Islamic Studies 47:1 (2008) pp.

5-37

allsldm in Islamic Jurisprudencewith Special Reference to the Hanafi School*

MUHAMMAD MUSHTAQ AHMAD

The Notions

of Ddr

al-Harb and Ddr

Abstract
The article argues that the bifurcation of theworld into two domains?Dar al-Islam

an affirmation and Dar al-Harb?is essentially of theprinciple of territorial was a This with and its enunciated highdegreeof clarity jurisdiction. principle
were worked out with rigour and consistency by theMuslim jurists, implications reasons that have mainly led to those especially of theHanafi school. Among the on are: thequestion confusion and misgiving

(i)

Dar al-Harb that should The useof theterm gaveriseto theimpression hostility
inform the relations betweenDar al-Islam and all other entities. life to root out theforces actively inimical to Islam and establish a secure

be on him)duringthelast shown years by the Prophet firmness {peace ofhis (ii) The hasat times beendetached Arabianpeninsula from its foothold for Islam in the
space-time context and considered to be the norm for theMuslims relationshipwith all non-Muslim entities. in their

The paper argues that seventh centuryArabia was a very special case and Muslim jurists, especiallyHanafi jurists, consider it sui generis which may not be extended beyond

in their its space-time context. The general principle guiding Muslims in entities remains that the with non-Muslim Muslims may engage fighting relationship against the non-Muslims who are belligerent towards them, rather than against non

Muslims qua non-Muslims.

Introduction It iswell known that Muslim juristsdivided theworld into theDomain of Islam (Dar al-Islam) and the Domain ofWar (Dar al-Harb). There is no
* Iwish to record my debt of gratitudeto several colleagues especiallyDr Zafar Ishaq Ansari and Professors ImranAhsan Nyazee andMuhammad Munir with whom I discussed this subject in depth.

MUHAMMAD

MUSHTAQ

AHMAD

denying the fact that to comprehend thedoctrine of jihad as expounded by the fuqaha' it is important to understand themeaning and implicationsof this division. But unfortunately the works of the fuqaha' are presently not receiving the attention they deserve, often because they are considered with the realitiesof the time. outdated and out of tune However, some recent developments in theMuslim world have made it evident that the ideas and concepts of the fuqaha' continue to impact theminds of a very largenumber of Muslims.1 The basic contention of thispaper is that in the present times the real purport of thisdivision has generallybeenmisunderstood. It is often assumed that there is a direct and necessary linkbetween thedivision of the world into two domains and theview that thenormal relationshipbetweenDar al-Islam andDar al-Kufr is thatof hostility. In view of the above, it is often contended that one either has to accept both the doctrines or to reject both of them.2 Hence, those scholarswho believe that the two are inextricablyinterrelated, are of the opinion that this division envisaged by Muslims jurists is of a
permanent character. For instance, according to Bernard Lewis:

God's word have

of jihad is theuniversality of the Muslim revelation. The basis of theobligation

and God's message are for all mankind; it is the duty of those who to strive (jdhada) unceasingly to convert or at least to accepted them subjugate those who have not. This obligation iswithout limit of time or space.

It must continue until the whole of the world has either accepted the Islamic faith or submitted to the power of the Islamic state. Until that happens, the world is divided into two: theHouse of Islam (dar al-Islam), where Muslims rule and the law of Islam prevails; and theHouse ofWar (dar al-Harb) ... comprising 1 As early as in 1988, Montgomery Watt predicted that the traditionalnotions of Islamic Law used in the futureencounters. "The division of the world into the sphereof would be frequently Islam and the sphere of war is by no means a thingof the past. In so far as traditional Islam grows in strength it could come into the forefrontof world politics." Montgomery Watt,

IslamicFundamentalism andModernity (London: Routledge, 1988), 4. 2 Cf. Muhammad Munir: "A thorough study of the relevantQur'anic verses, ahddith, the conduct of the Prophet (pbuh) and his rightlyguided successors in their relationswith other nations, communities, and tribes reveals that permanent relations between Islamic and non Islamic territoriesare peaceful and not hostile. To uphold the opposite view, that permanent relations are hostile, is to seek acceptance of a parallel theory.The theory is that the cause of war in Islam is the elimination of infidelityand the subjugation of non-Muslims. The two theories (ofhostile relations and elimination of infidelity) give birth to a third theory that is the

division of theworld into two domains: Dar al-Islam, andDar al-Harb... These three theories are inseparable from each other and must either be accepted togetheror rejected togetherand cannot be accepted or rejected independently." Muhammad Munir, "Public InternationalLaw and Islamic InternationalLaw: Identical Expressions ofWorld Order," Islamabad Law Review, 1: 3& 4 (2003), 372.

THENOTIONS OF DAR AL-HARB AND DARAL-ISLAM IN ISLAMIC JURISPRUDENCE

over unbelief.3

state of Islam war, until thefinaland inevitable obligatory religiously of triumph

the rest of the world. Between the two there is a morally necessary, legally and

Those who reject the theory that the normal international relationship betweenMuslim and non-Muslim political entities is that of war, however, made thisdivision keeping in view the realitiesof their argue that the jurists time and, hence, it has no permanence.4This differenceof opinion has its bearing on the nature of the relationshipbetween an Islamic state and non Muslim states on the one hand, and on the relationshipof the Islamic state with Muslims living temporarilyor permanently in non-Muslim territories,
on the other.

This paper attemptsto examine the Muslim jurists'division of theworld intoDar al-Islam and Dar al-Harb, especially as expounded by theHanafi and to ascertain thebasis of thisdivision in the Qur'an arid theSunnah. jurists, the real purport of thisdivision an attempt After identifying will be made to examine whether there does indeed exist any necessary link between the division of theworld intoDar al-Islam andDar al-Harb and the theory that thenormal relationshipbetween the two should be thatof hostility.This will of the relevant be followed by an analysis of the traditional interpretation textswhich underlie this theory that hostility informs the relationship will bemade to betweenMuslim and non-Muslim entities. Finally, an attempt of these textsand to referto the relevant provide an alternativeinterpretation for this interpretation. evidence in theFiqh literature

Dar al-Islam andDar al-Harb We will firstexamine the views of the Hanafi school on the division of the Dar al-Islam andDar al-Harb after which we will brieflydiscuss the world into
3 Bernard Lewis, The Political Language of Islam (Karachi:Oxford University Press, 2004), 73. Kitab al-Siyarwa al-Kharajwa al-'Ushr (Emphasis added). See also,Majid Khadduri, ed. and tr., min Kitab al-Asl li H-Shaybani(Karachi: Idarat al-Qur'an, 1996), 22-30. 4 Tariq Ramadan, [Tariq Ramadan], a contemporary scholar, says: "Dar al-Islam and dar al-harb are two conceptswhich cannot be found either in theQur'an or in theSunna. They actually do not pertain to the fundamental sources of Islam whose principles are presented for thewhole world (lil-'alamin), over all time and beyond any geographical limitation. It was the 'ulama' who, during the first three centuries of Islam, by considering the state of the world ?its geographical divisions, the powers in place through religious belonging and influenceaswell as themoving game of alliances? startedto classifyand define the differentspaces in and around

them." Tariq Ramadan, To be A European Muslim: A studyof Islamic Sources in theEuropean Context (Leicester:The Islamic Foundation, 1999), 23. See also,Wahbah al-Zuhayli,Athar al Dar al-Fikr, 1981), 192-196. Harb ft n-Fiqh*/-/sfem*,(Damascus:

MUHAMMAD MUSHTAQAHMAD

views of other legal schools.5 between two perspectivesof theSharVah. The Hanafi school distinguishes term We might the first of theseperspectivesas a predominantlypietisticone. main sanction behind the commands According to thisperspective, since the His displeasure, and of theSharVah is the love ofGod and seeking toward off the full reward for adherence to, and the full punishment for violation of, which will be awarded in the God's commands is that Hereafter, the law, in this sense,knows no territoriallimits. Hence, aMuslim is required to follow wherever hemight be.6 Ifhe violates a rule of the theprecepts of the SharVah SharVahhe will be responsible for it beforeGod on theDay of Judgment.In keeping with thisperspective,humanity has been divided into two different categories: thosewho commit themselves to submit to God's will ?that is, Muslims ? and thosewho do not? that is, non-Muslims.As a corollary of Muslim ummah across the world and thus the this,aMuslim formspart of the tie of brotherhood binds aMuslim residentof even a non-Muslim state to his Dar al Muslims who live in Muslim brethren in the Islamic state.So faras the Islam are concerned, theyare protected {ma 'sum)by the law.However, forthe Muslims who live outside the Islamic state, their 'ismahor protection only

will mainly be held responsible in implies that thosewho violate theirrights Next World. This iswhat is called 'ismah hi 'l-Isldm, i.e. the court ofGod in the protection by virtue of affiliationto Islam.7This, according to theHanafi means that the rightsof those Muslims who live outside the territorial jurists, limitsofDar al-Islamwill not be enforcedby the courts in the Islamic state because these courts can exercise their jurisdictiononly over the territory control of theImam (ruler)ofDar al-Islam. If the cause of under the effective legal action arisesoutside that territory theycannot take cognizance of it. This raises the issue of territorialjurisdiction of the courts in the Islamic state,which we may call the municipal law perspective of the SharVah. According to the founderof theHanafi school,Abu Hanifah al-Nu'man b. Thabit (d. 150/767) and his well-known disciple,Muhammad b. al-Hasan al Muslim courtshave no jurisdictionto trya case if the Shaybani (d. 189/805),
This analysis is primarily based on the exposition of the great Hanafi juristAbu Bakr Muhammad b. Ahmad ibnAbi Sahl al-Sarakhsi (d. 490/1097) as contained in his commentary on al-Siyar al-Saghlr ofMuhammad b. al-Hasan al-Shaybani, namely, al-Mabsut. Moreover, in understanding these issues thewriter has been influencedby the views expressed by Sayyid Abu 1-A'la Mawdudi (d. 1399/1979), a great Muslim scholar and thinkerof the 20th century, in Sud his treatiseon interest, (Lahore: Islamic Publications, 2003), especiallyAppendix 3, namely,
281-351.

Dar al-Kutub See, Abu Bakr Muhammad b. Ahmad ibnAbi Sahl al-Sarakhsial-Mabsut (Beirut: 10:104. al-'Hmiyyah,2001), 7Ibid.; 10: 62.

THENOTIONS OF DAR AL-HARB AND DARAL-ISLAM IN ISLAMIC JURISPRUDENCE

This is called 'ismah hi %dary i.e. protection of one's protection of theirrights. under Islamic jurisdiction.9 by virtue of livingin the territory rights It is from this perspective that theworld is divided into two territories: Dar al-Islam (the Domain of Islam) andDar al-Kufr (the Domain ofDisbelief). Hereafter, aMuslim in Speaking fromtheperspectiveof ultimate resultsin the ma'sum of is the world However, from theperspectiveof any part (protected). municipal law, 'ismah is guaranteedonly to the personswho livewithin the areMuslims or territoriallimitsof the Islamic state irrespective ofwhether they
non-Muslims.

cause of action arisesbeyond the territorial limits of the Islamic state.8 In other courts cannot a the enforcethe rightsof citizen beyond the territorial words, limitsof the Islamic state. Hence, from this perspective,persons outside the ma sum, that is, jurisdictionof the Islamic state are, legally speaking,ghayr are not On the they guaranteedprotectionof theirrights by the Islamic state. state to the is Islamic the of those who live contrary, required protect rights within its territorial be they Muslims limits, permanentlyor even temporarily or non-Muslims. Thus, all persons,whether Muslims or non-Muslims,who livewithin the territoriallimitsof the Islamic state are guaranteed the legal

non-Muslim Moreover, Islamic law also distinguishesbetween different actual attitude towardsIslam andMuslims. political entitiesdependingon their a is a state ofwar with Dar al-Islam, itwill be called Thus, if Dar al-Kufr in Dar al-Harb.On the other hand, if it has a peace treaty with Dar al-Islam it will be calledDar al-MuwadacahorDar al-'Ahd.10 From the perspectiveof the state and its courts the people living in territorialjurisdictionof the Islamic Dar al-Harb do not enjoy 'ismah (legal protection). In the case of Dar al
Muwdda'ahy however, since the Islamic state has concluded a treaty with that

8 may be some important technical differences Although from the legal point of view there between the concept ofDar al-Islam and that of Islamic state, modern scholars have generally assumedDar al-Islam and Islamic state to be equivalent. Thus the ruleswhich the fuqaha' have laid down aboutDar al-Islam are applied to the Islamic state. It isbeyond the scope of thispaper to compare these concepts. We propose to undertake an in-depthanalysis of the two concepts in a separate study dealing with personality, statehood and recognition in Islamic international law. As far as the present paper is concerned,we will be using these terms interchangeablyfor the sake of convenience. Similarly, Ahl Dar al-Islamwill be presumed to denote to the citizens
state.

9 Al-Sarakhsi, al-Mabsut, 10: 62-63. 10 Muwadaah is the technical name for the peace treaty which Muslims conclude with other a a entities. Such be for either treaty may may be of a permanent sovereign specificperiod or it nature. The Hanafi juristssee no need for specifyingthe timeperiod in such a treaty. By virtue of such treatytheAhl al-Muwada'ah are entitled to some degree of legal protection ('ismah). See, fordetails, al-Sarakhsi,al-Mabsut, 10: 94-104. See also,Abu Bakr b.Mas'ud al-Kasani,BadaT al Sana'i'fi Tartib al-SharaY (Quetta: al-Maktabah al-Rashidiyyah,n.d.), 6: 75-77.

of Islamic

10

MUHAMMAD

MUSHTAQ

AHMAD

entity,some jurisdiction might be grantedto the Islamic stateas a consequence some kind of 'ismah ofwhich might be establishedfor those personswho are Ddr al-Muwdda'ah.This will depend, however, on the actual within that living termsof the treaty that has been concluded. There is a third hypothetical Ddr al possibility as well: a non-Muslim state that is neither atwar with the with it.The fuqahd*generallydo not discuss the Isldmnor has any peace treaty legal consequences of an act committed in such a state.This could be either or more importantly, because such a statedid not exist in their surroundings, a a state in in the the absence of treaty such did not enjoy the because people The courts of the Islamic state,therefore, legalprotection of the Islamic state. could not exercise jurisdictionover thewrongs committed in a territory outside the boundaries of the Islamic state,unless it had a treaty with the was created for these courts.This was the reasonwhy the jurisdiction fuqahd' Ddr al-Kufrlegallyequivalent toDdr al-Harb unless it had a considered every was based on the principle of with the Islamic state.This ruling peace treaty
entity that has suzerainty over that territory as a consequence of which some

and ithad nothing to do with theview regarding what should be territoriality thenature of the relationshipbetween the Islamic stateand other states.11 As opposed to theHanafis, the generality of Shafi'I,Maliki and the limits. Hanbalis, is of theview that Islamic law knows no territorial Hence, if a aMuslim violates rule of the SharVahhe will be liable forpunishmentnot world. Hereafter, but also by the courtsof the Islamic state in this only in the anyMuslim, according to the opinion of these jurists,thewrongdoer can be Muslims or ifhe punished by the courts of the Islamic state ifhe is captured by enterstheIslamic state. In otherwords, these juristsdo not subscribe to the principle of territorialjurisdiction.Ismah, i.e. legal protection, according to them, is grantedon thebasis of a person's religiousaffiliation(din) ratherthan on the basis of his affiliationto a political entity (ddr). As far as non-Muslim citizens of the Islamic state (Ahlal-Dhimmah) are concerned, in theiropinion of dhimmah they enjoy protection becauseMuslims had concluded the treaty
with them. Similarly, if a non-Muslim resident of a non-Muslim state violates the rights of

Ddr al-Isldm in Muslims (musta'minuri) who enjoy protection by virtue of the contractof amdn (quarter)given to thembyMuslims.12
this issue, Abu Yusuf Ya'qub b. Ibrahim (d. 183/799), the famous disciple of Abu Hanifah, has a differentopinion from that of Abu Hanifah and al-Shaybani.He accepts the principle of territorialityonly for non-Muslims. But as far as Muslims are concerned, he considers them to be bound by the laws of Islam wherever theymight be. See, Abu Yusuf Ya'qub b. Ibrahim,Kitab al-Khardj (Cairo: al-Matba'ah al-Salafiyyah, 1934), 166. See also, al
Sarakhsi,

They

consider

these non-Muslims

comparable

to alien

non

11 On

12 Muwaffaq al-Din 'AbdAllah b.Muhammad IbnQudamah, al-Mughni fi Fiqh Imam al-Sunnah

al-Mabsut,

10: 104; Al-Kasani,

BadaTal-SandY,

6: 112.

THE NOTIONS OF DAR AL-HARB AND DARAL-ISLAM IN ISLAMIC JURISPRUDENCE

11

shall reproduce below some passages from thewritings of various juristsespecially thatofHanafi school, to establish that the doctrine of ddr in fact signifiesthe principle of territorialjurisdiction. Abu BakrMuhammad b. Ahmad ibnAbi Sahl al-Sarakhsi (d. 490/ 1097), one of the greatest Muslim as all of the Hanafi follows: time,explains jurists viewpoint We
If a Muslim money al-Harb with amdn and lends money to or borrows from the inhabitants of that territory, or usurps their property or his enters Ddr

Ddr al-Isldm], because thewrong was committed outside Muslim jurisdiction. For theMuslim who usurped their property after guaranteeing them not to do that, we hold Muslim this opinion because he violated his promise, not the promise of ruler. However, he will be counselled by way of fatwd to return property though he will not be compelled to do so by the court. As for inhabitants of that land who usurped the property of theMuslim, we hold the the the this

isusurped [by them]there, his case will not be heard [in thecourts of property

opinion because they violated their promise at a place where theywere not under theMuslim jurisdiction... Yet according to his religion it is reprehensible for the to violate his promise with them, for the violation of promise is Muslim forbidden... It is on account of this that itwould to purchase not be desirable for another that it was a usurped Muslim the usurped property, if he knew

property.13

Muhammad

al-Shawkani, al-Sayl al-Jarrdr(Beirut:Dar al-Kutub d-'Ilmiyyah, 1987), 4: 547. In three these differentviews about the territorialityof Islamic Law still exist among fact, scholars. Incidentally,the same tensions are also reflectedin other legal Muslim contemporary courts inUK do not exercise jurisdictionoverwhat they call "foreign For the instance, systems. torts" unless some other essential conditions are fulfilled. The Pakistani Supreme Court has on Section 295-C of of thePakistan Penal Code in regard verdict the applicability recentlygiven to blasphemous cartoons published in certainEuropean countries. Makhdoom Ali Khan, the not Court did of that the have jurisdiction over the contended Pakistan, Attorney-General matter because the act was committed outside Pakistan. But the Court decided that these cartoons had injured the feelingsof Pakistani citizens. So, in the opinion of theCourt, the cause of action arosewithin Pakistan. The Court, accordingly,ordered to lodge theFirst Information Report (FIR) against the cartoonist and the editors of the newspapers that published these cartoons. See, The News International, Islamabad, April 18, 2006. Another interesting issue before theCourt was its jurisdictionin the cyberspace because these cartoonswere being shown on several websites in Pakistan. The Pakistan ElectronicMedia Regulatory Authority (PEMRA) websites until very late in March 2006when the SupremeCourt was moved. did not block these

Ahmad ihn Hanbal al-Shaybani (Cairo:Dar al-Manar, 1367 ah), 8: 291, 432. As thesefuqahd' do not recognize the principle of territoriality,al-Shawkani unequivocally declared that the division of the world into two dars has no legal consequence. See, Muhammad b. 'All b.

The websites were registeredoutside Pakistan but theywere being accessed fromPakistan as well. The Court, however, did not give a detailed verdict on this important issue because PEMRA blocked thewebsites after which the petitionerdid not stressupon his petition and the Court disposed of iton technical grounds. 13 Al-Sarakhsi, al-Mabsut, 10:104. Muhammad Hamidullah (d. 1423/2002),while commenting

12

MUHAMMAD

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AHMAD

Burhan al-Din 'All b.Abi Bakr al-Marghinam(d. 593/1197), the author of Hanafi textal-Hiddyah,says that ifaMuslim tradergoes toDdr al the famous Harb and acquires somethingby stealth,the courts ofDdr al-Isldmwill not punish him, even thoughhe violated his promise and committeda violation of the SharVah forwhich he will be responsible before God}4 The statementof Zayn al-cAbidinb. Ibrahim IbnNujaym (d. 970/1563) is evenmore explicit in this regard:
According to Abu Hanifah, the position of a person who embraces Islam inDdr al-Harb and does not migrate [toDdr al-Isldm] is like that of a harbi [alien non inDdr al-Isldm].16

isnot protected his property15 Muslim] in the sensethat [by the lawof theland

Furthermore, if a citizen of Ddr al-Isldm commits themurder of even a Muslim inhabitantofDdr al-Harb, the courts ofDdr al-Isldmdo not have the jurisdictionto trythe case. So, theycan neither award thepunishmentof qisds nor require the murderer to pay diyah to theheirs of thevictim.17 However, if a citizen ofDdr al-Isldmcommitsa crime againstanotherof itscitizens even in Ddr al-Harb, he will be liable for it in the courts of Ddr al-Isldm.This is Ddr al-Isldmphysically, legallyhe was under the because even ifhe was outside courts Ddr of of the al-Isldm.n Again, if two citizens ofDdr al jurisdiction Isldm are held as captives inDdr al-Harb and one of themkills the other, the
courts of Ddr al-Isldm cannot take cognizance of the matter because, by virtue

on the above passage, has the following to say: "[TheHanafis] make a sharpdistinction between jurisdictionofMuslim court and thatof a foreigncourt over aMuslim, on the one hand, and moral obligations on the other; and theydo not hold him responsible in aMuslim court for acts done in a foreign territory. And on the same basis, they acquit a foreignnon-Muslim from all
acts committed

Muhammad Hamidullah, TheMuslim Conduct ofState (Lahore:Muhammad Ashraf, 1945), 104. 14 Burhan al-Din 'All b. Abi Bakr al-Marghinani,al-Hidayahft SharkBidayat al-Mubtadi (Beirut: Dar Ihya' al-Turath al-'Arabi, n.d.), 2: 395. Other juristsare of the opinion thathe should be held liable forhis act in the courts of the Islamic state, and the property recovered fromhim should be given back to therightfulowner, ifpossible. See, IbnQudamah, al-Mughni,8: 284. 15 And also his life,as discussed below. 16 Zayn al-'Abidin b. Ibrahim IbnNujaym, al-Bahral-RayiqSharhKanz al-Daqa'iq (Cairo:Dar al Kutub al-'Arabiyyah, 1978), 5: 147. 17 Al-Marghinani, al-Hidayah, 2: 396. 18 Ibid. It seems that the principle of "active nationality" has also been recognized here because thedispute arose outsideDar al-Isldm,but the courtwould exercise jurisdictionbecause both the partieswere "nationals" ofDdr al-Isldm.See, fordetails on the "active nationality" principle and other principles of jurisdiction in Public International Law, Martin Dixon, Textbook on International Law (London: Blackstone, 2000), 133-144. See also Malcolm InternationalLaw (London: Cambridge University Press, 2003), 452-490. N. Shaw,

in foreign

territory

even

against

a Muslim

subject,

such

as murder

or

theft."

THENOTIONS OF DARAL-HARB AND DARAL-ISLAM IN ISLAMIC JURISPRUDENCE

13

of theircaptivity,they are consideredoutside the jurisdictionofDdr al-hldm. So, if one of the captives commits unintentionalmurder of the other, the cuplritwill not be liable to pay diyah, although he will be required to offer Kamal al-DinMuhammad Ibn al-Humam al-Iskandari kaffarah (expiation).19 (d. 861/1457),while commentingon thisopinion ofAbu Hanifah, hasmade a finedistinctionbetween thedifferent perspectivesof IslamicLaw:
So, according to Abu Hanifah, there is no worldly punishment for themurderer, except kaffarah in case of unintentional murder and punishment in the hereafter in case of intentional murder... This is because due to imprisonment he [the victim] became

as both lackworldly who did notmigrate [toDdr al-Isldm], ofDdr al-Harb]

like them [aliens]... and thus, he resembles aMuslim

[inhabitant

protection (al-(ismah al-dunyawiyyah).20

here seem to be at The precision and clarityof the concepts ofHanafi jurists theirzenith.21 Hence we are of the considered opinion that the doctrine of ddr as has nothing to do with the theory that the Hanafi jurists propounded by the the Islamic state and other political entities, normal relationship between In fact,the unless theyare bound by truceor peace treaty,is thatof hostility.22 doctrine of ddr representstheprincipleof territorial jurisdiction. Here it will not be out of place tomention thedefinitionsofDdr al-Isldm and Ddr al-Kufr as given by theHanafi fuqahd\Ddr al-Islam, according to or at least where Muslims where Islamic law is applied,23 them, is the territory even if they do not have the potential capability of applying Islamic law In otherwords, it is the territory under the effective and actually apply it.24 as Ddr al-Kufr, distinguishedfrom seeminglypermanent control ofMuslims.25

could not always maintain this importantdistinction, and that is why the opinions of Abu Hanifah could not be fullyappreciated. See, Mawdudi, Sud, 312-313. 22 we see below. As later. See pp. 23 ff. shall 23 Al-Kasani, BaddTal-SandY, 6: 112. 24 fi SharkRawd al-Talib (Cairo: al-Matbacah al-Misriyyah, Zakariyya al-Ansari,Asnd 'l-Matdlib 1357 ah), 4: 204. 25 "A territoryis ascribed to them [non-Muslims] or to us [Muslims] on the basis of [who has] control."Al-Sarakhsi, al-Mabsut,10: 39. the rulingpower and effective

19 Kamal al-Din Muhammad Ibn al-Humam al-Iskandari,Fath al-Qadir 'aid 'l-HiddyahShark Bidayat al-Mubtadi (Cairo:Dar al-Kutub al-'Arabiyyah, 1970), 5: 451. 20 Ibid. 21 SayyidMawdudi opined that Imam Abu Hanifah not only distinguished between different perspectives of Islamic Law but also distinguished between differentkinds of Ddr al-Kufr. According toMawdudi, Abu Hanifah would never say that the life and property of those outside Dar al-lslam were mubah (permissible); rather, he used the phrase ghayr ma'sum even some of theHanafis, unfortunately (unprotectedby themunicipal law). The later jurists,

14

MUHAMMAD

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AHMAD

Ddr al-lsldm, is the territory under the effectivecontrol of non-Muslims in which they apply their own laws. A Ddr al-Kufrmay become Ddr al As compared Muwada'ah by concluding a treatyof peace with Ddr al-Islam.26 to this, Ddr al-Harb is the territory which is atwar with Ddr al-lsldm}1 There exists the possibility that a non-Muslim state may not be at war same not at time it have a peace treaty with with Ddr al-lsldmand the may also
it. As discussed

tive of the jurisdictionofmunicipal courts between such a state and the state with Ddr al-lsldm in so far as the courts ofDdr al thathad hostile relations Isldm could not exercise jurisdictionin any of these territories. Therefore, the terms From the Ddr al-KufrandDdr al-Harb came to be used interchangeably. were different;the Islamic perspective of international law, however, they state could not attack the formerbecause the cause ofwar against it did not
exist.

earlier, there was

no fundamental

difference

from the perspec

Ddr al-KufrorDdr al-Harb, aswe have Ddr al-lsldmwill not change into already noted, even ifMuslims do not actually apply Islamic law in it, mere act provided theyhave thepotential capabilityof doing so. Similarly,the
26 It has been generally assumed that the fuqahd* did not approve of peace treaties.Some have even claimed that if a peace treaty is concluded without specifyingthe time period (which the fuqaha* call al-muwdda'ah al-mutlaqah) itwill be invalid by a consensusof thefuqahd\ See,
Wahbah

with regard toHanafi fuqaha' who have explicitly declared that al-muwada'ah al-mutlaqah is of opinion on this issue among valid. See, al-Kasani,BadaT al-SandT, 6: 77. There is a difference the Shafi'i and Hanbali schools, and Shams al-Din Muhammad b. Abi Bakr Ibn Qayyim al Jawziyyah (d. 751/1350), the famousHanbali jurist and disciple of the illustriousAhmad b. 'Abd al-Halim Ibn Taymiyyah (d. 728/1328), has made a strong case for the validity of such Ahkdm Ahl al treaties.See, Shams al-Din Muhammad b. Abi Bakr Ibn Qayyim al-Jawziyyah, Dhimmah (Beirut:Dar al-Kutub al-'Ilmiyyah, 2002), 1: 336-344. ImamMuhammad b. Idris al will be valid if the parties are Shafi'I (d. 204/820) has himself explicitly stated that such a treaty

al-Zuhayli,

Athar

al-Harb,

675-676.

This

is, however,

a wrong

assumption,

especially

favour of such treaties and has, therefore,criticized thefuqaha' for entertaining thiswrong details on this issue, Muhammad Mushtaq Ahmad, "Jihadand Peace supposition. See, for further Human Rights Conflict Prevention Centre, Special Issue on Human Treaties," Journal of the Rights and the Use of Force in Islamic International Law, University of Bihac, Bosnia Herzegovina, 4: 1-2 (2006), 789-828.

given the option to terminate the treaty at will. See,Muhammad b. Idris al-Shafi'I, al-Umm Muslim juristsunanimously reject (Cairo: Dar al-Fikr, 1961), 4:110. Hence, to declare that the such treaties is inaccurate. Wahbah al-Zuhayli has made this claim, although he himself is in

27 Although, as noted above, the termsDdr al-Harb and Dar al-Kufr have been used Dar al-Harbwas specifically manuals of interchangeably,it is evident from the fiqh that the term coined for the entity with Muslims. Thus, as we shall see later,the which had hostile relations rules applied toDdr al-Harb were differentfrom those applied toDar al-Muwdda'ah, and the reason for thisdistinctionwas that while the former had hostile relations with Dar al-Isldm the were peaceful. latter'srelations with it

THE NOTIONS

OF DAR AL-HARB AND DAR AL-ISLAM1N

ISLAMIC JURISPRUDENCE

15

to convert of occupation by non-Muslims is also not deemed sufficient Ddr al Isldm intoDdr al-Harb. After occupation when the occupiers enforce their own laws insteadof Islamic laws andwhen the Muslims lose the capability to a apply those laws in that territory,majority of jurists,includingthe twomost ? believe Yusuf and al-Shaybani prominent disciples of Abu HanifahAbu Ddr al-Harb.2S Ddr al-Isldmchanges into that So, in theopinion of these jurists the truly deciding factor is whether or not Muslims have the actual or However, Abu Hanifah potential capability of applying Islamic law there. two furtherconditions, namely, contiguity to Ddr al-Harb and the puts Muslims.29The firstconditionwas stipulated terminationof amdn granted to What itmeant was that because of the owing to practical considerations. Ddr al-Harb's occupation of it was contiguity of the occupied territory, a presumably not temporary,that itwould possibly last for long time.The rationale of the second conditionwas to ascertain the legal position of the If theyremained thereon the basis of the of theoccupied territory. inhabitants would Muslim community, the territory permission granted to them by the But ifthe authorityto grantpermission for continue to be calledDdr al-Isldm. passes on to the occupying non-Muslim power, the living in the territory In otherwords, Abu Hanifah would Ddr al-Harb.30 will convert into territory Ddr al-Harb onlywhen the Ddr al-Isldm to have been converted into consider control over it.31 and enjoy effective occupiers annex the territory

28 Badai'i al-Sand'i\ 6:112-113. See, al-Kasanii, 29 See, ibid. 30 See, ibid. It may be noted here that the same principle applies toMuslim occupation. If mere act Dar al-Isldm by the it does not automatically change into Muslims occupy a territory, Dar al-Isldmonly if the ruler applies the laws ofDar al-Isldm of occupation. Itwill change into there,or when he declares thathe has made it a part ofDar al-Isldm. See, al-Sarakhsi,al-Mabsiit, 10: 39. In other words, it becomes Dar al-Isldm after its formal annexation. Before such annexation the ruler cannot distribute thewar booty therebecause, according to theHanafis, war booty can be distributedonly in Dar al-Isldm.See, ibid. Similarly,before annexation he can vacate the territory, althoughwhen he annexes it andmakes it a part ofDar al-Isldm,he isduty bound to defend it like other parts of Dar al-Isldm. See, ibid. It may be noted that the a contemporary international legal order does not consider occupation or annexation to be

sound basis for acquiring territories. 31 In this regard the controversyover the statusof India aftertheBritish had established effective of it includingthe capitalmay also be recalled. Itwas the genius of control over large territories Shah 'Abd al-'Aziz (d. 1239/1824), the son of the illustrious ShahWall Allah (d. 1176-1762), which all the rules ofDar al-Harbwere to who feltthe need to declare India asDar al-Harb after Movement for the the This way Jihad against the occupants and, then, for a fatwa paved apply. the rulers. British War of See, fordetails,Mahmood Ahmad against Independence full-fledged Ghazi, Muslim Renaissance in South Asia 1707-1867: The Role of Shah Wall Allah and His Successors(Islamabad: IslamicResearch Institute,2002).

16

MUHAMMAD

MUSHTAQ

AHMAD

Bases for the Principle of Territorial Jurisdiction in theQur'an Sunnah

and the

to a Hanafi juristssupport theprinciple of territorial jurisdiction by referring verses some and of will which be number ofQur'anic mentioned and ahddith, These verses and traditionslaydown varying rules for the Muslims living it. Dar and those For outside when in al-Isldm Muslims were instance, living persecuted inMakkah theywere ordered tomigrate to the Islamic state of Madlnah.32 Those who did not migrate were denied the protection of the Islamic state. Itwas explicitly mentioned that the Islamic statedid not have But if they asked the any legal responsibility(wildyah)to protect theirrights. was duty-bound to support matter of religion," it Islamic stateforhelp "in the them, ifneeded, evenmilitarily.However, itwas required to actwithin the termsimposed by the treaties,ifany.33 Muslim residents of The following traditionis also explicit in treatingthe fromthose livingoutside theborders of that state: the Islamic statedifferently
When you meet the enemies who are polytheists, invite them to three courses of action. If they accept any one of these, you too should accept it and restrain yourself from doing them any harm. Invite them to [embrace] Islam; if they do so, accept it from them and desist from fighting against them. [When they accept analysed below.

Muslims, but theywill not receive any share from the ghariimah or fay*34 except when they actually fight along with Muslims.35

inform them that if they do so they shall have all the privileges and obligations of the Muhdjirin. If they refuse tomigrate, tell them that theywill have the status of Bedouin Muslims and will be subjected to the commands of Allah like other

Islam], invitethem tomigrate fromtheirlands to the land ofMuhdjirin and

Wasiyyat al-Imam. See also Abu Dawud Sulayman b. al-Ash'ath al-Sijistani,Sunan Abi Dawud,

generally included in ghanimah while immoveable property is included infay1. The rule for of it will go to thebaytal-malwhile the rest will be distributedamong ghanimah is thatone-fifth not themujahidin (Quran 8: 41). As for be it will distributed the among fay1, mujdhidin', rather, all of itwill go to the bayt almdl andwill be used for the benefitof allMuslims (Qur'an 59: 7) within Dar al-Isldm. See, for details, al-Mawsii'ah al-Fiqhiyyah (Kuwait:Ministry of Religious Affairs, 1995), 31:302-321 and 32:227-234. See also, Muhammad Rawwas Qal'aji, Mu'jam Lughat al-Fuqaha1 (Karachi: Idarat al-Qur'an, n.d.), 335 and 351. 35 See, Muslim b. al-Hajjaj al-Qushayri, SahihMuslim; Kitab al-Jihad,Bab Ta'mir al-Imam al Kitab al-Siyar,Bab Ma Ja' Umara'; Abu Tsa Muhammad b. 'Isa al-Tirmidhi,Sunan al-Tirmidhi, fi Bab Wasiyyatihi fi l-Qital; Muhammad b. Yazid IbnMajah, Sunan IbnMajah, Kitab al-Jihad,

32 See,Qur'an 16: 106-110 and 4: 97-99. 33 See,Qur'an 8: 72 and 4: 75-76. 34 Ghanimah is the termused for the goods captured in amilitary campaign andfay1 is the term for the goods captured from the opponentswithout using forceagainst them, such as the tribute they pay after concluding a peace treatywith Muslims. Moreover, moveable property is

THENOTIONS OF DAR AL-HARB AND DARAL-ISLAMW ISLAMIC JURISPRUDENCE

17

Muslims who migrated from Makkah to Significantly,theQur'an calls those Madinah as fuqard* (poor; empty-handed) (Qur'an 59: 8) although some of Makkah. The reason, according to the themhad property in Hanafi Juqahd\ is that they lostownership of theirproperty in theiroriginalhomeland by virtue of their migration toDdr allsldm. Another proof of their loss of ownership is Makkah theProphet (peace be on him) did not that even afterthe conquest of ruleshave been laid down forunintentional murder or Likewise, different aMuslim depending on whether he was the inhabitantof an Islamic state,or an enemy state,or of a state with whichMuslims had a peace treaty.37 Finally, the case ofAbu Busayr (d. 7/628) and his friendsestablishes the principle of territorialjurisdictionbeyond any doubt. Abu Busayr had fled Makkans by the from Makkah due to persecutionbutwas handed over to the terms on of theTreaty ofHudaybiyyah him) under the Prophet (peace be Abu Busayr, however, succeeded in fleeingto a place outside the jurisdiction of theMadinan state on the highway to Syria. Subsequently, several other Makkah and gathered there.They formed a group and Muslims fled from Makkans themselves Makkans. Then the startedattackingthe caravans of the waived the condition of theHudabiyyah Treaty under which theMuslims were bound to hand over to theMakkans the persons who had fled from
Makkah.38 return these properties to them.36

Abu Busayr and his group were beyond the jurisdictionof the Islamic but he state.The Prophet (peace be on him) did not quite like theiractivity,39 to be is was not legallyobliged to hand over thesepeople to the It Makkans. IbnQayyim Hanbali jurist, noted thatamong non-Hanafi scholars,the famous for theprinciple of territorialjurisdictionin findsa justification al-Jawziyyah, when the Prophet (peace be on him) did not put a this case.He argues that
Du'a' al-Mushrikm. Bab fi Kitab al-Jihad, 36 See for details, al-Sarakhsi,al-Mabsut, 10:60-63; Al-Kasani, BadaY al-Sana'i\ 6:130-136. See for further details,Hamidullah, TheMuslim Conduct of State, 104-15;MawducS, Sud, 281-351; Law and Constitution, tr. and ed.Khurshid Ahmad (Lahore: Islamic Publications, Islamic Idem, 1992), 185-189. 37 See,Qur'an 4: 92. 38 Abu 'Abd Allah Muhammad b. Isma'll al-Bukhari,al-Jdmi* al-Sahih,Kitab al-Shurut,Bab al wa '1-Musalahah ma* Ahl al-Harb. Shurutfi '1-Jihad 39 This is evident from thewording of the traditionas reported in the al-Sahih of al-Bukhari, the most authentic of the Hadith compilations: "Abu Busayr came and said, 'O Allah's Messenger, me to them,but Allah made Allah has your obligations by your returning you fulfil by Allah, has saved me from them.' The Prophet (peace be on him) said, 'Woe to hismother!What an war kindlerhewould be, shouldhe onlyhave supporter^' When Abu Busayr heard thathe excellent to themagain, so he set off tillhe on return him be would understoodthat the him) Prophet (peace reached the seashore." Ibid.

18

MUHAMMAD MUSHTAQAHMAD

stop to the activitiesof these people he did not violate any provision of the treatybecause theywere "out of his hand" and as suchwere not under his jurisdiction(taht qahrih).40

ofTerritorial in Hanafi Jurisdiction Principle Applicationof the

Jurisprudence Kitab alSiyar of al-Sarakhsi's d-Mabsut We will now cite a few examples from to show that the doctrine of ddr has nothing to do with the theory that the will normally be engaged in hostility; Islamic state and other political entities rather, it simply denotes territorialjurisdiction.These examples will also demonstrate that theHanafi juristsapplied this principle not only in their expositions of the internationallaw of Islam but in other branches of law as well, such as commercial law, criminal law, the law of torts and even the will amply illustrate The followingexamples this: personal law.41

40 Zdd al-Ma'ddftHady Khayr Shams al-DinMuhammad b. Abi Bakr IbnQayyim al-Jawziyyah, a basis in this incident for 1: 913. also Mawdudi finds al-'Ibad (Cairo:Matba'at al-Halabi, 1928), the principle of territorialjurisdiction:"The SharVahdoes not admit of a situation inwhich the moral responsibilityof the treatyentered into by Muslims may be deemed to be absolved of the will devolve only on their state.But themoral responsibilityof the treatiesof the Islamic state

the Muslims Muslims who are citizens of the Islamic State. Itwill not extend or apply to those who are not citizens of the State binding itself by a treaty.That is why the Treaty of Abu Basir [sic]and Muslims ofMecca (e.g., Hudaybiyyah was not deemed to be binding on those Abu Jandal) who had not yet become the citizens of the Islamic State."Mawdudi, Islamic Law and Constitution, 187. 41 Instead of following the literalmeaning of the texts, theHanafis try to derive a general principle from the set of textsavaiable on a particular issue and then apply it to thewhole field of another text, they either of law. If a differentrule emerges from the literal interpretation so as to it of the make it in interpret compatable with thatprinciple, or light general principle when such an interpretationis not possible, they take the rulementioned in that text as an Hanafis maintain consistency in the legal way, the exception from the general principle. In this Imran See for Ahsan Khan details, system. Nyazee, Theories of Islamic Law (Islamabad: International Institute of Islamic Thought & Islamic Research Institute, 1994), 147-176.We have selected al-Sarakhsi's al-Mabsiit to explain the principle of territorialjurisdiction for two reasons. Firstly, it is an invaluable commentaryon al-Kdfifi Furu{al-Hanafiyyah of al-Hakim al

relates it to other principles.Moreover, he differentiates between the apparently similar cases and brings several cases from different branches of law under the umbrella of one principle. mind" and that "there isno other law Nyazee rightlysays that al-Sarakhsihad a "powerful legal book in the entire Islamic legal literaturethat can match the power of this book." Nyazee,

Shahid (d. 334/945),which in turn is an abridgedversion of Zahir al-Riwayah, the six basic texts of the Hanafi schoolwritten byMuhammad ibn al-Hasan al-Shaybanl. Mahmood Ahmad Ghazi has also conclusively established that al-Kafi preserved the original text of al-Siyar al-Saghirof Book onMuslim InternationalLaw (Islamabad: Shaybani. See,Mahmood Ahmad Ghazi Shorter IslamicResearch Institute, 1998), vi-vii of theArabic text and 33-34 of theEnglish translation. In otherwords, Kitab al-Siyar in al-Mabsut is a commentary on al-Siyar al-Saghir. Secondly, al Sarakhsi not only elaborates themeaning and necessary implications of a principle but also

IN ISLAMIC AND DARAL-ISLAM THENOTIONS OF DAR AL-HARB JURISPRUDENCE

19

1.

According

above. It isworth noting that forcefully taking possession of property does not provide a justifiable reason for its ownership within Dar al-Isldm:

jurists,non-Muslims acquire ownership of the property from if they carry it to Dar al-Harb. They put forward Muslims they capture to several arguments support this rule. Some of these have already been discussed

to theHanafi

believes that one should abide by the Shari'ah and that its violation is a sin. this does not apply to non-Muslims. For them, ihrdz takes place Obviously, when the Dar al property is brought toDar al-Isldm because it [that is, only

to a is illegal when itrelates Forcefully possession[ofproperty] taking only the basis and for 'ismah ma'sum) legallyprotectedproperty(mdl (legal not is ihrdz for is dar din. basis which and the (safe custody) protection) occurs one of This isbecauseof thefactthatihrdz virtue din where by only

Isldm] physically defends [its residents] from external attacks. So when the property is protected because of ihrdz inDar al-Isldm it cannot be owned by virtue of mere possession. However, when this protection is removed because of its being taken toDar al-Harb, he who possesses it becomes its
owner.42

Another Muslims.

If property were protected by virtue of din, the enemy should have been liable under Islamic law to pay compensation because "liability to compensate is a more obvious consequence of 'ismah."*3But as this is not the case, itmeans that 'ismah is not by virtue of din; rather, it is by virtue of dar. the enemy owns the property when it is taken toDar al-Harb. al-Harb with amdn aMuslim

of forthedamagehe caused to the lifeand property liable to pay compensation

important argument puts forth by al-Sarakhsi is that the enemy is not

Hence, 2.

to them, although the ruler cannot compel him to do before God to return it a if Muslim buys it from him the contract will be held valid.45 so."44However, On the other hand, when a Muslim steals the property of a person inDar al a peace treaty) and Muwdda'ah (the land with which Muslims have concluded

steals the property of a resident thereof and brings it toDar al-Isldm, "itwill not be lawful for another Muslim to buy it from him because he brought it by way of treachery, and he is responsible If after enteringDar

if the people of another non-Muslim entity attack Dar at-Muwdda'ah However, Muslims to buy it from them.47 and seize some property, itwill be lawful for

brings it toDar al-Isldm, the rulerwill award him ta'zir punishment. Moreover, if someone else bought the property from him the contract will be held void.46

TheoriesofIslamic Law, 60. 42 Al-Sarakhsi, al-Mabsut, 10: 62. 43 Ibid. 44 Ibid., 10:69-70. 45 Ibid., 10:104. 46 Ibid., 10:98. 47 between the legalpositions differentiated Muslim jurists Ibid. This passage also shows that the to assume that they considered of different political entitiesof non-Muslims and that it iswrong

MUHAMMAD MUSHTAQAHMAD

exchanges one dirham with two dirhams transaction will be invalid according to Abu Yusuf because "48 However, everywhere by the laws of Islam. according ibn al-Hasan al-Shaybani, the transaction will Muhammad

If a Muslim

in Ddr

al-Harb

the and

"a Muslim

is bound

to Abu Hanifah

be valid "because he

took their property with their consent... unlike the property of musta'minin49 in our territory because their property becomes legally protected by virtue of the contract of amdn."50 If some Muslims enter one Ddr al-Harb with amdn and another Ddr al-Harb

attacks the aforementioned Ddr al-Harb, itwill not be lawful for theseMuslims purpose ofdefending themselves"51 [they can take part inwar] for the soldier commits zind inDdr

to takepart inwar "forthe word ofpolytheism but purpose supreme of makingthe

al-Harb, the hadd punishment cannot cause of action arose outside the jurisdiction of be awarded to him because the ifhe commits this crime within the camps of the the Islamic state.52 However, ruler has already conferred upon the commander the Muslim army, and the or the ruler himself is authority to impose hadd punishments, leading the army, then the hadd punishment can be awarded.53 The the qisas punishment.54 same holds true for awarding

If a Muslims

If a person comes toDdr al-Isldm fromDdr al-Muwdda(ah without a fresh amdn Muslims should still respect his rights.55 Similarly, ifhe enters Ddr al-Harb and Muslims capture that territory they should respect his rights even there and "his a a position is like dhimmi who enters Ddr al-Harb, which Muslims."56 is later on captured by

whole of theworld outsideDar al-Isldm to be just onedar. the 48 Al-Sarakhsi, al-Mabsut, 10:104. 49 Dar al-Isldmon the basis of aman. Alien non-Muslimswho come to 50 10: 104. Al-Sarakhsi, al-Mabsut, 51 Ibid., 10:106. This ruling again proves the point that theMuslim jurists differentiated between the legal positions of the different political entitiesof non-Muslims. The referenceto Dar al-Harb isvery significant. another 52 Ibid., 10: 84. 53 See, ibid., 9:115-116. 54 See, ibid.The ruler cannot enforcehudud punishments inDar al-Muwdda'ah as well because "by this kind of treaty they are neither accepting the enforcementof the Islamic Law nor are does notmake theygivingup the statusof being aliens." Ibid., 10: 97. In otherwords, this treaty them citizens of the Islamic state. Similarly, if a citizen of the Islamic statekills a person from Ahl al-Muwdda'ah or a musta'min, diyahwill be imposed upon him because, by virtue of the treatyofMuwdda'ab or the contract of aman, itwas the duty of theMuslim ruler to protect them.However, he cannot be given qisds punishment because this punishment requires legal equality between thevictim and the culprit.This, however, is lacking in this case because while one of them is the citizen ofDar al-Isldm,the other is the citizen of some other political entity. As opposed to this, ifaMuslim citizen kills a dhimml,he will be given qisds punishment because of the legal equality between thevictim and the culprit.See, ibid., 10:104. 55 Ibid., 10: 98. 56 Ibid.

THENOTIONS OF DAR AL-HARB AND DARAL-ISLAM IN ISLAMIC JURISPRUDENCE21 7. The courts of Dar allslam cannot settle any of the disputes of musta'miriin that "because, by entering with aman they do not become

al-Harb residents of our dar and the cause of action arose when theywere not under the *57 control of our ruler. However, if they have a dispute after entering Dar al Isldm the courts can settle the dispute "because the cause of action arose when theywere under the control of the ruler."58 8. goes toDar al-Harb temporarily and leaves behind his wife inDar al wedlock their is not terminated "because aMuslim is legally a resident of Islam, even Dar al-Islam ifhe isphysicallypresent inDar al-Harb and physical separation between the two dan cannot terminate thewedlock there."59The wedlock same holds true for a musta'min in Dar If aMuslim

arise in Dar

unless legal separation is also al-Islam.*** It means that settle in two

will be terminated only when different ddrs (tabayun al-darayn).61

the spouses permanently

9.

he does not thereby al-Islam(dhimmiyyah) becomea dhimmi;rather, he remains

"because by thismarriage he does not become a permanent resident of our dar. Rather, [we will presume that] he came to us for trade purposes and traders sometimes marry [even] in places where they do not intend to settle a musta'min

If a non-Muslim musta'min marries a non-Muslim woman who

is resident ofDar

if he overstays in Dar al-Islam the ruler permanently (tawattun)."62 However, should serve him with a notice to either leave the territory or accept the status of a dhimmi. If he chooses to become a dhimmi or does not leave the territory after the time prescribed in the notice the ruler may impose jizyah on him, thereby making him a dhimmi. This

permanently in our dar... and the willingness to abide by the laws is indicated sometimes explicitly and at others implicitly.*63 When a non-Muslim woman comes toDar al-Islam with aman and marries aMuslim or a dhimmi she thereby becomes a dhimmiyyah because this marriage implies that she wants to settle permanently inDar 10. Minor al-Islam,64 citizens of Dar al-Islam are considered legally to same be non-Muslims.65 The holds true for children captured inwar along with any of their non-Muslim parents. This is because while the child is inDar al Islam he does not belong to it; rather, he belongs to his parents.66 So, the original children of non-Muslim

lapse of the timeprescribedin thenotice impliesthathe iswilling to settle

is not compulsion

"because his overstay after the

57 Ibid., 10:102. 58 Ibid. 9 Ibid., 10: 69. 60 Ibid., 10:100. "Ibid. 62 Ibid., 10:93. "Ibid. "Ibid. 65 Ibid., 10:71. 66 IslamicLaw considers parents to be asl (root) and theirchild to be far' (branch). Ibid., 9:136.

22

MUHAMMAD MUSHTAQAHMAD

If, however, he is captured without any of his parents and is brought toDdr al Isldm, he will be presumed to be aMuslim until he attains the age of puberty.68 Finally, if any of his parents embraces Islam he is also presumed to be aMuslim "because he follows the better of the parents in respect of religion."69

him tobe thefollower of thereligion his parentsthelawpresumes ofhis parents.

presumption is that he is to be reckoned with his parents. It is only in absence of parents that ddr takes their position.67 Hence, if a child is captured with any of

The Nature ofRelationship between Muslims and non-Muslims As stated earlier, in themodern debate on the nature of the relationship betweenMuslims and non-Muslims the doctrine of ddr has generally been with the theory which presumes that thenormal relationshipbetween linked the Islamic state and other political entities is thatof hostility.But it is clear Hanafi law ratherdenotes from the foregoingthat thedoctrine of ddr in the no necessary linkwith it of territorial has the principle jurisdictionand that the above-mentioned theory.70 So, it is possible thata personmight accept one

doctrine but reject the other. Those among themodern scholarswho reject was based on have generallydeclared that this theory theperpetualwar theory the ground realities obtaining at the timewhen thefuqahd* wrote their manuals offiqh. Hence, they argue directly from the textsof theQur'an and theSunnah and ignore theworks of the While this contention may fuqaha\71 some texts truth and the from of the and the carry Qur'an arguingdirectly Sunnahmay have itsown merit, disregardof the works of the fuqahd* in this a not connection is sound approach. The fuqahd* had themselvesprimarily derived the rules from the Qur'an and theSunnah.At the same time therecan also be no denying the fact that ground realitiesdo affectthe outlook of all
concerned, including jurists.72 However, there were other more important

4: 547. 71 See for example,Muhammad Abu Zahrah, "Nazariyyat al-Harb fi 'l-Islam,"al-Majallah al Misnyyah li'l-Qanun al-Dawli (1958), 33; Wahbah al-Zuhayli, Athar al-Harb, 194-196; Women and Children in Islamic Law and International Muhammad Munir, "The Protection of Humanitarian Law: A Critique of JohnKelsay," Hamdard Islamicus, vol. 25 (July-September 2002), 69-82. 72 were atwar with that state. It For many centuries the territories adjacent to the Islamic state was natural, therefore,for the to be influenced this fact in theirperception of the fuqaha* by

67 Ibid., 10: 71. 68 Ibid., 10:71-72. 69 Ibid. 70 We are referring here to theHanafi law particularly because, as noted earlier, the other schools do not recognize the principle of territoriality and, hence, theydo not envisage the legal consequences of the division of theworld into two dars. See, al-Shawkani, al-Sayl al-Jarrar,

THENOTIONS OF DAR AL-HARB IN ISLAMIC AND DARAL-ISLAM JURISPRUDENCE

23

legal foundationsaswell. Itwould be pertinentto takenote of the textsof the their Qur'an and theSunnah towhich the fuqaha3 referinorder to substantiate views. Those modern scholarswho do not subscribe to the theory that the normal relationship between the Islamic state and other political entities is thatof hostility should attemptto offeran alternativeinterpretation of those texts. This alternative interpretationshould not only resolve the issue of which mars thewritings of several of these scholars, analytical inconsistency but it should also clarifytheposition of the fuqaha* as towhy theybelieved in
the above-mentioned

The textsof theQur'an and the Sunnah,which are profferedto prove that theory,can be divided into two categories.First, some textsdeclare that therecannot be any trucebetween Islam and itsantonym,kufr, because there
is an inherent discordance between the two. Second, there are some texts

theory.

which mention that theProphet's jihad would continue tillhis final triumph
over his opponents. Let us examine these two sets of texts separately.

Disbelief DiscordancebetweenIslamand Ideological

We have noted earlier that thereexistsa conflictbetween Islam and disbeliefat the ideological plane. The textsdealingwith this ideological discordance are mistaken to signifymilitary confrontation between Muslims and non Muslims. For instance,one of the oft-quotedverses in this regard is that of
Surat al-Mumtahinah:

they said to their people: 'We are clear of you and of whatever ye worship besides Allah: we have rejected you and therehas arisen between us and you enmity and hatredforever unless ye believe inAllah and Him alone.m him when

with There is foryou an excellent example[to follow]inAbraham and those

However, it is also evident from the Qur'an and the Sunnah that this encounter essentially takes place at the ideological plane and that itdoes not
necessitate

we find in the same surah Muslims are told that they therefore, Significantly,
world order and this is reflectedin their rulings. Thus, when al-Sarakhsideclares that weapons not to be sold those non-Muslimswith whom a peace treatyof temporarynaturewas should concluded, he puts forth the following argument: "Don't you see that after the period will again become our enemies}"Al-Sarakhsi, al-Mabsut,10: 98. prescribed in the treatypasses they Obviously, this argument reflectsthe ground realityof al-Sarakhsi's time.Non-Muslim states, more often than not,were perceived to be on a look-out for the opportunity to harmMuslims This was not an attitudeof excessive suspiciousness on theirpart; rather,it and the Islamic state. was a fairly plausible readingof the obtaining realities.
73Qur*an,60:4.

perpetual

hostility

between

Muslims

and

non-Muslims.

24

MUHAMMAD

MUSHTAQ

AHMAD

with different kinds of relationship kinds of non-Muslims may have different their attitude: depending upon
Allah forbiddeth you not those who warred not against you on account of religion and drove you not out from your homes, that ye should show them

Lo! Allah loveth the justdealers.Allah with them. kindnessand deal justly
forbiddeth you only those who warred against you on account of religion and have driven you out from your homes and helped to drive you out, that ye make friends of them.Whosoever maketh friends of them, such are wrong doers.74

of theProphet (peace be on Several other verses of theQur'an and traditions him) also substantiatethis contention.For instance,theQur'an declares that war with the one of the grounds for Makkans was that theypersecuted those who embraced Islam: "And fight them until persecution is no more, and Allah. But if theycease, then lo!Allah is Seer ofwhat they religion is all for Muslims were allowed to use forceonly do."75Similarly, it iswell known that after they had migrated to Madinah, and that too only against the transgressors: "Fight in theway ofAllah against thosewho fightagainstyou,
but do not commit

maltreatment

jurists believe that the prohibition "do not commit Muslims should not transgression"(la ta'tadu) in theverse above implies that initiatehostilities.According to other jurists,this prohibition also includes prohibition of mutilation of the dead bodies of the enemy soldiers and Some Muslim
of the prisoners of war. Yet another group of Muslim jurists

transgression. Lo! Allah

loveth not the transgressors."76

Muslims must refrain from believes that this prohibition also implies that killing thosewho are not capable of fightingsuch as women, children, the It is on the basis of theseand other similar texts that themajority of the fuqaha* declared that the ratio of war (Hllatal-qital) in Islamic law is not disbelief but muharabah (wagingwar against Islam or Muslims).78 In other
74 Qur'an, 75 Qur'an, 76 Qur'an, 60: 8-9. 8: 39. 2:190.

aged, the monks

and other non-combatants.77

77 of theverse:Abu Ja'far Muhammad b. Jarir See, for the details regardingthese interpretations Munir, al-Tabari,Jami*al-Baydn (Cairo: Dar al-Fikr, 1963), 2:110-111. See, for further details, Women and Children," 69-82. "The Protection of 78 Ibn al-Humam, Fath al-Qadir, 4: 291; Sahnun 'Abd al-Salam b. Sa'id ibnHabib al-Tanukhi, al Mudawwanab aUKubra (Cairo: Dar al-Baz, 1323 ah), 2: 6. According to some of the Shafi'i and Hanbali jurists the cause of jihad is kufr (disbelief).See for example,Muhammad al-Khatib al ila Sharh al-Minhaj (Beirut: Matba'at al-Halabi, 1933), 4: 223; Abu '1 Shirbini, Mughrii *l-Muhtaj wa Nihayat al-Muqtasid (Riyadh: Walid Muhammad b. Ahmad Ibn Rushd, Bidayat al-Mujtahid Maktabat Mustafa al-Baz, 1995), 1: 714-716. To substantiate this claim they quote the textsof

AND DARALISLAMIN ISLAMIC THE NOTIONS OF DAR AL-HARB JURISPRUDENCE

25

words, Muslims are not allowed to take up arms against all non-Muslims just because of theirdisbelief in Islam.Rather, they are allowed to use forceonly against those who wage war against them.Al-MarghlnanI, elaborating the
cause of war, states:

Mere disbelief [in Islam]doesnot of itself Rather, killing[anon-Muslim]. legalise to kill the it ismuhdrabah makes itpermissible that muhdrib. That iswhy it is not allowed to killwomen, children, people of old age, thehandicappedand
others who do not have the capability to fight.79

were the cause of qitdl then Islamic lawwould not have Moreover, ifdisbelief Above guaranteedprotection to thenon-Muslim citizens of the Islamic state. reason to is if considered the it disbelief of leads war, all, compulsion in matters of religion which violates a fundamental Qur'anic prohibition.80 According to theQur'anic worldview, human are being tested in this lifeas to whether they submit to, or rebel against, the law of God.81 This test necessitatesfreechoice, or else the test would have no meaning: There is no compulsionin religion. The right distinct from path ishenceforth
rejects false deities and believes in Allah has grasped a firm which will never break. Allah is handhold, Hearer, Knower.82 error. And he who

The Qur'an also explicitlystatesthat theuse of coercivemeans to resolve differencesinmatters of religiousbelief negates thevery purpose of granting man the freedomof choice.83 For Islam, as we know, is opposed to religious Muslims to fightagainst thosewho persecute and persecution and requires coerce people to accept a certain faith.84 The Prophet (peace be on him) was
theQur'an and the Sunnah, which declare that the Prophet's wars were a kind of Divine of his see For details 29 ff. below. It is noteworthy that Ibn punishment opponents. pp. and has Taymiyyah has attempteda detailed analysisof this issue inhis Qd(idah fl Qitdl al-Kuffar muhdrabah and not kufr.See, Taqi '1-Dln Ahmad b. 'Abd stronglyargued that the ratio ofwar is al-Halim Ibn Taymiyyah, Ajwibat alMasa'il (Cairo: Matba'at al-Sunnah al-Muhammadiyyah, 1949), 116-154. 79 Al-Marghinam, al-Hidayah, 2: 380. 80 See,Qur'an 2: 256 See fora scholarly analysis of this issue, Munir, "Public InternationalLaw

and Islamic InternationalLaw," 399-402. 81 "Blessed isHe in Whose hand is the Sovereignty,andHe isAble to do all Who hath things; created life and death thatHe may tryyou, which of you is best in and He is the conduct; the more For details Ibn Mighty see, Forgiving" (Qur'an 67:1-2): Taymiyyah, Ajwibat al Masa'il, 123-125 andMawdudi, IslamicLaw and Constitution,45-49 and 124-164. 82 Qur'an 2: 256. See also,Qur'an 18: 29. 83 "If ithad been the Lord's Will they would all have believed, allwho are on earth! Wilt thou then compelmankind against their will to believe!"Qur'an 10: 99. See also,Qur'an 11:118-119. 84 See, Qur'an 8: 39. This verse uses theword fitnab to denote religious persecution. See also Qur'an 85: 10. Mawdudi says: uFitnah is a wider term,which encompasses several moral

26

MUHAMMAD MUSHTAQAHMAD

told that he should call people to God's way "with wisdom and goodly exhortation" and that he should reason with the opponents "in the best manner possible."85If,however, some of them rejecthis call, he should leave thedecision about their fate toGod: "Surelyyour Lord is best aware of him His Path, andHe is best aware of thosewho are who has strayedaway from Hence, the purpose of the obligation of jihad, guided to theRight Path."86 to "to is enable Muslims to live in accordancewith their according al-Sarakhsi,
religion."87

It might be asked: Had that been the case, how could thefuqaha\ Muslim rule Hanafis, declare thatjihadwould continue till the particularlythe will is established in thewhole world? If this lattercontention is accepted it, make redundant thewhole debate over the ratio of war because it equates How the muharahahwith disbelief.88 fuqaha* could have done awaywith the ratio ofwar, which theyhad derived from the texts, merely on the grounds were in a continuous state that in their times the adjacentnon-Muslim entities ofwar with Muslims? The answer to thisquestion is to be found in the second
set of the texts referred to earlier.

much wider in its scope."Mawdudi, al-Jihad English word "persecution," although the formeris Idarah Tarjuman al-Qur'an, 1984), 106.While discussing the scope of jihad, fi'l-Islam (Lahore: Mawdudi has included a variety of situations in the meaning of fitnah,which in his opinion can use See for 106-109. Muslims. of the force details, ibid., by justify 85 Qur'an 16: 125. 86 Qur'an 16:125-128. See also,Qur'an 27: 76-81. 87 Al-Sarakhsi, al-Mabsut, 10: 28. 88 To illustratethis, let us suppose that there is a non-Muslim state thathas neitherwaged war with it.Can the Islamic stateuse military against the Islamic statenor concluded a peace treaty while thosewho force against it?Those who say thatdisbelief is the ratio ofwar will allow it, Muslims are likely to say believe that itsratio is non-Muslims' aggressionagainst and hostility to that the Islamic statecannot use forceagainst it because itdid not commit any act of aggression. However, if one accepts the theory that the normal relationship between Islamic and non Islamic states is that of hostility,one will say that the Islamic state can use force against such a stateprovided there is no peace treaty!Itwill, thus, change the ratio ofwar from aggression to disbelief.Herein lies the second problem. That is to say, can the ratio ('illah) of a rule be changed?Al-Sarakhsi has stated explicitly that abrogation of one 'illahby another 'illah is not allowed. See his, TamhU al-Fusulfi 'l-Usul(Lahore: Maktabah Madaniyyah, 1981), 2: 211.

crimes... Figuratively, itmeans anything that testshuman beings, and that iswhy wealth and have been called fiinah. Ups and downs in the lifeof a nation are also termed 2sfiinah offsprings ... means test,be it through the things thata means that test It them because they fitnah actually or God, then it is perfectly person likes through fearof damage and troubles. If this test is from His creatures. He has and human the Creator of is the He beings right to test rightbecause test is by a to test is if them. this of this the However, Moreover, purpose spirituallydevelop on human being it is absolutely unjust because ... the purpose of this test is to put restrictions the freedom of conscience. In this last sense of theword fitnah it is almost a synonym of the

AND DARAUSLAMIN ISLAMIC THENOTIONS OF DAR AL-HARB JURISPRUDENCE

27

Muslims The Dominance of Islamand

which There are some verses in theQur'an, particularly in Siirat al-Tawbah> commandMuslims to slay the pagans and overpower the Jews and Christians and thus establish the supremacyof Islam over thewhole of the Arabian
Peninsula. Then, when the sacred months have passed, slay the idolaters wherever ye find them, and take them [captive], and besiege them, and prepare for them each ambush. But if they repent and establish salah and pay zakdh, then leave their way free.Lo! Allah is Forgiving, Merciful.89

were Those who do not believe inAllah and theLastDay ? even thoughthey that whichAllah and His andwho do not hold as unlawful giventhescriptures,
Messenger

utterly subdued.90

? out of their until they hand and are pay thetribute againstthem religion fight

have declared

to be unlawful,

and who

do not

follow

the true

with theguidanceand theTrue Religion He it is Who has sent His Messenger

He may make that
it.91

it prevail over all religions, howsoever

the pagans might desist

Many modern scholarshave suggestedthat theverses of Siirat al-Tawbah must be understood in the lightof that seem to have an absolute signification the verses of Siirat al-Baqarah thatmention the condition of aggression for Thus, according to Muhammad Munir, the having recourse to fighting.92 apparently absolute commands of Siiratal-Tawbahwere not absolute in effect
because

Muslims. In otherwords, even though Muslims committed aggressionagainst were allowed to initiatea military campaign, it was, in fact,a continuationof war theprevious hostilities.Their opponents had imposed a stateof relentless on them.They had to resistthis andwere thus forced to engage in different wars. In thefinal stage,the Muslims were commanded to strikethe finalblow
to the aggressors.93

they

were

about

those

the unbelievers

who

had

on

occasions

does not seem After a careful examination,however, this interpretation war would endwhen to be fullyconvincing.Firstly, theversesdo not say that
89 Qur'an, 90 Qur'an 9: 5. 9: 29.

91 Qur'an, 9: 33; 61: 9, and 48: 28. 92 See,Munir, "Public InternationalLaw and Islamic InternationalLaw," 374-379. See also, Ibn Taymiyyah, Ajwibat al-Masd'il, 122. 93 See,Munir, "Public InternationalLaw and Islamic InternationalLaw," 389-398.

28

MUHAMMAD MUSHTAQAHMAD

Muslims. Rather, they declare the opponents would stop aggression against that thepaganswere to be considered enemiesuntil they embraced Islam and thatPeople of theBook were also to be treatedas enemies until they either
embrace Islam or are

interpretationignores the other related verses of this surah,which can be divided into three categories.First of all, there are verseswhich declare that thewars foughtby the Prophet (peace be on him) carried, as some scholars have explicitly pointed out, an element of Divine punishment for his opponents among his immediate addressees.94 Secondly, there are also some verseswhich declare that God and theProphet (peace be on him) will prevail over his opponents and that Islam will have sway over thewhole of the which declare that Arabian Peninsula.95 Thirdly, thereare verses in this surah can no Muslims and unbelievers.96 be there relationshipofwalay between
Taken

overpowered.

Secondly,

the

above-mentioned

with others should be thatof hostility. It is for Muslims' normal relationship this reason thatwe had asserted earlier that ifmodern scholars reject this of the texts theory theyhave to come up with some alternativeinterpretation which this theoryis deduced.97Such an alternativeinterpretation from should solve the problem of systemic inconsistency.So, what can be an alternative of these texts? interpretation
94 95

together,

these verses

seem

to make

a case

for the theory

that

See, Qur'an, See, Qur'an

9: 14 and 9: 26. 9: 32-33. See also, Qur'an 48: 27-28 and 61: 8-9.

Mawlana Amln Ahsan Islahi,Tadabbur-iQur'an, 9 vols. (Lahore: Faran Foundation, theory see, Qur'an: A Study of IslahVsConcept of 2002), 1: 5-15. See also,Mustansir Mir, Coherence in the Nazm inTadabbur-i-Qur'an (Indiana:American Trust Publications, 1987).

He concludes that emphasis them into four classes.The conclusion he draws is very important. on peace and harmony is foundnot only in the Makkan verses, but also in theverses of the late Madman period (pp. 67-97). While one can agree in principle with Firestone's proposal of reading all the relevantverses collectively, there is a drawback in his methodology with regard to ascertaining the dating of theverses.Thus, while he analyzes the literature about 'abrogation' aswell as 'occasions of revelation,'he gives little weight to the internalevidence of the surahsin which the verses are placed. This is because of the generally accepted theory that theverses of a surah do not have a common theme and common 'occasion of revelation.' The theory of 'coherence' (nazm) in theQur'an gives a different perspective and, as we shall see in the next a more For details about the coherence section, it perhaps offers convincing interpretation.

96 See,Qur'an 9: 16 and 9: 23-24. 97 here in this regard to the work ofReuven Firestone entitled, One may refer Jihad:TheOrigins Holy War in Islam (New York: Oxford University Press, 1999). It is a good analysis of the of various interpretations of theverses of the several Qur'an dealingwith jihad. Firestone identifies of these verses (pp. 47-65). The most problems with what he calls the 'classical' interpretation important flawhe points out is thatof inconsistencyand of looking into differentsetsof verses in isolation.He proposes to look at theseverses collectively and for this purpose he classifies

IN ISLAMIC ANDDARAL-ISLAM THE NOTIONS OF DAR AL-HARB JURISPRUDENCE

29

An Alternative Interpretation: The Prophet's Wars asDivine Punishment Mawlana Amln Ahsan Islahl (d. 1418/1997),a famous Qur'anic commentator of the fourteenth/twentieth century,contends that thewars foughtby the on God's judgmentabout the fateof his be him) represented Prophet (peace opponents.98Islahl says that a Messenger of God establishes the truthof his assertions so conclusively that thereremainsno doubt about the truth of those This is what Islahl calls itmam-i minds of his direct addressees. assertions in the of the conclusive argument).99 Islahl contends thatGod hujjat (establishment chose selected human beings known as Prophets andMessengers to convey His message, which is theultimate truth,to theirrespectiveaddressees,basing within the souls of people (aydtal-anfus)aswell as theirevidence on the signs those external to them (aydt al-dfaq) and claiming to have been raised for this purpose by God.100 As God alone knows who among the opponents of a Messenger indeed actually clings to rejectinghis message because he fails to Messenger keeps on preachinghismessage bringhimself to accept itstruth,the to untilGod Himself reveals him this realityand commands him tomove out of his habitat to some other place.101Islahl asserts that after theMessenger
98 Amin Ahsan Islahi has expressed thisview at several places in his writings, especially in his commentaryof the Qur'an. See, for instancehis, Tadabbur-iQur'an, 3: 546. 99 One of the verses Islahi quotes to substantiatethis claim isQur'an 4:165. "TheseMessengers were sent as bearers of glad tidingsand as warners so that aftersending the Messengers people may have no plea againstAllah." See Islahi's commentary on thisverse, ibid., 2: 432. See also, ibid., 4: 434 and 6: 594. In order tomake itmam-ihujjat, says Islahi, theMessenger triesvery hard to reach out to his addressees and tries to convince them in a variety of ways. Itmam-i a hujjatmay takemany years to happen. Those who do not accept themessage of Messenger to tries numerous his best and and raise the may Messenger satisfythem. objections questions Nuh [Noah] (peace be on him) spent nine hundred and fifty The Qur'an testifiesthat years on 71: be to 5-14 where See Nuh his also, him) 29:14). Qur'an (peace people (Qur'an preaching come a At also with forth his times the of efforts. may Messenger 'summary report' gives miracles as a finalproof of the truthof hismessage. See, Islahi,Tadabbur-iQur'an, 3: 343. 100 See, ibid. 5: 499 and 7: 311. See also,Amin Ahsan Islahi, Haqlqat-i Din (Lahore:Khuddam al between the 204-59. also differentiates Islahi position of aMessenger (rasul) and Qur'an, 1975), thatof a Prophet (nabi). In his opinion, a nabimay ormay not prevail over his opponents, but a must be able to do so. In otherwords, the opponents of a Prophet might possibly not be rasiil but the opponentsof aMessenger, if theypersist in their given a punishment during his lifetime, are in lifetime. his See, Islahi,Tadabbur-iQur'an, 1: 478; 4: 33 and 7: 399. The destroyed enmity, verses are some he quotes in this regard:Qur'an 58: 20-21; 40: 51; which of the following 14:14-15; 9: 23-33; 48: 28 and 61: 8-9. 101 The Qur'an says the following about the addressees of Nuh (peace be on him): "It was revealed toNuh that no more of your people, other than thosewho already believe,will ever come to believe. So, do not grieve over theirdeeds, and build theArk underOur eyes andOur direction"Qur'an 11: 36-37. The entryofNuh (peace be upon him) in his Ark, according to

30

MUHAMMAD MUSHTAQAHMAD

God decimates his migrates fromhis home territory alongwith his followers, opponents and assigns toHis Messenger the duty tomake the true religion Hence, the opponents are destroyed by natural prevail in that territory.102 calamities if the followers of theMessenger happen to be only few in
number.103 However, if there is a sizeable number of

elements of it had made their inroads in theirbeliefs and practices.105 Javed Ahmad Ghamidi (b. 1951), a famous disciple of Islahi, has further elaborated He contends that thewars foughtby theCompanions of the Islahl's theory. Prophet (peace be on him) against theByzantine and Persian Empireswere, in and completion of hismission. That iswhy, he asserts,they fact,a fulfilment foughtonly against thosepeople towhom theProphet (peace be on him) had sent lettersinvitingthem to embrace Islam.106
Islahi,was an act of hijrah (migration).The ProphetMuhammad (peace be on him) was even taught the prayer formigration (Qur'an 17: 80). See, Islahi's commentary on this verse, 102 The following are some of the verses of theQur'an on which Islahi relies for this assertion: Qur'an 14: 9-15; 17: 76-77; 21: 105-106; 22: 39-41. See, ibid., 4: 314-318; 4: 529; 5: 194-199; 5:
252-259. Tadabbur-i Qur'an, 4: 532.

followers, they are asked to fighttheiropponents and, thus, they become a formofDivine punishment thatafflicts them.104 Islahi also explains thedifference between the treatment of thepagans and thePeople of theBook by assertingthat shirk (polytheism) is a guilt of such awesome magnitude that God does not forgiveit.As opposed to the pagans, the Jews and Christians did not accept shirk as their faith, even though

that Messenger's

103 This is how Islahi explains the destruction of 'Ad, Thamud, Pharaoh and others. See, for
his commentary on Surat al-Qamar, Tadabbur-i Qur'an, 7: 87-116. See also Qur'an,

instance,

justice several times in the history of mankind. Each time a Messenger comes to a community, he brings with him God's judgment regarding that community. See, Islahi, Tadabbur-iQur'an, 5: 320; 7: 285 and 8: 590. 105 See, ibid. 3: 540-541 and 560; 7: 397 and 456. 106 Da'waf in his,Mizan (Lahore: Dar al-Ishraq, 2001), See, JavedAhmad Ghamidi, uQdnun-i 201-204. Commenting upon the peculiar nature of thewars of the Prophet (peace be on him) and of his Companions, al-Sarakhsi says: "Sufyan b. 'Uyaynah says:Allah sentHis Prophet With one swordhe himself fought with the Arab pagans;... (peace be on him) with four swords. with the second sword Abu Bakr fought with the apostates; ...with the third sword 'Umar with the fought Magians and thePeople of theBook; ... andwith the fourthsword 'All fought Divine

Armstrong,Holy War (New York: Anchor Books, 2001), 8-9. See also, idem,A History ofGod (London:William Heinemann, 1993), 32-33. If Islahi's theory is accepted itmay also throw a new lighton the nature and purpose of Joshua'swars. Islahi says that although each individual will be rewarded forhis (or her) deeds on theDay of Judgment, God has shown a sign of that

29: 40 and Islahi's commentaryon it,Tadabbur-iQur'an, 6: 41. 104 was thebasis for the wars foughtbyMusa andMuhammad According to Islahi, this (peace be on them). It isworth noting that several scholarshave criticized theBiblical narratives of the wars of Joshua on the basis that thesewere wars of "extermination." See, for instance, Karen

IN ISLAMIC AND DARAL-ISLAM THENOTIONS OF DAR AL-HARB JURISPRUDENCE

31

Islahfs theory solves some very important questions about thewars of Makkans theProphet (peace be on him). It explainswhy theQur'an told the was the first instalment of the that their defeat in the Battle of Badr out to It also meted them.107 explainswhy theBattle ofHunayn punishment We see in fact representeda Divine punishment ((adhab) for the opponents.108 to Muslims that in the very firstrevelationpermittingthe fightagainst their a was be it this declared that would for the latterin the oppressors punishment samemanner as the earliernations thathad rejected themessage ofGod had been punishedwith natural calamities:
Sanction Allah

ofNuh, and 'Ad andThamud, beforethee, and denied;and thefolkof Ibrahim thefolkofLut and thedwellersin Madyan.AndMusa was denied;but I indulged
the disbelievers a long while, then I seized them, and how [terrible] was My punishment!110

is given unto those who fight because they have been wronged; and is indeed able to give them victory.109... If they deny thee, even so the folk

Likewise, when an ultimatumwas given to the opponents after the conquest ofMakkah, theMuslims were asked to fightagainst them in the following at yourhands andHe will lay them Allah will punish them words: "Fight them! This clearly shows that therewas indeed an element of Divine low."111 punishment in the wars of the Prophet (peace be on him) against his
opponents.

rather, war was imposed on it by the opponents. Hence, were at one and the same time defensive wars in response

It must be noted, however, that even after itmam-ihujjat, to borrow Islahi's expression, theMuslim community did not initiate armed conflict;
the Prophet's to muharabah wars and a

This resolves Divine punishment of thosewho knowingly rejected the truth. theproblem of systematicinconsistency.

with the anarchists, the rebels and the iniquitous...." Al-Sarakhsi, al-Mahsut, 10: 4. In other words, even thewars of theCompanions were considered as part of thePropheticmission. This may explain the earlier Islamic conquests.We have pointed elsewhere thatmerely mundane or retaliation and hot pursuit,do reasons, such as defence ofMuslim population and territory not fully justifythese conquests.Muhammad Mushtaq Ahmad, "Book Review on IsmailAdam Encounterswith the Patel,Medina toJerusalem: ByzantineEmpire? Islamic Studies, 44: 4 (2005), 636-638. 107 See,Qur'an 8: 38-40; Islahi,Tadabbur-iQur'dn, 3: 469-473. 108 See,Qur'an 9: 26; Islahi,Tadabbur-iQur'an, 3: 555.
109 Qur'an 22: 39.

110 Qur'an 22: 42-44; Islahi,Tadabbur-iQur'an, 5: 262-263. 111 Qur'an 9: 14; See also, Islahi,Tadabbur-iQur'an, 3: 546-547.

32

MUHAMMAD MUSHTAQAHMAD

shadow of doubt.112In otherwords, the rulesmentioned in Siirat al-Tawbah as well as place-specific. are time-specific They were applicable only to the immediate addressees of theMessenger of God in and around theArabian Peninsula. They cannot be extended to non-Muslims of the latergenerations. Hence, there is no room for the theory thatholds hostility to be the normal stateof relationshipbetween the Islamic stateand otherpolitical entities. evidence in thefiqh Now, let us considerwhether there is sufficient
literature to support this contention.

Now, thequestion is: canMuslims claim in thepresent times to have the to rightto punish non-Muslims fornot embracingIslam or fornot submitting a to Islahi's theory,only Messenger has this right the Muslim rule?According because only he can claim to have establishedtheultimate truthbeyond every

Evidence fromFiqh Literature There has been disagreement among the fuqaha' about the validity or The Hanafis have been of otherwise of takingjizyah from theArab idolaters. not be made citizens of the Islamic statebecause the opinion that they could theQur'an had orderedMuslims to fightagainst them until they embraced Other juristsheld that theArab idolaterscould be made citizens of Islam.113 was no differencein their legal position and the Islamic state and that there
that of other non-Muslims.114 However, several verses and traditions of the

Prophet (peace be on him) prescribe a distinct dispensation for the Arab The Prophet (peace be on him) is reportedto have declared: idolaters.
I have been ordered to fight against thepeople until they testify that none has the isAllah's Messenger, and right to be worshipped but Allah and thatMuhammad

establish saldh and pay zakdh. So, if they do that, then they save their lives and property fromme except on legal grounds and then their reckoning will be done by Allah.115

Munlr al-Dimashqi, 1352 ah), 7: 345. The Hanafis generallyquote the followingverse as a basis for this rule: "You will be called against thosewho possess greatmight and be asked to fight against themunless theyembrace Islam"Qur'an 48: 16. 114 Muhammad b. Ahmad b. 'Arafah al-Dasiiqi,Hashiyah 'aid 'l-Sharh al-Kabir (Cairo:Maktabat Mustafa Muhammad, 1373ah), 2:201; Muhammad b. 'All al-Shawkani,Nay I al-Awtar: Shark Muntaqa 'l-Akhbar(Cairo: al-Matba'ah al-'Uthmaniyyah al-Misriyyah,1957), 7: 232;Muhammad b. Jariral-Tabari, Ikktilafal-Fuqahd\ ed. Joseph Shacht (Leiden: E. J.Brill, 1933), 201. 115 Muhammad b. Isma'il al-Bukhari,al-Jdmi'al-Sabih, Kitab al-Iman,Bab Fa inTabu wa Aqamu wa '1-Salah Ataw 'l-Zakah.

112 See, JavedAhmad Ghamidl, "Qanun-iJihad" inhis, Mizdn, 264-70. 113 Abu Bakr Muhammad b. Ahmad ibn Abi Sahl al-Sarakhsi, Shark al-Siyar al-Kabir (Hyderabad: Da'irat al-Ma'arif al-Nu'maniyyah, 1335ah), 1:102; Ibn al-Humam, Fath al-Qadir, 4: 370; Abu Muhammad 'Ali b. Ahmad Ibn Hazm, al-Mukaltd hi i-Athar (Cairo: Matba'at

THENOTIONS OF DAR ALHARB AND DARAL-ISLAMJN ISLAMIC JURISPRUDENCE

33

In this tradition, although the word "people" (alnas) is general, yet the scholars ofHadith have generallyheld that here it specifically signifiesthe Arab idolaters.116 One of the supporting proofs for this is that in one version of the traditionone findstheword al-mushrikin insteadof theword "people" This is also evident from the fact that al-Bukhari includes this (al-nas)}17 verse as the title: traditionin a chapter towhich he gave the following monthshave passed,slay the idolaters wherever Then,when the sacred ye find and besiege them,and prepare for themeach them,and take them [captive], ambush.But if theyrepentand establish saldhand pay zakdh,then leave their
is Forgiving, Merciful.118

way free.Lo! Allah

As noted above, thisverse ispart of a longdiscourse inwhich the Arab pagans were given an ultimatum. It isworth noting that in the verse theywere however, in required to repent,establish saldhand pay zakdh. In the tradition, we find the requirement to theOneness of of testifying place of "repentance" on God and theProphethood ofMuhammad (peace be him). Viewed in the verse of meant abandoning this the word in the tradition "repentance" light was that their refusalto do so idolatryand embracing Islam. The implication would bringGod's punishment on the pagans from among the immediate addresseesof theProphet (peace be on him). Al-Sarakhsl,while justifying the differencein the treatment of the Arab idolatersand othernon-Muslims, says:
Ahl al-Kitdb from among theArabs have the same status as those of the non-Arab

were not Arabs even if they settled inArabia. They were Israelites. Even if there were some Arabs among them, their sin was not as grave as that of the pagans why to marry them.119 slaughtered by it is allowed their women and eat the meat of the animals

as jizyah is acceptablefromthem...becauseoriginally Ahl al-Kitdbinsofar they because they[thatis,Ahl al-Kitdb] believedinmonotheism. That is thereason

This is exactlyhow Islahl explains why thePeople of theBook were treatedin a manner different On the same principle,we hold that from the idolaters.120 this rule would not apply to the Arab idolaters of the latergenerations. Hence, our conclusions is thaton the issue of jizyah, the opinion of the Hanafis was
116 Ahmad b. 'All Ibn Hajar al-'Asqalani, Fath al-Bari hi Sharh Sahih alBukkm (Cairo: al Matba'ah al-Misriyyah,1352 ah), 1:64. 117 See,Abu 'Abd al-RahmanAhmad b. 'All al-Nasa'i, Sunan al-Nasa% Kitab al-Muharabah,Bab
Tahrim

118 Qur'an 9: 5. 119 Al-Sarakhsi, al-Mabsut, 10:120. 120 See, Islahl,Tadabbur-iQur'an, 3: 560.

al-Dam.

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MUHAMMAD MUSHTAQAHMAD

correctonly about the Arab idolatersfromamong the immediateaddresseesof the Prophet (peace be on him), while the opinion of themajority jurists is correct about theArab idolatersof the latergenerations.121 What about the were non-Arab polytheists? Magians who The Prophet (peace be on him) is reported to have accepted jizyah from some of the He is also reportedto have advised his Companions to Magians.122 women and treat them like thePeople of theBook, except inmarrying their on meat these reports,Shafi'I jurists Basing by them.123 eating the slaughtered to be of of the the Book, and thus they considered the part Magians People laid down the rule thatjizyah can only be accepted from the People of the
Book.124

The Hanafls, however, do not accept thisposition.Al-Sarakhsi says that the Qur'an applies the phrase "People of the Book" only to Jews and He further Christians.125 says that there isno doubt that the Magians* religion was centred upon shirk because theyworshipped two gods. So, the rule, whom jizyah according to him, is that itwere only theArab idolaters from Here the question arises:why were theMagians could not be accepted.126 when both the groups had fallen from theArab mushrikin treateddifferently we to shirk their life?127 If in go by the theory of Islahi, the prey religious answerwill be that theProphet (peace be on him) personally established the truthbefore theArab mushrikin and, hence, they could not be granted any
relaxation. In other words,

theArab mushrikin.This is exactlywhat theHanafi juristshave stated.Al was Marghinani, for instance, remarks that the guilt of theArab idolaters more grievous than thatof the Magians because theProphet (peace be on him) lived in their midst and the Qur'an was revealed in theirlanguage.128
121 Itmay also be mentioned here that according to IbnQayyim al-Jawziyyahthisdisagreement among the earlier jurists did not have any practical implication because by the time this ultimatumwas given, virtually allArabs had either embraced Islam or were slain in the course ofwars. See his,Zad al-Ma'ad, 1: 914. See also, idem, Ahkam Ahl al-Dhimmab, 1: 24. 122 wa 1-Muwada'ah Ma* Ahl al Kitab al-Jizyah, Bab al-Jizyah See,Al-Bukhari? al-JamV al-Sahih, Kitab al-Siyar,Bab Ma ja' fi Akhdh al-Jizyah min al Harb; Al-Tirmidhl, Sunan al-Tirmidhi,
Majus.

the crime of theMagians

was

not as grave as that of

123 See,Abu 'UbaydQasim b. Sallam,Kitab al-Amwal (Cairo:Dar al-Fikr, 1353 ah), 30. 124 Al-Shafi'i, al-Umm, 4: 95. 125 See, al-Sarakhsi,alMabsut, 10:121. 126 See, ibid. 127 Ibn Tamiyyah was of the opinion that the crime of the Magians was more grievous than that of theArab pagans. See his,Ajwibat al-Ma$a% 131-133. 128 Al-MarghlnanI, al-Hidayah, 2:402. One of the commentators of theHiddyah further elaborates this rule as the following: "The truthof his message was clearer to them [that is, the

IN ISLAMIC AND DARAL-ISLAM THENOTIONS OF DAR AL-HARB JURISPRUDENCE

35

While the Magians resembled thePeople of theBook in this respect,they were differentfrom them in other respects.So, other rules about theArab mushrikinwere to apply to them, such as the prohibition to marry their women and to eat the flesh of animals slaughtered by them. Another related issue is thedismantlingof the symbolsof shirkaswell as on him) dismantled all places ofworship ofmushrikin.The Prophet (peace be the idols found in theKa'bah and other places inArabia.129 It is significant, however, that theCompanions did not destroy any place of worship in the territories they conquered. For example, the treatyconcluded by Khalid ibn al-Walid (d. 21/642) with the people of al-Hlrah during the caliphate of Abu Bakr (r. 11-13/632-634) contained the following provisions: "Neither a where theyused to take church nor monastery will be destroyednor a fort nor refuge in case of attack; nor will they be prohibited from ringingbells from displaying crosses on Christmas."130 They were, however, required to take due care of the timings of prayers of Muslims and their religious
sentiments.131

treatiesconcludedwith The same conditionswere laid down in different In some thenon-Muslims during the caliphateof 'Umar (r. 13-23/634-644),132 was explicitly mentioned thatnon-Muslims "will not be coerced in treaties it or will not be forced to change theirreligion matters of religion"133 that "they and they should not be prohibited from settling their personal issues in
accordance with their own laws."134

The reason for this difference, according to the theoryof Islahx, is that what theProphet (peace be on him) did was a specificfeatureof hismission.
were well aware of his character even before he midst and they Arabs] because he lived in their and they his preaching. That iswhy theygave him the titleof al-amin (the trustworthy) started a statement about never a fabricated knew quite well that he always avoided telling lie. If he since the a statement God? about Moreover, humans how could he fabricate Qur'an was the of a of the revealed in their language theyhad better appreciation Qur'an, the meaning a was for them.*Jalal content. conclusive it words and themiracle in its So, proof majesty of its Mustafa on the of Fath al-Babi, n.d.), al-Din al-Khwarzami, al-Kifayah, al-Qadir (Cairo: margin 5: 292. 129 wa '1-Siyar, Bab Izalat al-Asnammin Hawl al See,Muslim b. al-Hajjaj, alSahih, Kitab al-Jihad wa min SuratBan! Isii'il. Bab Kitab Sunan al-Tafsir, al-Tirmidhi, Ka'bah; Al-Tirmidhi, 130 Abu Yiisuf, Kitab al-Kharaj, 154. 131 See, ibid., 158. 132 See, ibid., 149. 133 Ibn al See, for instance, the text of the treaty concluded with theChristians of Najran, 3: 53. Zad al-Ma'ad, Qayyim, 134 Ibid.

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MUHAMMAD MUSHTAQAHMAD

Since he established theultimate truthbeyond everydoubt he was entitledto remove all the symbols of shirk from the Arabian Peninsula which was
consecrated as Islam's religious centre:

He it is Who has sent His Messenger with theguidanceand theTrue Religion

He may make that
it.135

it prevail over all religions, howsoever

the pagans might desist

were done awaywith across Practices aswell as overt symbolsof polytheism the Arabian Peninsula which was made the focal centre of unadulterated monotheism as expounded by Islam.136 This was a part of the Prophet's was was to was clear toArabia. Hence, it restricted mission, specific him, and to the early Muslims that theyare not allowed to destroyplaces ofworship of non-Muslims outside Arabia in the name of dismantling the symbols of
shirk.137

Conclusion To recapitulate,thedivision of the world byMuslims juristsinto Ddr al-Isldm and Ddr al-Harb, especially as expounded by theHanafl jurists,has no necessary linkwith the view that that the Islamic state should normally be an looked in hostility with non-Islamic states. This division ratherrepresented of the principle of territorialjurisdiction. affirmation The territory wherein courts state was the of the Islamic could exercise jurisdiction calledDdr al Isldm.From theperspectiveof jurisdiction of the courts, the restof the world was considered justone ddr?the so-called Ddr al-Kufr. From theperspective of internationalrelations, Ddr al-Kufrcould be of different kinds however, this nature a of the actual the between depending upon relationship obtaining and the Islamic state. with Thus, a statehaving hostile relations given territory was Ddr al-Harb,while a statehaving peaceful relations the Islamic state with the Islamic statewas called Ddr al-Muwdda'ah.The law of the land in the Islamic state recognized some rights for the people of Ddr al-Muwdda'ah was established for the because, by virtue of peace treaty,some jurisdiction courtsof the Islamic state. As the Hanafl school follows the theoryof general the textsof the principles in interpreting Qur'an and theSunnab, theyapplied to thedoctrine of territoriality everybranchof law.
135 Qur'an, 9: 33,61:9, 48: 28. 136 See for theProphet's directive, Malik b. Anas, alMuwatta\ Kitab al-Jami', Bab Ma ja' fi Ijla' al-Yahudmin al-Madlnah. 137 The Taliban regimedemolished the statuesof Buddha inBamyan, Afghanistan, and cited the

destruction of idols by theProphet (peace be on him) as the reason fordoing so.

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37

As for the theory thatIslamic state'srelationship with other statesshould on was not be thatof hostility, it based the ground realitiesobtaining at only the timewhen thefuqaha* formulatedit, but also on a particular reading of some textsof the Hadith, some ofwhich declared the existence Qur'an and the an while others declared of ideological conflictbetween Islam and disbelief, that themission of the Prophet (peace be on him) will be completed only was perceived when all his opponents are subdued.The formersetof the texts to provide theoreticalbasis for the theoryof hostility betweenMuslim and mentioned above. This set of texts does not non-Muslim political entities necessitate a stateof continuous hostilitybetweenMuslims and non-Muslims, however,were the application of the rulementioned in the second set of the was textsnot considered to be confined to the space-timecontext inwhich it proclaimed, it is only then that itcould serveas thebasis of the theorythat the

normal relationship between Muslims and non-Muslim entities is that of hostility.The texts of theQur'an and the Sunnah, however, do not lend themselvesto such an extension.For theProphet'swars carried an elementof Divine punishmentwith regard to his opponents, just like in the case of all other Messengers ofGod, because he had conclusively established the truthof his mission beyond all doubt at least as far as his immediate addressees of Arabia are concerned.Apart from the immediate addressees seventh century of theProphet (peace be on him), other non-Muslims cannot be subjected to anyworldly punishment for theirdisbelief in Islam. This is because itwill violate the fundamental Qur'anic prohibition of compulsion inmatters of religion (See Qur'an 2: 256). The fuqaha* also recognized this aspect of the mission of theProphet (peace be on him) and considered it to be the basis of
several rules that they derived.

Jihad, in any case, does not seek forcibleconversion of non-Muslims to Islam.Rather,Muslims are required to fightagainst thosewho try to disturb Divine schemeof thingsby persecutingpeople in order that theyaccept or the declared that thenon Hence, the fuqaha3 categorically rejecta particular faith. war against Islam andMuslims), if and when Muslims' muharabah (waging was the mere factof theirdisbelief (kufi) theyembarkupon it, ratherthan the
proper ratio of war.

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