The following is a continuation of our original six part Global Jihad study whereby we investigate here by analyzing the original writings, that is what is considered the original version (although even there varying opinions exist) of Islam.

It should be clear now that the Qur'an contains passages that justify warfare as aspect of the foundational narrative of Islam.1 In the  words of Ibn Khaldun: In the Muslim community, the jihad is a religious duty because of the universalism of the Islamic mission and the obligation [to convert) everybody to Islam either by persuasion or by force ... [By contrast] the other religions had no such universal mission and the holy war was [therefore) not a religious duty to them apart from self-defense.

See Case Study P.6:

Similarly, we as we have been able to proof in The Islam Code, “questions about the justice of fighting emerged in the context of the early conquests or campaigns to "open" neighboring territories to Islamic governance. The notion of the Prophet's letter to the rulers of Byzantium and other empires of late antiquity instructive in this regard, as are the stories of arguments between Ali and others regarding the proper mode of response to Mu'awiya, the Kharijites, and other perpetrators of civil strife. Many of the texts cited as precedents in the developing discourse associated with Sharica reasoning are in fact reports of actions taken, or of arguments confirmed or denied, in relation to the justification and conduct of war in this early period of Muslim expansion and self definition. The brief chapter on jihad in the Muwatta of Malik ibn Anas is instructive.2

It contains a collection of reports regarding the example set by the Prophet and his companions. Topics range from the advisability of taking copies of the Qur' an into enemy territory, to the distribution of war prizes and the proper care of horses. Overall, the point is to suggest the importance of participation in fighting under those conditions and according to those norms consistent with the notion of submission to the will of God. Thus we find Muhammad saying: "The man who fights in the cause of the Lord may be compared to one who fasts and prays and is not weary of prayer or fasting, until he returns from the fighting."3

Endurance or persistence in the task one is given, whether fighting or fasting and praying-that is the key, for one who gives his or her life to the Lord of the worlds. Or again, we find Muhammad in conversation, as follows: The Prophet of God said: "One who spends his wealth in the cause of the Lord will be called on at the gate of heaven- '0 servant of God, this is bliss!' The man of prayer will be admitted from the prayer gate, the man of fighting will be admitted from the fighting gate, and the man of fasting from the gate of fasting:' Abu Bakr al-Siddiq said: "Prophet of God, for a man who is called from one gate, there would be no trouble, but would there be one who is called from all the gates?" The Prophet of God said: "Yes, and I would hope you would be among them:'4

Such texts provided the material for the more developed treatises of the Iraqi school. Of these, Abu Yusuf's "Book on the Land Tax;' which deals with questions arising from the administration of conquered territories, seems to be the earliest. For our purposes, al-Shaybani's "Book of the Foundations;' and within that work, the chapters on al-siyar, are more interesting and worthy of sustained analysis.5

From the outset it is clear that al-Shaybani's text approaches the question of war in connection with broader issues of political ethics. The term siyar, for example, means "movements:' The movements in question are those between and within two broadly defined political-territorial associations, namely the "territory of Islam" and the "territory of war:' The first of these terms indicates the area within which Islam is the dominant political reality. The second is a generic term for political-territorial associations not governed by Islam. In the territory of Islam, the ruler is a Muslim, the system of government is organized to serve the expansion of Islam, and the people within the territory are identified according to their participation in various groups, each of these defined by its relation to Islam. The primary group is Muslims, but there are also "protected people" (ahl al-dhimma, mainly Christians and Jews, though other groups could come under this category), "rebels" (bughat, indicating groups of Muslims dissenting from the policy of the established leadership), "apostates" (al-murtadd, meaning those who were once Muslims but have in some way disassociated themselves from the true faith), and "brigands" (muharibun, indicating criminals who prey off ordinary people and live as "highwaymen"). In the territory of war, the overarching category is harbi (roughly, "war person"). Subcategories, for example women, children, the elderly, or, in some cases, Muslims residing in the territory of war, are referred to in discussions of the means of war, especially with respect to the protection of noncombatants. Al-Shaybani and his colleagues are thus concerned with the justification and conduct of war in the context of the kind of political-territorial arrangement outlined in previous chapters. Their judgments are developed in response to questions like "What is the proper behavior for Muslim fighters who cross into the territory of war?" or "What is the appropriate way to respond to Muslim rebels?"

War is a means to a political end, which is the establishment and governance of a political-territorial association governed by Islam. We may take this further: the establishment of an Islamic state is itself a means by which the Muslim community can carry out its divinely mandated mission of calling humanity to the relationship with God signified by submission, al-islam. In this connection, war is a means to a political end (establishing an Islamic state), which is itself a means to an overarching religious goal (calling humanity to Islam). This approach suggests that there is nothing particularly good or bad about war in itself. It is a means to an end, and should be viewed as such. Resort to war is thus a matter of estimating its probable effectiveness in attaining certain goals. Notions of just conduct in war are similarly suggested by the desire to gain particular objectives.

Perhaps the simplest way to illustrate this way of thinking is to cite a report with which al-Shaybani's text begins. Here the Prophet Muhammad is depicted as giving directions to Muslim fighting forces-first, to those in command, and through them, to all members of the army. The text establishes precedents to which everyone subsequently engaged in the practice of Shari'a reasoning about war will recur. Whenever God's Messenger sent forth an army or a detachment, he charged its commander personally to fear God, the Most High, and he enjoined the Muslims who were with him to do good. He said:

Fight in the name of God and in the path of God. Fight the mukaffirun [ingrates, unbelievers]. Do not cheat or commit treachery, and do not mutilate anyone or kill children. Whenever you meet the mushrikun [idolaters], invite them to accept Islam. If they do, accept it and let them alone. You should then invite them to move from their territory to the territory of the émigrés. If they do so, accept it and leave them alone. Otherwise, they should be informed that they will be in the same condition as the Muslim nomads in that they are subject to God's orders as Muslims, but will receive no share of the spoil of war. If they refuse, 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 a town and they try to get you to let them surrender on the basis of God's judgment, do not do so, since you do not know what God's judgment is, but make them surrender to your judgment and then decide their case according to your own views. But if the besieged inhabitants of a fortress or a town ask you to give them a pledge in God's name or in the name of God's Messenger, you should not do so, but give the pledge in your names or the names of your fathers. For if you should ever break it, it would be an easier matter if it were in the names of you or your fathers.6

There is much to learn from this text, which is basic to all Shari'a reasoning on the topic of war. In it, for example, al-Shaybani and others found precedent for limiting the right of war to the head of state. Muhammad, as W. M. Watt's biographical study suggests, was both prophet and statesman.7 Scholars in the Shari'a tradition saw in this report an example of his statesmanship, which was to be followed by those who succeeded him in the office of khalifa. Resort to war requires an order from a legitimate authority. It also requires a just cause and righteous intention. So scholars in the Shari'a tradition understood, as the words attributed to the Prophet echoed in their minds: "Fight in the name of God and in the path of God. Fight the mukaffirun." The purpose of war is the establishment and governance of an Islamic state. That state, in turn, finds its purpose in connection with the Muslim community's mission of calling human beings to Islam. A just war must be tied to these purposes. And those authorizing it show that their intention is consistent in this regard by carrying out a specific protocol, namely, the issuing of an invitation to the enemy.

One might well ask how the "enemy" is identified. The Prophet's statements seem to characterize them as mukaffirun, which literally means "ingrates" and is typically translated "unbelievers." Staying strictly with the terms of this report, we may say that such people are identified by their response to the invitation proffered by Muslim fighters. The mention of mushrikun a few sentences later provides further specification. Signifying "idolaters" or perhaps more literally "associationists;' the term often bears the meaning of "polytheists:' That would constitute a considerable limitation regarding resort to war, since the category specifically does not include Jews and Christians. For al-Shaybani and his colleagues, however, Jews and Christians are clearly among those to whom an invitation should be issued, unless and until they pay tribute and thus come under the sway of Islam as protected people. Thus practitioners of Shari'a reasoning would find just cause for war in the fact that a given people refused the invitation of the Muslims to accept Islam or to pay tribute and come under the protection of the Islamic state. The procedures outlined in this report establish a notion of war as a means of pursuing goals considered legitimate. The nature of the invitation makes it clear that war is not the first or primary means recommended for pursuing these goals. Fighting is prescribed only when other means have failed. Although this formula is not a precise equivalent of the Western just-war criterion of "last resort;' it is nevertheless an indication that resort to war must follow an attempt to pursue legitimate goals by nonlethal means. Thus the tradition of Sharta reasoning already provides an equivalent to the just-war criteria of legitimate authority, just cause, righteous intention, and (at least) "timely" resort.8 We might also see in the overarching purpose of establishing and maintaining an Islamic state something equivalent to the just-war criterion of "aim of peace:' Proportionality and reasonable hope of success, by which just-war tradition instructed those deliberating about resort to war to make a good-faith effort to estimate the overall costs and benefits of fighting in particular cases, do not show up, at least in this report.

The preoccupation of the report is of course with those who are not already under the protection of the Islamic state. As we read al-Shaybani's text, we come to understand that fighting against residents of the territory of Islam is also possible, though justified with somewhat different reasons. Governance of the non-Muslim "protected" peoples, for example, is set in terms of obligations established by treaties. If the protected peoples violate their obligations, for example by initiating fighting against the armies of the Muslim state, then the ruler of the Muslims is justified in disciplining them.9 Again, if rebels rise up against the state, fighting can be justified. 10 In either case, the overarching purpose of fighting is to restore peace, order, and justice to the territory of Islam. Protected peoples are to be returned to their rightful status. The notion that rebels are to be reconciled implies that war not only is a means of discipline, but is to be conducted in such a way that any legitimate grievances of the rebels have may be redressed. In the somewhat different case of apostates, the point is to return those who have deserted it to the way of Islam or, failing success in the matter, to prevent injustice by killing them.11 Similarly, in the case of highwaymen the objective is the security of the territory of Islam and its residents, and the ruler is justified in undertaking those measures necessary to protect it.12 In an interesting demonstration of confidence, al-Shaybani and his colleagues do not address the question of fighting in response to an enemy invasion.

Right authority, just cause, and other criteria already mentioned are not the only measures of justice in war, of course. It is noteworthy that the prophetic dicta also include matters related to lawfulness in the conduct of war. In particular, the saying of the Prophet includes prohibitions on cheating, treachery, mutilation, and the killing of children. This saying, along with other reports of the Prophet's practice, gave rise to more extensive restrictions on targeting that should be seen as analogous to the just-war tradition's concern for "discrimination" or the "immunity of noncombatants" from direct and intentional attack. Other considerations have to do with fair dealing in the distribution of booty and with prudence in making agreements. As mediated by al-Shaybani and his colleagues, the report does not contain any references to weapons that mayor may not be used-the typical concern associated in the just-war tradition with just-war proportionality. Al-Shaybani and his colleagues built on this and other reports of the practice of Muhammad and his companions, providing answers to specific questions raised in their own day. In reading their collected judgments, it is important to remember their role as advisers at the Abbasid court, which explains their preoccupation with matters of administration. The following account of an exchange between two of the early masters of al-Shaybani's school is typical:

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 any of the food for himself and fodder for his mount. Abu Hanifa replied: No harm in all that.13

Such questions have little to do with the concerns of modern military thinking. They are connected with the questions of the early Hanafi jurists, however, because of their focus on movements between the territories of Islam and territories of war, and probably also because of movements in Muslim military organization in the direction of a professional army.14 The question emerges in connection with the repeated consensus of the school that booty should be divided only after its return to the territory of Islam. Such judgments attempt to ensure a just distribution of the booty, and also to keep the troops focused on their military task. In dealing with the conduct of Muslim fighters in enemy territory, however, al-Shaybani and others addressed several questions of direct relevance to our concerns. Thus we read the following: 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 and it is permissible to burn fortifications with fire or to inundate them with water.15

The first sentence is reminiscent of the Prophet's directives to fighters. The requirement of an invitation is critical for establishing just cause and righteous intention. It also reveals much regarding the overarching religious and political purposes that war is supposed to serve, and places war within a hierarchy of means to be deployed in pursuit of those purposes. Here we are to envision a case in which hostilities have begun. An invitation having been given and refused, the enemy is tasting the steel of the Muslims. Should the Muslims now renew the invitation, giving the enemy a second chance to submit, or should fighting be carried to a conclusion as al-Shaybani seems to assume, a conclusion that involves decisive victory for the Muslims. The judgment is in the nature of a recommendation: renewal of the invitation would be a good thing but is not required.

Commanders in the field have discretion in this matter. The second sentence, however, moves in a direction not covered by the Prophet's statements. Here scholars directly address the question of military means, and they do so in ways that give a great deal of latitude to the fighters. The army may fight by night or by day the former likely involving a greater risk of injury or death to the Muslim fighters, as well as to certain people on the enemy side who fall into the category of noncombatants. Similarly, the army may utilize tactics that increase the potential for injury, specifically burning fortifications with fire or inundating them with water.

Throughout, the text reveals a strong inclination toward a position one might characterize as "military realism." Given that requirements associated with just war are satisfied, and Muslim troops are thus engaged in a legitimate war, al-Shaybani and his colleagues are willing to grant wide latitude to commanders in the determination of appropriate means. Such latitude is not total, of course. The Prophet's dicta are clear regarding cheating, treachery, mutilation, and the direct targeting of children. With respect to the last, in particular, al-Shaybani and his colleagues demonstrate respect for early Muslim practice in classifying a number of enemy persons as, in effect, immune from direct attack. In addition to children, slaves, women, old people, the lame, the blind, and the helpless insane are immune from direct attack.16 In addition, the text indicates a concern regarding the presence, or even the possible presence, of Muslims in enemy territory-a condition that must have been ubiquitous along the border between their respective territories, where Muslim and Byzantine forces often took turns conquering and reconquering particular towns and regions.17

 Muslims in the midst of the enemy are also presumed "innocent," and thus immune from direct attack, for the lives and property of Muslims had been considered inviolable from the earliest times. Direct and intentional targeting of any of these categories of people violates an express directive of the Prophet, or a legitimate extension of that directive. It also involves dishonor to fighters, who win their reputation in direct engagement with other fighters. As the Qur'an has it (2:190): Fight in the path of God Those who are fighting you; But do not exceed the bounds. God does not approve the transgressors. "Do not exceed the bounds"; even in the revealed text, the reference is to a warriors' code. Now al-Shaybani and his colleagues, guided by the example of the Prophet and his companions, must elaborate such a code for their day.

As they do so, their judgments indicate both their adherence to precedent and a disposition toward military realism. Thus we read the following series of questions and responses: I asked: Would it be permissible to inundate a city in the territory of war with water, to burn it with fire, or to attack with hurling machines even though there may be slaves, women, old men, and children in it? He replied: Yes, I would approve of doing all of that to them.

I asked: Would the same be true if those people have among them Muslim prisoners of war or Muslim merchants? He replied: Yes, even if they had Muslims among them, there would be no harm to do all of that to them. I asked: Why? He replied: 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.18

One who fights should employ the means necessary to win-or so it would seem, given the final statement in this sequence of judgments. That is not all there is to it, however. In just-war tradition, military policy can be highly realistic even while adhering faithfully to the guidelines indicated by the just-war criterion of discrimination or noncombatant immunity. As more than one interpreter suggests, the idea is that noncombatants are immune from attacks that are direct and intentional, but they cannot be immune from any harm whatsoever. An attack that is legitimate, in the sense that it is directly intended as a strike against the enemy's ability to fight, may result in the deaths of noncombatants. This outcome may be purely accidental, such as when a child happens to wander by a military target and is caught in the crossfire. It may also be foreseeable but unavoidable, as when an enemy's military resources are deployed in the midst of a civilian population. In this case the deaths of civilians are the indirect or secondary (in the sense of "unintended") consequence of the deployment of means necessary to accomplish a legitimate military purpose. Soldiers whose actions take place under such conditions are excused from the guilt associated with unjust killing. Alternatively, the actions undertaken may be described as justified, though with some regrettable (secondary) effects. This judgment of acceptability holds so long as the incidence of unintended, collateral damage is proportionate with the military objective.

Given this line of thinking, it is not surprising to read: I asked: If the Muslims besieged a city and its people positioned behind the walls shielded themselves with Muslim children, would it be permissible for the Muslim fighters to attack them with arrows and hurling machines? He replied: Yes, but the warriors should aim at the inhabitants of the territory of war and not the Muslim children. I asked: Would it be permissible for the Muslims to attack them with swords and lances if the children were not intentionally aimed at? He replied: Yes. I asked: If the Muslim warriors attack with hurling machines and arrows, flood cities with water or burn them with fire, thereby killing Muslim children or men, or enemy  women, old men, blind, crippled, or lunatic persons, would  the warriors be liable for blood money or acts of expiation? He replied: They would be liable neither for blood money nor for acts of expiation.19

The reasoning is quite or at least  reminiscent of Western just-war tradition during that same period in history, and its approach to collateral damage. One would be quite wrong, in the case of just war or of Shari'a reasoning, to read such a passage as negating respect for the immunity of noncombatants. The point is that the attacks are not directly and intentionally aimed at noncombatants. Without this overarching categorization, the military acts described would be unjust, and those engaging in them would need to make restitution. As it is, al-Shaybani and his colleagues are best read as trying to combine military realism with respect for rules that measure just conduct in the midst of war. In so doing, they mean to establish norms appropriate to the conduct of a professional army. The judgments advanced by al-Shaybani became part of a historical deposit with which subsequent generations had to deal. Not all later practitioners of Shari'a reasoning agreed with al-Shaybani. Even the title of a text written by the great al- Tabari (d. 923), the "Book of the Disagreement of the Practitioners of Fiqh on the Jihad and the Tax [imposed on conquered peoples]" (Kitab al-Ikhtilaf alFuqaha fi aI-jihad wa 'I-jizya'), indicates the conversational nature of the discipline. Shari'a reasoning about war constituted a lively discourse, in which there could be considerable disagreement about the administrative matters so important to al-Shaybani and his colleagues. There could even be disagreement over whether soldiers who participated in an action in which noncombatants were unintentionally killed should perform acts of expiation, or over the precise categories of people who belonged to the class of noncombatants.20

In Shari'a reasoning, it is best to think of judgments like those of al-Shaybani as precedents. As recent debates in American constitutional law show, the status of precedent in legal reasoning can be contentious. That seems the case with Shari'a reasoning as well, with some opting for a stronger, some for a weaker notion of precedent. It is clear, however, that the notion of Shari'a reasoning requires a balance between respect for the judgments of one's predecessors and the need for independent judgment (ijtihad), reflecting the idea that changing circumstances require fresh wisdom.

By the time of al-Mawardi (d. 1058), the preoccupation of Shari'a reasoning appears to have shifted from the details of administrative law to the superstructure of right authority. Consider, for example, the following:

When the Caliph appoints a governor of a province or city, the latter's jurisdiction may be either general and unrestricted or special and restricted. General governorship is of two kinds: regular (by recruitment), in which appointment is made by the sovereign's free choice; and usurped, in which the appointment is made through coercion .Governorship by usurpation is coercion in the sense that its holder acquires by force certain districts over which the Caliph gives him a decree of appointment, assigning him their management and the maintenance of public order therein. By seizing power, the governor becomes an independent and exclusive controller of political matters and administration, while the Caliph, by his permission, becomes the implementer of the dictates of religion, thus transforming unlawfulness into legality, and the forbidden into the legitimate. Although by doing so he does not adhere closely to the conventions of appointment in respect of conditions and procedures, his action upholds the canon law and its provisions in ways that are too important to be disregarded. Thus, decisions that would normally be unacceptable in regular appointment based on choice are permissible under usurpation and necessity, owing to the difference between ability and incapacity.21

As al-Mawardi's text makes clear, he presumes that designation of a ruler is a requirement of Sharica; that the office must be singular (that is, there cannot be two legitimate rulers, even if they reside in different cities); and that the person holding leadership must have certain qualifications, most notably descent from the Quraysh, the clan into which the Prophet Muhammad was born. It is noteworthy, given other trends in the Muslim community of his day, that alMawardi does not require that the ruler be "of the Prophet's household" or "of the family of the Prophet (or of ‘Ali)"; this was a position held by the various Shici groups. Al-Mawardi further stipulates that the ruler may be either designated by his predecessor or chosen by electors. The latter may be any of the number of Muslims who are truthful, who possess knowledge of the required characteristics of the ruler, and whose prudence and wisdom make it likely that they will choose the right person. As a matter of custom, he writes, this role usually falls to the leading citizens of the capital of the territory of Islam. Thus far, there is nothing controversial about al-Mawardi's argument. Indeed, it reflects the standard presentation of Abbasid imperial practice. Similarly, when al-Mawardi comments on "the ministry" (al-wizara), noting that appointment to this office is the right of the sovereign ruler and that appointment may constitute the minister's authority as "delegated" or "executive;' he seems to reflect the standing practice of the Abbasid court. No ruler is able to administer the day-to-day affairs of a far-flung empire; the Abbasid caliphs tended to assign many of these tasks to court advisers, the most authoritative of whom held positions as ministers. "Delegated" authority of a minister, al-Mawardi says, suggests greater independence; "executive" authority indicates that the ruler himself is setting policy and restricting ministerial practice to carrying out his orders.

It is in the comments on "governors" that al-Mawardi's reasoning becomes creative. Many, perhaps most, commentators read his notion of a governor "appointed" by coercion as a pure example of realpolitik.22 It was in fact the case from about 935 on that no Abbasid ruler really exercised power in the style of the High Caliphate. Instead, power was concentrated in the provinces of the empire, whose governors commanded armies, collected taxes, and generally carried out the duties of statecraft. Among these, the more powerful carved out larger territorial units than Abbasid practice allowed. Powerless to remove such "usurpers;' what was the caliph to do? By al-Mawardi's lights, the caliph should do his duty, namely, maintain the unity of the territory of Islam by authorizing such governors to rule as agents of the Abbasid court. However irregular such a strategy may seem, he writes, a caliph who acts in this way "upholds the Shari'a and its provisions in ways that are too important to be disregarded." In effect, the ruler "delegates" authority to the usurping governor. The latter thereby achieves· legitimation, and the former hopes to preserve the unity of Islam, as is his charge. Governors must therefore "uphold the office of the sovereign [the caliph] as a vicar of prophecy and manager of religious affairs, in order to fulfill the legal requirement of ensuring its existence and preserving the rights arising therefrom:'23 Insofar as the usurper lacks formal qualifications, "it is up to the Caliph to sanction his appointment as a means of winning him over and putting an end to his disobedience and intransigence:'24 In certain conditions, the caliph may even appoint a minister to work with the usurper and to exercise executive power. With respect to war, al-Mawardi's judgment legitimating governorship by usurpation is a crucial modification in the notion of right authority. "General" governorship, in particular, comes with full power to make war.25 There is a sense in which one who seizes power becomes the caliph's designated minister for political and military affairs. After al-Mawardi's time (and even, to some extent, during his lifetime), leaders of the Seljuq Turks played such a role, holding positions as wazir (minister) or aI-sultan (the power) in concert with the Abbasid caliphs' role as guardian of Islam.26

If general governorship comes with the full power to make war, it also imposes duties. Al-Mawardi's comments on this matter are a subject for study in themselves. As commander, the general governor sees to the formation, equipping, and morale of a fighting force. He manages fighting against "the idolaters in enemy territory," as well as against apostates, rebels, and brigands within the territory of Islam. In the first group, al-Mawardi designates two classes: "those who have received the call to Islam but rejected it and turned away from it" and "those whom the call to Islam has not reached:'27 The former are subject to attack or the threat of attack at any time, depending on the commander's sense of what is best. The latter, of whom there would be "very few today on account of the victory the Almighty has accorded His Prophet's mission, unless there be nations unknown to us beyond the Turks and Greeks we meet in eastern deserts and remote western areas;' cannot be subjected to a surprise attack.28 The Prophet stipulated that an invitation is required before fighting. For al-Mawardi, such an invitation includes the presentation of material intended to persuade the unbelievers of the truth of Islam: "making the Prophet's miracles known to them, and informing them of such arguments as would make them to respond favorably."29 In a style indicative of the conversational nature of Shari'a reasoning, he notes that, should a commander (improperly) initiate fighting without making an attempt to persuade such an uninformed enemy about the truth of Islam, "he will owe them blood-money, which, according to the more correct view in the Shafi'i school, is equal to that due to Muslims, although it has been suggested that it should be the same as the various amounts of compensation paid to the heathens according to their different beliefs. Abu Hanifa has, on the other hand, said: 'There is no compensation for killing them, and their lives are to be taken freely:"30 One must cite precedents in Shari'a reasoning; one need not follow each and all.

"Killing women and children is not permitted in war or otherwise so long as they do not fight, owing to the Prophet's injunction against killing them ... God's Prophet ... has also forbidden the killing of servants and slaves."31 Here al-Mawardi acknowledges the authority of the Prophet's directives delimiting the range of legitimate targets. He also moves toward the identification of a general principle that we might see as underlying the listing of groups that fighters are not supposed to target for direct attack. The point is not simply that the Prophet identified women, children, and others as protected groups. Rather, these persons are listed because, as a general matter, they "do not fight." Indeed, if women or children do take up arms, they "should be fought and killed;' albeit in ways that maintain honor.32 In some ways al-Mawardi's account of the limits placed on just killing is more stringent than that of al-Shaybani and his colleagues. Al-Mawardi argues that Muslim fighters faced with an enemy that shields itself with Muslims should stop killing; if the Muslim fighters find it impossible to continue without killing the Muslim shields, they should stop attacking. Should the enemy take advantage of this proscription, surrounding the Muslim army while still protecting itself with Muslim hostages, the Muslim fighters should defend themselves, trying all the while to avoid killing their co-religionists; if one of the hostages is killed, the killer must pay blood money and/or make expiation, depending on whether he knew the religious identity of the one killed.33

Al-Mawardi shows both the continuity and change characteristic of Shari'a reasoning about war. Subsequent writers provide further illustration. Shortly after al-Mawardi's death in 1058, for example, al-Sulami of Damascus (d. 1106) produced the Kitab aI-Jihad (Book on Armed Struggle). Al-Sulami was not and is not widely known for his practice of Shari'a reasoning; he was evidently an instructor in Arabic language and letters at the Grand Mosque in his home city. Much of his book on jihad has to do with language intended to evoke action by Muslims, especially those in positions of authority, in response to incursions into the territory of Islam by aI-faranj, the Franks-that is, the Crusader armies. Nevertheless, al-Sulami's mode of reasoning and above all his indication of the formal duty to fight indicates participation in the practice of Shari'a reasoning.34

For our interests, it is particularly striking that al-Sulami's preoccupation is with defensive or "imposed" war. Al-Shaybani and other early Hanafi jurists seem entirely unconcerned about fighting in a context defined by the success of an external, non-Muslim enemy in occupying Muslim territory. For al-Shaybani and his colleagues, the focus of war with non-Muslims had to do with the ways Muslim fighters should conduct themselves during an incursion into enemy territory. Similarly, al-Mawardi's preoccupation is with the rights and wrongs of war aimed at expanding the territory in which Islam is established. His brief mention of the right of a governor "with limited powers" whose province is located on the border between the territory of Islam and the territory of war to fight non-Muslims if they strike first, and without obtaining the caliph's authorization, is exceptional.35

With al-Sulami, we have a different idea, and a different context: duty of fasting. Only those unable by reason of sickness or other incapacity may be excused from its performance. It seems unlikely that al-Sulami was the first to argue in this way. However, the precedents he cites do not say precisely that fighting becomes an "individual duty." Rather, they suggest that those who are "distant" from the affected area are called to step forward and give aid. Just how much distance there is between this and al-Sulami's judgment that the incursions of the Franks make fighting an individual duty is a matter in need of further exploration. In any case, by the time one gets to the work of Ibn Taymiyya (d. 1328), reference to fighting as an individual duty in circumstances of emergency seems to come easily. If, he writes, the enemy attacks the Muslims, then the duty to fight becomes a personal or individual duty for both "those against whom the attack was made and those not directly affected by it."38 Citing the Qur'an and the example of the Prophet, this scholar, much of whose career was spent in the prisons of those ruling in Damascus and in Cairo, writes that every Muslim must provide assistance, even if he is not a professional soldier. In the battle of the Trench (627), when the Muslims in Medina came under siege, "God permitted none to abandon the jihad:' Once the siege was broken, and fighting involved pursuit of the enemy, a different set of judgments prevailed. Ibn Taymiyya writes that the defense of Medina "was a war to defend the religion, the family honour and the lives [of community members]; an obligatory fighting ... [Pursuit of the enemy following the siege] was voluntary fighting to increase the prestige of the religion and frighten the enemy:'39

Different circumstances suggest distinctive judgments about the nature of the duty to fight. Do they suggest distinctive rules? The answer, it seems, is no. Those who "do not constitute a defensive or offensive power, like the women, the children, the monks, old people, the blind and the permanently disabled should not be fought."40 This general rule is supported as the consensus of the Muslims, the exampleof the Prophet, and Qur' an 2: 190: "fight in the way of God against those who fight against you, but do not commit aggression. Truly, God does not love those who commit aggression:' Ibn Taymiyya comments that "we should only fight those who fight us, if we really want the Religion of Allah to be victorious:'41

Ibn Taymiyya does suggest that noncombatants may forfeit their protected status if they "carryon a kind of fighting with words" or serve as spies, provide transport for munitions, or in other ways participate more directly in the enemy war effort. Earlier writers had typically stipulated that women, children, and others moved to combatant status if and when they took up arms. The principle, in either case, seems to be that those who do not, or may be presumed not to, participate in the enemy's war effort are not to be the target of direct attack by Muslim forces.42

This matter brings us to an emphasis that many commentators view as a special focus of Ibn Taymiyya's judgments about war. He writes that the "heaviest jihad should be directed against the unbelievers and those who refuse to abide by certain precepts, like the abstainers from paying zakat -alms and the Kharijites."43 The case of the tax evaders has drawn attention from many students of Ibn Taymiyya's work. Ibn Taymiyya's wording suggests the notion of fighting against apostates (al-murtadd) and rebels (al-bughat). Discussion of the rules governing fighting against these groups was an established practice of Shari'a reasoning. Al-Shaybani and his colleagues discussed the matter, as we have seen. Apostates were understood along the lines of the precedent attributed to Abu Bakr, discussed in The Islam Code P.1. Having received a communication from a particular group regarding its intention to maintain faith in God and God's Prophet, but to forgo payment of al-zakat to the common treasury, Abu Bakr declared his intention to fight in order to compel obedience. Al-zakat, he said, was not optional for Muslims. Believers must contribute to the common treasury, administered by a legitimate authority. Those who refused to do so had "turned" (the literal meaning of al-murtadd) away from the faith, even if they continued to recite the basic creed and to perform obligatory prayers. Ibn Taymiyya is consistent with his predecessors on this matter, even in his discussion of "the preacher of heresy contrary to the teachings of the Book and the Sunna:'44 In either case, the wrong has to do with public departure from Islam, as established and protected by a legitimate authority. Such wrongs are connected with Qur' an 2:214 and other texts that stipulate that fitna, or civil strife, is more blameworthy than the shedding of blood.

Similarly with rebels. The Kharijites, whom Ibn Taymiyya mentions explicitly, were an early group understood as "secessionists" (the literal meaning of the name al-khawarij). According to traditions consistently cited by practitioners of Shari'a reasoning, the group seceded from the rightful leadership of 'Ali ibn Abi Talib (d. 661), the fourth successor to the Prophet. Their secession was motivated by an objection to 'Ali's approach to conflict with Mu'awiya, governor of Syria and an opponent of 'Ali. In justifying their actions, the Kharijites cited Qur' anic texts. They understood themselves as advocates for justice and saw others as moral slackers, in need of encouragement or, in some cases, of punishment. 'Ali responded with a mixture of persuasion and force, the goal being to limit the damage done by this group of "irregular fighters" while at the same time hoping for reconciliation. Over time the Kharijites became a standard reference for those who, while well-motivated, committed acts that did more harm than good. In justifying fighting against such persons, Ibn Taymiyya again was consistent with Shari'a precedent. It is the duty of a Muslim ruler to establish and protect the practice of Islam. Such a ruler does not use military force to make new converts. Rather, the ruler fights to extend or protect the hegemony of Islamic values in what one might call "geopolitical space." Even within that space, fighting is not authorized to force conversion. As  Ibn Taymiyya writes, the protected peoples (ahl al-dhimma), for example Jews and Christians living under Muslim rule, may be fought only if they violate the terms of their treaty with the Muslim ruler. Their difference in religion is not itself a justification for fighting.45

Force is authorized, however, to protect the establishment of Islam. So apostates and rebels are seen as a greater threat than those unbelievers who live outside the boundaries of the Islamic state. A legitimate ruler is authorized, even required, to use force to limit the ability of such groups to "spread corruption in the earth" (Qur'an 5:33). Thus far Ibn Taymiyya seems consistent with his predecessors in the practice of Shari'a reasoning. He does write as one intent on purifying the practice of Islam; his treatise on the institution of alhisba, or the public exhortation of Muslims to fulfill their duties, is indicative of this concern, as are numerous tracts and formal Shari' a opinions about the danger of practices that depart from true Islam.46 For Ibn Taymiyya, any Muslim refusing to perform those duties or to observe those prohibitions established by Shari'a reasoning is subject to punishment. If such refusal is a matter of performance only, the miscreant may be considered an unbeliever, an apostate, or a "half Muslim" -this, Ibn Taymiyya writes, is a matter on which Shari'a authorities disagree. If refusal is accompanied by explicit statements to the effect that regulations established by Shari'a reasoning do not hold, the person is simply an unbeliever. In any case, however, punishment does not rise to the level of fighting unless departure from duty is accompanied by armed resistance. If such resistance is present, then punishment with fighting is necessary. Depending on the circumsta,nce, participation in fighting to discipline those who have departed from their duties may be a matter for the standing army, or it may be an individual duty incumbent on each and every Muslim.

Ibn Taymiyya's zeal for purity in Islamic practice mayor may not involve an expansion of the typical concerns of Shari'a reasoning. Where he does seem a bit different from his predecessors is in his construal of the relations between rulers and subjects. For Ibn Taymiyya, these are reciprocal. Rulers owe it to their subjects to provide leadership, to govern wisely, to establish institutions that will ensure that subjects understand their duties and are encouraged to fulfill them.

Subjects owe obedience; this is a standard judgment of Shari'a reasoning. At some times and in some places subjects are compelled to "omit to obey;' as when a ruler commands something contrary to the Qur' an and the example of the Prophet. This again is standard. Ibn Taymiyya takes this thinking further, however; he says that it is a duty of subjects to remind rulers of the demands of obedience to God's law. Indeed, Ibn Taymiyya presumes that "commanding right and forbidding wrong" is a task in which all Muslims have a part. Certainly, not all Muslims are public officials with rights and duties associated with enforcement of the Shari'a. But all Muslims do have a share in the task of commanding good and forbidding evil, and this notion may be understood in ways that expand the rights of subjects in relation to rulers. For rulers, as well as subjects, may be negligent in their duties. Rulers, as well as subjects, may depart from Islam in ways suggestive of apostasy, rebellion, or unbelief. When this situation holds, who has the duty, and with it the right, of punishing the ruler? The establishment of legitimate authority, Ibn Taymiyya holds, is a requirement of the Shari'a. Who will establish such authority if and when those who hold the reins of power are themselves corrupt? It is difficult to see Ibn Taymiyya as a full-blown advocate of just revolution. He wrote in a time when the unified caliphate presumed by his predecessors no longer existed. With the invasion of the Mongols, the Abbasid caliphate proved unsustainable, even in the special role envisioned by al-Mawardi. The Muslim state was in a time of transition, with competition between various claimants to power. The Mamluk sultanate in Cairo was preeminent. The Mongols themselves were in transition; having conquered large portions of the territory of Islam, they appeared to be quintessential unbelievers. They were, however, in the process of converting to Islam, and by the time of Ibn Taymiyya they governed their portion of the territory of Islam by a kind of mixed legal regime. Judgments associated with the Shari'a were set alongside those characteristic of the Mongol code of honor. In this context, Ibn Taymiyya's concerns for pure Islamic practice seem to suggest the necessity of fighting against the Mongols, and in certain opinions he appears to say that such fighting is a duty for Muslims. Such judgments are put forth with care, however; much depends on the trajectory of the Mongol state with respect to adherence to Shari'a norms. Thus the transitional nature of authority in Ibn Taymiyya's time makes it difficult to read his judgments as constitutive of a theory of just revolution.48

At this point it is worth pausing for a brief discussion of the differences between Sunni and Shi'i approaches to matters of politics and war. As we have seen, the Shi'i insistence that leadership rightly belongs to the designated leader or imam had implications for the practice of Shari'a reasoning-specifically, for the idea that the authority of ahadith needed careful examination, since one could not trust that people who rejected 'Ali and his successors would faithfully transmit the sunna of the Prophet. Trustworthy or "sound" reports were those transmitted by, or on the authority of, one or more of the imams. Practically speaking, this meant that the biographies of those mentioned as transmitters should be scrutinized, since even the inclusion of the name of a designated imam rested on the witness of a subsequent reporter. Indeed, in the case of Twelver Shi'ism, a small group of community leaders, noted for learning and piety, came to serve as "deputies" of the Hidden Imam, and thus to function as authorities in his stead, albeit with certain restrictions tied to the fact that, despite their standing as the imam's representatives, "they" were not "he:' The role of the 'ulama as, in some sense, deputies of the Twelfth Imam is the topic of a wide-ranging study by Abdulaziz Sachedina, The Just Ruler in Shi'ite Islam.49 Sachedina shows that the precise dimensions of the authority attached to this designation are controversial. Nevertheless, it is clear that the Shi'i 'ulama perceived themselves as advisers to rulers. In that capacity, they issued opinions intended to "bind and loose;' that is, to set limits upon and provide justifications for the exercise of political and military authority by those wielding power.

In connection with the Sunni precedents outlined in this P.3 of The Islam Code, the most important of these opinions have to do with limiting the ruler's authority to initiate military action to instances in which war is "imposed" by the action, or threatened action, of an enemy. The great work of al-Muhaqqiq al-Hilli (d. 1277), for example, begins with a description of the rules of engagement which is compatible with the judgments offered by al-Shaybani, al-Mawardi, and others described above. Ai-Hilli then makes clear, however, that he is describing the justification and conduct of fighting ordered by the designated leader, who, as the imam of his age, is protected from the commission of serious sin, and thus knows when war is a proper means of statecraft. In the absence of the designated leader, his deputies are not authorized to carry out wars in which the intention is to expand Islamic territory. The deputies' authority is limited to situations in which the invasion or threat of invasion by a non-Muslim power provides a context for "defensive" war.

In such a context, the normal rules governing the conduct of Muslim forces hold. That is, those fighting in order to defend the territory of Islam are to avoid directly targeting noncombatants, and to use weapons and tactics that are proportionate to the task. If the progress of enemy forces raises the specter of an emergency, then the ruler, and with him the Shi'i 'ulama, call for help from neighboring Muslim rulers. The Shi'i trajectory, like the Sunni, thus establishes a set of precedents for the justification and conduct of war. The distinctively Shi'i emphasis on leadership has important implications for the notion of right authority, however. As in the case of Ibn Taymiyya's writings, the Shi'i emphasis on leadership is critical for an understanding of contemporary militancy, not least in the writings of the late Ayatollah Khomeini. Indeed, the logic of contemporary Muslim argument makes clear the role of precedent in Shari'a reasoning about politics and war. As a living tradition, Islamic judgments about the order of society and the uses of military force always respond to new situations. Yet both the shape of argument and the form of reasoning employed by militants and their critics alike rely upon interpreting and applying historical, textual precedents set by premodern scholarsor, even better, by the Qur'anic and Prophetic precedents to which these scholars referred. Shari'a reasoning is a system of argument about the fit that obtains between precedents and the facts of politicallife. And so Muslim arguments about war and politics in contemporary settings proceed just as they did in preceding centuries: by asking "What guidance has God provided for the conduct of life?" "What is the path that leads to refreshment" corresponding to the example of the Prophet and the true nature of human beings.”50
 
The Islam Code P.1 of 3

The Islam Code P.2 of 3

1. See Sohail Hashmi, "Interpreting the Islamic Ethics of War and Peace;' in The Ethics of War and Peace, ed. T. Nardin (Princeton: Princeton University Press, 1996), 146-168. Also see John Kelsay, "And Why Should You Not Fight? The Imperative of War in Islam and Christianity;' forthcoming in Linda Hogan, ed., Religions and the Politics of Peace and Conflict (Eugene, Ore.: Wipf and Stock, 2007).

2. Al-Muwatta of Imam Malik Ibn Anas, trans. Aisha Abdurrahman Bewley (London: Kegan Paul, 1989), 173-184.

3. Ibid., 173.

4. Ibid., 183.

5. On the history of the text, see Majid Khadduri's introduction in his translation of The Islamic Law of Nations: Shaybani's Siyar (Baltimore: Johns Hopkins Press, 1966), 1-74. For the dating of the text and its redactional history, see also Norman J. Calder, Studies in Early Muslim Jurisprudence (Oxford: Oxford University Press, 1993); and, more briefly, but suggestively, Khaled Abou EI Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 200 1), 144-145. The earliest version of al-Shaybani's treatise available to us dates from the time of al-Sarakhsi (d. 1096), that is, two to three centuries after the death of al-Shaybani. From al-Sarakhsi's use of the treatise, it is clear that he and his contemporaries regarded it as a school text, to be used in training scholars in the Iraqi or Hanafi style of Shari'a reasoning. The text thus functioned, even at this early date, to communicate consensual precedents attributed to the earliest figures associated with its characteristic style. Although we must use the Hamid Enayat, Modern Islamic Political Thought (Austin: University of Texas Press, 1982); as well as Malcolm Kerr, Islamic Reform: The Political and Legal Theories of Muhammad 'Abduh and Rashid Rida (Berkeley: University of California Press, 1966).

6. Khadduri, The Islamic Law of Nations, 75-77. Interestingly, given its prominence in later discussions of fighting, this report is not cited in Malik's Muwatta.

7. W. M. Watt, Muhammad: Prophet and Statesman (London: Oxford University Press, 1961), summarizes the more detailed presentations in idem, Muhammad at Mecca (Oxford: Clarendon Press, 1953) and Muhammad at Medina (Oxford: Clarendon Press, 1956).

8. According to an interpreter like Paul Ramsey, "timely resort" is the import of the last-resort criterion in any case. See Ramsey, Speak Up for Just War or Pacifism (University Park: Pennsylvania State University Press, 1988), 85. On just-war tradition generally, see James Turner Johnson, Morality and Contemporary Warfare (New Haven: Yale University Press, 1999). For formal comparisons of just-war tradition and Islamic thought, see John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville, Ky.: Westminster/John Knox, 1993); idem, "Religion, Morality, and the Governance of War: The Case of Classical Islam;' Journal of Religious Ethics 18, no. 2 (1990), 123-139; idem, "Bosnia and the Muslim Critique of Modernity;' in Religion and Justice in the War over Bosnia, ed. G. Scott Davis (New York: Routledge, 1996), 117-142; Kelsay and James Turner Johnson, eds., Just War and Jihad (Westport, Conn.: Greenwood, 1991); James Turner Johnson and John Kelsay, eds., Cross, Crescent, and Sword (Westport, Conn.: Greenwood, 1990); James Turner Johnson, The Holy War Idea in Western and Islamic Traditions (University Park: Pennsylvania State University Press, 1997); Reuven Firestone, Jihad:
The Origin of Holy War in Islam (Oxford: Oxford University Press, 1999); Basaam Tibi, "War and Peace in Islam;' in Nardin, The Ethics of War and Peace, 128-145; Sohail Hashmi, "Interpreting the Islamic Ethics of War and Peace:'

9. As in Khadduri, The Islamic Law of Nations, 218-222.

10. Ibid., 230-246 and 250-253.

11.Ibid., 195-218 and 222-229.

12. Ibid., 247-250.

13. Ibid., 96.

14. See John Kelsay, '~-Shaybani and the Islamic Law of War;' Journal of Military Ethics 2, no. 1 (2003), 63-75; also V. J. Parry, "Warfare;' in P. M. Holt et aI., The Cambridge History of Islam, vol. 2 (Cambridge: Cambridge University Press, 1970),824-850.

15. Khadduri, The Islamic Law of Nations, 95.

16. Ibid., 86-87,101-102.

17. Ibid., 55.

18. Ibid., 101-102.

19. Ibid., 102.

20. Portions of al- Tabari's text are translated by Yasir S. Ibrahim in "A Translation of al- Tabari's Book of the Disagreement among Muslim Jurists: The Book of Jihad (Sections 1-49)" (Master's thesis, University of Florida, 1998).

21. Al-Mawardi, Ahkam al-Sultaniyya wa al- Wilayat al-Diniyya, translated by Wafaa H. Wahba as The Ordinances of Government (Reading, u.K.: Garnet Publishing, 1996),32,36.

22.For example, see Ann K. S. Lambton, State and Government in Medieval Islam (Oxford: Oxford University Press, 1981); also E. I. J. Rosenthal, Political Thought in Medieval Islam (Cambridge: Cambridge University Press, 1958).

23. Wahba, The Ordinances of Government, 36.

24.Ibid., 37.

25. Ibid., 38-59.

26. On these matters, see Marshall G. S. Hodgson, The Venture of Islam, 3 vols. (Chicago: University of Chicago Press, 1974), vol. 2.

27.Wahba, The Ordinances of Government, 40.

28. Ibid.

29. Ibid.

30. Ibid., 41.

31. Ibid., 45.

32. Ibid.

33. Ibid.

34. For portions of the Arabic text, as well as a translation and comments, see E. Sivan, "La genese de la Contre-Croisade: Un traite damasquin du debut du XII siecle;' Journal Asiatique 254 (1966), 197-224.

35. Wahba, The Ordinances of Government, 35.

36. In general, see Jane 1. Smith, "Islam and Christendom;' in The Oxford History of Islam, ed. John 1. Esposito (Oxford: Oxford University Press, 1999), esp. 337-341.

37. From the Arabic text given in Sivan, "La genese de la Contre-Croisade;' 220; my translation.

38. Ibn Taymiyya, Siyasat al-Shar'iyya, in the translation by Omar A. Farrukh, Ibn Taimiya on Public and Private Law in Islam (Beirut:
Khayats, 1966), 146. For a short account of Ibn Taymiyya's life and thought, see Henri Laoust's entry in the Encyclopedia of Islam, 2d ed., 12 vols., ed. E. van Donzel, Bernard Lewis, and Charles Pellat, vol. 3 (Leiden: Brill, 1986),951-955. See also Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2001), 145-164.

39. Ibid., 147.

40. Ibid., 140.

41. Ibid., 141.

42. Ibid.

43. Ibid., 146.

44. Ibid., 141.

45. Ibid., 142.

46. On al-hisba, see the translation by M. Holland in Public Duties in Islam (Leicester, U.K.: Islamic Foundation, 1982). On the more general duty with which this treatise is concerned, see Cook, Commanding Right and Forbidding Wrong.

47. Taimiya, Ibn Taimiya, 145-148.

48. On these matters, see Holland, Public Duties; and Cook, Commanding Right and Forbidding Wrong, esp. 151-157.

49. Abdulaziz Sachedina, The Just Ruler in Shi'ite Islam (Oxford: Oxford University Press, 1988).

50. On these points, see Etan Kohlberg, "The Development of the Imami-Shi'i Doctrine of jihad;' Zeitschrift der Deutschen Morganlandischen Gesellschaft 126 (1976), 64-82; al-Muhaqqiq al-Hilli, Shara'i aI-Islam fi Masa'il al-Halal wa al-Haram, translated in 2 vols. by A. Querry as Droit Musulman. Recueil de lois concernant les Musulmans schyites (Paris: Imprimerie Nationale, 1871-72). A contemporary authority, the Ayatullah Murtaza Mutahhari (d. 1979), argued that at least in some cases, fighting in defense of the oppressed citizens of another country may be classified as imposed war, and seen as an even greater or higher duty than defense of one's own homeland. See his Jihad: The Holy War of Islam and Its Legitimacy in the Qur'an, trans. Mohammad S. Tawheedi (Albany, Calif.: Moslem Student Association [Persian Speaking Group], n.d.); and, more generally, Bruce Lawrence, "Holy War (Jihad) in Islamic Religion and Nation-State Ideologies;' in Kelsay and Johnson, Just War and Jihad, 141-160.

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