::Roundtable:: History of Islamic International Law: “War and Peace in the Medieval Islamic World, 622–1453” by Suleiman A. Mourad

By Suleiman Mourad

This post is part of the Roundtable on the History of Islamic International Law.  It is a summary of Suleiman Mourad‘s contribution titled “War and Peace in the Medieval Islamic World, 622–1453” to volume eight of the Cambridge History of International Law series, co-edited by Intisar Rabb and Umut Özsu.

The study of war and peace in a complex religious tradition like Islam is not an easy undertaking. On the one hand, the mosaic of beliefs and sectarian divisions that we call Islam does not have a fixed view on war and peace (and many other issues). On the other hand, the laws of war and peace are complicated by the fact that medieval Muslim jurists invariably acknowledged the contradiction and incoherence within and between the foundational sources (especially the Qurʾān and Ḥadīth), the historical practice of rulers, and the opinions of jurists. Furthermore, it is important to keep in mind that discussions of the laws of war and peace in Islam were often impacted by other considerations stemming from religious practice, doctrinal affiliation, philosophical principles, realpolitik, and more.

My chapter ‘War and Peace in the Medieval Islamic World, 622–1453’ examines the arguments expressed by medieval Muslim jurists (Sunnīs and Shīʿīs) on the laws of war and peace. Their legal views and opinions are not harmonious, and they often disagree on major issues and minor details. It is necessary therefore to accept the inherent disagreement among Muslim jurists as an unavoidable component of the laws of war and peace in Islam, and any presentation of these laws must feature those disagreements.

Moreover, Muslim jurists were not ‘submissive’ to an existing legal tradition or bound by the dictates of the foundational sources for thinking about the laws of war and peace. Instead, they often used and exploited the foundational sources, the practice of former rulers (especially in the first century of Islam), and the views of earlier scholars to support and legitimate their own positions on the questions of war and peace as necessitated by the changing circumstances and challenges they faced, as well as by other doctrinal or practical aspects, such as belief/unbelief, necessity, etc.

It is important to point out here that the use of modern categories – such as, jus ad bellum (laws about initiating war), jus in bello (laws about the conduct of war), and jus post bellum (laws of ending war and post-war situation) – seems inadequate if understood and applied in a very narrow or technical sense, because Muslim jurists did not discuss war and peace under these categories. Rather, they mostly presented them under two groupings – jihād (warfare) and ghanāʾim (spoils of war) – with further subgroupings within each one. Therefore, in order to minimize historical anachronism when we apply them to medieval Islamic laws on war and peace, the modern categories might be invoked only in the broadest sense.

More importantly, what we learn from the countless discussions about the laws of war and peace by medieval Muslim jurists is that they were meant to convey a range of views about each scenario, ranging from the reason for war, who can be fought, how to fight, how to seek peace, etc. Examples about this approach are found in some of the most important legal works, such as those by the Mālikī jurist Ibn Rushd (d. 1198), the Ḥanbalī jurist Ibn Qudāma (d. 1223), and the Twelver Shīʿī jurist al-Kulaynī (d. 941). For example, under the categories of ‘Those against whom war is waged’ and ‘Who to fight’ (which form two of the parts of the chapter on Jihād in Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid), Ibn Rushd argues that war is waged against all polytheists and quotes verse 8:39 from the Qurʾān in support of that view: ‘Fight them so that there will be no discord and the whole of religion belongs to God. If they desist, God sees best what they do.’ He notes, however, that Mālik b. Anas (d. 795) – the eponym of Mālikism – made an exception for the Ethiopians and Turkic peoples on the basis of a prophetic hadith. Ibn Rushd also contends that the purpose of war against the People of the Book is to compel them ‘to convert to Islam or pay the jizya-tax,’—a requirement that historically extended to the Zoroastrians according to a prophetic hadith that Zoroastrians should be treated like the People of the Book. Otherwise, there is disagreement about all other groups, and Mālik b. Anas accepts taking jizya-tax from them, whereas al-Shāfiʿī (d. 820) – the eponym of the Shāfiʿism – insists that the jizya-tax is not applicable except to the People of the Book and Zoroastrians.

Ibn Rushd often admits that the many conflicting laws about war and peace are caused by the frequent contradictions within the Qurʾān, within the Ḥadīth, between the Qurʾān and Ḥadīth, and between these two foundational sources and the opinions and practices of early Muslim rulers and scholars. In other words, the conflict within the foundational sources, within historical practice, and between the sources and historical practice allowed the Muslim jurists to tolerate a wide diversity of rules regarding war and peace as all equally plausible and authoritative. It is precisely this fact that explains why Ibn Rushd invariably lists various views about any given question and that it is impossible to determine which one is correct.

Yet, we find other jurists – such as the Ḥanafī jurist al-Shaybānī (d. 805), the Shāfiʿī jurist Ibn ʿAbd al-Salām (d. 1262), and the Ḥanbalī jurist Ibn Taymiyya (d. 1328) – expressing firm and uncompromising views about war and peace that did not find a need to accommodate the kind of variations and disagreement that we find in other sources.

There is also the fact that Muslim jurists debated whether the laws of war and peace in Islam followed a historical progression, which some – such as the Ḥanbalī jurist Ibn Qayyim al-Jawziyya (d. 1350) – described as starting and ending during the lifetime of the Prophet Muḥammad (namely, the Meccan period when war was banned; the early Medinan period when war was only permitted for the purpose of defending the Muslim community against the polytheists of Arabia; and the late Medinan period when war was mandated against all polytheists and unbelievers everywhere). However, some jurists – such as the Ḥanafī jurist Abū Yūsuf (d. 798), the Shāfiʿī jurist Māwardī (d. 1058), and the Twelver Shīʿī jurist Kulaynī – distinguished between the Muḥammad era and the post-Muḥammad era, thus the laws of war and peace during his life are not always applicable to the period after his time.

This complexity regarding the laws of war and peace in Islam is often obfuscated in some modern scholarship, especially when it is assumed that Islam’s position on war and peace can be determined on the basis of a few verses in the Qurʾān and that the text furnishes a coherent theory about war and peace that Muslims passively obeyed. Such an approach ignores the inherent contradiction within the Qurʾān and that it was invariably used alongside other equally authoritative sources (Ḥadīth, practices of rulers, opinions of former jurists, etc.), similar to other areas of Islamic law.

A famous example about the inherent inconsistency within the Qurʾān about war and peace is in verses 9:5–6, which read:

Once the sacred months are shorn, kill the polytheists wherever you find them, arrest them, imprison them, besiege them, and lie in wait for them at every site of ambush. If they repent, perform the prayer and pay the alms, let them go on their way: God is all-forgiving, compassionate to each. If a polytheist seeks your protection, grant him protection until he hears the speech of God, then escort him to where he feels safe. For they are a people of no understanding.

In these verses, we clearly see the injunction to wage war against the polytheists. Yet, we also see the emphasis on leaving them alone and giving them another chance to repent. This is actually a clash between two moods we often encounter in the Qurʾān: divine punishment and divine mercy. On the one hand, the Qurʾān stresses that unbelievers are to be fought until they submit to God’s law. On the other hand, the Qurʾān also enjoins the believers to make peace with the unbelievers and give them another chance to repent.

Another example about the way medieval scholars read what they wanted into the Qurʾān comes from Ibn Qayyim al-Jawzīyya (d. 1350) who argued that jihād with the heart, tongue, and wealth are obligatory individual duties (farḍ ʿayn), whereas jihād with one’s body is an obligatory communal duty (farḍ kifāya). In support of his argument, he quoted verses 9:41 and 61:10–2, which in his opinion command the believers to ‘wage jihād in the path of God with your wealth and bodies.’ The text, however, places in very clear terms the jihād of wealth and the jihād of the body on the same level. Hence, Ibn Qayyim al-Jawziyya’s distinction does not reflect what the Qurʾān actually says, but rather the way Muslim jurists imposed on the Qurʾān certain meanings by recourse to Hadith, views and practices of early scholars, or hermeneutical tools that allowed them to reach conclusions in line with their objectives and dogmatic tenets.

We can add to these issues the fact that it is unclear whether the commands to wage war in the Qurʾān are meant to apply only to specific situations at the time of the Prophet Muḥammad, or if they were to be the norm to follow in all future cases. Such problems too are not always resolvable with the historical information at our disposal. A case in point is the disagreement among medieval scholars as to whether verse 9:5 abrogated verse 9:6 and verse 8:61 (‘Should they incline to peace, incline to it also, and put your trust in God. He is indeed all-hearing, omniscient.’) Those who accept that 9:5 abrogates the other verses tend to develop much more rigid legal views about war and peace than those who reject the abrogation.

Another problem we encounter in some modern studies on war and peace in medieval Islamic law is the tendency to generalize the views of specific medieval jurists, or to take them out of their historical context and read them with little understanding of the scholars’ intellectual formation, doctrinal biases, contemporary concerns and challenges, and subsequent impact. In this way, the views of a given scholar are turned into universal statements of facts and applicability rather than as individual statements in an ocean of constant debate where concerns to interpret the past and address the challenges of the day are blended together in a very complex way that betray any simplification. Therefore, any conclusions we reach only reflect part of an ongoing debate in the medieval legal tradition about the laws of war and peace, and never all of it.

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