2.The Theory of Jihad Jihad is a precept of Divine institution. Its performance by certain individuals may dispense others from it. We Malikis [one of the four schools of Muslim jurisprudence] maintain that it is preferable not to begin hostilities with the enemy before having invited the latter to embrace the religion of Allah except where the enemy attacks first. They have the alternative of either converting to Islam or paying the poll tax <jizya>, short of which war will be declared against them. The jizya can only be accepted from them if they occupy a territory where our laws can be enforced. If they are out of our reach, the jizya cannot be accepted from them unless they come within our territory. Otherwise we will make war against them. [?] It is incumbent upon us to fight the enemy without inquiring as to whether we shall be under the command of a pious or depraved leader. There is no inconvenience to kill white non-Arabs who have been taken prisoner. But no one can be executed after having been granted the aman <protection>. The promises made to them must not be broken. Women and non-pubescents will not be executed. One will avoid killing monks and rabbis unless they have taken part in battle. Women also will be executed if they have participated in the fighting. The aman granted by the humblest Muslim must be recognised by others [Muslims]. A Women and a non-pubescent child can also grant the aman when they are aware of its significance. However, according to another opinion, it is only valid if confirmed by the imam (religious and political leader). The imam will retain a fifth of the booty captured by the Muslims in the course of warfare and he will share the remaining four fifths among the soldiers of the army. Preferably, the apportioning will take place on enemy ground. [p. 163] Ibn Abi Zayd al-Qayrawani In the Muslim community, the holy war is a religious duty, because of the universalism of the <Muslim> mission and <the obligation to> convert everybody to Islam either by persuasion or by force. Therefore, caliphate and royal authority are united <in Islam>, so that the person in charge can devote the available strength to both of them <religion and politics> at the same time. The other religious groups did not have a universal mission, and the holy war was not a religious duty to them, save only for purposes of defence. It has thus come about that the person in charge of religious affairs <in other religious groups> is not concerned with power politics at all. <Among them>, royal authority comes to those who have it, by accident and in some way that has nothing to do with religion. It comes to them as the necessary result of group feeling, which by its very nature seeks to obtain royal authority, as we have mentioned before, and not because they are under obligation to gain power over other nations, as is the case with Islam. They are merely required to establish their religion among their own <people>. That is why the Israelites after Moses and Joshua remained unconcerned with royal authority for about four hundred years. Their only concern was to establish their religion. [I, 473] Thereafter, there were dissensions among the Christians with regard to their religion and to Christology. They split into groups and sects, which secured the support of the various Christian rulers against each other. At different times there appeared different sects. Finally, these sects crystallised into three groups, which constitute the <Christian> sects. Others have no significance. These are the Melchites, the Jacobites, and the Nestorians. We do not think that we should blacken the pages of this book with discussion of their dogmas of unbelief. In general, they are well known. All of them are unbelief. This is clearly stated in the noble Qur?an. <To> discuss or argue those things with them is not up to us. It is <for them to choose between> conversion to Islam, payment of the poll tax, or death. [I, 480] Ibn Khaldun, The Muqaddimah Booty The state?s revenues, which have their origins in the Koran and Sunna, are three in number; booty <ghanima>, charity <sadaqa>, and the fay. The booty consists of spoils taken from the infidels by force. Allah has established their statutes in the sura, al-Anfal [Koran 8: The Spoils], which he revealed at the time of the battle of Badr and to which he gave the precise name al-Anfal, because the booty represents an increase in the wealth of the Muslims. Allah said: "They will question thee concerning the spoils. Say: "The spoils belong to God and the Messenger?" <Koran 8:1>. In the two Sahihs [the two canonical collections of religious traditions], the Prophet said according to Jabir b. Abd Allah: "I have been endowed with five gifts, which no other Prophet has received before me. I have triumphed through terror for a period of a month. The earth has been made for me a mosque and purity; any individual from my community who is overtaken by prayertime can pray wherever he may be. I received permission to take booty, a privilege that was never accorded to any of my predecessors. I received the gift of intercession. The prophets who preceded me were sent only to their own peoples; I was sent to all mankind." The Prophet said: "I was sent with the sword before the Day of Resurrection so that all men may serve only Allah, without associates. My resources have been put in the shadow of my spear. Those who opposed my orders have had degradation and humiliation as their lot. He who wishes to resemble these people must be considered as one of them". [p. 27-28] The Fay The fay is based on the following verses from the sura, al-Hashr [The Mustering], which Allah revealed at the time of the expedition against the Banu Nadir (one of the three principal Jewish tribes of Medina expelled by Muhammad in 625), after the battle of Badr. Allah said: "And whatever spoils of war God has given unto His Messenger from them, against that you pricked neither horse nor camel; but God gives authority to His Messengers over whomsoever He will. God is powerful over everything. Whatsoever spoils of war God has given to His Messenger from the people of the cities belongs to God, and his Messenger, and the near Kinsman, orphans, the needy and the traveller [?]" [Koran 59:6] These possessions received the name of fay since Allah had taken them away from the infidels in order to restore (afa?a, radda) them to the Muslims. In principle, Allah has created the things of this world only in order that they may contribute to serving Him, since He created man only in order to be ministered to. Consequently, the infidels forfeit their persons and their belongings which they do not use in Allah?s service to the faithful believers who serve Allah and unto whom Allah restitutes what is theirs; thus is restored to a man the inheritance of which he was deprived, even if he had never before gained possession. In this category the capitation tax <jizya> to be paid by Jews and Christians is to be included; the contributions imposed on certain enemy countries or the presents that they offer the sultan of the Muslims, such as for example, the palladium <haml> made by certain Christian countries; the tithes <ushr> paid by the merchants of countries within the territory of war [dar al-harb]: the five percent tax levied on the protected peoples <ahl al-dhimma> who trade outside of their county of origin <this is indeed the rate employed by Umar b. al-Khattab>; the payments imposed on the people of the Book who violate their covenant of protection; the land tax <kharaj> that originally concerned only the People of the Book, but was applied later, in part, to certain Muslims. Under the heading fay were also grouped all the possessions of the state that form the patrimony of the Muslims, like the possessions that have no particular owners: heirless goods, usurped goods, loans and deposits whose owners it is impossible to find, and, more generally, all personal and real estate that belongs to Muslims and that is in a similar situation. All property of this type constitutes the patrimony of the Muslims. [pp. 34-36] Concerning the men "whose hearts are to be won over" [by gifts], they can be either infidels or Muslims. If they are infidels, it is hoped that by these gifts an advantage may be obtained: for example, to induce them to convert, or avoid some misfortune, on condition that it is impossible to act otherwise. If they are influential Muslims, it is hoped that some benefit will arise such as strengthening their conversion, forcing it on one of their fellows, enlisting their support in order to obtain the payment of the sadaqa from another group that has refused its payment, inflicting harm on an enemy or preventing him from harming Islam, providing always that this result cannot be achieved except at this cost. These gifts granted to the powerful and withheld from the lowly, resemble externally those which kings are wont to bestow. However, acts are what intention <niyya> makes of them: if these gifts are to serve the common interest of the Muslim religion and of Muslims, then they will be like those which the Prophet and the caliph bestowed; if, however, they are motivated by ambition and corruption, then they will be like those granted by Pharaoh. [p. 51] The two other revealed religions were enfeebled by their incapacity to fulfil themselves, or through the fear that their followers experienced in the face of necessary ordeals. Consequently, these religions appeared devoid of power and greatness to men, who then understood that they were incapable of ensuring their own happiness as well as that of others. These two erroneous paths are those of men who have embraced a faith without perfecting it with all that is necessary for its own existence; power, jihad, material resources – or that of men who have sought power, fortune, or war without having had as their goal the triumph of <their> religion. These two paths are those of men who have incurred divine anger, and those of men who have gone astray. One is that of the Christians who, in their error, have wandered astray; the other is that of the Jews, who have incurred the divine anger. The straight path is only that of the prophets, saints <siddiqin>, martyrs, and the pious. It is the path of our Prophet Muhammad, his caliphs, companions, their followers, and our forebears who have shown us the way: the Muhajir, the Ansar, and the faithful of the second generation. Allah has reserved for them gardens where running water flows and where they will abide through all eternity. That is the supreme triumph. [p. 178] Ibn Taymiya Prince (the author, a jurist, is addressing his advice to the caliph Harun al-Rashid 786-809), you also demanded what are the rules applicable to those of the inhabitants of the countries of war (countries of the dar al-harb, conquered by jihad) who convert in order to save their lives and their possessions. Their life is sacred, those belongings for whose preservation they converted remain their property, and likewise their lands, which thus become lands liable to tithes in the same way as in Medina, where the inhabitants converted <at the arrival> of the Prophet and whose land is liable to tithes. The same goes for Ta?if and Bahrayn, as well as for the Bedouin who converted in order to save their water-holes and their territory, which remained their land and which they continue to hold. [pp. 94-95] Every polytheistic people with whom Islam has made peace on condition that they recognise its authority, are subjected to the division of spoils and pay the kharaj as a tributary [people]. The land they occupy is called land of kharaj: it shall be taxed according to the stipulations of the treaty, but in good faith and without overcharging. All land over which the imam [sovereign] has become master by force may be apportioned – if he so decides, for he enjoys complete freedom in this respect – among those who have conquered it, whereupon it becomes tithe land; or, if he deems it preferable, it can be left in the hands of its inhabitants, as Umar Ibn al-Khattab did in the case of Sawad, whereupon it becomes land liable to kharaj, which they transfer by inheritance and by contract, and the kharaj that is liable on it must not exceed the capacity of its taxpayers. [p. 95] Arab territory differs from non-Arab territory in that one fights Arabs only to oblige them to embrace Islam without making them pay the poll tax: nothing but their conversion is acceptable, and their land, if it is left to them, is tithe land. If the imam does not leave it to them and decides on its division, it still remains tithe land. The decision in respect of non-Arabs is different because they are fought not only to convert them but also to oblige them to pay the poll tax, whereas only the first of these objectives applies to the Arabs since they must either convert or be put to death. We are not aware that either the Prophet or any of his companions, or any caliph since then accepted the payment of a poll tax by the idolatrous Arabs, who had only the choice between conversion or death. If they were conquered, their wives and children were reduced of slavery, which was done by the Prophet toward the Hawazin (a confederation of North Arabian tribes, which were routed by Muhammed at the battle of Hunayn in 630) at the time of the Hunayn affair; subsequently, however, he gave them back their freedom. He only acted in this manner toward those who were idolaters. The Arabs who possess Revealed Scriptures [Jews and Christians] are treated as non-Arabs and are allowed to pay the poll tax. Umar acted in this way with regard to the Banu Taghlib [Christians] (a tribe of Christian Arabs of the Wa?il branch, established in Arabia) whose alms tithe he doubled as replacement of the kharaj, and the Prophet acted in a like manner when he levied a dinar from every pubescent person in the Yemen – or its equivalent in clothes – which in our eyes is similar to <the procedure to be followed in the case of peoples> having Revealed Scriptures. He acted likewise in granting peace to the people of Najran [Christians] for a ransom. In the case of non-Arabs: Jews or Christians, polytheists, idolaters, fire-worshippers, the poll tax is to be levied on the males. The Prophet made the mages of Hajar pay it; yet the mages are polytheists and do not possess a Revealed Scripture. We consider them to be non-Arabs and we do not marry the women of their race, neither do we eat the animals that they slaughter. Umar Ibn al-Khattab levied on the non-Arab male polytheists of Iraq a poll tax divided into three categories; poor, wealthy, and middle-class. In the case of Arab and non-Arab renegades, they are to be treated as Arab idolaters: they have the choice between conversion or death and they are not liable to the poll tax. [pp. 100-101] The inhabitants of villages and the countryside, as well as the towns, their inhabitants and all that they contain, can be left on their land, their dwelling places, or houses, as the imam decides, and may continue to enjoy their property in return for the payment of the poll tax and the kharaj <or all may be shared out among the conquerors>. The only exception is the male Arab idolaters, who are not allowed to pay the poll tax and must choose between conversion or death. [?] Thus the imam has the choice between two options, each of which is equally acceptable: either divide up as did the Prophet, or leave things as they were, as was the case elsewhere than at Khaybar. Umar Ibn al-Khattab made no changes in the Sawad (Iraq). Most of the countryside of Syria and Egypt was taken by force and treaties were required only when negotiating with the inhabitants of fortified places. Since the countryside had been occupied by the conquerors and taken by force, Umar relinquished it to the Muslim collectivity then existing, as well as to those who would come after them. He preferred to adopt this option, and similarly the imam is free to act as he pleases, providing the necessary precautions are taken <for the security> of the faithful and of religion [Islam]. [pp. 103-4] Battle Procedures It seems that the most satisfactory suggestion we have heard in this connection is that there is no objection to the use of any kind of arms against the polytheists, to destroy and burn their homes, cutting down their trees and date groves, and using catapults, without, however, deliberately attacking women, children or elderly people; that one can even pursue those that run away, finish off the wounded, kill prisoners who might prove dangerous to the Muslims, but this is only applicable to those on the chin of whom a razor has passed, for the others are children and are not to be executed. As for the prisoners who are led before the imam, the latter has the choice, as he pleases, of executing them or making them pay a ransom, opting for the most advantageous choice for the Muslims and the wisest for Islam. The ransom imposed upon them is not to consist either of gold, silver, or wares, but is only an exchange for Muslims captives. All that the victims bring back to the camp, or the possessions and goods of their victims, becomes a fay, which is to be divided into five parts. One share is to be given to those numbered in the Holy Book, and the four remaining shares are distributed among the soldiers who captured the spoils in the ratio of two portions to each horseman and one to each footsoldier. If a certain territory is conquered, the decision is left to the imam as to the best course to take in the interest of the Muslims: if he decides to leave it, as did Umar Ibn al-Khattab, who left the Sawad [Iraq] to the indigenous people – the local inhabitants – in exchange for the kharaj, then he can do so; and if he thinks that it should be left to the victors, he divides the land between them after having deducted a fifth. [pp. 301-2] For my part I say that the decision concerning prisoners is in the hands of the imam: in accordance with whatever he feels to be more to the advantage of Islam and the Muslims, he can have them executed or he can exchange them for Muslim prisoners. [pp. 302-3] Whenever the Muslims besiege an enemy stronghold, establish a treaty with the besieged who agree to surrender on certain conditions that will be decided by a delegate, and this man decides that their soldiers are to be executed and their women and children taken prisoners, this decision is lawful. This was the decision of Sa?ad b. Mu?adh in connection with the Banu Qurayza (one of the three principal Jewish tribes of Medina). [p. 310] The decision made by the chosen arbitrator, if it does not specify the killing of the enemy fighters and the enslavement of their women and children, but establishes a poll tax, would also be lawful; if it stipulated that the vanquished were to be invited to embrace Islam, it would also be valid and they would therefore become Muslims and freemen. [p. 311] It is up to the imam to decide what treatment is to be meted out to them and he will choose that which is preferable for the religion and for Islam. If he esteems that the execution of the fighting men and the enslavement of their women and children is better for Islam and its followers, then he will act thus, emulating the example of Sa?ad b. Mu?adh. If, on the contrary, he feels that it would be more advantageous to impose the kharaj upon them and that this is preferable in order to increase the fay, which enhances the resources of Muslims against them and the other polytheists, then he is to adopt this measure toward them. Is it not correct that Allah has said in his book: "<Fight those>? until they pay the tribute out of hand and have been humbled" <Koran 9:29>, and that the Prophet invited the polytheists to embrace Islam, or, if they refused, to pay the poll tax, and that Umar Ibn al-Khattab, after having subdued the inhabitants of Sawad, did not spill their blood but made of them tributaries? [p. 312] If they offer to surrender and accept the mediation of a Muslim of their choice together with one of their number, this is to be refused, for it is unacceptable that a believer collaborate with an infidel to arrive at a decision on religious matters. If by error, the ruler?s representative accepts and a verdict is proposed by both men, the imam is not to declare it binding unless it stipulates that the enemies will be tributaries or be converted to Islam. If this condition is adopted by them, then they shall be accepted as such, without there being need of a verdict. [pp. 314-15] Abu Yusuf