The Sources of Islamic Law
Justifications and Conditions for War
Jihad as an Obligation
Who Is To Be Fought? Discrimination and Proportionality
The Sword Verse
Cessation of Hostilities
Sanctity of Treaties
Prisoners of War
Resumption of Peaceful Relations
1. The Sources of Islamic Law
The Qur'an is the supreme authority in Islam and the primary source of Islamic
Law, including the laws regulating war and peace. The second source is the hadith, the traditions of the Prophet
Muhammad's acts and deeds, which can be used to confirm, explain or elaborate
Qur'anic teachings, but may not contradict the Qur'an, since they derive their authority from the
Qur'an itself. Together these form the basis for all other sources of Islamic
law, such as ijma' (consensus of Muslim scholars on an opinion regarding any given subject) and
qiyas (reasoning by analogy). These and others are merely methods to reach decisions based on the texts or the spirit of the
Qur'an and hadith. The Qur'an and hadith are thus the only binding sources of Islamic law.
Again, nothing is acceptable if it contradicts the text or the spirit of these two sources. Any opinions arrived at by individual scholars or schools of Islamic
law, including the recognized four Sunni schools, are no more than opinions. The founders of these schools never laid exclusive claim to the
truth, or invited people to follow them rather than any other scholars. Western writers often take the views of this or that classical or modern Muslim writer as
"the Islamic view", presumably on the basis of assumptions drawn from the Christian
tradition, where the views of people like St Augustine or St Thomas Aquinas are often cited as authorities. In
Islam, however, for any view of any scholar to gain credibility, it must demonstrate its textual basis in the
Qur'an and authentic hadith, and its derivation from a sound linguistic understanding of these texts.
Ijtihad - exerting one's reason to reach judgments on the basis of these two sources is the mechanism by which Muslims find solutions for the
ever-changing and evolving life around them. The closing of the door of ijtihad' is a myth propagated by many Western
scholars, some of whom imagine that "the door" still remains closed and that Muslims have nothing to fall back on except the decisions of the Schools of Law and scholars of the classical
period. In fact, scholars in present-day Muslim counties reach their own decisions on laws governing all sorts of new
situations, using the same methodology based on the Qur'an and hadith and the principles derived from
them, without feeling necessarily bound by the conclusions of any former school of law.
In the Quran an and hadith, the fundamental sources of Islamic teachings on war and peace are to be found.
2. Normal Relations
The Islamic relationship between individuals and nations is one of peace. War is a contingency that becomes necessary at certain times and under certain conditions. Muslims learn from the
Qur'an that God's objective in creating the human race in different communities was that they should relate to each other peacefully
The objective of forming the family unit is to foster affection mercy, and that of creating a baby in its
mother's womb is to form bonds of blood and marriage between people:
It is He who created the human being from fluid, making relationships of blood and marriage.
Sowing enmity and hatred amongst people is the work of Satan:
Satan wishes to sow enmity and hatred between you with intoxicants and
gambling. Quran 5:91
Division into warring factions is viewed as a punishment that God brings on people who revert to polytheism after He has delivered them from distress:
...He able to divide you into discordant factions and make you taste the might of each other...
War is hateful (2:216), and the changing of fear into a sense of safety is one of the rewards for those who believe and do good deeds
(Quran 24:55). That God has given them the sanctuary of Mecca is a blessing for which its people should he thankful
(Quran 29:67).Paradise is the Land of Peace -
Dar al-Salam - Quran 6:127).
3. Justifications and Conditions for War
War may become necessary only to stop evil from triumphing in a way would corrupt the earth
(Quran 2:251). For Muslims to participate in war there must be valid
justifications, and strict conditions must be fulfilled. A thorough survey of the relevant verses of the
Qur'an shows that it is consistent throughout with regard to these rulings on the justification of
war, and its conduct, termination and consequences.
War in Islam as regulated by the Qur'an and hadith has been subject to many distortions by Western scholars and even by some Muslim writers. These are due either to misconceptions about terminology or - above all -using
quotations taken out of context.2 Nowhere in the Quran is changing
people's religion given as a cause for waging war. The Qur'an gives a clear instruction that there is no compulsion in religion
(Quran 2:256). It states that
people will remain different (Quran 11:118), they will always have different religions and ways and this is an unalterable fact
(Quran 5:48) - God tells the Prophet that most people will not believe
"even if you are eager that they should" (Quran 12:103).3
All the battles that took place during the Prophet's lifetime, under the guidance of the
Qur'an and the Prophet, have been surveyed and shown to have been waged only in
self-defense or to pre-empt an imminent attack.4 For more than ten years in
Mecca, Muslims were persecuted, but before permission was given to fight they were instructed to restrain themselves
(Quran 4:77) and endure with patience and fortitude:
Pardon and forgive until God gives his command. Quran 2:109; see also 29:59; 16:42
After the Muslims were forced out of their homes and their town, and those who remained behind were subjected to even more
abuse, God gave His permission to fight:
Permission is given to those who fight because they have been wronged, and God is indeed able to give them victory; those who have been driven from their homes unjustly only because they
said, "Our Lord is God"-for had it not been for God's repelling some men by means of
others, monasteries, churches, synagogues and mosques, in which the name of God is much
mentioned, would certainly have been destroyed. Verily God helps those that help Him - lo! God is
Strong, Almighty - those who, if they are given power in the land, establish worship and pay the poor-due and enjoin what is good and forbid iniquity.
Here, war is seen as justifiable and necessary to defend people's right to their own
beliefs, and once the believers have been given victory they should not become triumphant or arrogant or have a sense of being a
superpower, because the promise of help given above and the rewards are for those who do not seek to exalt themselves on earth or spread corruption
4. Righteous Intention
Righteous intention is an essential condition. When fighting takes place, it should be
fi sabil illah - in the way of God - as is often repeated in the Qur'an. His way is prescribed in the
Qur'an as the way of truth and justice, including all the teaching it gives on the justifications and the conditions for the conduct of war and peace. The Prophet was asked about those who fight for the
booty, and those who fight out of self-aggrandizement or to be seen as a hero. He said that none of these was in the way of God. The one who fights in the way of God is he who fights so that the word of God is uppermost
This expression of the word of God being "uppermost" was misunderstood by some to mean that Islam should gain political power over other religions.
However, if we use the principle that "different parts of the Qur'an interpret each
other", we find (Quran 9:40) that by simply concealing the Prophet in the cave from his
trackers, after he had narrowly escaped an attempt to murder him, God made His word
"uppermost", and the word of the wrongdoers "lowered". This could not be described as gaining military victory or political power.
Another term which is misunderstood and misrepresented is jihad. This does not mean
"Holy War". "Holy War" does not exist as a term in Arabic, and its translation into Arabic sounds quite alien. The term which is specifically used in the
Qur'an for fighting is qital. Jihad can be by argumentation (25:52
), financial help or actual fighting. Jihad is always described in the Qur'an as fi sabil
illah. On returning from a military campaign, the Prophet said to his followers:
"We have returned from the minor jihad to the major jihad - the struggle of the individual with his own
5. Jihad as an Obligation
When there is a just cause for jihad, which must have a righteous intention, it then becomes an obligation. It becomes an obligation for defending religious freedom
(Quran 22:39-41), for
self-defense (Quran 2:190) and defending those who are oppressed: men, women and children who cry for help
(Quran 4:75). It is the duty of the Muslims to help the
oppressed, except against a people with whom the Muslims have a treaty (Quran
8:72). These are the only valid justifications for war we find in the
Qur'an. Even when war becomes necessary, we find that there is no "conscription"
in the Qur'an. The Prophet is instructed only to "urge on the believers"
(Quran 4:64). The
Qur'an - and the hadith at greater length - urge on the Muslim fighters (those who are defending themselves or the oppressed) in the strongest way: by showing the justice of their
cause, the bad conduct of the enemy, and promising great rewards in the afterlife for those who are prepared to sacrifice their lives and property in such a good
6. Who Is To Be Fought? Discrimination and Proportionality
In this regard we must discuss two verses in the Qur'an which are normally quoted by those most eager to
criticize Qur'anic teachings on war: 2:191 ("slay them wherever you find
them") and verse 9:5, labeled the "Sword Verse". Both verses have been subjected to
decontextualisation, misinterpretation and misrepresentation. The first verse comes in a passage that defines clearly who is to be fought:
Fight in the way of God those who fight against you, but do not transgress. God does not love the transgressor.
"Those who fight against you" means actual fighters - civilians are protected. The Prophet and his
successors, when they sent out an army, gave clear instructions not to attack civilians -
women, old people, religious people engaged in their worship - nor destroy crops or animals.
Discrimination and proportionality should be strictly observed. Only the combatants are to be
fought, and no more harm should be caused to them than they have caused (Quran
2:194). Thus wars and weapons of destruction that destroy civilians and their towns are ruled out by the
Qur'an and the word and deed of the Prophet, these being the only binding authority in Islamic law. The prohibition is regularly reinforced
by, "Do not transgress, God does not love the transgressor". Transgression has been interpreted by
Qur'anic exegetes as meaning, "initiation of fighting, fighting those with whom a treaty has been
concluded, surprising the enemy without first inviting them to make peace, destroying crops or killing those who should be
protected" (Baydawu's commentary on Q. 2:190).
The orders are always couched in restraining language, with much repetition of
warnings, such as "do not transgress" and "God does not love the
transgressors" and "He loves those who are conscious of Him". These are instructions given to people
who, from the beginning, should have the intention of acting "in the way of
Linguistically we notice that the verses in this passage always restrict actions in a legalistic
way, which appeals strongly to Muslims' conscience. In six verses (Quran
2:190-5) we find four prohibitions (do
not), six restrictions: two "until", two "if", two "who attack
you", as well as such cautions as "in the way of God", "be conscious of
God", "God does not like aggressors", "God is with those who are conscious of
Him", "with those who do good deeds" and "God is Forgiving,
Merciful." It should be noted that the Qur'an, in treating the theme of war, as with many other
themes, regularly gives the reasons and justifications for any action it demands.
Verse 2:191 begins:
Slay them where you find them and expel them from where they expelled you; persecution
[fitna] is worse than killing.
"Slay them wherever you find them," has been made the title of an article on war in
Islam.6 In this article "them" is removed from its context, where it refers back to
"those who attack you" in the preceding verse. "Wherever you find
them" is similarly misunderstood: the Muslims were anxious that if their enemies attacked them in Mecca (which is a sanctuary) and they
retaliated, they would be breaking the law. Thus the Qur'an simply gave the Muslims
permission to fight those enemies, whether outside or inside Mecca, and assured them that the persecution that had been committed by the unbelievers against them for believing in God was more sinful than the Muslims killing those who attacked
them, wherever they were. Finally, it must be pointed out that the whole passage
(Quran 2:190-5) comes in the context of fighting those who bar Muslims from reaching the Sacred Mosque at Mecca to perform the pilgrimage. This is clear from
verse 189 before and verse 196 after the passage. In the same
way, the verse giving the first permission to fight occurs in the Qur'an, also in the context of barring Muslims from reaching the Mosque to perform the pilgrimage
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