You are on page 1of 14

Journal of Military Ethics (2003) 2(1): 6375

Editor s note: In this special column of the Journal of Military Ethics we highlight important historical contributions to the ethics of war, peacemaking and military affairs. In this issue Professor of Religion at Florida State University John Kelsay examines the development of the Islamic law of war as represented by Muhammad ibn al-Hasan (al-Shaybani) and the Hanafi school.

Al-Shaybani and the Islamic Law of War

John Kelsay
Princeton University Center for Human Values, 5 Ivy Lane, Princeton, NJ 08544-1013, USA Tel: +1 609 258 0167, Fax: + 1 609 258 1285, E-mail:

One of the ways Islamic tradition addresses questions of military ethics is through inquiries into the sharia, indicating the ideal way of life and usually rendered as Islamic law. Discussion of the sharia includes an extended conversation concerning the justication and conduct of war. The work of al-Shaybani (d. 804) and other early scholars in the Hana school illustrates an important moment in this conversation, establishing precedents to which subsequent generations of Muslims (including contemporary Muslims) must respond. Further, the accomplishments of these scholars provide an important example to all those engaged in thinking about military ethics.

al-Shaybani, Islam, law of war, just war tradition, military ethics.

In recent months, if not before, readers will have come to know the Arabic term jihad, particularly in association with the program of al-Qaida and other radical groups. Given this association, some may be surprised to learn that the term does not mean holy war. It is better translated as effort, struggle, or striving. In its typical presentation, jihad is further joined with the phrase in the path of God. Muslims who speak of the duty of jihad are thus referring, in the rst place, to a moral duty. Given this general formulation, jihad admits of numerous applications. Prayer, worldly work, faithfulness in keeping promises all these can be, and have been associated with the symbol of jihad. That said, there can be no question that one of the approved modes of struggle in the path of God has a military cast. This is indicated, for example, at Quran 2:190:
2003 Taylor & Francis


J. Kelsay

Fight in the path of God Those who are ghting you; But do not exceed the bounds. God does not approve transgressors.1 Throughout the history of Islam, jihad and military action have been associated. Under certain conditions, the latter is an approved or even a required activity. Under certain conditions this phrase needs special emphasis. The current identication of jihad with the phrase holy war suggests to many a struggle that knows no bounds. As even a cursory glance at Islamic sources will show, nothing could be further from the truth. Quran 2:190 (above) catches this quite well: ght against those who ght you, but in the process do not go beyond approved limits. The text suggests a kind of warrior code already known to ghters in the time of the Prophet Muhammad (d. 632). For subsequent generations of Muslims, the text presents a challenge. As the face of war changes, what are the bounds warriors may not transgress if they are to consider themselves as ghters in the path of God? In this paper, I focus on the answers provided by one group of Muslim scholars whose work is associated with the name of Muhammad ibn al-Hasan, also known as al-Shaybani, who lived from 750 to 804. The work of al-Shaybanis school constitutes one of the rst great contributions to the siyar. Sometimes identied with the law of nations, the category of siyar includes discussions of the justication and conduct of war. Following a discussion of the contributions of al-Shaybanis school, I turn to subsequent developments. I conclude with some comments on recent events, in which bands of irregular ghters (for example, al-Qaida) appeal to the tradition of the siyar in justifying their actions.

Al-Shaybani and the Art of Sharia Reasoning

Al-Shaybani lived in Iraq. Born in al-Wasit, a military town (his father was a soldier), al-Shaybani displayed an early gift for learning. He became a part of the circle of scholars gathered around Abu Hanifa (d. 767) and Abu Yusuf (d. 795). By the time of his death, al-Shaybanis name would be mentioned along with these as one of the early masters of the Iraqi or Hana school (Khadduri 1966, Chaumont 1997). All through the 8th and 9th centuries, such circles of scholars grew in association with the spread of Islam. Each displayed a characteristic approach to answering questions about the sharia, the Islamic law or more properly the ideal path in life. For example, al-Shaybani and his colleagues paid special attention to the role of juristic reasoning. The Quran and the practice of the early Muslims (that is, Muhammad and his companions) established a base of precedent. For the Iraqi or Hana school (with which al-Shaybani was associated), sharia reasoning

See, among other verses, 2:191, 2:216, and 22:39 40. The translation reects that of Yusuf Ali, with some alterations to reect my sense of the Arabic text.

Al-Shaybani and the Islamic Law of War


could not proceed without reference to this. There is an inevitable gap between precedents set in the 7th century and the questions of subsequent generations, however. That space is lled by the reasoning of the learned, or so this school argued. Given this, the opinions (fatawa) of established scholars provide a new set of precedents, built on the foundation of the example of the early Muslims yet extended to provide guidance in new and different situations (Schacht 1950, Khadduri 1966). With this line of thought, al-Shaybani and his colleagues began to establish sharia reasoning as a trans-generational conversation among Muslims. Eventually, scholars associated with the recognized schools of Sunni Islam would agree that their common task of providing guidance concerning the sharia involved answering the questions of their day by means of interpretation of the Quran and reports of Prophetic practice, consideration of precedents set by earlier generations of scholars, and scholarly reasoning.2 The masters of the Iraqi school practiced the art of sharia reasoning during the early years of the Abbasid caliphate. Al-Shaybani and Abu Yusuf served as advisers in the court of Harun al-Rashid, who ruled in Baghdad from 786 to 809. Most typically associated (in the minds of Europeans and North Americans) with the courtly tales collected in the Thousand and One Arabian Nights, al-Rashid presided over a far-ung, unwieldy empire. The conquests of the 7th century gave Islam hegemony over most of the Near East. By the latter third of that century the center of power came to be located in Damascus, from whence successive members of the Umayyad clan wielded power. In the 740s a number of local opposition parties joined together under the umbrella of the Abbasid clan, and by 750 the Umayyads were in permanent retreat, their power restricted to the shadow empire based in the Iberian Peninsula (Hodgson 1974: vol. 1, 280315). At the time of al-Rashid, consultation with learned men of religion was an established mode in the legitimation of policy. The caliph asked scholars like al-Shaybani for opinions regarding the administration of the army and the treatment of dissidents. Such consultation gave a practical dimension to the art of sharia reasoning. It also carried the possibility of the rulers disapproval. Thus we read in the History of al-Tabari (d. 923) of the disagreement between al-Shaybani and Abu al-Bakhtari (another Iraqi scholar) concerning the treatment of Yahya b. Abdallah b. Hasan. Frustrated with the behavior of this early leader of the Shia, al-Rashid wanted to treat Yahya as an enemy of the state. This was made difcult by al-Rashids earlier grant of an aman or writ of safe conduct to Yahya. The caliph sought the advice of his lawyers regarding the status of the writ. Al-Shaybani argued that it remained valid; Abu al-Bakhtari argued that Yahyas behavior rendered the aman void. Abu al-Bakhtari carried the day, and al-Shaybani lost his ofcial post! Interestingly, al-Shaybani would later be restored, and died serving al-Rashid during a campaign against rebels in Khurasan; his judgments would become standard precedent in the Iraqi/Hana school. From the standpoint of history, Abu al-Bakhtari is a less signicant gure (Bosworth 1989: 125).

Here, sunni simply indicates the majority perspective. Shii scholars always insisted that reports of Prophetic practice be validated by a designated Imam or leader, and thus that the practice of the imams was an authoritative source for sharia reasoning (Sachedina 1988).


J. Kelsay

Our subject is thus the work of a scholar, or really a circle of scholars, who contributed to the development of normative Islamic thought in the early years of the Abbasid caliphate. Our information regarding their judgments is limited. In the case of al-Shaybani, traditional sources inform us that he was a prolic author, not least on the subject of the siyar. Most of these works are unavailable to us, however. The primary exception is the chapters on the siyar contained in a larger work on the fundamentals of sharia reasoning. Conveniently translated into English (Khadduri 1966), this material provides an important illustration of the reasoning of these early masters, and also of important precedents with which subsequent generations of Muslims had (and have) to deal. Indeed, the form of the text demonstrates that it was meant to be read by scholars looking for established precedents. The work is basically a compendium of judgments rendered by Abu Hanifa, Abu Yusuf, and al-Shaybani in response to specic questions. Should Muslim troops employ hurling machines against a fortied city? Must a warrior pay blood money to atone for the foreseen but unintentional killing of noncombatants? The answers given are the opinions of the school of Abu Hanifa, inclusive of al-Shaybani. The way the text worked is demonstrated by its source: the 11th-century Hana scholar known as al-Sarakhsi preserved it, and appended an extensive commentary on the precedents of the masters. One generation looks back to the wisdom of its predecessors; as it explains its understanding of such precedent, and also of its sense of the issues of the present day, the art of sharia reasoning is preserved for a generation yet to come.3

Reading in al-Shaybanis Siyar

What is it that al-Shaybani (or, as indicated, the early masters of the Hana school) had to say? In answering this question, two general points are signicant. First, the topic is set as al-siyar or movements of people between and within specic territories. This already sets discussions of war in a particular political context. For al-Shaybani, the world is divided into territory governed by Muslims (dar al-islam or the house of Islam, also called a place of security throughout the text), and territory governed by others. Given that this last is designated as dar al-harb (that is, the house of war), the movements of greatest concern are those that involve Muslim ghters crossing the borders in an effort to open non-Muslim territory to the civilizing inuence of Islam. Interestingly, the text seems completely unconcerned about the prospect of non-Muslim ghters crossing into Islamic territory a topic with which later generations would be preoccupied. For al-Shaybani and his colleagues, the overriding issue then is the relationships between groups of people living in one or the other of these territorial designations. Muslim ghters who cross into the territory of war relate to harbiyya or war people, who may then be subdivided into groups of ghters (all men able to bear arms) and non-ghters (women, children, the old, and the disabled are prima facie in this

This is the place to mention the very important questions raised by Calder (1993) regarding the dating, transmission, and thus the historical location of this and other sharia texts. I cannot go into the topic in this paper, though I hope to take account of these matters in future work.

Al-Shaybani and the Islamic Law of War


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

Citations throughout are based on the translation in Khadduri (1966), with some alterations by the present author. Schacht (1950) and Calder (1993) deal in greater detail with relations between the siyar and administrative law. My information on the changing shape of Muslim armies is drawn from Parry (1970).


J. Kelsay

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

Al-Shaybani and the Islamic Law of War


If the army attacks the territory of war and it is a territory that has received an invitation to accept Islam, it is commendable if the army renews the invitation, but if it fails to do so it is not wrong. The army may launch the attack by night or by day. It is permissible to burn fortications with re or to inundate them with water. If the army captures any spoil of war, it should not be divided up in enemy territory until it is brought to a place of security and removed to the territory of Islam (Khadduri 1966: 95 96). Putting this account together with the Prophets directives (above), we may begin to discuss the substance of al-Shaybanis siyar. Let us consider how the text answers the questions: When is ghting justied?; Who is the target of ghting?; and How is ghting conducted? When is ghting justied? The sharia perspective assumes that war is a rule-governed activity. In the opening lines of Muhammads directive, one ascertains that the rules stipulate that war is justied when there is a just cause and the presence of a righteous intention (Fight in the name of God and in the path of God). There must also be a directive from a legitimate authority. Muhammad stands here as the head of the state; he further gives the order rst to the commander of the forces, then to the ghters themselves. One notes that the content of just cause is not further delineated at this point. Elsewhere in the siyar, however, we learn that the early Hana jurists believed the following conditions constitute just causes for war: (a) ghting to spread Islamic hegemony, through enhancement of the territory governed by Muslims and/or arrangements by which other political entities agree to pay tribute to the Muslims (Khadduri 1966: 95194); (b) ghting to discipline dhimmis [protected peoples] who violate their agreements with the Muslim authorities (Khadduri 1966: 218222); (c) ghting that seeks to bring Muslim rebels back into the fold that is, ghting that seeks to limit rebellion, but does not violate Gods order that Muslims should always seek reconciliation with other Muslims (Khadduri 1966: 230 246, 250 253); (d) ghting that disciplines brigands and secures the safety of lives and property entrusted to the Islamic state (Khadduri 1966: 247250); (e) ghting that brings apostates to repentance and/or to justice (Khadduri 1966: 195 218, 222 229).5 Of these conditions, a) raises important questions as to whether those in the territory of war must pose an active, military threat to the Muslims, or whether it is sufcient that they refuse the invitation to accept Islam or to enter into tributary relations. The report says explicitly: Fight those who refuse to acknowledge God. In connection with the other statements made, it would appear that this means that the war people refuse to accept Islamic religion or Islamic hegemony, and that this justies war against them. Al-Shaybanis siyar does not address this further; rather, the Hana jurists say:

Each of these deserves more commentary than is possible here. I hope to deal with each in further papers on al-Shaybanis text.


J. Kelsay

If the army attacks the territory of war and it is a territory that has received an invitation to accept Islam, it is commendable if the army renews the invitation, but if it fails to do so it is not wrong (Khadduri 1966: 95).

Thus, in addition to just cause, righteous intention, and legitimate authority, an invitation is essential. The point is the spread of Islamic hegemony. Conquest can serve that end, but it is not the only or primary means of moving toward the goal. War is fought for a purpose, and in this case, the purpose is best served by means other than warpersuasion or diplomacy, in particular. War is thus justied only when non-military means are refused. The Hana scholars add to the Prophets words with their opinion; namely, if the people of the territory of war refuse the invitation, it need not be repeated. The wording implies that war has commenced, and that Muslim ghters might consider renewing the invitation. In effect, the enemy, having tasted the steel of the Muslims, might want to reconsider. The early Hana scholars say that an army which gives a second chance acts commendably. But the second invitation is not required. Who is the target of ghting? Something of the answer to this question is indicated by our delineation of circumstances that yield just causes of war. In the Prophetic report, Fight those who refuse to acknowledge God; that is, as indicated by their refusal of an invitation to accept Islam or its hegemony. This has to do with the people of the territory of war. In the case of dhimmis, groups who violate agreements are the objects of armed force; rebels, brigands, and apostates can also become the object of military action. Thus the general answer with respect to who? is: groups whose behavior indicates resistance to the legitimate aims of the established leader(s) of the house of Islam. As soon as one says this, one must issue a qualication, however. Not everyone among the enemy is a legitimate target of deadly force. Only those who pose a military threat may be targeted for direct and intentional killing. Thus, the Prophetic dictum stipulates: Do not cheat or commit treachery, neither should you mutilate anyone or kill children (Khadduri 1966: 76). From other reports collected in the opening section of al-Shaybanis siyar, we learn that early Muslim practice also forbade the killing of women and old men (Khadduri 1966: 8687, 91 92). By the time of the early Hanas, it seems that this prohibition included the disabled and the insane as well (Khadduri 1966: 101102). The line of thought is clear: in the conduct of war, certain classes of people are not considered legitimate targets for direct and intentional killing. How is ghting conducted? To a great extent, this depends on the identity of the enemy. Fighting against Muslims (for example, in the case of those groups of dissenters called al-bughat or rebels) is more restricted than that against non-Muslims (Abou El Fadl 1990, Kelsay 1993: 6769). Indeed, such would seem consonant with the justication of this particular kind of ghting, which as noted above is always reconciliation. The location of ghting is also a consideration, at least with respect to enemy persons taken captive. Those taken captive in the territory of war are distinguished according to combatant status. Male captives may be killed or not, depending on the commanders judgment of which course of action is in the best interests of the Muslims (Khadduri 1966: 100). If they are spared, these captives become part of the booty, and are to be transported to the

Al-Shaybani and the Islamic Law of War


territory of Islam along with the other captives (for example, women and children) for distribution to the Muslim ghters. In this regard, it is interesting to note: (1) that transport for women and children is considered an obligation, so much so that if a means of transport is not immediately at hand, and the captives are unable to walk, the commander must hire transport for them; and (2) that considerations of territoriality affect familial relations, so that the marital status of captives can be altered, depending on whether and when a husband and wife are brought into Islamic territory (Khadduri 1966: 97 98, 116). Of more immediate interest for our purposes is a line of thought that one might describe as military realism, however. Al-Shaybani and his colleagues issued a number of opinions in response to questions about military options and the immunity of noncombatants from direct and intentional killing. Their judgments try to balance considerations of military necessity with the restrictions characteristic of early Muslim practice. Thus in a passage already quoted, we read that: The army may launch the attack by night or by day. It is permissible to burn fortications with re or to inundate them with water (Khadduri 1966: 95). These sentences already suggest a wide latitude terms of acceptable means. More complicated, however, is the following: Would it be permissible to inundate a city in the territory of war with water, to burn it with re, or to attack with hurling machines, even though there may be slaves, women, old men, and children in it? Yes, I would approve of doing all that to them. Would the same be true if those people have among them Muslim prisoners of war or Muslim merchants? Yes, even if they had Muslims among them, there would be no harm in doing all of that to them. Why? If the Muslims stopped attacking the inhabitants of the territory of war for any of the reasons that you have stated, they would be unable to go to war at all, for there is no city in the territory of war in which there is no one at all of these you have mentioned (Khadduri 1966: 101102). The closing sentence indicates the strong interest of al-Shaybani and his colleagues in seeing that the Muslims are able to carry out their legitimate mission of extending the territory of Islam. While war is not the rst or most desirable means in this regard, it does seem that the early Hana jurists assumed there would be cases in which it is necessary. In such cases, Muslim ghters should conduct themselves in a manner consistent with early Muslim precedent. This should not inhibit them from pursuing their legitimate goal, however. In some sense, it would seem that the legitimacy of the goal authorizes the use of those means necessary to its pursuit. The text does not suggest that necessity should actually override restrictions on targeting, however. Instead, it appears that the early Hana masters were thinking in terms of the problem just war thinkers address under the category of collateral damage or through the deployment of double effect reasoning. For example, consider the following:


J. Kelsay

If the Muslims besieged a city and its people (from behind the walls) shielded themselves with Muslim children, would it be permissible for the Muslim ghters to attack them with arrows and hurling machines? Yes, but the warriors should aim at the inhabitants of the territory of war and not the Muslim children. Would it be permissible for the Muslims to attack them with swords and lances if the children were not intentionally aimed at? Yes (Khadduri 1966: 102). In just war thinking, noncombatants are immune from direct and intentional killing. That does not mean they are immune from all harm, however. Similarly in al-Shaybanis siyar: Warriors who utilize weapons necessary to attain a legitimate goal may foresee that their actions are likely to result in the deaths of innocents. That does not mean the warriors are at odds with early Muslim practice, however. The text suggests that, provided care is taken to aim at the enemy rather than at the children in question, any deaths of the latter should be regarded as a kind of secondary or indirect effect of a legitimate action. That this is so is further supported by the judgment that follows: If the Muslim ghters attack with hurling machines and arrows, ood the city with water or burn it with re, thereby killing and wounding Muslim children or men, or enemy women, old men, blind, crippled, or lunatic persons, would they be liable for blood money or atonement? They would be liable neither for blood money nor atonement (Khadduri 1966: 102). For al-Shaybani and his colleagues, ghters engaged in legitimate military actions do not incur guilt for the foreseen, yet unintended consequences that follow. The goal of expanding Islamic hegemony is good, and actions necessary to attain that goal are also good, so long as they do not involve direct and intentional killing of proscribed groups. Fighters are required to conduct themselves with good intention, and thus to try to avoid such killing. But the enemy cannot be allowed to take advantage of these good intentions through measures that would circumscribe the ability of the Muslims to carry out their legitimate goal.

Developments Subsequent to al-Shaybanis Siyar

The judgments of al-Shaybani and other early masters of the Hana school constitute one moment in an ongoing discussion of military ethics. The generation following al-Shaybanis death would see the rise of new schools of thought, some of which would alter the form of sharia reasoning. The school that gathered around al-Shai (d. 820), for example, forged a new consensus regarding the sources to which scholars would appeal. The precedents set by early Muslims was revised so that only those precedents traceable to the Prophet himself could stand as authoritative. The precedents set by the rulings of scholars, so important to the early Hanas, were similarly restricted, in the sense that only precedents expressing the consensus of the Muslim community would be viewed as binding for

Al-Shaybani and the Islamic Law of War


scholarly judgment. And the varieties of reasoning by which a scholar could ll the space between an established precedent and his own ruling came to be restricted to qiyas or analogy, by which a contemporary case was shown to be related, as a matter of underlying principles, to precedent. Traditional accounts credit al-Shai and his school for the received Sunni version of the sources of comprehension in sharia reasoning. In this theory, the Quran, the example of the Prophet, the consensus of the community (or, in a still later development, the consensus of scholars associated with a recognized school), and analogical reasoning came to be understood as authoritative among the majority of Muslims (Schacht 1950, Kelsay 1994). In the siyar, similar differences became apparent. The Shai school, for example, dealt with territoriality in a different way than al-Shaybani and his colleagues. For the newer school, the entire world was the abode of Islam, at least in theory. This meant that the question of just cause of war and the requirement of a formal invitation took on a different cast. For the disciples of Shai, no enemy provocation was required for the commencement of hostilities, and all human beings could be presumed, on the basis of natural capacity, to have heard the invitation to Islam. Further, the peculiarities of this school regarding territoriality led to greater leniency concerning the division of booty no need to wait for a return to the place of security so emphasized by al-Shaybani and his colleagues (Khadduri 1966: 57 60, Ibrahim 1998). In these ways, it appears that later developments made recurrence to war as a tool of statecraft an easier matter. Yet, for the school of Shai, as for others, the Hana jurists military realism seemed to contravene authoritative precedent. This was particularly so in the case of re as a weapon. Since re was the ultimate weapon of the Almighty, who would on Judgment Day consign the wicked to eternal burning, its use as a weapon of warfare was judged a usurpation of divine prerogatives (Hashmi forthcoming). Later generations would bring their own concerns to the practice of sharia reasoning. The great Ibn Taymiyya (d. 1328), for example, would address questions of resistance to invaders. During the so-called middle periods of Islamic history, scholars of all schools would speak more about wars between Muslims, a concern correlative with the existence of three well-established Muslim empires (the Ottoman, the Safavid, and the Moghul states. Cf. Lambton 1981).

Concluding Remarks
The last two centuries have seen an increased emphasis on resistance, conceived in terms of a kind of homeland defense, as a concern for sharia reasoning. A full discussion of this will have to wait for another paper. I should like to close, however, by mentioning some of the declarations issued by groups of irregular ghters over the past two decades, each of which tries to establish a norm for action by way of referring to established precedents acknowledged by gures like al-Shaybani. The Neglected Duty, presented as the confession or creed of those who assassinated Egyptian President Anwar Sadat in 1981 displays a rigorous


J. Kelsay

attempt to justify the execution of established leaders who fail to implement sharia as the law of the state. Its authors draw in particular on Ibn Taymiyya, seeing in his situation a set of issues analogous to their own. In particular, that 14th-century scholars judgments about the duty to resist a ruler who institutes a mixed regime of public law, in which precepts derived from sharia reasoning are set alongside of norms derived from other sources, are taken as guides for present-day Muslim (Jansen 1986, Kelsay 1993: 100 106). The Declaration concerning Armed Struggle against Jews and Crusaders issued by Osama bin Laden and other members of the World Islamic Front in February 1998 is a further contribution to this discussion. In the service of explicating the context in which their judgments are forged, the Declaration appeals to a state of emergency, which is then taken as justifying the judgment that ghting the enemy in question is a duty incumbent on every individual Muslim. No longer are we dealing with the condent and dominant voice of al-Shaybani and his colleagues, whose siyar never mentions a case involving defensive war. These contemporary developers of the tradition speak of nothing but defense, and that in a context of grave danger. The Declaration further judges that ghters may aim at civilian and military targets, without distinction. If we may take various interviews granted by bin Laden as commentary on this judgment, this rather obvious contravention of earlier precedents is justied on the basis of a notion of reciprocity: the enemy (that is, the United States and its allies) have engaged in direct and intentional targeting of civilians in the pursuit of their aims, and now those Muslims who comprehend their duty to resist may conduct themselves similarly (World Islamic Front 1998, cf. Kelsay 2002). How such reasoning will stand in the great conversation to which al-Shaybani and his colleagues contributed remains to be seen, though it is important to note that thus far, even scholars normally sympathetic to the cause of irregulars have condemned the tactics of al-Qaida and associated groups on the grounds that these violate precedents that prohibit the direct and intentional targeting of civilians. The story of sharia reasoning about war, as the story of the just war and other traditions, is one of continuous conversation. Organized around agreed-upon sources, and rules governing the interpretation of those sources, this conversation reects the changing shape of political and military engagement over the centuries. In our time, as in that of al-Shaybani, the siyar requires careful reection, as human beings try to maintain connections between principle and power, humanity and the conduct of war.

Abou El Fadl, Khaled, 1990. Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam, in J. T. Johnson & J. Kelsay, eds, Cross, Crescent, and Sword: The Justication and Limitation of War in Western and Islamic Tradition. Westport, CT: Greenwood Press (149 178). Bosworth, C. E., 1989. The History of al-Tabari, vol. XXX: The Abbasid Caliphate in Equilibrium. Albany, NY: State University of New York Press.

Al-Shaybani and the Islamic Law of War


Calder, N., 1993. Studies in Early Muslim Jurisprudence. Oxford: Clarendon Press. Chaumont, E., 1997. Al-Shaybani, in C. E. Bosworth et al., eds, The Encyclopedia of Islam, rev. edn, vol. IX. Leiden: Brill (392 394). Hashmi, Sohail, Forthcoming. Islamic Ethics and Weapons of Mass Destruction. Hodgson, M. G. S., 1974. The Venture of Islam, 3 vols. Chicago, IL: University of Chicago Press. Ibrahim, Yasir, 1998. A Translation of al-Tabaris Book of the Disagreement among Muslim Jurists: The Book of Jihad, Sections 1 49. MA thesis, Florida State University, Tallahassee, FL. Jansen, J. J. G., 1986. The Neglected Duty: The Creed of Sadats Assassins and the Resurgence of Militant Islam in the Middle East. New York: Macmillan. Kelsay, J., 1993. Islam and War: A Study in Comparative Ethics. Louisville, KY: Westminster/ John Knox Press. Kelsay, J., 1994. Divine Command Ethics in Early Islam. Journal of Religious Ethics 22 (1): 101126. Kelsay, J., 2002. Bin Ladins Reasons, The Christian Century 119 (5): 26 29. Khadduri, M., 1966. The Islamic Law of Nations: Shaybanis Siyar. Baltimore, MD: Johns Hopkins University Press. Lambton, A. K. S., 1981. State and Government in Medieval Islam. Oxford: Oxford University Press. Parry, V. J., 1970. Warfare, in P. M. Holt et al., eds, The Cambridge History of Islam, vol. 2. Cambridge: Cambridge University Press (284 250). Sachedina, A. A., 1988. The Just Ruler in Shiite Islam: The Comprehensive Authority of the Jurist in Imamite Jurisprudence. New York: Oxford University Press. Schacht, J., 1950. Origins of Muhammadan Jurisprudence. Oxford: Clarendon Press. World Islamic Front, 1998. Declaration Concerning Armed Struggle against Jews and Crusaders. [on-line translation] available from; Internet.

John Kelsay is Richard L. Rubenstein Professor and Chair in the Department of Religion, Florida State University, Tallahassee, FL, USA. He is the author of Islam and War: A Study in Comparative Ethics (1993). Currently a Laurance S. Rockefeller Fellow at the Princeton University Center for Human Values, Professor Kelsay is the recipient of a John Simon Guggenheim Fellowship for 2002 2003.