

The Jews of Banu 6Awf form a nation with the believers. The Jews shall have their own religion, and the Muslims shall have their own religion; each with their slaves and persons, except those criminals and sinners who will do harm to themselves and to their families;

(The names o f o th er Jewish tr ib e s are mentioned w ith the same rights and obligation of the Jewish Banu Awf).55

Only one example of a treaty of conciliation occurred in the

Republican period, and that was the treaty of friendship with Nubia, which was approved by the Caliph ‘Uthman. Later, in the Omayyad period, it was given special recognition by the Caliph tfUraar ibn ‘Abdul-Azlz.

The Nubians were very skillful with the arrow and Muslims could not conquer them. S till they asked for an agreement of friendship, com­ promise, and conciliation from ‘Abdullah ibn abi as-Sarh, the governor of

Egypt under the Caliph 'Uthman. He concluded with them a treaty of friendship, and no jizya was stipulated except the exchange of gifts.

The Muslims gave them some stable food, and the Nubians gave three hundred slaves.

^See the complete text in Hamidullah, 0£. cit., 15-21, and the English translation in Khadduri, op. c it., pp. 206-9. 122

Islamic history books single out this treaty by the name of

hudnah (truce). This name, however, does not carry the literal meaning of the word. It was not a temporary truce, since no time limit was set; and no coercive conditions were provided for as was usual in peace

treaties.^ Al-Baladhuri reports Zayd ibn Habib to have said:

There is no covenant or agreement between us and the blacks ^the Nubians7i it was only a hudnah on the exchange of food and slaves from us and from them respectively. 57

V. GUARANTEE OF SAFETY

Guarantee of safety was a unilateral document given by the imam,

and often by the commander-in-chief in time of war, either to a whole

country or towns or districts, if they laid down their arms and asked

for security for their lives and property. A guarantee of safety which was granted in time of peace to the foreigners who wished to enter the

Islamic state (whether they were subjects of ah allied or a hostile

country), will be discussed in a special chapter. A guarantee of safety

also took the form of granting quarter. This subject will be treated,

too, in the chapter on the laws of war. Here we will consider the

guarantee of safety which was given in official documents either to the protected citizens of the state, either in time of war or peace, with

regard to their departure from the state's territory, or to the enemy in

time o f war when they la id down’th e ir arms suing fo r sa fe ty .

^See at-Tabari, op. c it., vol. 3, p . 201.

57see al-Baladhuri, op. c it., p. 238* and at-Tabari, op.. c it., vol. 3, p. 201. 123

In the first case, a guarantee of safety was given to protected subjects who had violated the dhimma agreements and had chosen to leave the state’s territory and migrate to another country. At their request, they could secure safety for their lives and property until they left 58 Muslim territo ry .

Guarantee of safety in the other case was granted to those among the enemy who laid down their arms seeking security until they reached the place of safety, when they desired to escape the scene of war, or if they did so due to their fear of unexpetted consequences.

There was no stipulation for freedom of departure in a guarantee of safety unless the enemy had sought this condition in particular; apparently, the commander of the Muslim army had to be sure that the defeated people would not resume fighting or that they were actually disarmed. Those who chose to stay home were given safety from attack if they la id down th eir arms. The commander ibn al-Jarrah waged a war against the soldiers of Antakya (Antioch) who confederated with some defeated Byzantine armies in a previous battle at Qinnasrin and Halab

(Aleppo). The Muslim army was successful in conquering a fortress in a town called Mahruba near Antioch. The confederate armies laid down their arms asking for a guarantee of safety provided that they were given free­ dom of safe departure for those who wanted to leave, and safety against attack for those who chose to stay.^ Also, after the termination of

^Kruse, _op. cit. , p. 21.

^Al-Baladhuri, op. cit., p. 152. 12U war in Damascus, the commander ibn al-Jarrah went to Ba4alabek on his way to Hims. Unwilling to fight, the people of Ba'alabek asked for a guarantee o f sa fe ty from the commander of the Muslim army, who gave them this guarantee:

This is a guarantee of safety to the people of Ba‘alabek, Byzantines, Persians, or Arabs;

Their lives, persons, dwellings and mills are safe, whether they be inside the city or in its outskirts.

The Roman inhabitants shall not graze in any area more than fifteen miles out of the city, nor shall they travel to another city. They can do this only after the months of Rabi‘ (ath- Thani) and Jornada" al-Oula have been lapsed.

Should anyone of them accept Islam, he will be one of us and is given the same rights and duties.

The merchants of Ba^alabek are allowed to travel for com­ mercial purposes to any land that is tied with a peace treaty /with the Islamic state/.

W itnesses a re : eUthman ibn eAffan and Mu£ayqlb who wrote /th is document/.

For the other case, i.e., giving a guarantee of safety during departure to the protected citizens who have chosen to leave the state's territory, we give this example:

The protected citizens of Najran, who concluded a dhimma agree­ ment with the Prophet, were ordered to depart later, in the time of

Umar, because of their violation of the agreement; and their safe departure was pledged by the Caliph in this document:

In the name of God, the Beneficent, the Merciful;

^Hamidullah, og. c it., p. 3UU.

I This is what fUmar, the commander o f the f a ith f u l granted the. people of Najranj

Whoever departs among them, he is safe by the safety of God, unharmed by any Muslim, in fulfilment of what the Prophet and Abu Bak had w ritte n to them.

Let it be known that the state’s officials in Syria and Iraq shall extend to them the crops of the land . . .

Every Muslim should aid them against anyone who may oppress them, for they are people who deserve protection. Thy jizya are not to be levied on them for twenty-four months. CHAPTER V I

THE LAWS OF WAR

I . CONCEPT OF WAR

Although peace is considered as the original state of nature and war is described as an evil and abnormal state, international conflict still is inevitable due to differences in policy. It recurs so frequently, that the idea is justified that it is a completely normal relationship between states. The Quran states that it is a check and discipline which limits oppression, injustice, and transgression:

And were it not for God's repelling some people bv others, the earth would certainly be in a state of disorder.^-

In accordance with this verse, when a state takes a step toward the at­ tainment of secu rity , which is the paramount concern of a ll s ta te s, a ll other states feel less secure with respect to the one gaining strength.

They, in turn, seek to gain some corresponding advantage to balance the situation. In this competitive situation, conflict becomes inevitable.

Any state, feeling itself a free agent, will oppose any other state that is following a course thought to be inimical to its interest.

Concrete objectives which tend, in present times, to cause con­ flic t, such as territorial gain and the struggle between embattled nationalisms, were outlawed in the Islamic state during this period.

Rather, the co n flict was centered around absolute o b jectiv es, such as

•k}. 2:251, in part. 127 the promotion of religious ideology, enhancement of the state's prestige, the augmentation of its power, and the struggle against the forces which stood in opposition to the spread of the new religion. All kinds of warfare except the defensive jihad were outlawed. Only a war which had an ultimate religious purpose, that is, to render safe God's law or to check transgression against it, was a just war. War for this objective had a legal status as well as a means of executing the state's policy.

It may be defined as "the use of organized force as a means of securing the free acceptance of the Religion."

In the Islamic law books, laws of war are called siyar (singular, sIrah) . This word means literally: "the way of walking" or "conduct."

In the legal sense it means, "the ways of the conduct of war." Arab philologists tried very often to find out the relationship between the linguistic and technical usages of words. Thus, they said that the relationship between these two usages came from the idea that war necessarily implies walking and the covering of a distance. Siyar are also called jihad which means: "struggle" or "strife." In the legal sense the jihad is the strife in the way of God by pacific or warlike means. The word al-maghazi is used by chroniclers for the histories of religious wars.

Perhaps the most precise and comprehensive statement which pre­ sents the Islamic concept of war is given by the Muslim philosopher ibn Khaldun in h is al-Muqaddima:

Wars and d ifferen t kinds o f figh tin g have always occurred in the world since God created it. The origin of war is the desire of certain beings to take revenge on others. Each party is supported 128

by the people sharing in its group fe e lin g . When they have sufficiently excited each other for the purpose and the two parties confront each other, one seeking revenge and the other trying to defend itself, there is war. It is something natural among human beings. No nation or no race is free from it. The reason for such revenge is as a rule either jealousy and envy, or hostility, or zeal in behalf of God and His religion, or zeal in behalf of royal authority and the effort to found a Kingdom. The first kind of war usually occurs between neighbouring tribes and competing families. The second kind—war caused by hostili­ ty— is usually found among savage nations living in the desert. . . They earn their sustenance with their lances and their liveli­ hood by depriving other people of their possessions. They declare war against those who defend their property against them. They have no further desire for rank and royal authority. Their minds and eyes are set only upon depriving other people of their pos­ sessions. The third kind is the one the religious law the sharl^ah calls "the holy war," jihad. The fourth kind, finally, is dynastic war against seceders and those who refuse obedience. These are the four kinds of war. The first two are unjust and lawless, the other two are holy and just wars.2

War was considered as just whether commenced and prosecuted in accordance with the necessary formalities required under a certain system of law, or waged for justifiable reasons in accordance with the tenets of the religion or the mores of a certain society. In Islam, as in ancient Rome, both of these concepts were included in the doctrine of a just war since a justifiable reason, as well as the formalities for carrying on the war, was necessary. In both Islam and ancient Rome, not only was war to b''. just, but also to be in accordance with the sanction 3 of religion.

?Ibn Khaldun, The .:Mugaddima.t tra n s . Franz R osenthal, (New Yorks Pantheon Books, 1958, vol. 2, pp. 73-7U.

%ajid Khadduri, War and Peace in the Law of Islam, (Baltimore: The Johns Hopkins Press, 1955), p. 57. In early and medieval Christendom, Cicero influenced both St.

Augustine and Isodore de Seville in their theory of just war. St.

Thomas Aquinas, who was acquainted with Muslim w ritings, formulated h is

theory of just war along lines similar to the Islamic doctrine of the

jihad.^ To St. Augustine (35U-U30), a war was either "just" or "unjust,"

the former to be supported and the latter to be avoided. The justness

of war has always been a moot question among people who accept the doc­

trine j S t. Augustine believed th a t, to be ju s t, a war must be

started law fu lly, i t must be a redress for a wrong or injury suffered,

and i t must not be undertaken for the purpose o f aggrandizement. For

centuries in flu en tia l w riters, churchmen, and le g a lis t s , in p articu lar,

have held to the doctrine in some form—men like St. Thomas Aquinas, £ G rotius, Pufendorf, V a ttel, and others.

The jihad was not carried on by violent means only. It was a

"strife" or "struggle" for the sake of religion by unlimited varieties

of peaceful or violent actions. There is a self-imposed individual kind

of jihad or strife against the bad desires of the self. There is jihad

against apostates: those who merely revert from Islam, or those who,

having renounced Islam, join dar al-harb or separate themselves in a

territory of their own. Directly after the death of the Prophet, the

first Caliph, Abu Bakr, was engaged in an extensive jihad throughout the

Arabian Peninsulaj this jihad was known as the Wars of Apostasy, Hurub

^Khadduri, ojo. cit., p. 58.

^Norman H ill, Contemporary World P o litic s (New York: Harper and Brothers, 19$k), pp. £89-f>90. 130 ar-Riddah. There is jihad against the dissen ters who renounce the authority of a legal and just imam. There is still another kind of jihad against deserters and highway robbers. The jihad, moreover, may be realized as a state of preparation. The state had to be prepared m ilitarily not only to repel sudden attack on Islamic territory, but also to use its forces for offensive purposes when the imam deemed it m ilitarily necessary to do so. This kind of jihad was called ribat, or the safeguarding of the frontiers of the state's territory by stationing forces in the harbors and frontier towns for defense purposes. In fact, defense of its frontiers was one of the most urgent and obvious duties of the Islamic state in this period. On the Byzantine borders in par­ tic u la r , where attacks were most commonly encountered, a series of fortresses or strongholds were raised and garrisoned. Experience of

Greek methods of attack and defense taught the Muslims a great dealj but knowledge of simpler forms of defense was acquired by them even before they came into conflict with the Greeks.^ The ribat was con­ sidered no less significant than actual war. It is mentioned in the

Quran7 and in many Traditions as an important kind o f jih ad.® There was

^Reuben Levy, The Social Structure of Islam, (Cambridge, England: The U niversity Press, 19i>7), p. U3?.

7Q. 3:200, and 8:61.

®See Ibn al-Humam, Sharh Fatfr al-Qadlr, (Cairo: Al-Maktaba at- Tujariyya, n. d.), vol. U, p. 207] and ibn Qudama, al-Mughni, (Cairo: Matba'at al-Manar, 13U8 A.H.), vol. 10, pp. 375-37^1 131 no time limit as to how long one should carry out his duty in the ribat, although it is reported in some Prophetic Traditions that to be perfect, a ribat could not be less than forty days. Ibn Qudaraa reported that the

Caliph ‘‘Umar sent back some people who had returned from ribat duty 9 after less than forty days.

The .i ihad which was carried on by means of force as a holy duty was legalized in three cases:

1. When the enemy invaded Muslim territo ry .

2. When the enemy did not actually so invade, but behaved in an unbearable manner.

3. When a minority of Muslims were oppressed in an enemy territo ry .

The ,jihad in the first case was sanctioned by the Quran when it says:

Fight in the path of God against those who fight against you. but do not transgress. Lo! God loveth not the transgressors.^

Sanction is given unto those who are fought against because they have been wronged: and God is indeed able to give them v ic to r y .^

Regarding the high-handed behavior of a foreign country, the Quranic verse declares:

If .thou fearest treachery from any group, throw back their covenants to them (so as to be) on equal terras.^

In the third case, the holy war was legalized by this verse:

%bid., pp. 376-378. 10Q. 2:19G.

n Q. 22:39. 12Q. 8:£8, in part. 132

But if they seek your aid in religion, it is your duty to help them, except against a people with whom ye have a treaty of mutual alliance.^

Further, an important and interesting Tradition of the Prophet enumer­

ates the kinds o f defensive wars and says;

Whoever fights in defense of his person and is killed, he is a martyrj whoever is killed in defense of his property, is a martyrj whoever fights in defense of his family and is killed, is a martyrj and whoever is killed for the cause of God, is a martyr.1*4

The religious obligation to perform the jihad was modified in

different situations. In normal conditions, it was considered a fard

kifayah, a duty in general on all free, male, adult Muslims, sound in

mind and body and having s u ffic ie n t means to reach the Muslim army, yet

not a duty necessarily incumbent on every individual but sufficiently

performed when done by a certain number. The whole community, however,

fell into error if this duty was not performed at all.

Being a "collective" responsibility, the jihad is considered as

such by the four major principles of the sharl'ah. The Quran says:

And fig h t them u n til there is no persecution. But i f they desist, then there should be no hostility except against the oppressors. 15

This means that war is waged for a p articu lar purpose and can be carried

out by only some members o f the Muslim community. The Tradition of the

Prophet is clear about his practice that on many occasions he sent out

x3q. 8:72 in partj see also U:75.

^Muhammad Hamidullah, The Muslim Conduct of S ta te , (Lahore: Ashraf Publications, 1953), pp. 165-166.

Q. 2:193. 133 expeditions while he and many o f the Muslims stayed in al-Medina. As to the ijma', there was no divergence in the views of the jurists in this respect. The principle of the qiyas ran, according to the jurists, in this way: in analogy to many legal texts there was deduced the maxim that "a necessity is to be kept within its limits."

Although war is an evil, it is sometimes a necessary one, and because of this, it should be kept within its necessary objective, that is, the assurance of the freedom of faith against the opposition to it.

This objective, if carried out by a certain number of people to its due effect, will relieve others from the responsibility.

In some conditions, the jihad became an individual duty to be ful­ f i l l e d without a c a ll or an authorization by the imam. This happened when the state was threatened by a sudden attack. In this case, it be­ came fard cayn, or a duty of every believer, including women, children, and sla v es, even without permission from husbands, parents, and masters.

In practice, however, when a Muslim country was invaded, the imam issued a general summons ca llin g a l l Muslim inhabitants to arms.

The idea of the jihdd was, and still is, the cause of the most common and prevalent misconceptions. Many Western orientalists regarded the jihad as Islam’s instrument for carrying out its ultimate objective by turning all people into believers by the might of the sword. It followed, they reasoned, that the existence of a dSr al-harb or non-

Muslim territory is ultimately outlawed under the Islamic jural order; that the d5r al-Islam is permanently under jihad obligation until the dar al-harb is reduced to nonexistence. 13U

This view has no support either in the legal texts or in the spirit of Islam or the practice of its history. War was legalized for

Muslims by the verse which was mentioned above (22:39) , after which this verse follows:

Those who are driven from their homes without a just cause except that they say: Our Lord is God. And if God did not repel some people by others, cloisters, and churches, and synagogues, and mosques in which God’s name is mentioned, would have been pulled down.l°

The objective of war is specified here as the deterrence of oppression,

freedom o f dom icile, and freedom o f fa ith for a ll people whether Muslims or otherwise. This freedom of faith is clear from the mentioning of the different places of worship which belong to different religions: monasteries, churches, synagogues, and mosques.

However, there are many Quranic verses which c a ll for war with no

reason or justification attached to them. Many people have taken these verses as arbitary and absolute orders to carry out hostilities on the

in itia tiv e o f Muslims to force th eir r elig io n on others. This miscon­

ception arose from the wrong generalization of such verses in all

circumstances, while they should be understood in the whole context of other Quranic verses pertaining to war. Among these verses we read:

And k i l l them wherever you fin d them and drive them out from where they drove y ou .17

Such verses were meant to in cite the b elievers to be stead fast in th eir

cause when they were met with oppression and when a ll peaceful means had

failed. It is to be noted that these verses refer to the state of warfare

^Q . 22:UO in part. 17q. 2:191 in part; also Q. 9:29. 135 after it has already commenced. They describe a status rather than give a causej for the just cause is already given in the verse directly pre­ ceding the above-quoted verse and ssys:

And fight in the way of God against those who fight against . you but be not aggressive. Surely God loves not the aggressors.10

I f they withdraw from you and fig h t you not and o ffer you peace, then God allows you no way against them.19

The whole situation in this connection was best given in this verses

If they withdraw not from you, nor offer you peace and re­ strain their hands, then seize them wherever you find them. And against these We have given you a clear authority.2^

If the jihad had been a means of religious compulsion, the Quran would not have declared: 21 Let there be no compulsion in religion.

To you be your religion, and to me mine. 22

Invite a l l to the way o f thy Lord with wisdom and b eau tifu l preaching and argue with them in ways that are best and most gracious.^3

If it had been thy Lord»s w ill, they would all have be­ lieved —a ll who are on earth. Wilt thou then compel mankind, against their w ill, to believel2^ and the Prophet and the early caliphs would not have concluded treaties of peace, conciliation, and protection with non-Muslimsj and the Prophet

1®Q. 2:190. ^ Q . U:90 in part. 20q# ^.92 in part.

21Q. 2:256 in part. 22Q. 109:6. ^ Q . 16:125 in part.

2^Q. 10:993 also 16:93, 28:56, 29:U6. 136 o f Islam would not have forgiven h is p o ly th e is tic enemies o f Mecca when he conquered it. On the other hand, if the jihad is understood as religious compulsion, it would contradict the assumption that Islam was meant to be a universal and peaceful call.

The Prophetic Tradition which says: "I was ordered to fight the

•people’ until they believe that there is no god but God and that

Muhammad is the Apostle of God" referred to the polytheists of the

Arabian Peninsula. They were given the choice between Islam and war, or else they were forced to depart. The Arab polytheists were referred to here by the word "people." They were obstinate enemies and persisted in their bad habits. The Arabian Peninsula was considered as the home of the Religion in which Islam must be supreme. Polytheists of other races outside Arabia were left freej pacts and treaties of friendship and peace were concluded with them.

I I . MILITARY ORGANIZATION

The army was the whole n atio n in a ctio n . I ts commander- in -c h ie f was the caliph, who delegated his authority to his lieutenants or generals. The division of the army into center, two wings, vanguard, and rear was already known at the Prophet's time and evidences Byzantine and Persian influence. The khamls (five) was the term used for this military unit. The cavalry covered the wings. The infantry used bow and arrow, sling, and sometimes shield and sword. The harbah (javelin) was introduced later by the Abyssinians. The chief weapon of the cavalry was the rumh (lance). This, together with the bow and arrow, formed the two national weapons.

By the end of the Republican period, the state had organized a very efficient army of first-class, we 11-disciplined fighters with all the'.weapons of their age, including important siege engines. They had efficiently built up a system of marching, camping, transport, supplies, and other essentials of a first-rate army, and had learned and improved. the technique of defense, of laying siege, of taking a fortress by 26 storm, and of fighting huge armies with a much lesser number.

The state was divided into nine military districts apart from the p o litic a l d iv isio n s. Each one of them was c alled a jund. The m ilita ry districts were: al-Medina, Kufa, Basrah, Mawsil, Fustat, Misr, Damascus,

Hims, and Palestine. There were regular barracks for soldiers in all

these places. Each of the nine military stations had a huge stable for their equipment and horses. In addition to these big military stations,

there were military barracks in all large cities, frontier posts, and coastal towns. Each military center had an office for records and a provisions store.2?

^Philip K. H itti, History of the Arabs (London: Macmillan and Co., 1956), p. 173.

26S. A. Q. Husaini, Arab Administration (Lahore: Ashraf Publications, 1956), p. 61. The army consisted of two classes of soldiers on active service— pfi regulars, who were in the pay of the government, and volunteers, who joined from a sense of duty and who received rations only while in the field. During their absence from home, their women and children re­ ceived gratuities either in kind or money. In the earliest period of

Islam under the Prophet, there were many who had fought in the ranks of

Islam on the inducement of spiritual rewards to be attained in the here­ after. Many contributed generously toward the cost of the campaigns.

Then, when the foreign expeditions began under the Republican Caliphs, the motives inspiring the tribes to flock to the standards were combined with anticipation of spoils from the riches of the lands to be invaded.

During the reigns of the Caliphs Abu Bakr and 6 Umar, such hopes were realized^ large sums were distributed not only among the men who actu­ ally took part in the campaigns but also among members of the community who remained in Arabia. To the Caliph 4 Umar, from whom Islam claims to have received the greater part of its formal organization, is ascribed the first diwan, or register of troops, by which an ^ata*, or a stipend, was granted to each warrior who had taken part in the battle of

Qadisiyya (A.D. 635) and subsequent engagements.

^®In the omayyad p erio d , the forces kept a t Damascus were ch ie fly Syrians, and Syrianized Arabians. Basra and Kufa were the main recruit­ ing grounds for the army of all the eastern provinces. Under the early Omayyads the standing army numbered sixty thousand, entailing a yearly expenditure of six million dirhams, including family stipends. Yazid I I I (7UU) reduced all annuities by ten per cent. Under the last Omayyad Caliph, the army is said to have numbered twelve thousand. See Hitti, ££. cit., p. 226. 139

Under the Omayyads the pay of the troops engaged in the various provinces was regarded as the first charge on the local revenues. In

Egypt, during the rule of the Caliph Mu‘awiya, there were forty thousand men who are said to have been paid two hundred thousand dinars each. He kept a close check upon the numbers of the garrison and their families and appointed an Arab official for the sole purpose of inquiring into arrivals and departures. In Syria, the capital province of the state, 29 each district had its garrison which was paid from local taxation.

It was makruh, "legally disliked," that the imam should ask people for ja*!, that is, calling upon them when they went to battle to support each other with arms and horses, because this gave the de­ testable impression of giving wages in return for a religious duty.

Expenses of war were taken from the fay’ or the different kinds of tribute collected, without fighting, from the enemy as a price for peace, such as the kharaj, the jizya, and other tributes. However, if there 30 were no fay', individual compulsory contributions might be resorted to.

After the first enthusiasm of the faithful had declined, the men whose business it was to serve in the armies of Islam were reluctant to cariy out their duties even though they were in receipt of stipends. A capable and ruthless administrator such as al-Hajjaj ibn Yusuf, who was governor of Iraq under the Omayyad Caliph ‘Abdul-Malik, used compulsion.

In A.H. 90 (A.D. 699) > he raised a compulsory levy of twenty thousand

2^Levy, og. c i t . , pp. U12-U13.

^°Ibn al-Humam, og. c it., vol. U, p. 283. lU o men from each of the two garrison cities of Basra and Kufa for the

reinforcement of the armies advancing in Persia. Three years later he required a lik e number from Kufa fo r the campaign in Khurasan and on this occasion announced that he had been commanded to pay stipends to men who were enrolled.

The commanders-in-chief were very often, especially in the

Republican period, appointed by the caliph after shura (consultation) with distinguished Muslims. Appointment after consultation was the case,

for example, when Abu Bakr appointed Khalid ibn al-Walld to the post of

commander-in-chief. Appointment was normally followed by an official

• 3 0 letter from the caliph to the appointed military chief which gave him

full powers in the conduct of war. The appointment of officers of minor

rank was left to the discretion of the commander-in-chief, but still at

other times they were appointed by the caliph himself. The tribal

chiefs normally led their men in battle under the direction of the

commander-in-chief, but he might appoint competent substitutes if, for

any reason, they were absent. After the death of the Prophet, the old

feelings of tribal independence and equality were temporarily revived

among some communities. Thus, the tribal chiefs, at the battle of

-^Levy, 0£. c i t . , p. 4 IIU.

32see the text of the letter of Abu Bakr to Khalid al-Waqidi, Futuh ash-Sham (Cairo: Maktabat al-Jumhuriyya al-Misriyya, 1955), v o l. 1, p. 1I4; and the letter of ‘Umar to Abu-eUbayda ibn al-Jarrah in op. cit., vol. 1 , p. 99- m i

Yarmuk (A.D. 636), when there was confusion about the command of the

Muslim forces, were prepared to go into battle, each independently, with 33 his own men, without any consultation or cooperation with one another.

Being in supreme command of the army, the caliph had to be con­

su lte d in in itia tin g h o s t i l i t i e s . A commander could not begin an a tta c k

at his own discretion unless he had been previously authorized. After

the conquest of the Persian capital Mada’in^ (A.D. 637), it was

heard th a t the P ersian commander Mahran had prepared an army in the town

o f J a ltlla ’ to a tta c k the Muslim army. The Muslim commander sen t a mes­

senger to ask the Caliph tfUmar for instructions. The Caliph ordered him

to send an expedition of twelve thousand men to Jalula’ to meet the

Persians, with al-Qa^i^ ibn ‘Amr in the vanguard, Sier ibn Malik on the

right wing, ‘Amr ibn Malik ibn ‘'utba on the left wing, and cAmr ibn

Murrah al-Johani in the rear.If a commander in itia te d a b a ttle w ith­

out previous authorization or subsequent approval from the caliph, he

was held responsible and removed from his post. Al- °Ala’ ibn al-Hadrami,

the governor of Bahrayn, was a man of high aspirations. Rivalry for

great achievement existed between him and Sa‘d ibn abi-Waqqas. When he

learned that Sa'd had achieved victory at Qadisiyya and was advancing

toward the Persian capital Mada’in, he felt a strong desire for a

33Levy, o£. c it., pp. 2 l}f?-l|2 6 .

3^Ancient Ctesiphon.

3^At-Tabari, Tarikh a l - - U m a m :wa al-Muluk (Cairo: Matba'at a l- Istiqama, 1939) , v o l. 3* P* 132. lh 2 similar success in Persia. Firis, the southern part of Persia, attracted him most. The C aliph 6 Umar did not favor expeditions by sea and al-

Hadrami knew this very well. He took the initiative in his own hands

and landed troops from Bahrayn on the coast of F aris.^ After a few

early victories, he faced difficulties. The Persians seized his coastal bases and burned all his boats. Al-Hadrami was forced to apply for re­

inforcements. The Caliph was very angry when he learned of this sea

expedition. He rushed couriers to cUtbah ibn Ghazwan with the following

letter, dismissed the great general from the governorship of Bahrayn,

and asked him to join Sa'd ibn abi-Waqqas as his lieutenant:

Al- cAla’ ibn al-Hadrami led the Muslims by sea to invade Faris. The Persians have seized their sea bases. In doing so, a l-‘Ala’ disobeyed me, and I do not think he meant to please God either. I fear that if they are not helped, they might be overpowered by the Persians or fall in a trap. You should raise an army at Basra and rush to their help and bring them to Basra before they are destroyed.

To a l-fk l i 3 ibn al-Hadrami himself, the Caliph wrote:

God has given supreme power to rulers in order that men may obey them as disobedience brings harm and social disorder. You raised an army without my permission, made an assault on Faris and exposed the Muslims to ruin. I have asked the governor of Basra to send an army for your help and save you from dis­ aster. You have ceased to be governor and need not go back to Bahraynj instead proceed forthwith to Sa‘d ibn abi-Waqqas. If I had known any measure more hard on you than service under Sa‘d, I would certainly have adopted i t .37

36A.H. 19 (A.D. 6U0).

3^Khurshid Ahmad Fariq, "The State Letters of Caliph eUmar," The Islamic Review (March, 1957), pp. 27-28. 1U3

The Prophet, who was the commander-in-chief of the army, arranged his men in straight, regular ranks. The army adopted the five-winged form ation. The order of b a ttle in lin es and compact array was recommended by the Quran itself. A Quranic verse says: "Verily God loves those who fight in His way in a line as if they are one compact structure."3® This

is an exhortation to complete solidarity and mutual help.

On the march the scouts went well in advance of the army, explor­

ing and studying the path that lay ahead. Well behind them the army followed in the battle order. The vanguard marched in front, followed by the cen ter and the two wings. Then came the re a r w ith the luggage, siege engines, etc. Behind the rear rode the rear scouts. 39

Women and children of the soldiers often accompanied them, as well as their flocks and herds. The value of the presence of women and children was variously estimated both as an encouragement and as a draw­ back, for on occasion the women could give a good account of themselves, as they did at the battle of Yarmuk and elsewhere, and also at the siege of Bukhara in A.H. 90 (A.D. 709), when a body sallying out from the beleaguered city broke right through the rear of the besiegers.

When a forced march was necessary, either to take the enemy by surprise

or for some other reason, the heavy equipment and, presumably, the women

•^Q. 61:1*. The chapter containing this verse is named "As-Saff" (The L ine).

3?Husaini, op. c it., p. f?7 . lUU and children were left behind under guard. This happened in the first raid on Samarqand when Qutayba advanced with the cavalry and archers o n ly .^ 0

The institution of a system of military gradation is ascribed to the Caliph 4 Umar, who based i t on the p ra c tic e of the Prophet. I t is said to have originated when Umar wrote to the commander of the forces advancing into P e rsia (who was then a t Qadisiyya) and ordered him to divide his army into ten, to appoint ‘arlfs and amirs, and to arrange the whole force into ta‘biya, which was a military formation perhaps best described as parade order. In the order of precedence, the amir or commander-in-chief came first; the commanders of the divisions of the ta 'b iy a held rank next to the amir; next to them came the commanders of the tenths; then the standard bearers, who would appear to have held high rank; and lastly, the tribal chiefs. There were also separate commanders fo r the in fa n try and the cav alry , b u t th e ir p o s itio n in the list was not specified. Apart from the fighting officers, there were also appointed to the force physicians, a qadi, who was in charge of the booty before it was distributed and saw to its equitable division, a ra*id, whose duty was to find camp sites, an interpreter, and lastly, a sc rib e .

k°Levy, op. _cit., p. Ui3.

h^-Ibid., pp. U26—U27• In the b a ttle of Buwayb (A.H. ill—A.D. 635) the Caliph ‘Umar appointed to the army ‘Abdul-Rahman ibn Rablcah al- Bahili as judge and treasurer, Salman al-Farisi as commissariat officer, Hilal al-H ijri as translator, Ziyad ibn Abi-Sufyan as a scribe, 11*5 The Omayyad army was also modelled along the general organization of the five corps. The formation as of old was in lines. This general plan continued until the time of the last caliph, Marwan II (71+U—7^0)> who abandoned the old d iv isio n and introduced the sm all compact body of troops ca lled Kurdus (cohort). In o u tfit and armor, the Arab warrior was hard to d istin gu ish from the Greek. The weapons were e sse n tia lly the same. The cavalry used plain and rounded saddles not unlike the:/.: of the Byzantines. The heavy artillery was represented by the ballista

(arradah) , the mangonel (manjanlq) , and the battering ram (dabbabah) .

The value of the infantry and cavalry as supports for each other was clearly recognized by the Omayyads, who used them both when they could. Infantry was used in support of cavalry in the penetration of

Persia by Qutayba, who, meeting w ith resistance before Bukhara, la id siege to the city. A sally by the Turkoman horses was d~:ven backj but they r a llie d on some raised ground across the river which had to be crossed, and they were able to impede Qutayba’s advance. A fter a good deal of hesitation on the part of the tribesmen, the Muslim cavalry swam over, leaving a small force of infantry to cross by a hastily constructed bridge. While the cavalry created a diversion, the infantry attacked and the Turkomans were put to f lig h t .li?

and physicians, whose names were not cited by the Muslim chroniclers. See Shibli Numani, f Umar the Great, (Lahore: Ashraf Publications, 191+7), p. 126.

^Levy, op. cit., p. U29. The Omayyads also used siege engines as far afield as India and eastern Persia. At the siege of Daybul, in Sind, Muhammad ibn Qasim had a mangonel set up and manned by no less than five hundred people. As a xrule these engines threw stones, but some also threw fire and naphtha, the latter of which was carried as part of the stores of war.^

In general the "five" formation;was effective. Its danger lay in the difficulty of control if the force was large or too widely scattered, and especially so if the divisions lost sight of one another, as might happen during a dust storm, seeing that orders had to be sent by mes­ senger or to be signalled by trumpets or flags.^

In the history of early Islam, a navy did not play an important part in the machinery of attack and defense. The desert Arabs who made up the earliest Muslim forces, being unfamiliar with the sea, feared and detested it. It is known that the Caliph ‘Umar refused to entrust any

Muslim lives to its terrors when he was urged by Mucawiya to attack the

Byzantines from the sea. That competent warrior was later able to per­ suade the Caliph tfUthman to permit a sea raid, although he stipulated that no man was to be compelled to go to sea against his w ill, but that all who took part should be volunteers. Mu‘awiya is said to have been the first to Attack the enemy by sea and to have made fifty summer and lU7 winter raids, the objectives of which are not specified, though Cyprus is mentioned as having been one of the e a r lie s t o f them. The Arab navy was likewise an imitation of the Byzantine model. The fighting unit was a galley with a minimum of twenty-five seats on each of the two lower decks. Each sea t held two men, and the hundred or more rowers in each ship were armed. But those who specialized in fighting took up their positions of the upper deck.^

I I I . QUALIFICATIONS FOR MILITARY SERVICE

The Muslim warriors engaged in war to perform their religious duty.

NonrMuslim subjects were left free to participate in war during both the

Republican and Omayyad periods, in which case they were relieved from the cap itation tax. However, th is m atter, in theory, was a debatable question among the jurists due to the different Traditions in this re­ spect. There are some Traditions which prohibit the taking of aid from non-Muslims in war. On the other hand, i t is reported th at the Prophet sought the help of some Jews during the battle of Khaybar (A.D. 628).

They were even given th eir share of the booty. I t is a lso reported that during the battle of Hunayn (A.D. 629), the Prophet accepted the serv­ ices o f the in fid el Safwan ibn Omayya. These d ifferen t Traditions led to divergence in the opinions of the jurists. Some went so far as to prohibit the particip ation in war of nonrMuslims in any form. Ash-Shafi*l

*•-' ^ I b id . , pp. U51-U52.

k% itti, op. cit., p. 226. lllfl made a compromise and sa id that th is was prohibited f i r s t and then be­ came lawful. Abu-HanTfa ruled that taking the aid of non-Muslims in war was unconditionally lawful.^ The practice in both the Republican and

Omayyad periods was that the p articip ation o f non-Muslims in Muslim armies was permitted, and thus those participants were excluded from taxes, as has already been mentioned.

A warrior had to be a mature, able-bodied, and sound-of-mind person. However, a person who enjoyed maturity and sanity of mind might be under certain legal obligations which prevented him from carrying out his religious responsibility in war. This limitation was drawn by the principle of qiyas (analogy) to the general legal rule which states that

"legal obligation takes precedence tapon religious obligation." Perform­

ing the duty of the jihad is a religious obligation. But if the believer was under some legal obligations toward others, and these obligations were considered by the sharl‘ah as of vital concern and of utmost importance to other people, then the right of the people would relieve the believer from the responsibility of the jihad. Only when the other people gave up their rights, could such a believer re­ gain his power to participate in warfare freely. Thus, a woman could

take part in warfare only by the permission of her husband. A son who

had elderly and needy parents was required to get the permission of his parents or his surviving parent. It is reported that a man had migrated

^Muhammad ibn A li ash-Shawkani, Nayl al-Awtar (Cairo: Al- Matba ‘a a l - fUthmaniyya, 1357 A .H .), vol.“ 7 ,p P * 223-225. iU £ from Yemen and came up to the Prophet to fig h t on h is sid e. The Prophet asked him: "Whom did you leave behind?" He said: "Ify parents." "Go back" the Prophet replied "and get their permission, otherwise your jihad w ill be in your care and attendance to your parents."k® A warrior, therefore, had to be independent economically. He could be under no

debt obligation, unless he was excused by his debtor. If he was a slave, 1,9 he had to get the permission of his master. Only in case of a sudden attack might slaves, women, and sons of needy parents participate in fighting. For, in this case, the standing up to arms was a necessity

not only for the sake of the Faith but for the defense of the interests

o f the community i t s e l f .

IV. CONDUCT OF WAR

It was an established practice that the caliphs would, when they

sent out expeditions, give standards to the commanders of the army,

appeal to God for victory, and incite them to patience and perseverance.

At the time of giving the standards, the Caliph 4Umar was wont to say:

In the name and aid of Godl Go forth under His protection, for there is no victory save from Him, and from abiding by truth and patience. Fight in the cause o f God His enemies and do not transgress, for God does not love the transgressors. Do not be timid in fighting. Do not mutilatej and if victorious, do not

k®On the authority of Abu Dawudj see Ibid. , vol. 7, p. 219.

^%he Hanbalite school rules that the jihad is not incumbent on the slave even with a permission from his master. See al-Buhuti, Kashshaf al-Qina , (Cairo: Matba at Ansar as-Sunna, 19^7), vol. 3, p. 27. • go beyond the limits. Do not k ill an aged, a woman, or a chi Id .50

Battles were often conducted according to letters of instruction from the caliphs to the commanders of the armies as we see in the dif­ ferent letters of instruction in this chapter. These instructions, besides the other sources o f the shari*ah, composed another source of the laws of war.

The Caliph *Umar wrote to the commander Sa'd ibn Abi Waqqas: .

. . . And be gentle to the soldiers in their march to the war and do not force them to a hard way in the course of their journey, so that they may go to meet their enemy with full strength^

Stay with them twenty-four hours every week for r e st, for this is better in resuming the refreshment of the souls and it is a good chance for them to investigate their arms and be­ longings.

Stay away from the territories of those who are in peace with us, or those who are under our protection. Do not let any of your soldiers enter such territories except those whom- you tr u st, and keep from in flic tin g any harm to them, for these are inviolable. You are under trial with regard to your faithfulness to them, as they are under trial in standing in patience for th eir promises. Convey to them every good, and do not seek victory over your enemy by an injustice to those who are in peace with us.

When you approach the enemy territory, be aware by every means o f th e ir movements and plans. . . and try to weaken your enemy by skirmishes and guerrillas, and by cutting their means o f supplies and enforcements;

And put on the vanguard the best of your warriors and horses, so that the first impression of your enemy about you w ill be to your advantage;

^°Jorji Zaydan, Tarikh at-Tamaddun al-Islam i (Cairo: Matba'at al-Hilal, 1902), vol. 1, pp. 13^-136. 151

Do not show any sign o f favoritism . . .

Do not send any scouts or expedition i f you harbor any doubt that you w ill be overcome by your enemy;

When you meet your enemy, combine together a l l your sold iers and all your power, and do not initiate hostility unless they force you to do so, for this w ill give you an opportunity to know the points of their weaknesses and a better knowledge of the geography of their area . .

The admonitions and encouragement that *Ali, the fourth Republican

Galiph, gave his men in a battle, reveal a good deal of military know­

ledge. He said:

Place the armed men in front, and those who are not armed in the rear.

Keep something wrapped around the tip s of the spears. This preserves the sharpness of points.

Kill all noises. This drives vacillation away more effectively and is more becoming to d ign ity.

Do not hold your fla g s inclin ed and do not remove them. Place them only in the hands of those among you who are brave.

Call upon truth and endurance for aid, for after endurance there is victory.^2

The Arab commanders addressed official invitations to their

enemies, inviting them first to accept Islam or pay the tribute, before

they launched their attack. The official invitation was, in its most

^Muhammad al-Khudari, Tarikh a l-JUmam al-Islamiyya (Cairo: Matba'at al-Istiqaraa, 1370 A.H.), vol. 2, pp. b?-90.

^2Ibn Khaldun, og. cit., vol. 2, p. 82. 152 complete form, presented by a commission of a few prominent warriors who carried the invitation either verbally or in written form to the enemy commander. The following is a traditional report of an official letter sent by Khalid ibn al-Walld, before the capture of Mada’in (A.D. 637):

From Khalid ibn al-WalTd to the Persian authorities. Peace be on those who follow the path of the truth. Thanks be to God Who humiliated you and caused the collapse of your kingdom . . . those who pray our prayer . . . and eat our meals are Muslims and w ill have the same rights as ours. After you receive my letter send me guarantees and you w ill have peace; otherwise, in the. name of God, I shall send you men who like death as much as you like life.53

An example of the oral invitation took place before the conquest of Jerusalem (A.D. 637). Before the battle, the defenders of the city kept inside their fortresses for four days. On the fifth day, YazTd ibn abi-Sufyan, one of the officers of the Muslim army, went out with an

interpreter and approached the wall of the city and raised his voice with the interpreter repeating after him: "Will you accept Islam and prevent bloodshed, or come to peace terms with u s, or war." They re- 511 fused and hostilities began.

It is an established rule of the Quran^ that in a case in which

tihe enemy has refused to come to peaceful terms with the Islamic state

and war is resorted to, a formal warning must be directed to the enemy.

Taking an energy by surprise was considered a sin and treachery. As one

-^Khadduri, op. c it. , pp. 96-97.

5^A1-Waqidi, op. c i t . , v o l. 1, pp. 152-153.

&Q. 8:58. 153 example, the formal warning which was directed by the commander Abu-

'Ubayda to the people of Ba'alabek reads as follow s;

In the name of God, the Beneficent, the Merciful;

From the commander-in-chief o f the Muslim a n y in Syria, and the representative of the commander of the faithful (the Caliph), Abu-^Ubayda ibn al-Jarrah, to the people of Ba'alabek;

This is a declaration of warning which we direct to you all, for we are people who are followers of a religion in which there is no place for deceit and oppression. It is not for us to wage war on you until we know what you intend to do. If you enter into a sulh (peace) with us as many people did before, we have to accept. If you conclude with us an agreement of protection dhimma, we do not object. But if you insist on war, we shall fight you under the aid of God. 56 Forward quick answer.

Writers on modern international law are divided as to the neces­ sity of declarations of war. Among the early publicists there was a great preponderance of opinion in favor of them, and some went so far as to say that the enemy should not be attacked until some time after a declaration had been issued. Modern writers are inclined to hold that formal declarations o f war are not needed, but a few o f them s t i l l up­ hold the older doctrine. If we turn to practice, we shall find that in the Middle Ages heralds were generally sent to give the enemy formal warning of the approach of hostilities. The practice decayed with the 57 decay of feudal ideas. 1 In present times no declaration or manifesto

^Al-Waqidi, og. cit., vol. 1, p. 8l. It is reported that Hirbis, the governor o f Ba^alabek, refused to y ie ld to the Muslim warning and war was started;, see ib id . , pp. 8 l f f .

^Lawrence, og. c it., pp. 299-300. l5 h of any kind is necessary in order to legalize a war; nor does morality demand that publication of some formal document be made obligatory.

Unless the attacking state acts with the grossest perfidy, the state attacked is u su ally aware of the impending aggression. Some demands must have been made upon it; some reason for hostility indicated. Gen­ erally there is a period of negotiation, followed by an ultimatum, that is a demand, the refusal of which will be followed by war. A careful state can hardly be taken by surprise, especially as the ease of com­ munication in modern times renders the concealment of any unusual concentration of forces almost an impossibility.-’®

On many occasions, before hostilities were started, negotiations vrere sought e ith e r by the Muslim commander or by the commander o f the other belligerent party. At-Tabari, ibn al-Athlr, al-Baladhuri, and ibn

Kathlr reported many negotiations with the Byzantines and the Persians, and with the Egyptians during the course of the Muslim conquest of

Egypt.59

It is alleged that the envoys who were' sent to negotiate with the enemy during the wars with the Persians and the Byzantines in the

Republican and Omayyad periods gave no better terms than the offer of

^8 Ibid., pp. 301- 2 .

£9see the details of the negotiations with the Persian commander Mahan before the battle of Yarmuk in Ibn-Kathir, Al-Bidaya wa an­ il i hay a (Cairo: Matba'at as-Saeada, n.d.), vol. 7, pp. 9-lOj the nego­ tiations between Constantine, son of Heraclius, and ‘Amr ibn a l-‘As, before the battle of Qaysariyya (Caesaria, A.D. 63h) in al-W§qidi, op. c it., vol. 2, p. 11j and the negotiations between Rustem, the Persian commander, and Safd ibn abi-Waqqas, before the battle of Qadisiyya in al-Khudari, 0£. cit., vol. 1, pp. 207-8. 155 three courses of action: Islam, jizya, or the sword. This is not to be

construed as implying that the Muslims offered their religion at the point of the sword, if we keep the following facts in mind:

1. I t is an established fa ct that non-Muslim sold iers p a r tic i­ pated in war with the Muslims against th eir common fo e.

2. There were non-Muslim tr ib e s, towns, and sta tes with whom the

Muslims concluded peace tr e a tie s without eith er converting them or de­ manding jiz y a .

3. The Prophet himself directed in his lifetime many letters to

different heads of states which carried none of these alternativesj

these letters simply warned those heads of states that if they would not

accept the c a ll o f truth, then " it w ill f a l l upon them th eir own sins 60 and the sins o f th eir subjects."

In many cases, the alternative of calling people to adopt Islam was a means against bloodshed and a way for preserving peace for both

p a r tie s. The Omayyad Caliph 6 Umar ibn tfAbdel-AzIz wrote to the Berbers

in North Africa calling them to Islam. They accepted and no war was

waged on them.^ The same policy was taken by this Omayyad Caliph with

regard to the kings of Transoxiana. Some of them accepted Islam and

^See the letters of the Prophet to heads of the states in Hamidullah, Majmugat al-Wathalfr as- Siyasiyya (Cairo: Matbart Lajnat at-Tariff wa at-Tarjama wa an-Nashr, 19f>d),

^Al-Baladhuri, Futuh al-Buldan (Cairo: Al-Matba‘a al-Misriyya, 1932), p. 233. 156 6? were relieved from kharaj and jizya. It is reported that the commander

in Khurasan was not in favor of the lenient policy of the Omayyad Caliph, who not only relieved the people of Khurasan from taxes but gave them

generous grants. The Caliph at last removed this rigid and cruel com­ mander from office when he was informed that he said: "Nothing is good

for the people of Khurasan but the sword."^

The commander of the army used to p lan the course of war under

the principle of shura, or consultation. In case of disagreement, the

caliph was the final authority. Before the battle of Hims, the com­

mander-in-chief Abu-^Ubayda ibn al-Jarrah was camping in the neighbor­

hood of Hims, when Khalid joined him with his forces after the battle of

Q innasrln (A.D. 6 3 6 ). Ibn al-Jarrah consulted with his officers as to

whether he should begin the attack or wait until the arrival of rein­

forcements. Khalid was.in favor of the first view, while the rest of

the officers held to the latter. When they wrote to the Caliph ‘Umar

for the final decision, he ordered them to wait for reinforcements.^

The outbreak of war brought about an immediate and important

change in the legal relations of the Islamic state with the other bel­

ligerent state. The public armed forces were at once endowed with the

right to carry on active hostilities according to the legal rules

^A l-Jarrah ibn eAbdellah al-Hakami.

^Al-Baladhuri, og. c i t . , p. Ul5.

^At-Tabari, 0£. c it., vol. 3> pp. l53-l5Uj see also the full discu ssio n between the commander ibn a l-Ja rra ]i and his o ffic e rs when they planned fo r the b a ttle of Yarmuk in al-W aqidi, op. c i t . , v o l. 1, pp. ioh-5. 15 7 of warfare, and private individuals were obligated to refrain from hold­ ing pacific intercourse with the enemy. It was treasonable for them to pass on intelligence to the enemy. Treaties and all friendly relations between the Islamic state and the other belligerent state came to an end. Agreements of dhimma were dissolved only with regard to those who had illegal intercourse with the enemy. Treaties of conciliation and peace came to an end.

Private individuals were obliged to refrain from holding pacific

intercourse with the enemy. It was treasonable to pass on intelligence to the enemy. Commercial intercourse in implements of war was illegal by the very fact of war between the respective states. Export of food*

stuffs, however, was allowed in the Traditions. Consequently, trade was permitted with persons of enemy nationality residing in neutral terri­

tory according to the Quranic principle that "no soul bear the burden of

an o th er." The signal for the attack took different forms. In the battle of

Nihawand, the commander an-Nu‘man gave the sig n al fo r the a tta c k by waving the flag. He is reported to have said: "I shall now shake the

standard I carry three times. After the first shake, let each perform

the ablutions. After the second shake, let each turn to his sword and

get ready, putting everything in order. When the third shake is, by

God's wi 11, made, then rush and let none of you heed the other.Or

instead of waving the flag or swords and arrows, the takbTr, i.e., the

saying of "Allahu Akbar" (God is the Greatest), was announced three

^^Husaini, og. c it., p. 58. <

158 tim es fo r the same e f f e c t. Before the b a ttle of Q adisiyya, the commander told his soldiers: "When you hear me saying Allahu Akbar for the first time, then put your shoes on; and when I say that for the second time, prepare yourself; but if I say that for the third time, then attack."^

The slogans of the so ld ie rs a t the commencement o f h o s tilitie s were "attack, attack"; at drawing back "retreat, retreat"; when the cavalry were about to mount "horses, horses." When the art of war be­ came complicated and elaborate, they used to have different calls to Ln denote every movement in the f ie ld .

After an army -was already organieed and prepared for battle, the commander o f the army d id not spare any means to in c ite h is so ld ie rs to fight, strengthen their morale and martial eeal, and remind them of their religious duty. Often an almost formal address was delivered to the soldiers to this effect. As an example, Abu-cUbayda ibn al-Jarrah delivered this speech before the battle of Ba‘alabek (A.D. 636):

0 peoplel Know that God has promised you victory and aided you so that you will be able to defeat these people /the enera^ 7 * This city to which you are about to march is in the middle /strategically important/, and its people have hoarded military supplies and ammunitions and taken good preparation. So beware of self-respect and pride, and fight in the cause of God. Aid God, so He will come to your aid, and know that God is with you.°°

During war, occasions often arose when the belligerents were com­ pelled or persuaded to enter into temporary non-hostile intercourse with

^At-Tabari, 0£. cit., vol. 3} p° 37.

'Zaydan, og. cit., vol. 1, p. 152. 68 Al-Waqidi, o£. cit., vol. 1, p. 81, each other. An example of such intercourse was the exchange of messen­ gers. Thus when one party desired a parley with the adversary, it made some intelligible sign to that effect, requesting that its message b earer be allowed to approach the opposite commander and d e liv e r what he was entrusted and authorized to deliver. Such emissaries were generally accompanied by interpreters. They were immune from molestation or any 69 other personal injury or insult, even during the return journey. When the Byzantines suffered defeat in the early stages of the battle of al-

Yarmuk, Mahan, the Byzantine commander, tr ie d to ask the Arab commander to delay the war, so he sent a messenger for this purpose with this message: "Know that :

^Hamidullah, The Muslim Conduct of State, p. 259.

7°A1-Waqidi, og. c it., vol. 1, pp. IJ46— iU7.

^Ibn KathTr, og. cit., vol. 7, pp. 39-hO} and at-Tabari, op. cit., vol. 3, p. 3b. *66

~ V. ACTIONS ALLOWED AND FORBIDDEN

In Islamic legal rules, the objective of war is neither the achievement of victory nor the acquisition of the enemy's property^ it is rather the fulfillment of a duty, the jihad in God's path. The combat­ ants, accordingly, were advised:to refrain from the shedding of blood or the destruction of property unnecessary for the achievement of their objective. These rules are among the oldest and best established rules of the laws of nations, at least in theory, until our present time.

As between two regular belligerents, the modern laws of war pro­ vide that the force required to coerce the enemy must be exercised w ithin the lim its or bounds s e t by international law. There was the fundamental principle that the procedure of war was a means to an end.

I t followed that the measures employed must have a direct or indirect rela tio n to the desired coercion o f the enemy. In no case might the force used exceed at any time the necessities of the situation or be directed to any other object than the submission of the enemyj and to continue the war after the enemy state had announced its willingness to surrender would be in clear v io la tio n of the sharl'ah, as the Quranic verse states in unmistakable terms. ad And if they incline to peace, incline thou also to it.1

In an address to the first Syrian expedition, Abu Bakr, the first Caliph, said:

8:6l, in part. 16£

See that you avoid treachery. Depart not in any way from the right. You shall mutilate none, neither shall you kill a child or an aged man, nor any woman. Do not injure the date-palm, neither bum i t with f ir e , and cut not down any tree wherein is food for man or beasts. Do not slay the flocks or herds or camels, save for needful sustenance . . . And the monks with the shaven heads, if they submit, leave them unmolested . .

It was;absolutely forbidden to burn or drown the enemy. The dead body of the enemy was forbidden to be mutilated. Killing parents if

they were non-Muslims and in the enemy ranks was forbidden, except in

absolute self-defense.^

The jurists agreed that non-combatants who did not take part in

fighting, such as women, children, monks and hermits, the aged, blind,

and insane, were excluded from molestation. If the aged and the monks

indirectly helped their people, they were subject to molestation. ^

Peasants and merchants who did not take part in fighting were also ex­

cluded from molestation.

It was forbidden to supply the enemy with arms or iron according

to a Prophetic Tradition. The analogy to this Tradition would required

that this also be the case with food and -clothes. But this analogy was

discarded because of another Tradition in which the Prophet was reported

73 Husaini, og. c it. , p. 11+3*

^Ibn Qudama, og. c it., vol. 10, p. f>03.

^ I n the b attle o f Hunayn (A.D. 629), the Muslims k ille d , in the presence of the Prophet, Dtirayd ibn as-Simma, a man more than one hundred years old, because he gave useful advice to his people during the battlej see Khadduri, og. c it., pp. 103-U. 16? to have ordered one o f h is companions to carry food stu ffs to the {?£ Meccans when they were at war w ith him .‘°

The destruction of enemy property was justified for military pur­ poses and as a means of cutting his lines of communication, thus elimi- 77 nating his subsequent sources of supplies. The modern laws of war adopted the same Islamic regulation when they permitted the seizure and destruction of enemy property by a belligerent when military necessity demanded it. The Hague Regulations followed the customary law in for­ bidding the destruction and: seizure of the enemy's property unless it be

"imperatively demanded by the necessities of war."^ But under normal conditions, all Muslim jurists forbade cutting, flooding, or burning 79 fruit-yielding trees, according to Abu Bakr's instructions. Killing animals and bees was forbidden because it came under the general pro­ h ib itio n in the Quranic verse:

And when one holds authority, his aim everywhere is to spread mischief through the earth and destroy crops and cattle. But God loveth not mischief. ®

However, taking the honey out of beehives, and slaughtering animals for 81 necessary food was permitted.

al-Humaro, op. c it., vol. U, p. 297.

^Ibn Qudama, o£. cit., vol. 10, pp. 509-10.

^Charles Fenwick, International Law (New York: Appleton-Century- Crofts, Inc., 19U3), p.

79Abu-HanIfa permitted th is only as a means o f intim idation and coercionj see Ibn Qudama, og. c it., vol. 10, p. 507.

®®Q. 2:205. ^ Ib n Qudama, lo c. c it . Although the jurists accepted in principle the doctrine of un­ necessary destruction, based on Abu Bakr’s instructions, they disagreed on certain matters o f d e ta il. Only al-Awza*T (A.D. 778) accepted the doctrine of unnecessary destruction without qualifications. Other jurists, including the founders of the four schools, greatly restricted this doctrine according to certain Quranic injunctions and the Tradi­ tions. Al-Awza'i argued, however, that the Quran and the Traditions must be interpreted in the light of the practice established by Abu Bakr and the companions.®^ The famous ju r ist ibn Eushd (A.D. 1196) after quoting the Caliph Abu Bakr "... do not destroy a palifr-tree, nor burn i t with fir e and do not cut any fr u itfu l tree ..." said that Abu Bakr would not have instructed his army in this way had he not known that this was forbidden by the Prophet. It is reported, however, that the

Prophet had ordered the trees of the enemy tribe of Banu an-Nadlr to be cut. Such actions were also taken with regard to the enemy tribe of

Banu Qurayza. These two cases must not be generalized to be an estab­ lished rule, as it was held by many jurists, since the action by the

Prophet with regard to those two tribes was special in character, due to their continuous hostilities and conspiracy.

The warriors were allowed to besiege enemy cities, to use siege artillery (hurling machines) for the destruction of city walls and

89 • Khadduri, og. c i t . , pp. 102- 3 .

®^Abdel-Rahman Azzam, Ar-Risala al-K halida (Cairo: Dar al-K itab al-*Arabi, I9$k) pp. 127-128. 161+ h o u se s,^ and to burn or flood enemy territo ry . They were also per­ mitted. to cut water canals and destroy water supplies to prevent the 85 enemy from using them.

When the commander laid siege to a fortress, he was obliged to hold the siege with perserverance, and in no way was hepermitted to lift the siege unless under one of these conditions:

1. That the defenders of the fortress would accept Islamj

2. That the defeneers would ask for sulh on the payment of tributej

3 . That the defenders would open the fortress to the Muslim a my; ftA 1+. That the defenders would accept the verd ict of an arbitra­ tor appointed by the Muslim commander; or

5. There was a great hardship which made the continuance of the siege impossible for the Muslims.®^

If the enemy had captured Muslims, including women and children, the ju r ists were agreed th at the Muslim warriors should use lim ited means o f violence in figh tin g the enemy. They disagreed, however, on the limitations of those violent means. Al-Awza‘1 goes so far as to advise abstention from direct attack, depending on the following verse

8^In the siege of at-Ta5if (A.D. 629), the Prophet employed a manjaniq (ballista) and a dabbaba (mantlet) made of cow hides and wool. It moved on wheels. See Husaini, o£. cit., p. 28.

®%hadduri, 0£. cit., p. 106.

86The verdict was, usually, either to set free the combatants and their fam ilies, to put their children and women in enslavement, or to k ill the combatants.

8^Ibn Qudama, 0£ , c i t . , pp. 5W+-5U7. 165 which was revealed on the occasion o f the capture o f Mecca:

o . o Had not heen for believing men and believingwomen whom ye know not, whom ye have trampled on, and so crime might have occurred to you on their account without your knowledge.

Ath-ThawrT and Abu-Hanlfa permitted attack even if shooting by arrows or hurling machines would k ill Muslims, including their women and children, provided that the Muslim warriors intended to shoot only the enemy. Ash-

Shaficx advised attack on the fortified places and castles, but not on the houses^ if, however, fighting was at close range, Muslims ought hot to abstain from shooting, even if it resulted in killing Muslims.897

This rule was established on the principle of istiglah, or public in­ te r e s t, that is to say: the k illin g o f a fexj Muslims was ju s tifie d on the ground that it would serve the greater interest of the Muslim com­ munity by defeating the enemy.

Ruses of war or stratagems were recogpized by both Islamic and modern international law as legitim ate means o f deceiving the enemy, and their customary use was confirmed by the Hague Regulations.90 In

Islamic law, recourse to ruses was established by the Traditions. The

Prophet is reported in his warlike expeditions to have given currency to the use o f misleading methods, employing ambiguous expressions and the lik e to confuse the enemy. "War is a ruse" is a famous Prophetic

Tradition.^1

88 q. 1*8 : 2 5 , in part. ®%.hadduri, 0£. cit., pp.106 - 7 .

9°Fenwick, 0£. cit., p. 56l.

^Hamidullah, 0£. cit. , pp. 255-256. 166

Night attacks, which were considered as a king of stratagem, were permitted, and instances were many in the history of this period. Many other tricks were reported, such as pretending retreat. The commander- in-chief Abu "'Ubayda ibn al-Jarrah was encountered with strong opposition in his war with the city of Latakia in Syria (A.D. 636). The city was fortified with a large wall. He decided to use trickery. He pretended retreat while he had soldiers and horses hiding in -ditches, which he had had dug in the outskirts of the city. On the following day the people o f Latakia, thinking that the Muslims had retreated to th eir base in

Hims, opened the gate of the city. Thereupon the city was attacked.

Besides the actions which were flatly forbidden or permitted in warfare, there were certain things which were only commendable or repre­ hensible. For example, it was advised that no punishment for criminal offenses committed by Muslims should be in flic te d on them as long as they were in the field. The Caliph ‘Umar instructed his commanders as follow s:

The commander of an army or squadron should not give legal punishment o f whips to any Muslim so ld ier offender u n til he is back into his own country from that o f the enemy, so that the offender in a fit of the devil's scorn may not go over to the enemy.

The sold iers were recommended not to show any sign of pride, hypocrisy, or insincerity:

92A1-Baladhuri, og. cit., pp. 138-139.

^ Ib n Qudama, og. cit., vol. 10, p. 537. 167

And be not like those who started from their homes insolently and to be seen of men. 91+

Soldiers were not allowed to leave their camps without permission from the authorities; neither were they permitted to carry out any civilian activities outside the necessities of w a r . 95

It was not commendable that women and children be stationed with the soldiers in the ports and frontier towns which were thought liable to danger and attack; for this would tend to subject them to enslavement by the enemy in case of attack. The soldiers were recommended to gather for prayer in one place or in one mosque, so i f an attack came by sur­ prise, it would be easy for them to come to order in defense of their 96 area.

Commanders were advised not to make their headquarters over hillocks because it would inconvenience the soldiers. ‘’Umar wrote to

Hurqus ibn Zuhayr when he was sent to al-Ahwaz:

I learned that you have s e t up your camp where men cannot reach except after undergoing much difficulty. I call upon you to come down to the plains and not to put a Muslim or a mufahid /a person with whom a pact has been madd7 to the hardship of climbing up the hillock. Be vigilant in the discharge of the task entrusted to you. If you act in this way, you will prosper in th is world and get divine reward in the hereafter. Neither sluggishness nor haste should mar your action, for if you are sluggish or hasty, you will be unhappy in this world and forfeit divine reward in the n e x t.°‘

9ii Q. 8:1+7 • The reference is to the army of the infidel tribe of Quraysh which had marched in great exultation to destroy the early Muslims in al-Medina at the time o f the Prophet.

^Ibn Qudama, og. .cit., vol. 10, p. 393. ^Ibid., p. 376.

9?Fariq, cit., (March, 1957), p. 27. 168

While Muslim commanders saw the value of spying and made use of it, they, like other nations, severely punished enemy spies« If an in­ dividual from the enemy entered the state's territory by aman (safe conduct) and proved later to be a spy, he was killed no matter whether he was a man or a woman. In the case o f a Muslim spy who transmits intelligence to the enemy, the shari*’ ah does not require killing, al­ though ash-Shafi‘l and Malik leave the matter to the imam to punish him.

Al-Awza*! advises exile or punishment by torture, and Abu-Hanlfa orders him to be imprisoned until he repents. The same applies to a dhimmi spy-98

VI. GIVING QUARTER

When an armed enemy ceases to fight and begs for mercy, he is said to ask for quarter^ and when his life is spared and he is made prisoner, quarter is said to have been granted to him. Quarter is based upon th is Quranic verse:

And i f anyone of the p o ly th eists (in case of war) seeketh thy protection, then protect him so that he may hear the Word of God, and afterwards convey him to his place of safety.99

Quarter was granted to enemy persons when they solicited .it either individually or en masse. If surrender was unconditional, they became prisoners of war, and their property booty. This occurred generally when they were besieged or fought in the open and were reduced

9%hadduri, o£. art., pp. 107-8.

99Q. 9:6, in part. 16? to great straits.^"* In conditional surrender and when stipulations were given, the Muslims accepted the conditions and had to abide by them.

When quarter was granted, its violation by the one who gave it was considered as a.terrible action of treachery and an unforgiven sin in the Religion. fUmar wrote to Sa‘d ibn abi-Waqqas during the wars of

Qadisiyya:

It has been brought to my notice that some members of your army go out in search of an enemy 3 th a t when he climbs up a mountain and is out of reach, one of the party says to him matars ("D on't be afraid " in Persian) and k i l l s him when he delivers himself. I swear by God Who controls my life that I shall cut off the head of anyone who acts in this way . ^ 1

In giving quarter, the Muslims were warned by a Tradition not to give quarter in the name of God, but only in their own names, that is, under their own personal word and responsibility. This Tradition reasoned that the one who gives quarter may, at any chance which demands 102 i t , break h is word, i f , fo r example, the c alip h o r the commander o f the amy annulled such quarter for the interest of the state, or if the quartered belligerent committed treachery. Thus, the name of God was exalted above conditions in which there might be a violation of the prom ise.

^•^Hamidullah, og. c it., p. 209.

^S ee Fariq, op. cit., (July-August, 1959), p. 165 and a l- Khudari, og. c i t . , voTT 1, p . 207.

10&See? this Tradition in ash-Shawkani, - og. c it., vol. 7, pp. 230-231. Sometimes quarter was given after a written request was handed over to the commander of the army. During the battle of Bib,^®3 the king of Bib, Shahr-Baraz wrote requesting quarter from the Muslim 1 ft}' commander Suraqa ibn ‘Amr who granted him quarter. At other times quarter was granted to the enemy belligerents without their soliciting

it. This was based on the practice of the Prophet at the time of the conquest of Mecca. During the wars in Jazira (Mesopotamia), one of the commanders, ‘Umayr ibn Sa‘ d, was in charge of an expedition sent to the town of Ra’s a l - eAyn. When entering the c ity , he called: "No harm, no harm, come, come," which was a general quarter given to a ll on the

initiative of the conquering army.

If a Muslim soldier granted quarter to an enemy belligerent and the latter refused to accept it, quarter then was void and the enemy soldier was s till holding his enemy character.106

Quarter, as far as the quartered belligerent ivas concerned, was strictly a personal matter and not transferable. If not expressly other­ wise mentioned, it did not protect even the grantee's family, less so

his property. This applied, however, when one was in immediate danger.

On the other hand, when one was safe in his home and quarter was so­

licited, then it automatically included life, property, wives, children

*

*®3 a c ity located between Tabaristan and Khurasan.

■^Al-Khudari, og. cit. , vol. 1, p. 22$.

■^Al-Baladhuri, 0£. c it., p. llil. *-C)^Al-Buhuti, c i t . , v o l. 3, p. 8U. 171 of minor age, unmarried daughters and sisters, dependent relatives, 107 servants, and slaves. •' During the siege of Jorgan, the commander

YazTd ibn al-Muhallab gave quarter to the governor of the city and to three hundred o f his fam ily, r e la tiv e s , and f r i e n d s .

Quarter could not be given by an individual to a large group or a whole town, for this would be the same as halting the religious duty of the jihad. This right was reserved only for the imam who was in charge 109 of the interest of the state.

When quarter was requested by a small group, all of them had to be identified clearly and, by no means, was anyone else included with them. If this happened, the unnumbered person took the risk of being killed since quarter was not given to him previously. During the battle of as-Sus, the commander Abu Musa al-Ash6ari laid siege to the city u n til the food supplies were consumed by the besieged defenders. There­ upon, the marzuban, the Persian governor of the city, asked quarter for eighty persons in order that they might open the gate of the city. The marzuban included himself with the eighty soldiers only to be killed while the quartered defenders were l e f t unharmed.

^^Hamidullah, og. c it., p. 212.

t-Tabari, og. cit., vol. 5, pp. 297-298.

*®9lbn Qudama, og. c i t . , p. U3U. For a fu ll discussion about the general quarter by the imam in contrast to other kinds, see Julius Hatschek, Per Musta’min (Berlin und Leipzig: Vereinigung w issenschaft- slic h e r Verleger, 1920), p. f>l, f f .

ll%l_Baladhuri, og. cit., p. 371. 17?

The modes and expressions of quarter were discussed in great de­ tail by Muslim jurists. They said that quarter could be given by saying,

"you are safe" or "no harm" or "lay down your arms" or by any action or demonstration to this effect.

According to the Traditions, even the lowest of Muslims could grant quarter which was binding on the totality of the Islamic state.

"Muslims are equal in their blood," the Prophet said, " and the most I humble among them carry their whole responsibility." Accordingly, this right was possessed not only by the combatants, potential or active, but even by slaves and women.During the wars of Hira, Rustem, the

Persian general, wrote to the governors of Sawad (the lower delta between Euphrates and Tigris in Iraq) who ruled under the Persians, to unite in defense against Muslims. Among them was Jaban, to whom an expedition was sent to meet his forces at Namariq (near Kufa). Jaban was taken a prisoner of war by an ordinary Muslim soldier to whom

Jaban said: "You Arabs are people of fa ith fu ln essl W ill you give me quarter on the payment o f such and such?" When the so ld ier gave him

^See al-Buhuti, og. cit., vol. 3, p. 8Uj and ibn Qudama, op. cit., vol. 10, pp. 38-59*

On the authority of Abu Dawudj see ibn al-Humam, og. c i t . , vol. U, p. 258.

^%omen enjoyed the right of giving quarter by a Tradition in which the Prophet when mentioning this right said, "Surely a woman can give her word"; that is to give quarter. This Tradition was reported on the authority of at-Tirmidhi; see ash-Shawkani, og. cit. , vol. 8, p. 28. quarter, he said: "Go with me to your commander so that quarter w ill be given by you in his presence." This was agreed upon, and the commander- in-chief Abu ‘Ubaida ibn al-Jarrah approved. When the officers and the soldiers came to know about it and realized that Jaban was not a regular warrior but was the commander o f his army, they showed th eir disapproval and talked to their commander about it. Thereupon, ibn al-Jarrah said:

"What do you think I am doing! Do you expect me to k ill a quartered person who was given a word o f honor by a Muslim soldier? I seek refuge in God! What was given as a pledge from a Muslim is binding on all of thera."11^

Naturally the insane and those under enemy control, such as the

Muslim prisoners o f war and traders, acquired no power to grant quarter as long as they were under non-Muslim ju r isd ic tio n .11^ This incapacity was terminated as soon as they reached a place outside non-Muslim ju ris­ d iction .

The legality of quarter granted by a slave was a debatable ques­ tion among the jurists. Abu-HanTfa gave the slave this right if his master permitted him to participate in war, in which case he took the fu ll position as a lawful combatant, and thus was able to grant quarter.

The other three schools of law gave the slave this right unconditionally,

^••^Al-Khudari, op. c i t . , v o l. 1, p . 200.

U ^The Hanbalite school legalized the giving of quarter by a Muslim prisoner of war if he was known not to be forced to give itj see ibn Qudama, og. c it., vol. 10, p. 1*33.

^■^Ibn al-Humam, 0£ . c i t . , v o l. U, pp. 300-1. n 5 ^ j * r since the Prophetic Tradition which was cited above was general and in­ cluded any Muslim. Thus in the course of the siege of the Persian city o f Shahi>yaj, i t happened that the Muslim sold iers retired one night to their camp while a Muslim slave remained behind. The besieged people asked him for quarter. The slave wrote a declaration of safety on a piece of paper and transmitted it to them by means of an arrow. On the follow ing morning the Muslim so ld iers were surprised to see the defenders of the city going freely from their fortress. When they learned the story, they wrote to the Caliph ‘Umar, who answered: "The Muslim slave is like any other with the same responsibility} and his giving of quarter is binding /on the rest of Muslims7."^^

Non-Muslim sold iers o f the Islamic army, a llie s or otherwise, and even non-Muslim subjects o f the sta te were denied the right o f granting quarter, except when authorized by competent authority.

The commander of the army or the caliph himself reserved for themselves the right to notify the enemy that quarter by an individual

Muslim might not be given and to revoke i t when i t was already given, i f this proved to be in the best interest of the state in its conduct of war. However, when the granting o f quarter was revoked by the caliph or the commander, the enemy concerned was allowed to return to the same position of safety and resistance that he was in when quarter was given.

11.7ftl_Baladhuri, og. c it. , p. 382.

li5Hamidullah, og. c it., pp. 210-211. If one of the defenders of a fortress requested quarter in order to open i t , and a fter that each one o f them claimed that he was the one who asked for quarter, the commander of the army had to grant quarter to all of them since there was no way of ascertaining who had really asked 119 for quarter. I f i t happened that Muslim sold iers found some enemy persons who claimed that they were safe because quarter had been given to them by a certain Muslim, the so ld iers or th eir commander had to take their word only if they carried no arms. Otherwise they would be under due punishment since their carrying of arms was a clear indication that their claim was false.

Quartered belligerents who became prisoners of war were often em­ ployed as spies against their own people provided they did so on their own volition. The history of this period is full of incidents of this sort. During the battle of *Ayn at-Tamr, a soldier came up from the ranks of the enemy and asked Khalid for quarter. His request was granted, and he was employed to give intelligence toMuslims.Simi­ larly, during the conquest of Tustar (A.D. 61*0), the commander Abu Musa al-Ashcari gave quarter to an enemy soldier who served in this capa­ c ity . 126

1-^%bn Qudama, og. c i t . , v o l. 10, p. h39>

^•^ I b i d . , p. IJjl. 12IjU_I3alai3huri , £ £ • c i t . , p. 2b9^

^•^Ibid. , p. 373* One of the important causes which led to the conquest of Damascus, was a quartered belligerent by the name of Yunus ibn Markos who dug a tunnel under the wall of the city and thus was able to open the gate of the city for the Muslim army. See al-Waqidi, op. c it., vol. 1, pp. U8-U9- n u

Quarter was terminated in retaliation for some enormity or signs of treachery committed by the quartered belligerent. In this case, quarter could not be given again to the same person. During the battle of Ajnadin in Syria (A.D. 63U), the Persian commander Wardan came out of the ranks of his army on the pretence of conducting peace talks with

Khalid ibn al-Walid. This was discovered to be a trick to kill the

Muslim commander who had taken the necessary precautions in anticipation o f such d eceit. When the Muslim o ffic e r s advanced to k i l l him, he sig ­ nalled by his finger sefeking quarter. But Khalid refused, saying: "We do not give quarter except for the people who deserve it £ l . e . } the faithfuj.7.1,123

VII. THE TERMINATION OF WAR

Wars which were, waged by the Islamic state in the Republican and

Qmayyad periods were brought to an end in one of the following ways:

1. When both parties ceased hostilities without any mutual agreement.

2. When non-Muslim enemies embraced Islam.

3. When the enemy was defeated and his territory was annexed.

U. When the enemy accepted the suzerainty and protection of the sta te . - '

5. When the conflict was settled by a treaty of peace while both parties retained their independence.^5-

^ Ib id ., vol. 1, pp. 39-hO. ^^Hamidullah, op. cit., pp. 269-270. Very often, at the termination of war, the commander used to write a report to the caliph about the conduct of war, the number of soldiers killed, the amount of booty, and so on. CHAPTER V II

SPOILS OF WAR

Spoils of war are called anfal or ghanA’im (singular, ghanlma).

Ghana * im were the moveable and immoveable property o f the enemy acquired by force,'anwatan, in an organized expedition. When individuals raided the enemy territory without permission of the imam and exacted booty, their gain was not considered legal since booty is that which is taken by force by an organized group of fighters and not that which is taken by theft. If the expedition was carried out, however, by a large or­ ganized group against a warring state, their gain was subject to divi­ sion as legal booty, though they were not ordered by the imam to fight.1

During the battle itself, "requisitions" were allowed, as in present times. Requisitions are articles of daily consumption and use taken by an invading army from the people of the occupied territory.

The invader has an unquestioned right to levy requisitions at his own discretion, and in most modern wars he has done so, sometimes leniently, sometimes severely.^ The Caliph 1 Umar wrote in reply to an inquiry from a commander as to whether it was permissible for the army in a foreign land to use the consumable part of the booty such as corn, fodder, and animals before its division:

^•Ibn al-HumSrn, Sharfr Fath al-Qadlr (Cairo: al-Maktaba at- Tujariyya, n.d.), vol. it,”p. 33.

^T. J. Lawrence, The Principles of International Law (Boston: D. C. Heath and Co., 1899)", p. 37U. i?3 o Let the army eat and fe e i/th e ir horses, z t c j from the booty. But i f anyone s e lls part o f i t , then it is necessary to pay ^from the proceeds of the part/ the share of the state and the share o f Muslims.** ~

The booty was to be divided after, not before, the winning of the battle; the reason being that the acquisition of the booty was determined by victory, which alienated the enemy’s right of ownership. Even if the b a ttle were won and the war continued, d ivision o f the booty had to be postponed until the Muslims attained victory.^

Before any division of the booty could take place, the bodies of

the martyrs who fell in battle had to be buried in a special manner.

Unlike the ordinary dead, the martyrs were not washed or shrouded in the

traditional way before the burial, nor were funeral services offered for

them. They were, rather, buried in th eir apparel with th eir blood un- washed. This was done with those killed directly in the field. Those who lived for a while after the battle were treated like the ordinary

dead, though they were also considered as martyrs, deserving the highest

reward in the abode of the hereafter.^

The booty was either divided in the enemy territory or sent back

to Islamic territory and divided there. Abu-Hanlfa considered the

& Requisitions were considered in theory as part of what w ill be the booty, and, therefore, were not liable to sale.

**Khurshid Fariq, "State Letters of Caliph ‘Umar," Islamic Review (July-August, 1959), p . 17.

^Majid Khadduri, War and Peace in the Law o f Islam (Baltimore: The Johns Hopkins Press, 1955), p. 120.

^Abu al-W alld a l-B a ji, al-Muntaqa? Sharh al-MuwattaT (Cairo: Matba'at as-Sa'ada, 1332 A.H.), vol. 3, p. 2107* 198 division of the booty in the enemy territory as makruh (legally disliked).^

The Republican and Omayyad periods favored the view that division of the booty was permissible in enemy territory and this was the opinion of the

other three schools of law.

After the burial of the martyrs had taken place, there were other

considerations which had to be taken into account, and certain rights

which had to be fulfilled before the division of the booty could occur.

These were: (1) the restored property; (2) the salab; (3) the radkh;

(It.) the nafal; and (5) the state's share.

1. Restored property o f Muslims and non-Muslim dhimmis which had

been appropriated by the enemy was not subject to division but was to be

returned to its original owner, provided that he claimed it before the

division. The Caliph ‘Umar wrote to one of his commanders:

I f any so ld ier or participant in the war finds any of his property or his slaves in the booty taken by the enemy, he has the so le claim to them. But i f he finds them in the hands o f the merchants /who bought the articles of the b o o t// after it s division, he has no right to fchfem.8

2. By salab is meant the spoil taken by a victorious combatant

from the slain. According to the Hanifite school, this rule operates

only upon previous declaration on the part of the commander. The whole

of the salab went to the victor; no fifth was shared by the state, ex­

cept according to the M alikite sch ool. There was, however, one instance

in which a fifth of the salab was acquired for the state by the Caliph

?Ibn al-Humam, og. c it., vol. U, pp. 309-10; and ibn Qudama, al- Mughni (Cairo: Matba'at as-Sa'ada, 13U8 A.H.), vol. 10, p. U57. Q Ibn Qudama, og. c i t . , v o l. 10, pp. U78-U80. tfUmar. It is reported that al-BaraJ ibn Malik killed a Persian satrap in a hand-to-hand fight, and a fifth of his spoil was worth thirty- thousand drachmas. The ealiph is recorded to have said: "Though usu­ ally we did not take a fifth from salab, this is worth too big a sum."

This was the first time a salab was shared by the state.?

Salab was the conclusive right of the warrior under these condi­ tion s:

a. If the slain enemy was a combatant: the salab of non- combatants such as women, aged, and children was illegal since the slay­

ing of non-combatants was itself an illegal act.

b. If the slaying of the enemy was in the field of battle: thus, the slaying of a prisoner of war did not bring about any salab because this act was forbidden to the soldiers.

c. If the enemy was killed by a warrior due to a trick or was tempted into fighting on a person-to-person basis3 therefore, no salab

could be taken from an enemy so ld ier who was k ille d by the army as a whole. 11 3. By radkh is meant the g ift given to women, sla v es, and minors for th eir meritorious work. These persons could not have equal

^Muhammad Hamidullah, The Muslim Conduct o f State (Lahore: Ashraf Publications, 1953)} pp. 252-253; and ibn Qudamah, og. cit. , vol. io , pp. U25-U26.

1(^Ibn Qudama, og. c i t . , pp. Ul*2—UUU.

**The Omayyad Caliph tfUmar ibn ‘Abdul-AzTz gave a fu ll share to a fighting or participating slave in battle. Some jurists, including Abu Thawr, adopted th is view; see ibid. , p. U5l« 180 12 shares along w ith Muslim grown-up so ld ie r s.

Non-Muslim soldiers who participated in battle without permission from the imam or his commander had no share in the booty. I f they were permitted to participate, they were entitled to a share from the booty, like the Muslims. This was supported by the Tradition of the Prophet who gave shares to some Jews who helped him dh battle. ^

Those who had been promised pay for their special services to the army were, naturally, not entitled to a share nor to a radkh; they were simply given their wages.^

U. The imam had the authority to promise additional shares of the booty to certain warriors before the battle was won or even before the battle began. In technical terms, the imam had the power of tanfil

(supererogation), which permitted him to use his judgment in increasing the warrior's share if there was need for it. The additional quantity of the share given by the imam to a warrior was called nafal.

All the jurists agreed on the power of tanfil; but they disagreed on the source and the quantity of the nafal to be given. Malik said that the nafal is to be taken from the f i f t h of the booty which goes to the state's treasury. Ibn Hanbal gave the imam the right to give the nafal

^‘^Whether radkh was to be taken before the division of the whole booty or out of its four-fifths assigned to the victors was a debatable question; there were two viewpoints; see ib id . , p. 13 This was the view of the Hanbalite school; Abu-Hanlfa and ash- Shafi i prevented non-Muslim participants in the war from sharing in the booty; see ibid., p. Uf>6. \

^Ibid., p. ^27. from the whole booty before its divisionj at any rate it should not ex­ ceed the fourth or even the third of the whole booty. ^ The Caliph

"Umar said to Jarir ibn 0Abdellah, after the officer Abu-“Ubayda\ was tilled in a battle in Iraq: "If you will go to Iraq in an expedition, I promise you an extra share in the booty which w ill amount to the whole third of it after the fifth assigned to the state’s treasury has been taken.

5. The state’s share was a fifth of the booty. It was divided into six parts to go to: God, the Prophet, the kin of the Prophet, the orphans, the needy, and the wayfarer. ^ The share of God was understood as having no real meaning or connotation except that it is mentioned as merely a blessing, or that the division of the booty should be made in this way "for the sake of God." The share of the Prophet was only given to him during his lifetime and lapsed after his death. The share of the kin of the Prophet was given to them during his lifetime for their serv­ ices and aid to hiraj after his death they claimed that share only if 1 ft they were in need like any other person. Thus, the whole fifth of the booty went to the state's treasury to be spent for the orphans, the

*^Ibn Rushd, Bidayat al-Mujtahid (Cairo: M. al-Halaby, 1950), vol. 1, p. 396.

^Al-Baladhuri, Futuh al-Buldan (Cairo: al-Maktaba at-Tujariyya, 1932), p. 25U. !7q. 8:1 and 1*1.

■*®Ash-Shafir 1 thought that the share of the Prophet’s kin should have gone to the relatives of the Prophet from among the Banu Hashim and Banu ‘Abd al-Muttalibj see ibn al-Humam, og. c it. , vol. U, p. 332. needy, the wayfarer, and the interest of the state at large.& Usually the state’s share was put in charge of a special officer called sahib al-aqbad. whose job it was to guard Its shipment to the capital and to carry the glad news of victory to the caliph.

Once these portions of the booty which were not subject to divi­ sion among the victors were accounted for, the remainder was the booty 20 proper, including moveable and immoveable property and sla v es. Im­ moveable property, however, was banned to the victors in practice, though in theory they might have the right to it. This subject will be discussed a little later.

The booty proper which included moveable property and slaves was 21 allotted as the prize for the capturing army. There was no distinction between a volunteer and a regular soldier, or between a private and an officer, or even the commander-in-chief; all received the same share.

There was no distinction between those who actually fought and those who were not required to fight, such as those who occupied strategic posi­ tions, guards, etc., although they could have fought had it been found necessary. 22 A fter the b a ttle o f Nihawand, the Muslim guards in the

19Ibid., pp. 328-339. 90 I f the prisoners o f war were ransomed for money, the amount was subject to division as a part of the booty; ibn Qudama, og. cit., p. U05.

2*If one of those who deserved a share in the booty died, his share was to be given to his heirs.

22Hamidullah, og. c it. , p. 2J>1; and ibn Qudama, og. c it. , vol. 10, p. b67. 183 fortresses and the ambush around the city and the soldiers left in the 23 barracks on standing duty shared the booty with the fighting soldiers.

The small expeditions which were sent by the main army shared

their booty with the army, and the army in turn shared its booty with pli the expeditions; this was logical since the whole army, together with

its expeditions which were sent for minor skirmishes, was considered as

one u n it.

In the division of the booty among the victors, the share of all

horseman was double that of a foot so ld ie r , according to the H anifite

s c h o o l.^ No share, however, was assigned to mules and animals used for

transportation. The status of foot soldier or horseman was looked upon

from different angles by the jurists. Ibn Qudama considered the warrior

as a foot sold ier or as a horseman i f he was actually so at the time of

the collection of the booty; abu-Hanlfa thought the status should be

determined by the condition of the warrior when he first engaged in

battle. Actually, however,'it seems that the practice of the Caliph

fUmar was followed in general; that is, a warrior was recongized as a

2^At-Tabari, Tarikh al- ’Umam wa al-Muluk (Cairo: Matba'at al- Istiqama, 1939), vol. 3, p. 219- 2^Ibn Qudama, _og. cit., vol. 10, p. 93.

^According to ash-Shafic i and Malik, the share of a horseman should be three times that of a foot soldier, one for himself and two for his horse. This difference in opinion arose from the contradictory reports as to whether the Prophet in the battle of Khandaq gave the horsemen two or three shares; see ibn Qudama, _ojo. cit., vol. 10, p. UU3; ibn al-Humam, og. cit., vol. U, pp. 320-322; and ash-Shawkani, Nayl al- Awtar (Cairo: al-Matba ‘ a a l - ‘Uthmaniyya, 13^7 A.H.), vol. 7, pp. 2"BT- m r 161* foot soldier or as a horseman depending on his actual condition during the battle.^

I f a horseman used more than one horse in b a ttle , he was e n titled to the shares of two horses only. During the battle of Yarmuk, az-Zubayr ibn a l-‘Awwam used two horses in fighting. When he was given three shares as a horseman, he said to the commander ibn al-Jarrah; "I de­ serve the shares of two horses as the Prophet did with me when I fought with him in the b attle o f Khaybar." He was given what he asked for, whereupon other horsemen, who used four or five horses, came up with their claims to the shares of every single horse they employed. After asking for instruction on this matter, the Caliph ‘Umar ordered ibn al-

Jarrah not to do the same for anybody e ls e as he did for ibnal-°Awwam.27

This would indicate that the Caliph *Umar was not inclined to give shares for more than one horse; but since shares were given only for two horses by the Prophet, the jurists allowed that as the maximum.

After the booty was divided, the troops of reinforcement were not entitled to shares in the booty. They were entitled to shares only if they joined the army before the division of the booty, or before its 28 acquisition in the Islamic territory. The Caliph ‘'Umar wrote to the commander-in-chief ibn al-Jarrah; "Send forth Qays ibn Makshuh to

^See ibn Qudama, oj>. cit., v o l. 10, pp. I4J4.I— 1U+2.

^Al-W aqidi, Futuh ash-Sham (Cairo; Maktabat al-Jumhuriyya a l- Misriyya, 1955), vol. 1, p. 151.

2®Ibn Qudama, og. cit., v o l. 10, pp. 1*62-1463J and ibn al-Humam, op. cit., v o l. 1*, p« 312. m Qadisiyya together with those who are willing to go with him." Qays went with seven hundred volunteer so ld iers and arrived at Qadisiyya after Sa4d, who was engaged in the battle, had already gained victory.

The soldiers of Qays still asked for their shares in the booty. Ibn al-

Jarrah wrote to al-Medina for advice and received from the Caliph 'Umar this instruction: "If Qays arrived at the battle before the burial of the dead /I.e ., before the division/, then give him and his soldiers their shares."^

I . IMMDVEABLE SPOIL

The rules regulating the division of moveable booty, according to the opinion of most of the Muslim jurists, did not apply to the division of lands in the conquered countries. In this connection the Caliph

^mar wrote to Sa^d ibn abi-Waqqas:

You urge in your letter that whatever lands and other property God has given you in booty should be distributed. On receipt of my letter you should distribute all the chatties, including animals, among the army after deducting the one-fifth, provided the booty has been obtained after actual warfare, and allow the lands and the camel to remain in the hands o f the original owners so that they may be used in support o f the allowances of the Muslims. If you distribute the latter among the present generation, there will be nothing left for posterity.30

Also in the history of the Republican period, we see that the capitulation of Babylon was brought about not by treaty but by force of

2?A1-Baladhuri, og. cit., p. 257.

3°S. A. Siddiqi, Public Finance in Islam (Lahore: Ashraf Publications, 1952), pp. 10?-8. m arms. The question arose as to what to do with the land of those who had fought the Muslims, or helped those who fought against them, or were under the administrative jurisdiction of Babylon. Should it be declared as booty and shared by the conquerors, or should it be left with those who cu ltivated i t and a land tax imposed? The matter was referred to al-Medina for arbitration. The Caliph *Umar decided against the division in a letter to the leaders of the army in Egypt:

I am in receipt of your letter which bears your agreement to appropriate the revenue-yielding land. If I were to divide them, the Muslims coming a fter you would be le f t with no means of subsistence with which they could equip themselves for waging war against your enemies. And if it were not for my responsi­ b il it y to God and to the Muslims to defend and guarantee th eir livelihood and to those poor men who draw their stipends from the government, I would have allowed the distribution.31

However, when the Muslim army gained v ictory over th eir enemy in

Ahwaz, they divided its land among themselves and reduced its people to slavery. When the news reached the Caliph ‘Umar, he wrote to the military authorities:

Certainly you will be unable to cultivate the land. Set the people free and leave their lands to them and levy the kharaj on their land.32

From that time on there was no instance of practice to the con­ trary, although the Muslim jurists assert in theory that the choice was still left to the imam, in case of new conquests of land, to distribute it as booty or to preserve it as state property. The policy of ‘Umar

■^Fariq, op* cit., (February, 1958), p. 28.

32A1-Bal§dhuri, og. cit., p. 370. was in accordance with modern p ra ctice. With regard to immoveables be­ longing to the invaded state, it is now settled law that the occupying belligerent shall "consider itself in the light of an administrator and usufructuary" only. It may use the public lands, buildings, forest, and other real estate. The troops of the invader may be quartered in public 33 buildings and its administrative services may utilize them for offices.

Although there has been a difference of opinion between the

Shafi‘ite and the Hanifite schools regarding this point, the latter held the ground in the practical application of the law throughout the Islamic world. The Shafi

33 See Lawrence, og. cit., p. 367. 188 case they were more permanent. Then, too, future generations also had acquired a right to those landsj and had the lands been distributed among the victoriou s army, future Muslims would have been wronged.

The landowners were, therefore, left on their lands as free people who could not be reduced to slavery, but they were subject to kharaj (land tax) and to jiz y a . They were given the statu s of the dhimmis as far as taxation was concerned. They were different, however, from the dhimmis, since they did not enter into official agreements of protection and, moreover, they might not be scriptuaries.

Land tax fell into two divisions: the proportional and the fixed tax. The former consisted of a portion of the produce of the ground, such as a half, a third, or a fourthj while the fixed tax was an unvary­

ing charge on the ground: so much of the produce or money per unit area or per tree. Taxes were levied on land whether the owner was a minor or

an adult, free or sla v e , Muslim or non-Muslimj i f , th ereafter, the owner of the land accepted Islam or the land was purchased by a Muslim, the

land still remained subject to taxation. ^

3^Siddiqi, 0£. cit., pp. 106-7.

3^See the status o f the dhimmis above.

^ If a Muslim or a dhimmj citizen of the Islamic state rented a piece of land from the origin al owner and converted i t into a house, sto re, or shop, no taxes were lev ied , according to Abu-Hanlfa and ath- Thawri, unless he used the land as a faun. Malik said that taxes should be levied on the land whatever the purpose was j see al-Baladhuri, op. cit., p. k3h. IBP

Land taxes became due only once a year, even if the land grew many crops during the year. This was true in the case of the fixed taxes only and was not applicable to the proportional taxes which were collected every time a crop had been grown. This was based on the precedent laid down by the Caliph ‘Umar on the ground that lands in general grow one crop, and the law is concerned with general cases and

37 not with exceptions.

Should the land be divided among the victors, it became ‘us hr iyya

(tithe land); the owners were the victors and the native people were reduced to slavery, though in practice this was not the policy of the state as has been explained above.

I I . THE FAY’

In contrast to the ghana'' im, which were acquired by force in a legal combat, there was fay7, or what was acquired by peaceful means or by surrender. In the fay7 was also included the kharaj and the jizya paid by the non-Muslim citizens who came under the state’s protection by the agreements of dhimma. Custom d u ties, which the non-Muslim Merchants had to pay on th eir goods in order to be allowed to trade in Muslim territory, were also fay’. All these kinds of tax were obviously called fay1 because they were collected by peaceful means and not by force, like the spoils of war.

37see Siddiqi, og. cit., p. 72 ff, for more details on what will be the case with the land tax if the whole crop has been destroyed^ if the owner has sold the land during the yearj if the owner has rented 190

Fay} revenue was applied in its entirety for the good of the

Muslim community as circumstances required i t , although i t was ordered by the Quran^o be divided like the state's share of the booty. ^

I I I . PRISONERS OF WAR

It was left to the discretion of the imam to decide whether combat­ ant prisoners of war were to be (a) released on paying ransom, (b) ex­ changed for Muslim prisoners, (c) released with no ransom nor exchanged for Muslim prisoners, (d) executed, or (e) easlaved.^®

If the imam found that a prisoner was dangerous to the Muslims, he might be executed; i f he was thought to be unharmful but rich , he might be ransomed for money; i f he was expected to adopt the Faith, he might be l e f t free w ith no ransom or be exchanged for a Muslim prisoner; and i f he was known to be unharmful and a man o f s k ill and serv ice, he might be enslaved.

the land with or without a rental; if the land tax was payable in ad­ vance; or if a field was turned into houses and dwellings.

38Q. 59:6, 7. 39()nly ash-ShafirI said that four-fifths of the fay' should go to objects of general u t ilit y to Muslims; o n e -fifth must be s e t aside and applied in five equal portions to the same five purposes as the fifth part of the booty; see Shorter Encyclopaedia of Islam (Leiden: 1953)» p. 96.

k°Ash-ShafirI said that infidel prisoners of war are not to be enslaved and they are faced with the other three alternatives. Abu- Hanffa thought that this should only be done with the infidel Arabs; the infidel non-Arabs were still subject to the four alternatives; see ibn Qudama, og. cit., v o l. 10, p. 1|00. m When it was anticipated that the imam would execute the prison­ ers, the Muslim soldiers had no right to carry out such an execution themselves unless they were so authorized, for this was an exclusive right of the imam—unless the prisoners resisted their capture by the

Muslim soldiers and the latter feared their escape.^ After the battle of Tustar, the prisoners of war, who were reported to be seven hundred in number, were executed because they showed excessive resistance and cruelty in the battle against the Muslims and even killed the commander

1.0 of the right wing, al-Bara-’ ibn Malik.

If an enemy combatant adopted Islam before capture, he immediately obtained safety for his person and his family, and enjoyed admittance into the Muslim territory even without a formal safe conduct. If he left small children in the enemy territory, they were automatically con­ sidered Muslims and, therefore, were not subject to enslavem ent.^

However, i f a prisoner adopted Islam a fter his capture, he immediately became a slave and no other choice was resorted to regarding h im .^

^Al-BtthQti, Kashshaf al-Qina* (Cairo: Matba‘at Ansar as-Sunna, 19U7), vol. 3, pp. 39-hoj and ibn Qudamah, 02* cit., vol. io, p. 1*07•

^Al-Baladhuri, o£. cit., p. 373.

See ash-Shawkani, op. cit., vol. 8, pp. 10-12; ibn al-Huraam op. c it _ , , . _ _ H7fi>. Abu-rianlfa, in contrast to the other three schools, argued that since the two territories are completely different, the children left in the enemy territory may be reduced to slavery.

^ Ib n Qudama, ojd. £it., vol. 10, p. h02. There was no choice with regard to the women and the children of the enemyj they were forbidden to be killed, but were reduced to slavery^ and were named saby. Non-combatants other than women and children, such as the aged, the ill, and priests and monks, were forbidden to be taken as prisoners since killing them was forbidden.^

The religious texts contend that prisoners of war are either re­ patriated on ransom or exchange, or set free. In fact, the Quran gave the imam the choice between these two things with regard to the pris­ oners of wars setting them free, or repatriation on ransom or exchange.

Many distinguished jurists, accordingly, considered it makruh (legally disliked) to k ill a prisoner of war or to reduce him to slavery. Among these jurists were al-Hasan, tfAta’ , and Sa^Td ibn Jobayr. These ju rists, and the others who adopted their view, supported their legal opinion further by the Tradition which was derived from the action of the

Prophet after the battle of Badr (A.D. 62k), when he set free some of the prisoners and accepted ransom from o th e r s.It is reported, how­ ever, that in other battles of the Prophet there were some prisoners who were executed and others who were made slaves. The two alternatives of execution and enslavement, which the jurists say are derived from the

Tradition, are based on special cases which could not serve as a general rulej particularly so because they are not mentioned in the Quran, the

^ I b i d ., p . 1+00.

h6ibid. , p. UOU.

U7ibid., p . I4CO. 193

first source of the shari‘ ah. It may be said justly and according to

the spirit of the Quran that prisoners of war had to be faced with the

two Quranic alternatives onlyj^ but should the enemy execute the Muslim prisoners of war, or reduce them to slavery, then the imam might do the

same with their prisoners of war. In this case, execution and enslave­ ment are not carried out according to a Quranic or Traditional injunc­

tion, but rather upon the legal maxim of "equal treatment" which was

referred to above.

The evil of slavery was entwined with the innermost relations of

the people among whom Islam made its advent. Its extinction was to be

achieved only by the continued agency of wise and humane laws, and not by the sudden and entire emancipation of the existing slaves, which was morally and economically impossible. Numberless provisions, negative as well as positive, were introduced accordingly in order to promote and

accomplish a gradual enfranchisement. A contrary policy would have pro­

duced an utter collapse of the infant state.

Muslims were exhorted by the Quran and the Tradition in the name of God to enfranchise slaves, an act more acceptable to God than any ii 9 other. Treatment during captivity has been the subject of liberal provisions: The Quran says:

U8ibn Rushd even records a consensus of the companions of the Prophet that a prisoner of war could not be killed, but must either be set free or used as a ransom for a Muslim prisoner; see og. c i t ., v o l . 1 , p . 382 .

^Syed Ameer A li, The Spirit of Islam (London: Christophers, 1 9 6 1 ) , p . 262. m . . . And feed with food the needy, the orphan, and the prisoner for love of Him (saying): we feed you for the sake o f God only, we wish for noreward nor thanks from you.50

And those of your slaves who desire a deed of manumission, w rite i t fo r them, i f ye have a good opinion o f them, and give them of the gifts of God, which he has given you.5l

In the year before his death, the Prophet during a farewell pilgrimage delivered an address to the Muslims in which, among several other injunc­ tions, he said;

And your slaves! See that you feed them with such food as you eat yourselves; and clothe them with the like clothing as you wear yourselves; and if they commit a fault which you are inclined not to forgive, sell them; for they are the servants of the Lord,.and are not to be t o r m e n t e d . 52

The sharl^ah not only insisted upon the humane treatment of slaves, but also that it should be made possible for them to secure their freedom. Both Quranic and Traditional texts ruled that, for cer­ tain sins of omission, the penalty should be the manumission of slaves.

It was ordered that slaves should be allowed to purchase their liberty by the wages of their service; and that in case the unfortunate beings had no present means o f gain, and wanted to earn enough for that pur­ pose in some other employment, they should be allowed to leave their masters on an agreement to that effect. It was also provided that sums should be advanced to the slaves from the public treasury to purchase

50q. 76: 8, 9

^Q. 2U:33, in part.

^Syed Ameer Ali, A Short History of the Saraceres (London: Macmillan and Co., 1900),~p. i t . 195 their liberty. In certain contingencies, it vas provided that the slave should become enfranchised without the interference and even against the will of his master. It was ordained that a fugitive fleeing to the ter­ ritories of Islam should at once be enfranchised; that the child of a slave woman should follow the condition of the father while the mother should become free at his death; that the slave should be able to con­ tract with his master for his emancipation; and that a part of the poor to tax, zakah, should be devoted to the ransom of those held in bondage.-^

From all this, it is abundantly clear that the early Islamic state looked upon slavery as temporary in its nature, and held that its extin ction was sure to be achieved by the progress o f ideas and change of circumstances. It recognized, in fact, only one kind of slavery—the servitude of people made captives in lawful warfare.^ Thus the slave in Muslim society was not condemned to live permanently in servitude; he had a chance of obtaining liberty in his lifetime in an age when the rule was more rigid outside the world of Islam.55

A Muslim prisoner was bound to observe faithfully his parole and honor. If, however, he had been given no parole, he was at liberty, if he liked and was able, to escape or otherwise do harm to his captors.

The duty of the Islamic state was to seek the release of prisoners by giving them money from the public treasury. The Quran clearly lays down

53Ameer A li, The Spirit of Islam, pp. 263-261i.

^Ibld., pp. 26U-26j5. ^Khadduri, og. cit., p. 132. that a portion of the state income is to be allotted for freeing the necks,^ which is interpreted as aiding the prisoners and slaves to get themselves freed. There are clear Traditions also to the same effect; for instance, "Manage the release of the prisoner." The Caliph *Umar ordered: "Every Muslim prisoner in the hands o f non-Muslims must be re- leased by means of the state treasury."'"

I f a member o f the Muslim army was taken prisoner by the enemy, whether he was a Muslim or non-Muslim, and was enslaved, he recovered his freedom as soon as he was out of enemy jurisdiction. The same was true of enemy persons taken prisoners by the Muslim army; if they escaped and reached a place of security, they regained their freedom.'

&Q. 9:60.

^Hamidullah, op. cit., pp. 213-2lU.

*8Ibid., pp. 25U-255. CHAPTER V I I I

ENEMY ALIENS

Foreigners were permitted to stay in the Islamic state as

musta'mins by obtaining aman, that is a pledge of security or safe con­

duct. By musta’min is meant a person who resides temporarily in a

foreign country by its permission. In Arabic, there are no terms which

distin gu ish between a Muslim going to non-Muslim territo ry and a non-

Muslim coming to Muslim territory, nor even between a foreign subject of

an allied or unallied state, or even a belligerent state. All were

called musta'min, which means literally those who seek safety. On the

other hand, classical Muslim writers on law made little difference be­

tween "quarter given to a besieged enemy" and "permission to travel or

trade in the Islam ic territory." Further, the non-Muslim o f a sta te

a llie d or otherwise at peace, and the non-Muslim o f a b ellig eren t state

were often styled with the same name. It is almost impossible to detach

the rules of one from the other.^

In practice, however, it seems that musta’min was the name given

to the following categories, including their wives, children, and

servants:

1. Quartered belligerents who laid down their arms in battle.

They were either conducted safely to their place of origin, or worked in

^Muhammad Hamidullah, The Muslim Conduct o f State (Lahore: Ashraf Publications, 1953), pp. 201, 261. 198 the interest of the Muslims on their own volition and thus were granted entrance to Muslim territo ry .

2. Citizens of allied countries with which treaty relations ex­

isted; they needed no extra permission from the Islamic state to enter

its territory.

3. Harbis, or the citizens of non-Muslim neighboring countries, idio had h o stile relation s with the Islam ic sta te . These needed an ex­ press aman.

U. Muslim aliens in a foreign country were also called musta’mins; they entered the foreign territory under permission which was also ca lled aman, though the Muslim w riters did not elaborate on how th is aman was given.

The aman might be secured in one o f two ways, eith er from the

imam or from one o f his rep resen tatives, or from individual Muslims in

the same manner as giving quarter. Obtaining safe conduct to live in the world of Islam was permitted for a period not to exceed one year.

The musta'min could not be a spy and could not enter the Islamic state with the intention of helping his people or government; if his in­ tentions were known to be such, he was treated as a prisoner o f war and was subject to "the four alternatives" regarding prisoners of war. Ob­ v io u sly the choice o f rep atriation on exchange w ith Muslim prisoners happened only when the country of the musta-'min happened to be at war with the Islamic state. The musta-’min was not permitted to deal in m ilitaiy supplies, or to carry back to his country war implements or sla v es. I f he had paid for them, he was to be given back his money. He

was permitted to conduct business transactions and to buy or sell com­

modities, but never those which were prohibited by Islam, such as liquor

or pork. Usury contracts were also prohibited. On the other hand, if

the musta’min k ille d a Muslim or acted as a marauder, he was not con­

sidered to have v io la ted the aman, though he was lia b le to punishment

for violating the law.2

When an enemy person entered the Muslim territory without aman,

the authorities had to find out the real purpose behind his visit. If

he was found to be a messenger for diplomatic purposes, he was left free

to proceed to the imam without aman. If he claimed to be a trader and

was already in possession of trade articles, he was also accorded free

tra v el. But i f he showed no signs o f being a trader, his claims were

considered as false, and he was treated as a prisoner of war.^

If an enemy alien entered the Muslim territory by an aman and

deposited or loaned money to a Muslim or dhimmj subject and then went

back to the enemy territory as a trader, diplomatic messenger, or trav­

eller, his aman was still valid since he did not intend to stay in the

enemy territory. If he intended to stay, the aman expired with regard

to the musta'min himself but not with regard to his property left in the

Muslim territory. The musta’min could, then, ask for his money back or

^Majid Khadduri, "International Law," Law in the Middle East (Washington, D. C.s The Middle East Institute, 195^)', pp. 361-362.

^Ibn Qudaraa, al-Mughni (Cairo: Matba'at as-Sa‘ada, 13I18 A.H.), •vol. 10, p. 605. have i t disposed o f by s a le , g i f t , or otherwise. I f he died in the enemy territory, his money went to his heirs whether they were residing in the enemy or Muslim territo ry . I f he had no h eirs, his money was considered as fay-*, i.e ., belonging to the state's treasury.^

If the musta'min became a dhimmi citizen, he became liable for the jizy a tax and could not leave the Muslim te r rito ry . A musta^min became a dhimmi c itiz e n by one o f two ways:

1. By continued residence beyond the period prescribed by the notice from the imam or more than one year.

2. By the purchase of land subject to the kharaj which, as soon as i t was imposed on-\.a musta'min, had the e ffe c t o f converting him into a dhimmi. But the mere purchase of the land had not that effect, pro­ vided he disposed of it before the kharaj was due. Nor did the musta'min become a dhimmi by taking the land on lease? nor by marrying a dhimmi woman.citizen of the Islamic state, for he might repudiate her and return to his own country and was, therefore, not bound to her place.

But if a woman of the enemy entered the Muslim territory under aman and married a dhimmi citizen, she would become a dhimmi subject, because she was bound to the place as following her husband.-’

^Abu-Hanlfa and ash-Shhfi6! opined that the heirs in this case could not establish right to the property since they did not conclude aman with the Islamic state, and thus the aman could not extend to the property as belonging to them. See ibn Qudama, op. cit. , vol. 10, pp. 14.37-U38.

% eil B. A. B aillie, (comp, and trans.) Digest of Muhammadam Law (Lahorej Primiere Book House, 1957), p. 172. The must admins were accorded free movement even in Hijaz. In the time o f the Caliph 'Umar, non-Muslim traders used to enter the cap ital al-Medina for business missions. Even they could enter the Haram, the sacred place in Mecca, provided that they did not make th eir permanent residence there.^

The aman served a very u sefu l purpose fo r both Muslim and non- Muslims in making possible the establishment of peace relations among them, which otherwise would have been impossible owing to the fa ct that the relation s between Muslim and non-Muslim ter­ ritories'^ were "potentially" hostile. The aman may therefore be regarded as a qualifying principle which permitted Muslims and non-Muslims to travel in the country of the other. Thus the aman servedias a passport which a foreigner obtained during his sojourn in a Muslim territory. For without such a passport no exchange o f goods was p ossib le i f Muslims and non-Muslims were not allowed to leave or enter the Muslim territory. The aman regularized the inevitable crossing of frontiers, without which ille g a l movements would have aggravated the tension between the two territo ries.®

I . ACCESS TO MUSLIM COURT

If the musta'min committed theft, murder, or took money by force from a Muslim or dhimmi citizen and went back to his territory for resi­ dence, then came to the Muslim territory by another amdn, he was subject

This is the H anifite ru le. Ash-Shafi^l and ibn Hanbal excepted the musta^jns from entering the sacred places in Mecca. ’ See ibn Qudama, op. c it., vol. 10, p. 6l6.

^Those territories were those which were not covered by treaties of peace or alliance or some form of peaceful relations.

%hadduri, War and Peace in the Law of Islam, (Baltimore: The Johns Hopkins Press, 19f>5) pp. l^B-15?. 2Q2 o to punishment for the deed he had committed. If an enemy person bor­ rowed money from another enemy person and both came to Muslim territo ry by aman, the creditor had no right to maintain suit against the debtor before the Muslim court. Sim ilarly, i f a Muslim entered the enemy ter­ ritory under aman, had dealings with an enemy whereby one of them became indebted to the other, and then returned to Islamic territory, the enemy also coming as a musta^min, the Muslim judge was not to decree for either of them against the other for want of jurisdiction over both at the time when the debt was contracted.1^

Once the mustaJmins were granted am§n, they had to submit them­ selves to the jurisdiction of the Muslim judge in all matters accruing subsequent to their becoming mustaJmins, though not for anything pre­ vious thereto, unless they chose to adjudicate before a Muslim judge.^

Granting enemy aliens the right of maintaining civil suits against the original citizens is in accordance with modern practice.

While international practice up to 19lU tended toward the recognition of an obligation on the part of the belligerents to permit enemy aliens to continue in residence during good behavior, there was a marked differ­ ence in the attitude of states toward permitting such persons to main­ tain civil suits before the courts. The older rule had been that

?Ibn Qudama, op.c it. , vol. 10, p. 1*39.

10Ibn al-Humam, Sharh Fatfr al-Qadir (Cairo: al-Maktaba at- Tujariyya, n.d.), vol. U, p. 3^9.

^B aillie, op. cit., p. 17U. the fact of war put the enemy subject ex lege, so that he could have no standing in court. British and American courts insisted upon the gen­ eral disability of alien enemies to sustain a persona standi in judicio.

On the other hand, the continental practice favored the recognition of a 12 general right of access to the courts. This continental attitude was taken even at the outbreak of the first World War by Britain and the

United States.^

I I . CUSTOM DUTIES

The introduction of custom duties and tolls came into being in the reign of the Caliph 4Umar. The Islamic system favored free trade and believed that resources of a country should be allowed to flow fr e ely .into those channels where they could be employed most economi­ cally. It maintained that if a country is permitted to specialize in the production of those commodities for which God has endowed it better, the national dividend is likely to be greater than under an artificially regulated system of tariffs, bounties, import boards, quota systems, e tc . However, the introduction o f custom duties and t o ll s owes it s origin to the fact that dar al- harb, or the neighboring countries who

^See Charles G. Fenwick, International Law (New York; Appleton- Century-Crofts, Inc., 19U8), pp. 603-U. 13 Upon the outbreak of the first World War the British Parliament passed the Aliens Restriction Act, and in compliance with orders issued in pursuance of it, aliens were obliged to register themselves; reg is­ tration was interpreted as bringing the plaintiff under the protection of the Crown. In the United States resident enemy aliens were in 20U were not at peace with the Islamic state, with which the state had com­ mercial dealings, persisted in levying duties on Muslim traders. When

Abu Musa al-Ash'ari reported this fact to the Caliph ^Umar, he ordered that as a reciprocal measure the enemy traders should be charged the same rate that was being collected from the Muslims, -i.e., ten per cent.

Where the amount of the duty lev ied by the enemy was not known, the same rate of ten per cent was prescribed;but where it was not levied by them at all or less than ten per cent, the Muslim authorities did the same, according to the legal maxim of "equal treatment."J

The custom duties were extended thereafter to Muslim and dhimmi citizens at the rate of two and one-half and five per cent, respectively.

The d ifference here was due to the fact th at dhimmi citizen s were not subject to the religious tax of the zakah on their trade articles which was levied on Muslim traders; therefore, they had to pay double the amount levied on Muslims. ^

Custom duties were levied on all kinds of goods valued above ten dinars or two hundred dirhams. Ashr-Shafi*’ 1 advised that i f the imported material was greatly needed in the Muslim territory, no customs were to be levied. Practice, however, differed. The Caliph ‘'Umar ordered

general excepted from the restrictions upon the right of bringing suit imposed by the Trading with the Enemy Act of 1917. See ibid., p. 60l;.

A. Siddiqi, Public Finance in Islam (Lahore; Ashraf Publications, 19^2), p. W. ^Ibn al-Humam, og. £ it., vol. 1, p. $3k.

^Siddiqi, og. c it., pp. 89-90. 20$ custom duties of ten per cent on clothes, and five per cent on some 17 foodstuffs. This shows that the rate could be lowered by the imam if he wanted to encourage foreign trade either in general or on certain commodities or foodstuffs needed in Muslim territory.

Generally, if a musta'min trader claimed that he was indebted or that the year was not complete, his statement was not accepted and he could not escape the tax. But if there was a reciprocal arrangement be­ tween him and the Muslims and the la tte r were accorded sim ilar conces­ sion, then the statement of the musta'min might be accepted and he 1 ft claimed exemption from the tax.

The custom duties of ten per cent were collected once a year. If, however, a musta?min passed the customs post for a second time before the lapse of the year, he was taxed again if he had returned to his country in the meantime, because the tax was collected from; him in con­ sideration of the aman given to him when he entered the Muslim territory, the effect of which lapsed as soon as he returned to his country for residence. Every time a musta-’min entered the Islamic state, the aman was to be renewed, unless he had returned to h is country for a short period for the purpose of trade, diplomatic mission, or travelling. If he returned to his country during the year, or for a short time, for the purposes indicated above, he was not taxed again during the year. This

Ibn Qudama, og. cit., vol. 10, p. 603.

^Siddiqi, og. cit., p. 91. 206 was subject to the reciprocal arrangement which might exist between the

Islamic state and the enemy states since the action of the former was 19 governed by the action of the latter.

Commerce with norv-Musliras greatly influenced the expansion of

Islam along trade routes across Central Asia, India, Southeast Asia, as well as East and Equatorial Africa*-. The Islamic state expanded by com­ mercial and cultural contacts far beyond the political frontiers estab­ lished by military conquest. The environment in which the Islamic state was estab lish ed was renowned as a commercial center. Not only is com­ merce recommended in the Quran to those who seek God's bounties, but also commercial terms and concepts are used to express religious 20 ideas. Throughout Islamic history, commerce was highly esteemed and the merchants contributed to the wealth and prosperity of society at the 21 height o f Muslim power.

I I I . TERMINATION OF AMAN

The aman normally was terminated when its period expired or when the musta'min left the Muslim territory for residence in his country.

If the aman proved to be harmful to the interests of the state or the

i^ibid., pp. 91-923 and Julius Hatschek, Per Musta'min (Berlin und Leipzig: Vereinigung Vissenschaftlicher Verleger, 1920), pp. 39-^2.

20See.;for example Q. 2:16, 1+1, 79, 86, 90, 102; 9:9, 111; 3:176, 186.

21Khadduri, og. c it., pp. 22k and 229. 207 musta'min was discovered to be a spy, the imam followed different courses, according to the behavior of the country o f the musta^min, and resorted to the alternatives with regard to prisoners of war. However, the outr break of war between the Islamic state and the country of the musta'min did not necessarily call for his expulsion. The imam permitted citizens of the enemy state, who did not wish to avail themselves of their right to depart freely, to remain in the country subject to the condition of good behavior on their part. This attitude is in accordance with the practice of present times. The modem doctrine is that expulsion may be resorted to in extreme cases $ but unless there are special reasons to the contrary, enemy subjects should be allowed to remain in the country as long as they give no aid or information to their own side.22

Moreover, the musta'min was granted freedom of movement on condi­ tio n o f good behavior. As an innocent, he was saved from m olestation inflicted upon the combatants. This was considered not only as follow­ ing the dictates of the laws of humanity, but it was done in obedience to the Quranic doctrine that "No bearer of a burden bears another's burden."^

In this connection, one would recall the cruelties which the innocent resident enemy aliens suffered during the last two World Wars.

Upon the outbreak of war in 19lk, enemy aliens of military age were

22See T. J. Lawrence, The Principles of International Law (Boston: D. C. Heath and Co., 1899), p. 329. 23Q. 33:38. 2Q& confined by several states in concentration camps to prevent their escape from the country. Numerous regulations were issued by the b elli­ gerents prescribing the conduct to be observed by resident enemy aliens, p articu larly the freedom o f movement.

IV. MUSLIM ALIENS IN FOREIGN COUNTRIES

According to the Quran, humankind is created into different nations and races with different ideals and religions, and this is~ ca lled an immutable law o f nature. I t follow s th at a non-Islamic state with its system of laws and religion is acknowledged by the Islamic state both as existent and respected, irrespective of being right or wrong. This attitude is not only the official position of the Islamic state with regard to other states, but it is also the position of the individual Muslim a lien who might happen to reside in a non-Islamic country. On the other hand, Muslim foreigners carry the Islamic law wherever they go, since this law is extraterritorial in nature. Not only is the Muslim individual obliged to observe the laws of his reli­ gion in any p lace, but also he is bound by his pledge, covenant, and word o f honor. These considerations govern the behavior o f the Muslim whether he lives in an Islamic or foreign territory, unless he is forced to act otherwise.

As to the consideration which called for the respect of the au­ thority of the foreign country in which he resided or travelled, a

^Fenwick, op.c it., p. 602. 2Q9

Muslim was prescribed not to act as a spy or pass on intelligence to his own country in any manner. This p rin cip le also prescribed the Muslim alien to abstain from practicing usury, or trading in pork or liquor, even if these practices were allowed in the country in which he resided.

He was ordered to abstain from theft and deceit in his dealings. If he committed such crimes or borrowed money from a foreign c itiz e n , he had 25 to return what he took even after he returned to; His country.

Furthermore, the Muslim was obliged to respect his pledge under the aman which gave him permission to enter the foreign territory. Thus, he was forbidden to commit treachery or actions that rendered harm to the for­ eign country, according to the Traditions "A believer is bound by his pledge.

When the Muslim foreigner was forced not to observe these limi­ tations, he was under no obligation either to respect the authority of the foreign country or to be bound by his pledge. This happened when the foreign government confiscated his money or imprisoned him, or if he was taken a prisoner of war. In these cases he was entitled to do similar harm to the local people and denounce the authority of their government.

25 See ibn Qudaraa, op. c it., vol. 10, pp. 5l5-5l6. 2%bn.Qudaroa, lo c . c i t . CHAPTER IX

CONCLUSION

The Omayyad Caliphate was succeeded by the Abbas id Caliphate which ruled the Islam ic world from Baghdad. This was a new stage for

the Islamic state in which Persian influence and Greek culture found th eir way into the Muslim mind. Schools of law and theology appeared and all branches of religious knowledge were classified and arranged. Arab ..

culture reached its zenith upon the accession to the Caliphate of the

Abbasid Caliph al-Ma’raun in A.D. 813. But the Abbasid civilization de­ clined after the accession of al-Ma'raun's nephew, al-Mutawakkil, in 8U7.

From that time on the Baghdad Caliphs became unimportant figureheads in a fragmented empire.

The Caliphate of Baghdad was extinguished in 12^8, and the

Islamic law entered the stage of taqlld. In contrast to ijtihad, taqlld signified the dormant stage in which the authors and scholars of the sharl* ah came to be content with the traditional views and systems of old great jurists. The rise of nationalism and the influence of the

West contributed more to the situation, though there should be no contra­ diction between Western contact and nationalistic tendencies on the one hand and the progress o f Islam ic law on the other.

International law, which cannot be separated from the whole sys­ tem of the sharl*ah, has not been expanded to fit into the community of nations. This was not due to the nature of the Islamic law but due to 2 1 1 the attitude of the jurists 'who abandoned the ijtihid or the use of the legal methods to expand the sharl‘ah to fit into the changing times and circumstances. Foreign observers and Western orientalists record that in international politics, the religious element has disappeared in favor of customary law, and that the application of the sharl*ah has been altered to include customary law and precedent more in accord with th2 trend o f modern tim es. These misconceptions arose from what seems to be a changed situation with regard to some important religious insti­ tutions such as the caliphate, the concept of the jihad, the changed status of minorities in the Islamic state, and the lack of a progressive system of laws.

What is called "modernization" of the sharl*ah or "its change" or

"alteration" are terms which cannot be accepted by one who understands its real spirit in view of its general maxims and its flexible sources.

The caliphate cannot be assumed to be absolute since it was not the only type of rule accepted for Islamic government, although it was the symbol of unity and universal brotherhood among Muslims. A system of league of nations or unity in foreign affairs are possible alternatives. The jih ad, though i t has not been observed rig h tly and duly by Muslims in present times, is.;still one of the unseen forces which bring about unity in action, or at least in feeling, among Muslims. The doctrine of the jihad has been invoked in cases like the Palestine and Algerian wars and the tripartite aggression against Egypt. As to the status of minorities, the sharicah allowed the flexible rule that non-Muslim citizens are the sole judge as to whether they shall enjoy a semi-independent status or 212 are to be integrated completely in the state and serve in the m ilitary service and be treated on equal terms with other citizens. Therefore, there is no departure here from the original rules of the sharl4a h .

"ftegal reform" would be the rightexpression rather than "moderni­ zation." This is a great task which needs scores of dedicated scholars who are well-versed in both modern and Islamic international laws. They have to review a ll aspects of modern international law and evaluate it

according to the major and minor sources of the sharl'ah. They have to

apply not only the texts of the sharl^ah or its maxims that are deduced

fiora those texts, which may be called "the sp irit of the sharl*-ah," but

they have to apply the flexible considerations of public interest, legal preference, and agreement of opinion. S till they ought to go by the ethical and universal standards of the holy texts which establish the

relations among the family of nations on the basis of equality, inter­ national cooperation, and the right to national existence. Texts and maxims on these high standards in the conduct of international affairs are not lacking in the major and minor sources of the shait*ah. ' It is

the duty of Muslim scholars to cooperate with the scholars of other nations to help in building a more elaborate and comprehensive codifica­ tion of an international law. It is more important, however, to esta­ blish the rules of international law on ethical standards that are respected by peace-loving nations.

Here there are two encouraging signs. One may be attributed to the nature of the Islamic law, and the other can be noticed in the world of Islam in modern times. As to the first sign, it is a well-known fact to the student of the sharlcah that one of its maxims is "the rules are subject to the change of time." It is also known that custom is acknowledged and has a vital role in determining the rules of law. The i jmaJ is one of the basic sources of the sharl‘ah, and it may be operated to bring about new laws which were not needed in the past. Undoubtedly the need which forces the jurists to resort to the ijma? is felt in the many new cases which arose from changed situations and times. The doctrines of "public interest" and "legal preference" are two more sources which allow more adaptation of the international Islamic law to fit into the modern sys­ tems of the community of nations. The evei>progress ive method of the ijtihad, by applying these flexible and adaptable channels of the sharl^ah, should regain its traditional and right function in view of the demands of our age. The modern jurists must be stimulated by par­ ticipation in the international Court of Justice which included Islamic culture among the great civilizations.

The other encouraging sign is that throughout the Islamic world there are cultu ral c o n flic ts along with p o litic a l turm oil. Everywhere there is an urge to be fully alive, to thrive, and to revive. The re­ v iv a lis t movements include leg a l reform. But even in th is reform, there should be a belief that the present jurists have to go back for inspira­ tion and models to the original movement of Islam, in its purity, disregarding the later accretions and perversions that have buried original Islam under a heap of ideasand institutions that are un-Islamic. APPENDIX I

APPENDIX

THE OMAYYAD CALIPHS

A.H. Ul-132 « A.D. 661-750

A.H. A.D.

1. Musawiya ibn Abi-Sufyan Ul-60 661-680

2. Yazld ibn Mu'awiya 60-6U 680-683

3. Mueawiya ibn Yazld 6U 683

J4. Marwan ibn al-Hakam 6U-65 683-685

5. “Abdul-Malik ibn Marwan 63-86 685-705

6. Al-Walfd ibn Abdul-Malik 86-96 705-715

7. Sulayman ibn “Abdul-Malik 96-99 715-717

8. ^Umar ibn “Abdul-Aziz 99-101 717-720

9. Yazld ibn“Abdul-Malik 101^105 720-72U

10. Hisham ibn 'Abdul-Malik 105-125 72U-7U3

11. Al-Walld ibn Yazld 125-126 7i+3- 710*

12. Yazld ibn al-Walld 126 7hh

13. Ibrahim ibn al-Walld 12 6 7hh ill. Marwan ibn Muhammad 127-132 7UU-750 BIBLIOGRAPHY BIBLIOGRAPHY

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