Averroès: The Book of Jihâd

Source: The Book of Jihâd

A comprehensive discussion of the principles of this subject is covered in two chapters. The first is about the identification of the elements of war. The second is about the ahkâm of the enemy’s property when the Muslims come to own it. (from the second part, I will only include “discussion on jizya”)

Chapter 1: The Elements (Arkân) of War

Section 1: Identification of the hukm of this activity

With respect to the hukm of this activity, the jurists agreed unanimously that it is a collective and not a universal obligation, except for ‘Abd Allâh Ibn al-Hasan who said it is voluntary. The majority of the jurists adopted this view because of the words of the Exalted, “Warfare is ordained for you, though it is hateful unto you, but it may happen that ye hate a thing which is good for you, and it may happen that ye love a thing which is bad for you, Allâh knoweth, ye know not”.

Its imposition as a communal obligation, that is, when some undertake it the rest are absolved of it, is based upon the words of the Exalted “And the believers should not all go out to fight. Of every troop of them, a party only should go forth, that they (who are left behind) may gain sound knowledge in religion, and that they may warn their folk when they return, so that they may beware”, and on His words, “Unto each Allâh hath promised good, but he hath bestowed on those who strive a great reward above the sedentary”.

Further, the Prophet (God’s peace and blessings be upon him) never went out to battle unless he had left some of the people behind. Taken together all these (evidences) imply that this activity constitutes a collective obligation.

The activity is obligatory on men, who are free, have attained puberty, who find the means (at their disposal) for going to war, are of sound health, and are neither ill nor suffer from a chronic disease. There is no dispute about this because of the words of the Exalted, “There is no blame for the blind, nor is there blame for the lame, nor is there blame for the sick”, and His words “Not unto the weak nor unto the sick nor those who can find naught to spend is any fault (to be imputed though they stay at home)”. With respect to the obligation being restricted to free men, I know of no disagreement.

The jurists in general agreed that a condition for this obligation is the permission of the parents, except when it becomes a universal obligation; for example, when there are not enough people to carry out the obligation enless all (present) undertake it. The basis for this is the established tradition which relates that “a person said to the Messenger of Allâh (God’s peace and blessings be upon him), ‘I wish to participate in the jihâd. He asked, ‘Are your parents alive?’ The man said ‘Yes’. He said, ‘Then struggle in their cause’”.

The jurists disagreed about the (need for the) consent of polytheist parents. Similarly, they disagreed about the consent of the creditor when a person is under debt because of the saying of the Prophet (God’s peace and blessings be upon him), when a man asked, “’Will Allâh pardon my sins if I die with forbearance sacrificing myself in the way of Allâh?’ He replied, ‘Yes, except for debts. That is what Jibrîl said to me lately’”. The majority permit it, however particularly when the person leaves something behind for the satisfaction of his debts.

Section 2: Identification of the persons to be fought

The jurists agreed, with respect to the people who are to be fought that they are all of the polytheists (mushrikûn), because of the words of the Exalted, “And fight them until persecution is no more, and religion is all for Allâh”, except what is narrated from Mâlik, who said it is not permitted to commence hostilities against the Ethiopians, nor against the Turks, because of the report from the Prophet (God’s peace and blessings be upon him), “Leave the Ethiopians in peace as long as they leave you alone”. Mâlik was questioned about the authenticity of this tradition. He did not acknowledge it, but said, “People continue to avoid an attack on them”.

Section 3: Identification of the harm permitted to be inflicted upon the enemy

Harm allowed to be inflicted upon the enemy can be to property, life, or personal liberty, that is enslavement and ownership. Harm that amounts to enslavement is permitted by way of consensus (ijma‘) for all categories of the polytheists, I mean, their men and women, old and young and common people, and the élite with the exception of the monks. One group of jurists maintained that they (the monks) are to be left alone and not to be captured; in fact, they are to be left unharmed and not to be enslaved because of the saying of the Messenger of Allâh (God’s peace and blessings be upon him), « Leave them and that to which they have devoted themselves », and also because of the practice of Abû Bakr.

The majority of the jurists maintained that the imâm has different types of choices regarding the prisoners of war including their pardon, enslavement, execution, demand for ransom, and the imposition of the jizya (poll tax) on them. A group of jurists maintained that is it not permitted to execute the prisoners. Al-Hasan ibn Muhammad al-Tamîmî has related that there is a consensus (ijma’) of the Companions on this.

The reason for their disagreement stems from the apparent meanings of the verses in this context, the conflict of the acts (of the Prophet) , and the conflict of the apparent meaning of the Qur’ânic text with the acts of the Prophet (God’s peace and blessings be upon him). This is because the apparent meaning of the words of the Exalted, “Now when ye meet in battle those who disbelieve, then it is smiting of the necks until, when ye have routed them”, is that after taking prisoners the imâm can only pardon or take ransom. (This conflicts with) the words of the Exalted, “It is not for any Prophet to have captives until he hath made slaughter in the land”, and with the occasion of the revelation that indicates through the (case of the) prisoners of the battle of Badr that execution is better than enslavement. The Prophet (God’s peace and blessings be upon him), however, executed the prisoners on some occasions, pardoned them (on others), and enslaved women.

Abû ‘Ubayd has related that he never enslaved free male Arabs. The Companions, after him, agreed upon the permissibility of enslavement of the People of the Book, both male and female. Those who maintained that the verse, which is specific about the matter of captives (prohibiting execution), has abrogated the acts of the Prophet, said that the captive is not to be executed. Those who maintained that the verse neither mentions captives nor is its purpose the final disposal of the question of what is to be done to the captives, and that the act of the Prophet (God’s peace and blessings be upon him) is an addition to what is in the verse, when they take into account the censure of the failure to execute the captives said that the execution of the captives is permitted.

Execution is permitted in cases where the guaranty of safe conduct (amân) is not available. There is no disagreement among Muslims on this; however, they differ as to who can grant safe conduct and who cannot. They agreed on the permissibility of safe conduct granted by the imâm. The majority of the jurists permitted safe conduct granted by free Muslim males, except that Ibn al-Mâjishûn was of the view that it is contingent upon the consent of the imâm. They disagreed about the safe conduct granted by a slave or a woman. The majority permitted this while Ibn al-Mâjishûn and Sahnûn used to say that safe conduct granted by a woman is contingent upon the consent of the imâm. Abû Hanîfa said that safe conduct granted by a slave is not permitted, unless he participates in fighting.

The reason for their disagreement is conflict of a general implication with that of analogical reasoning. The generality is in the saying of the Prophet (God’s peace and blessings be upon him), “The blood of the Muslim has equal value among themselves (among themselves with respect to protection). Even the humblest endeavors for their (collective) protection, and against outsiders they form a single (protecting) hand”. This implies, through its generality, that safe conduct granted by the slave is valid. The conflicting analogy arises due to the fact that safe conduct is contingent upon full legal capacity while the capacity of the slave is deficient due to his servility. Thus it is necessary that his servility should be effective in invalidating his amân on the analogy of its effectiveness in suspending many of the legal ahkâm in his case. The general implication must then be restricted by this analogy.

Their disagreement about the effectiveness of the safe conduct granted by a woman is based on their dispute about the meaning of the saying of the Prophet (God’s peace and blessings be upon him), “We protect whom you have protected, O Umm Hânî”, and on the analogy of women upon men (i.e their equality). Those who understood from his saying, “We protect whom you have protected, O Umm Hânî”, an endorsement of safe conduct granted by her and not its validity by itself, for had it not been for his endorsement, her guaranty of safe conduct would be ineffective, said that a woman cannot grant safe conduct enless it is endorsed by the imâm. Those who understood from this that his endorsement of her (guaranty of amân) was with the view that amân had already been concluded and had taken effect, and not with a view that it was his endorsement that granted validity to its conclusion said that safe conduct guaranteed by a woman is permitted. Likewise, those who considered her equal to a man by way of analogy, and made no distinction between them, permitted safe conduct granted by her, while those who considered that she had a defective legal capacity as compared to a man did not permit such safe conduct.

Whatever the nature of the amân is it is not effective (in affording protection) against enslavement, but only against execution. It is possible for us to relate this disagreement to their dispute about the words used for the masculine plural, whether they include women, that is, in accordance with the legal usage. The harm aimed at life is by killing, and there is no disagreement among the Muslim jurists that it is permitted in war to slay the male polytheists, who have attained puberty and are waging war. There is, however, disagreement about execution after captivity, as we have already discussed. Similarly, there is no dispute among them that it is not permitted to slay minors or women, as long they are not waging war. If a woman fights the shedding of her blood becomes permissible. This was established as “the Prophet (God’s peace and blessings be upon him) prohibited the killing of women and children, and said when he saw a slain woman, ‘She was not one who would have engaged in fighting’”.

They disagreed about the case of hermits cut off from the world, the blind, the chronically ill, the old who cannot fight, the idiot (insane), and the peasants and serfs. Mâlik said neither the blind nor idiots are to be slain, and enough of their wealth is to be left to them by which they may survive. Similarly the old and decrepit are not to be slain, in his view, and this was also the view of Abû Hanîfa and his disciples. Al-Thawri and al-Awzâ’I said that only the old are to be spared. Al-Awzâ’î added that the peasants are not to be slain either. According to al-Shâfi’î’s most authentic opinion, all of these categories (of people) are to be put to death. The basis for their disagreement stems from the conflict of the specificity in some traditions with the general implications of (some verses of) the Qur’ân, and also the generality of the authentic saying of the Prophet (God’s peace and blessings be upon him), “I have been commanded to fight mankind until they say, ‘There is no God but Allâh’” The words of the Exalted, “Then, when the sacred months have passed, slay the idolators wherever ye find them”, imply the slaying of every unbeliever whether or not he is a monk, and so does the saying of the Prophet (God’s peace and blessings be upon him), “I’ve been commanded to fight mankind until they say, ‘There is no God but Allâh’”.

The traditions laid down about the sparing of all the categories include the traditions related by Dâwûd Ibn al-Husayn from ‘Ikrimah from Ibn ‘Abbâs “that the Prophet (God’s peace and blessings be upon him) used to say while sending out his armies, ‘Do not kill hermits’. There is also the tradition related from Anas Ibn Mâlik from the Prophet (God’s peace and blessings be upon him), “Do not slay the old and decrepit nor young children nor women, and do not purloin (steal) [the booty]. It is recorded by Abû Dâwûd. There is also among these the tradition related by Mâlik from Abû Bakr that he said, “You will come across a people who will claim that they have devoted themselves to Allâh, so leave them and that to which they have devoted themselves”, and it includes the words, “Never kill women, children, and the old weakened with age”.

It appears that the chief source of disagreement in this issue springs from the apparent conflict between the words of the Exalted, “Fight in the way of Allâh against those who fight, but begin not hostilities. Lo, Allâh loveth not aggressors”, and His words, “Then when the sacred months have passed, slay the idolaters wherever ye find them”. Those who held that the latter verse has abrogated the (meaning of the) words “Fight in the way of Allâh those who fight you”, as fighting is prescribed primarily against those who fight, said that the latter verse stands unrestricted upon its generality. On the other hand, those who maintained that the former verse is the governing verse, and that it includes all categories not involved in fighting, exempted it from the generality of the latter (in other words restricted the latter to those who do or can provide hostility, thus excluding children, old and decrepit etc). Al-Shâfi’î argued on the basis of the tradition of Samura that the Prophet (God’s peace and blessings be upon him) said, “Kill the old among the polytheists and keep alive their young”. It appears that the effective underlying cause for slaying, in his view, is kufr (disbelief). It is necessary then that this cause be applied to all the non-believers.

Those who maintained that the peasants are not to be slained argued on the basis of what is related from Zayd Ibn Wahb, who said, “We received a letter from ‘Umar, may Allâh be pleased with him, saying, ‘Do not misappropriate (the spoils), do not be perfidious, do not kill infants, and fear Allâh in the case of the peasants.’” A prohibition has been laid down in the tradition of Rabâh Ibn Rabî’ about the slaying of non-believing serfs, that “he went out with the Messenger of Allâh (God’s peace and blessings be upon him) for a battle which he fought and he (Rabâh) and the Companions of the Messenger of Allâh passed by a slain woman. The Messenger of Allâh stopped near her and then said, ‘She was not the one to be engaged in fighting’. He then turned to face the group and said to one of them: ‘Hurry and go to Khâlid Ibn al-Walîd (and convey to him) that he must not slay infants, serfs or women’”.

The reason leading to their disagreement, on the whole, arises from their dispute about the effective underlying cause of slaying. Thus, those who maintained that the effective underlying cause for this is disbelief (kufr), did not exempt anyone out of the polytheists, while those who maintained that the underlying cause in it is the ability to fight, there being a prohibition about the killing of women though they be non-believers, exempted those who do not have the ability to wage war, or those who have not affiliated themselves with it, like the peasants and the serfs.
The proscription (prohibition) of mutilating the bodies (muthla) of the enemies is fully established. The Muslim jurists agreed on the permissibility of slaying them with weapons, but disagreed about burning them with fire. A group of jurists disallowed burning them with fire or even attacking them with it, and this is the opinion of ‘Umar and is also narrated from Mâlik. Sufyân al-Thawrî permitted this, while some of them said; “If the enemy initiates this it is permitted, otherwise not”.

The reason for their disagreements stems from the conflict of a general implication with a specific rule. The generality lies in the words of the Exalted, “Slay the idolators wherever ye find them”. This does not make an exception for any kind of slaying. The specific implications was established when the Prophet (God’s peace and blessings be upon him), said about a man, “If you seize him, kill him, but do not burn him with fire for no one (has the right to) punish[es] with fire except the Lord of the Fire”.
The majority of the jurists agreed about the permissibility of attacking fortresses by means of mangonels , irrespective of women or children being in them, because of the report that the Prophet (God’s peace and blessings be upon him), positioned mangonels against the people of Tâ’if. If there are Muslim captives and Muslim children in the fortress then, according to a group, mangonels should not be used, and that is the opinion of al-Awzâ’î. Al-Layth permitted this.

The reliance of those who do not permit this is on the words of the Exalted, “If they (the believers and the disbelievers) had been clearly separated We verily had punished those of them who disbelieved with painful punishment”. It appears that those who permitted this relied on jurisprudential interest (maslahah).
This, then, is the extent of harm that is allowed to be inflicted upon their life and liberty. The harm that is permissible in the case of their property, that is, buildings, animals, and crops, is a matter of controversy among them. Mâlik permitted cutting of trees, picking of fruit, and destruction of inhabited buildings, but did not allow the slaughter of cattle and the burning of date-palms. Al-Awzâ’î disallowed the cutting of fruit-bearing trees and the demolishing of buildings – churches or other. Al-Shâf’î said that houses and trees may be set on fire if the enemy used them as fortresses, otherwise the destruction of houses and the cutting of trees is disapproved.

The reason for their disagreements springs from the conflict between the practice of Abû Bakr and that of the Prophet (God’s peace and blessings be upon him). It is established that “the Prophet (God’s peace and blessings be upon him) set fire to the date-palms of Banû al-Nadîr”, and it is also established that Abû Bakr ordered his troops: “Do not cut trees, do not destroy buildings”. Those who maintained that the act of Abû Bakr was based on his knowledge about the abrogation of the act of the Prophet (God’s peace and blessings be upon him) – as it cannot be conceived that Abû Bakr would act contrary to the practice of the Prophet when he was well aware of it – or that (the act of the Prophet) was restricted to the case of Banû al-Nadîr due to their undue aggression against the Muslims, adopted the opinion of Abû Bakr. Those who relied on the act of the Prophet (God’s peace and blessings be upon him), and did not consider the act of another as binding proof against it, adopted the view that trees are to be burnt. Mâlik distinguished between animals and trees, as the killing of animals amounts to mutilation and the Prophet (God’s peace and blessings be upon him) prohibited that. Further, it is not reported about the Prophet (God’s peace and blessings be upon him) that he killed animals. This, then, is the identification of the harm that may be inflicted upon the disbelievers with respect to their life and property.

Section 4: The condition for the declaration of war

The condition for the declaration of war, by agreement, is the communication of the invitation to Islam, that is, it is not permissible to wage war on them unless the invitation has reached them. This is something upon which the Muslim jurists agreed because of the words of the Exalted, “We never punished until We have sent a messenger”. They disagreed on whether the repetition of the invitation was required on the recurrence of war. Some of them made this obligatory, some consider it desirable, while some of them neither considered it obligatory nor desirable.
The reason for their disagreement arises from the (apparent) conflict of the word (of the Prophet) with (his) acts. It has been established that the Prophet (God’s peace and blessings be upon him) used to say to the commander upon sending a detachment, “When you come to face your enemy, the polytheists, invite them to opt for three choices or inclinations, and whichever of these they agree to, accept, and withhold the attack. Invite them to Islam, and if they agree refrain from attacking them. Call on them, then, to move from their territory to the territory of the Emigrants, and inform them that if they do this they shall have the rights granted to the Emigrants. If they refuse to do this, and choose their own abode, let them know that their status will be that of the Muslim Bedouin. The law of Allâh, which is applicable to all Believers, would be applicable to them, and they would have no share in the booty or in the spoils, unless they fight along with the Muslims. If they, then, refuse call on them to pay jizya (poll tax). If they agree, accept it from them and refrain from (fighting) them, but if they refuse, seek support from Allâh and fight them”.

It is, however, established from the Prophet (God’s peace and blessings be upon him) that he used to ensare the enemy and ambush them during the wars. Some of the jurists, and these are the majority, maintained that the acts of the Prophet (God’s peace and blessings be upon him) abrogated his words, and the (the implication in his words) used to be valid in the early days of Islam before the Islamic movement had become widespread, on the evidence that there is an invitation to migrate. Some of the jurists preferred the words over the acts, by construing the acts to apply to specific cases. Those who preferred extending the invitation did so through an element of reconciliation (between evidences).

Section 5: Identification of the number from whom retreat is not permissable

With respect to the identification of a number from whom retreat is not permissible, it is double (the number of Muslims), and this by agreement, because of the words of the Exalted, “Now hath Allâh lightened your burden, for He knoweth that there is weakness in you. So if there be of you steadfast hundred they shall overcome two hundred, and if there be of you a thousand (steadfast) they shall overcome two thousand by permission of Allâh”. Ibn al-Mâjishûn held, and he also narrated from Mâlik, that doubling here is to be related to strength and not the number, and that it is (therefore) permitted for one Muslim warrior to retreat from a single entity if he has a better trained mount than his, has better weapons, or is superior to him in strength.

Section 6: The permission for truce

Is true permissible? A group of jurists permitted this initially (without warfare) without necessity, if the imâm considered it to be in the interest of the Muslims. Another group of jurists did not permit it, except on the basis of a compelling necessity, such as avoidance of disturbances or for gaining from them some concessions for the Muslim community, which are not in the nature of jizya as the condition for jizya is that they be subject to the laws of the Muslims, or even without taking anything from them. Al-Awzâ’î permitted that the imâm may negotiate a truce with the disbelievers on the basis of something that the Muslims would give to the disbelievers if that is required as a necessity for avoiding (greater) trials, or on the basis of any other necessity. Al-Shâfi’î said that the Muslims are not to make any concession to the disbelievers, unless they fear that they would be overwhelmed by the sheer number of the enemy (in relation to) their own small numbers, or because of a severe ordeal that they are subjected to.

Those who upheld the permission of making a truce when the imâm saw an interest (of the Muslims) in this are Mâlik, al-Shâfi’î, and Abû Hanîfa, except that al-Shâfi’î stipulated that the duration of the truce be should not be for a period greater than the one transacted by the Messenger of Allâh (God’s peace and blessings be upon him) with the disbelievers in the year of al-Hudaybiya.

The reason for their disagreement over the permissibility of truce without a necessity stems from the conflict of the apparent meaning of the words of the Exalted, “Then, when the sacred months have passed, slay the idolaters wherever ye find them”, and His words, “And if they incline to peace, incline thou also to it, and trust in Allâh”. Those who maintained that the verse commanding fighting unless they believe or pay the jizya has abrogated the verse implying peace said that truce is not permitted, except in the case of necessity. Those who maintained that the verse implying peace has restricted the other said that truce is permitted if the imâm considers it proper.

They supported this interpretation with the act of the Prophet (God’s peace and blessings be upon him) in this case, because his (God’s peace and blessings be upon him) truce in the year of al-Hudaybiya was not based upon necessity. The principle for al-Shâfi’î is the command to fight until they believe or pay jizya, and this, in his view, was restricted by the act of the Prophet (God’s peace and blessings be upon him) in the year of al-Hudaybiya. He therefore did not approve that the period be in excess of what was negotiated by the Messenger of Allâh (God’s peace and blessings be upon him). They disagreed about this period. It was said that it was for four years and it was said that is was for three years. It was also said that it was for ten years, and this was upheld by al-Shâfi’î.

Those who permitted that the Muslims may conclude a truce with the polytheists on the terms that the Muslims would give them something, if this was required by necessity of avoiding tribulation or (the fulfillment of) some other pressing need, did so on the basis of the report that the Prophet (God’s peace and blessings be upon him) was prepared to give part of the produce of Medina to some of the disbelievers who were among the forces mustered to attack Medina, but the Medinese did not agree, but Allâh granted him success (without his having made a concession to the unbelievers). Those who did not permit this unless the Muslims feared that they would be overwhelmed did so on the analogy drawn from their consensus on the permissibility of paying ransom for Muslim captives, the point being that Muslims in such a (weak) position are like prisoners.

Section 7: Why wage war?

Why wage war? The Muslim jurists agreed that the purpose of fighting the People of the Book, excluding the (Qurayshite) People of the Book and the Christian Arabs, is one of two things: it is either for their conversion to Islam or the payment of jizya. The payment of jizya is because of the words of the Exlted, “Fight against such of those who have been given the Scripture as believe not in Allâh or the Last Day, and forbid not that which Allâh and His Messenger hath forbidden, and follow not the religion of truth, until they pay the tribute readily being brought low”.

The majority of the jurists also argued about the taking of jizya from the Magians, because of the saying of the Prophet (God’s peace and blessings be upon him) , “Establish with them the practice adopted for the People of the Book”. They disagreed about the polytheists other than the People of the Book, whether jizya is to be accepted from them. A group of jurists said that jizya is to be charged from all polytheists. This is Mâlik’s opinion. Another group exempted from this the Arab polytheists. Al-Shâf’î, Abû Thawr, and a group of jurists said that jizya is only to be imposed upon the People of the Book and the Magians.

The reason for their disagreement stems from the conflict between the general and the specific implication. The general implication is in the words of the Exalted, “And fight them until persecution is no more, and religion is all for Allâh”, and in the saying of the Prophet (God’s peace and blessings be upon him), “I have been commanded to fight mankind until they say, ‘There is no God but Allâh’. If they say this their lives and wealth are protected from me, unless there is another claim on them, and their reckoning is with Allâh.” The specific meaning is in the directive of the Prophet (God’s peace and blessings be upon him) to the commanders of troops when he sent them to Arab polytheists who, it is known, were not the People of the Book, “When you come to face your enemy, the polytheists, invite them to opt for three choices”, and he mentioned jizya as one of them. The tradition has already been mentioned.

Those who maintained that if a general command comes after the specific command it abrogates it, said that jizya is not to be accepted from polytheists other than the People of the Book. The reason is that the verses containing general commands for fighting them are later in time than this tradition, because the command to fight the polytheists is general and it occurs in sûrat Barâ’a, which was (revealed in) the year of the conquest of Mecca, while the tradition is dated before the conquest on the evidence of the invitation to them to emigrate.

Those who maintained that the general meaning is to be construed in terms of the specific, whether it is earlier or later or whether their being earlier or later with reference to each is not known, said that jizya is to be accepted from all the polytheists. With respect to the singling out the People of the Book from all the polytheists, this exemption from the general meaning occurred, by agreement, in the specific terms of the words of the Exalted, “Fight against those such of those who have been given the Scripture as believe not in Allâh or the Last Day, and forbid not that which Allâh hath forbidden by His Messenger, and follow not the religion of truth, until they pay the tribute readily being brought low”. The discussion of the jizya and its ahkâm will be coming up in the next chapter of this Book.

These, then, are the elements of war. One of the well-known issues related to this chapter is the proscription of travelling to the land of the enemy with (a copy of) the Qur’ân. The majority of the jurists maintain that this is not permitted because it was established from the Messenger of Allâh (God’s peace and blessings be upon him). Abû Hanîfa said that it is permitted if it stays within the safety of military camps. The reason for their disagreement is whether the proscription is general having a general import or whether it is general with a specific implication.

Chapter 2: The Ahkâm of Enemy Property
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Section 7: Discussion of jizya (poll tax)

A comprehensive discussion of the principles of this section is covered in six issues. The first is about the person from whom it is permissible to take jizya. The second is about the categories of people who are liable for jizya. The third is about the amount imposed. The fourth is about the time it is due and when it is waived. The fifth is about the types of jizya. The sixth is about the avenues of expenditures of jizya.

Issue 1

From whom is it permissible to take jizya? The jurists agree unanimously that it is permissible to take it from the non-Arab People of the Book, and from the Magians, as has been mentioned. They disagreed about those who have no scripture, and about those who are the People of the Book but are Arabs, and this after they had agreed that it is not permissible to take it from a Kitâbi who is from the tribe of Quraysh. The discussion of this issue has preceded.

Issue 2

This issue deals with the categories of people who are liable for it. They agreed that it is imposed on those who exhibit three characteristics: being a male, bulûgh [attainment of puberty], and being free. It is not imposed upon women or upon minors insofar as it is a substitute for being subject to slaughter, and slaying, by command, is directed at males who attained puberty, and the slaying of women and minors is prohibited. Likewise, they agreed that it is not imposed upon slaves. They disagreed about some categories of such persons (i.e those who are liable) including the insane and the crippled, the aged, and the monks, and the poor, whether they are to be considered as being liable for it when their condition improves. All these cases are a matter of ijtihâd and there is no [specific] determination for them in the law. The reason for their disagreement arises their dispute about it whether such a person can be lawfully slain (in war), that is, out of these types of persons.

Issue 3

What is the [annual] amount due? They disagreed over this. Mâlik held that the amount due in this is what was imposed by ‘Umar (God be pleased with him), and this was four dinars for those who transact in gold and forty dirhams for those who transact in silver, along with the provisions for Muslims and hosting them for three days, and is not to exceed this or to be less than this.

Al-Shâfi’î said that the minimum is fixed and it is one dînâr and the maximum is not fixed but depends on what they negotiate to pay. A group of jurists said, that there is no determination in this and it is left to the ijtihâd of the imâm. This was maintained by al-Thawri. Abû Hanîfa and his disciples said that jizya ranges between twelve dirhams, twenty-four dirhams, and forty-eight dirhams. The poor person is not to pay less than twelve dirhams and the rich person is not to pay more than forty-eight dirhams. The person of average means is to pay twenty-four dirhams. Ahmad said that one dînâr or its equivalent in woven cloth (Yemeni), and it is neither to be increased nor decreased.

The reason for their disagreement springs from the variation in the traditions on the topic. It is related “that the Messenger of Allâh (God’s peace and blessings be upon him) sent Mu’adh to Yemen and ordered him to take from every person over the age of puberty one dinar or its equivalent in the mu’âfir”, which is cloth from Yemen.

It is established from ‘Umar that he imposed jizya on those who transact in gold at (the rate of) four dinars, and on those who transact in silver at (the rate of) forty dirhams along with provisions for the Muslims and hosting them for three days. It is also related from him that he sent ‘Uthmân ibn Hânif and he imposed jizya on the residents of the sawâd lands at the rates of forty-eight, twenty-four, and twelve (dirhams).

Those who interpreted all these traditions as granting a choice and adopted the general implication of the term jizya, as there is no tradition from Prophet (God’s peace and blessings be upon him) about its determination that is agreed upon for its authenticity, and the Book has mentioned it in general terms, said that there is no determination in this, and this appears to be the more obvious rule, Allâh knows best.

Those who reconciled the tradition of Mu’adh and what is established from ‘Umar said that the minimum is fixed and there is no limit for the maximum. Those who preferred one of the traditions of ‘Umar either maintained that it is forty dirhams or four dinars or they held it to be forty-eight dirhams, twenty-four dirhams, and twelve dirhams, as has been mentioned. Those who preferred the tradition of Mu’âdh, as it is marfû (traced back to the Prophet) said that it is one dinar or its equivalent in woven cloth (Yemeni) and is not to be increased beyond this nor is it to be decreased.

Issue 4

When is jizya due? They agreed that it does not become due except after the passage of one year, and it is to be waived for a person if he converts to Islam within the year. They disagreed over the case of one who converts after the passage of one year, whether he is to be charged jizya for the entire previous period of one year or for the portion that has passed. A group of jurists said that if he converts there is no jizya for him, whether the conversion was before the passage of the period or after it. This opinion was upheld by the majority of the jurists. One group of jurists said that if he converts after the passage of one year he is liable for jizya, but if he converts before the completion of the period of one year it is not imposed upon him.

They agreed that jizya does not become due before the passage of a year, as the hawl is a condition for its obligation, and if a cause for waiver is found which is conversion to Islam, before the obligation is incurred, that is, before the existence of the condition of obligation, it is not to be imposed. They disagreed about the case after the passage of the hawl, for then it has become due.

Those who maintained that Islam demolishes this obligation, just as it demolishes many other obligations, said that the liability against him is dropped even if his embracing of Islam occurs after the passage of the hawl. Those who said that embracing Islam does not demolish this obligation, just as it does not demolish many other claims like debts and other similar things, said that the liability is not dropped after the passage of the year. The reason for their disagreement stems from whether Islam eradication the jizya that has become due.

Issue 5

What are the different types of jizya? Jizya in their view is of three types. The first is jizya resulting from conquest by force, and this is what we have discussed, that is, on that is imposed upon the warring enemy after they have been overpowered. The second type is jizya resulting from a negotiated settlement, and this is what they voluntary offer so that the Muslims may stay their hand against them.

There is no fixing of amount in this type of jizya, neither in the obligation, nor with respect to the person on whom it is obligatory, nor in the time at which it become due. All these matter are dependent upon the agreement concluded between the Muslims and those opting for a peaceful settlement, unless someone were to say: “If the acceptance of the negotiated jizya is obligatory upon the Muslims it is necessary that there be for it some determined amount. When the disbelievers are paying it of their own accord and acceptance is binding upon the Muslims, there should be a fixed minimum and an undetermined maximum amount”.

The third type of jizya is related to ‘ushr. The majority of the jurists maintain that there is no liability for ‘ushr upon the ahl al-dhimma nor any liability for zakât on their wealth, except what is related from one group among the jurists that the sadaqa required from the Christians of Banû Taghlab was doubled, that is, they were obliged to pay the double of what was imposed upon the Muslims, for each category of items on which sadaqa (zakât) is charged from the Muslims.

Those who held this opinion include al-Shâfi’î, Abû Hanîfa, Ahmad, and al-Thawri, and it is also the decision of ‘Umar (God’s peace and blessings be upon him) in their case. There is no recorded statement from Mâlik on this, in what they have related from him. All this has preceded in the Book of Zakât.
They disagreed over whether ‘ushr is to be imposed on them for the goods they trade in the land of the Muslims, and whether this become due automatically by the very act of trading – or through permission if they are warring enemies – or that this does not apply except through a stipulated condition. Mâlik and many of the jurists held that in the case of traders from amongst the ahl al-dhimma, who enjoy peaceful stay in their own land on the payment of jizya, ‘ushr must be charged to them on the goods freely traded all over the land, but only one-half ‘ushr on those goods that they send to a particular city.

Abû Haniîfa agreed with him on the question of the imposition of the ‘ushr by virtue of trade with permission or trade itself, but he differed with respect to the amount saying that their liability is for one-half of the ‘ushr. Mâlik did not stipulate for them the existence of a nisâb nor the passage of a hawl, while Abû Hanîfa did stipulate for the obligation of one-half ‘ushr the passage of a year and the same nisâb that is laid down for the Muslims, and which is mentioned in the Book of Zakât. Al-Shâfi’î said that there is no obligation at all on them for ‘ushr, nor for one-half ‘ushr, because of trade and there is nothing determined in this, except what is arrived at through a settlement or a condition. In this form the jizya based upon ‘ushr becomes a type of negotiated jizya, and in conformity with the opinions of Mâlik and Abû Hanîfa it becomes a third category of jizya that is not negotiated and is imposed upon individuals.

The reason for their disagreement is that there is no sunna on this from the Messenger of Allâh (God’s peace and blessings be upon him) to which recourse can be had, but it is established that ‘Umar ibn al-Khattâb decided this for them. Those who maintained that this act of ‘Umar was based upon a precedent that he knew to be from the Messenger of Allâh (God’s peace and blessings be upon him) held it to be their sunna, while those who maintained that this act of his was based upon a stipulation (between the parties), for had it been different from this he would have mentioned it, said that his is not binding on them, unless it is stipulated as a condition.

Abû ‘Ubayd has quoted in the Kitâb al-amwâl one of the Companions of the Prophet (God’s peace and blessings be upon him), whose name I do not remember at the moment, that it was said to him, “Why do you charge ‘ushr from the polytheists Arabs?” He replied, “Because they used to charge ‘ushr from us when we entered their territory”. Al-Shâfi’î said that the minimum that is to be stipulated in this is what was imposed by ‘Umar (God be pleased with him), and if they agree to more that is better. He said that the hukm of a harbî if he enters upon amân is the hukm of the dhimmî.

Issue 6

On what is the jizya to be spent? They agreed that it is to be spent for the common interest of the Muslims without any limitations, as is the case with fay’ according to the opinion of those who held that it is dependent upon the ijtihâd of the imâm, so much so that some of the jurists held that the term fay’ is meant to apply to jizya in the verse of fay’. If that is the case, then, the revenue of the Muslims is of three types: sadaqa, fay’, and ghanîma. This is sufficient for the discussion of the fundamentals of this book. Allâh is the Grantor of guidance against error.

[Abû al-Wâlid Muhammad ibn Ahmad ibn Rushd’s Bidâyat al-Mujtahid wa-Nihâyat al-Muqtasid (The Distinguished Jurist’s Primer) Volume I p.454-466 – p.483-487]:

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