Excerpts on Jihad from Al-Mukhtasar by the jurist Abu 'l-Hasan al-Quduri (b. 362 AH=AD 972)
Campaigns
Striving [jihad] is an obligatory duty based upon sufficiency. When a detachment of people is established for it, the obligation drops from the remaining people. If one is not established for it, all of the people are sinful in its neglect.
Combat [qital] against unbelievers is required even if they do not do it to us first. Striving is not required for a juvenile, slave, woman, blind person, crippled person, nor an amputee.
If an enemy attacks a city, the defense of it is required for all Muslim people. A woman goes out without the authority of her husband, and a slave without the authority of the patron.
When Muslim people enter the abode of war and besiege a city or a fortress, they invite the people to Islam. If they comply with them, the Muslim people refrain from killing them. If they refuse, the Muslim people invite them to produce tribute [jizyah]. If they give tribute generously, then they are entitled to that which Muslim people are entitled, and incumbent upon them is that which is incumbent upon Muslim people.
It is not permitted to combat against a person whom the invitation of Islam has not reached except after they have been invited. It is recommended that the invitation first be given to a person whom the invitation has already reached, but that is not required. If they decline, the Muslim people ask for the help of God the exalted against them, they wage war against them, direct their ballista at them, burn them, send water against them, cut down their trees, and spoil their crops. There is no harm in shooting at them even if among them is a Muslim captive or merchant. If the enemy provides armour for Muslim juveniles or captives, they do not refrain from shooting and aiming with arrows at the unbelievers.
There is no harm in women and copies of scripture going out with the Muslim people when there is a great army in which there is safety. The going out of these things in a raiding party, in which there is no safety, is reprehensible. A woman only does combat with the authority of her husband, and a slave with the authority of its master, unless an enemy attacks the city.
It is appropriate for Muslim people not to act perfidiously, to fetter [ghalla],[1] to maim, nor to kill a woman, old man, juvenile, blind person, nor a cripple, unless one of these people seems to be involved with the war or unless the woman is a queen. They do not kill an insane person.
When a leader deems it appropriate to make a settlement with the people of war or a detachment of them, it being advantageous to the Muslims, then there is no harm in it. If he settles with them for a period of time and then he deems it appropriate to diminish the settlement, it is more beneficial to discard the settlement with them and combat against them. If they breach the settlement first, the Muslims combat against them, but they do not discard the settlement with them when this is by mutual agreement.
When their slaves come out to the army of the Muslims, they are set free.
There is no harm for the army to feed their riding animals in the abode of war and to eat that food which they find. They use the firewood, they are anointed with the grease, they do combat with any weapon that they find without apportionment of it. They are not permitted to sell anything from the abode of war nor take as assets [anything from it].
If a person surrenders [aslama] to the Muslims, he keeps, in his submission, himself, his young children, and all assets which he has in his hands or are deposited in the hands of a Muslim or protected person. If we overcome a dwelling, then the immovable property of its owner is spoil, his wife is spoil, her pregnancy is spoil, and his older children are spoil.
It is not appropriate for a weapon to be bought from the people of the abode of war. A weapon is not furnished to them nor are they offered as ransom for captives according to Abu Hanifah. Abu Yusuf and Muhammad say weapons are offered as ransom for Muslim captives.[2] It is not permitted to give boons to the people of the abode of war.
If a leader conquers a town by force, then he has a choice: if he wants he apportions it among the receivers of loot, and if he wants he wants he causes its people to make an affirmation concerning the town and imposes a land tax [kharaj] upon them. In the case of captives the leader has a choice: if he wants he kills them, if he wants he enslaves them, and if he wants he leaves them as free, under the protection of Muslims. He is not permitted to return them to the abode of war.
When a leader purposes to return, there being with the army livestock which they are not capable of transferring to the abode of Islam, they slaughter them and burn them. They do not wound them nor leave them.
Loot is not apportioned in the abode of war unless it is being sent out of it and into the abode of Islam. Supporting troops and combat troops are equal. When periods of time overtake the army in the abode of war before taking the loot out to the abode of Islam, they share in it. The people of the army market have no right to the loot unless they did combat.
When a free man or a free woman grants safety to an unbeliever, a group of unbelievers, the people of a fortress or of a city, their guarantee of safety is sound. It is not permitted for one of the Muslims to kill them unless they are scandalous in granting this in which case the guarantee of safety with them is discarded. The guarantee of safety granted by a protected person, a captive, and a merchant who is among them is not permitted. A slave’s guarantee of safety is not permitted according to Abu Hanifah unless his patron authorized him to do combat. Abu Yusuf and Muhammad say his guarantee of safety is sound.[3]
When the Turks[4] defeat the Romans and subsequently the Turks take the Romans prisoner and take their assets, they own them. If we defeat the Turks we are allowed to have those Roman assets which we find. When they seize our assets and subsequently keep them in their dwelling, they own them. If Muslims conquer them and find the assets before the apportionment of them, then they are entitled to them without any effect. If, however, they find them after the apportionment of them, they take it according to the value if they desire. If a merchant enters the abode of war and purchases such assets and leaves for the abode of Islam, then the original owner has a choice: if he wants he takes it for the price for which the merchant purchased it, and if he wants he relinquishes it.
The people of war do not own us in the case of a defeat, our slaves whose manumission is arranged, our indentured slaves, our concubines, and our free people. We own all of them in the case of a defeat. When a slave runs away to a Muslim and enters into the abode of the Muslims and they subsequently take him, they do not own him according to Abu Hanifah. If a pack camel flees to the Muslims and they take it, they own it.[5]
When the leader has nothing capable of being loaded with the loot, he apportions it among the receivers of loot as a deposit apportionment so that they bear it to the abode of Islam and then it is returned and he subsequently apportions it. The selling of loot before it is apportioned is not permitted.
If one of the receivers of loot dies in the abode of war, then he has no right to the loot. If one of them dies after going out to the abode of Islam, then his heirs are entitled to his share.
There is no harm in a leader distributing loot in the circumstances of combat, to incite supererogation in combat, in which case he says “If a person kills someone, then he is entitled to the booty of that person,” or he says to a raiding party “I hereby make you entitled to a fourth besides a fifth.” He does not distribute loot after the acquisition of it except in fifths. When he does not make a killer entitled to booty, then it is taken from the loot as a whole in which the killer and another person are equal. Booty is that which is on a killed person, his clothes, his weapon, and his mount.
When Muslims go out from the abode of war it is not permitted for them to feed their riding animals from the loot nor to eat from it. If a person took surplus fodder or food along with him, he returns it to the loot.
The leader apportions the loot, taking out a fifth and apportioning the four fifths among the receivers of the loot: to horsemen to shares, and to footmen one share according to Abu Hanifah. Abu Yusuf and Muhammad say to the horsemen three shares.[6] Shares are only given for a single horse.[7] Work horses and swift horses are equal. Shares are not given for a female riding camel nor a mule. If a person enters the abode of war as a horseman and subsequently his horse dies, he is entitled to the share of a horseman. If a person enters as a footman and subsequently purchases a horse, he is entitled to the share of a footman. Shares are not given to an owned person, a woman, a protected person, nor a juvenile. The leader, however, gives to them a consolation based upon a computation of that which he deems appropriate.
As for the first fifth, it is apportioned into three shares: one share to orphans, one share to poor people, and one share to the indigent. The impoverished relatives of the prophet are included in it,[8] and are given precedence. Nothing is paid to rich relatives.
As for the mention of God the exalted in dividing into fifths, it is merely at the inauguration of speaking a blessing of his exalted name. The share of the prophet dropped with his death just as did the share of the loot for the head of the community. The share to which the relatives of the prophet were entitled in the time of the prophet was for assistance, and after the time of the prophet it is for poverty.
If one or two people enter the abode of war in zeal without the authority of a leader and take something, it is not divided into fifths. If a group of people to which there is insuperability enter and take something, it is divided into fifths, even if a leader did not authorize them.
When a Muslim enters the abode of war as a merchant, then he is not allowed to interfere with something concerning their assets or their blood. If he acts perfidiously toward them and takes something and leaves with it, he owns it as an interdicted thing and is ordered to give it as alms.
When a person of war [harbi] enters our abode seeking safety, it is not possible for him to establish residence in our abode for a year. A leader tells him, “if you establish residence for an entire year, I impose the tribute on you.” If he establishes residence, the leader takes tribute from him and he becomes a protected person. He is not let to return to the abode of war. If he returns to the abode of war and leaves a deposit with a Muslim or protected person, or a debt in their protection, then his blood becomes licit on the return and those assets of his which are in the abode of Islam become endangered [‘ala khatar].[9] If he is taken captive or killed, his debts drop and his deposit becomes spoil.
Those assets of the people of war which Muslims excitedly take without combat are used in the best interests of the Muslim people just as land tax is used.
All of
the land of the ‘Arabs is tithe land [ard ‘ushr]. It is that which is between al-‘Udhaib to the
farthest stone of
The Suwad is taxed land [ard kharaj]. It is that which is between al-‘Udhaib to ‘Aqabah 'ulwan, from al-‘Alth to ‘Abbadan. The land of the Suwad is owned by its people. Their selling of it and usufruct of it is permitted.[11]
All land whose people submitted, was conquered by force, or divided among receivers of loot, it is tithe land. All land conquered by force whose people made an affirmation concerning it, it is taxed land.
If a
person reclaims dead land, then according to Abu Yusuf, it is taken into
account in terms of its surroundings. If
it is from taxed land, then it is taxed.
If it is from tithe land, then it is tithe land. According to Abu Yusuf al-Basrah is tithe
land by the consensus of the companions [Sahabah]. Muhammad says if a person reclaims it by a
well which he digs, a spring which he mines, or from the water of the Tigris,
If water overwhelms, is cut off from, or washes away the roots of the crops on taxed land, then there is no land tax upon it. If the proprietor of the land neglects the crops, then the land tax is incumbent upon him.
If a person from those people subject to land tax converts to Islam, the land tax is still taken from him. It is permitted for a Muslim to purchase taxed land from a protected person in which case land tax is taken from the Muslim. There is no tithe for the produce of taxed land.
Tribute is of two types: tribute imposed by consent as a settlement, in which case it is determined according to that which is imposed by mutual agreement.
There is tribute which a leader initiates, imposing it when he conquers unbelievers whom he causes to make an affirmation concerning those things which they own. The leader imposes the tax according to the apparent wealth of the people. Incumbent upon a rich person every year is forty-eight dirhems, four dirhems taken each month. Incumbent upon a middle-class person is twenty-four dirhems, two dirhems taken each month. Incumbent upon the poor worker is twelve dirhems, one dirhem taken each month.
Tribute is imposed upon the people of the book, Zoroastrian people, and non-‘Arab idolaters. It is not imposed upon ‘Arab idolaters, nor upon apostates. There is no tribute incumbent upon a woman, a juvenile, a chronically ill person, a blind person, a poor person without work, nor monks who do not mix with people.
If a person upon whom tribute is incumbent converts to Islam, the tribute drops from him. If two years together are incumbent upon him, the tribute owed is blended together.[13]
The creation of a synagogue and a church is not permitted in the abode of Islam. When old churches and synagogues are destroyed, they are restored.
Protected people do not take on the distinguishing marks of Muslims in their attire their mounts, their tack, and their headgear. They do not ride on horses nor do they bear weapons. If a protected person refrains from producing tribute, kills a Muslim person, reviles the prophet, fornicates with a Muslim woman, his compact is not diminished. The compact is only diminished by adhering to the abode of war or conquering an area and then waging war with us.
When a Muslim person apostatizes from Islam, he is shown the breadth of Islam. If he has any confusion, it is cleared up for him. He is imprisoned for three days, in which time either he converts to Islam or else he is killed. If a killer kills him before the breadth of Islam is shown to him, it is reprehensible for the killer but there is nothing incumbent upon the killer. As for a woman, when she apostatizes, she is not killed, but she is imprisoned until she converts to Islam.
An apostate’s ownership of his assets comes to an end and is taken into custody upon his apostasy. If he converts back to Islam, the assets are returned to their previous circumstances. If a person dies or is killed in his apostasy, that which he acquired while in the state of Islam are transferred to his Muslim heirs, and that which he acquired while in the state of his apostasy is spoil.
If a person adheres in the abode of war as an apostate, an arbitrator adjudicates his adherence, manumits his slaves whose manumission is arranged and his concubines, and the debts that were incumbent upon him are resolved. That which he acquired in the state of Islam is transferred to his Muslim heirs. Any debts which were incumbent on him in the state of Islam are settled with that which he acquired in the state of Islam, and those debts which were incumbent on him in the state of his apostasy are settled with that which he acquired in the state of his apostasy.
Those assets which he sold, purchased, or used in the state of his apostasy are suspended. If he converts back to Islam his contracts are sound, but if he dies, is killed, or adheres to the abode of war they are invalidated.
If an apostate returns to the abode of Islam as a Muslim after the judgment concerning his adherence, then he takes those assets of his in particular which are found in the hands of his heirs.
When a female apostate uses her assets in the state of her apostasy, her usufruct is permitted.
Double that which is taken from Muslims for offering is taken from the assets of the Christian people of the Ban‚ Taghlib. It is also taken from their women but it is not taken from their juveniles.[14]
That which a leader levies in land tax, assets from the Ban‚ Taghlib, that which the people of war confer on the leader, and tribute is used in the interests of Muslim people. From it borders are blocked, and dams and bridges are built. From it Muslim judges, workers, and scholars are given that which suffices them. From it the sustenance of combatants and their progeny is paid.
Rebels
When a band [qawm] of Muslims conquer a city and dissent from obedience to the leader, he calls upon them to return to the group and clears up any confusion they have. The leader does not begin combat until they begin combat against him. If they begin combat, he combats against them until all of them are dispersed. If they had a rear detachment, the leader finishes off their wounded and pursues the routed ones. If they did not have a rear detachment, the leader does not finish off their wounded and pursue the routed ones. He does not take their progeny prisoner nor does he give their assets as loot.
There is no harm in using their weapons in combat if the Muslims need to do so. The leader reckons their assets but does not return it to them, nor does he apportion it until they repent in which case he returns it to them.
The leader does not take a second time that which the people of rebellion levy from the cities which they conquer in land tax and tithe. If they used it to satisfy the legal claim of a person, it is taken from that person. If they did not use it to satisfy the legal claim of a person, the leader issues a legal decision to the person’s people that what is between them and God the exalted is restored.[15]
[1]Meaning to pillage on one’s own.
[2]Abu Hanifah maintains that weapons aid the unbelievers in their unbelief and makes it more difficult for the Muslims to defeat them. Abu Yusuf and Muhammad allow the giving of weapons as ransom because it results in freeing Muslim prisoners which is more important than combating unbelievers.
[3]According to Abu Hanifah, the guarantee of the slave is predicated on his contract with his patron and he is thus inhibited from transactions without his patron’s authorization. Abu Yusuf and Muhammad argue that the person making the guarantee is one in a position of strength relative to the person being guaranteed. Because the slave is authorized in abstaining from fighting the enemy, his guarantee is sound.
[4]Meaning Turkish slave soldiers, not Muslim, employed by Muslim rulers.
[5]In both cases the operative principle is that ownership established in the abode of war do not apply in the abode of Islam. Therefore, the slave is no longer an owned person upon entering the abode of Islam, just as the camel no longer belongs to the person who owned it in the abode of war.
[6]Abu Yusuf and Muhammad assign two shares to the horseman for the horse and one share to the horseman for himself. Abu Hanifah assigns two shares to the horseman, one for the horse and one for himself.
[7]Meaning that if a horseman has more than one horse with him, he only gets a share for the horse upon which he rode in combat.
[8]Those among the Banu Hashim, the family of the prophet, who are poor are not to be excluded from receiving booty on account of the filiation to the prophet.
[9]Meaning that his assets are no longer secure as his property given the chance that he might have returned indefinitely. In practice, this means that his assets are suspended.
[10]According
to al-Karkhi this is the land of the ijaz and Tihamah,
[11]‘Aqabah
Hulwan is a town near
[12]These
are both artificial canals. The first is
supposed to have been built by Khosroe Anushrawan, running along the road from
Kufah to
[13]If two or more years is owed, then it is dropped from the convert. ‘Abd al-Hamid says this is the meaning of the phrase. This is the opinion of Abu Hanifah. Abu Yusuf and Muhammad claim that all that is passed due is to be paid.
[14]This is based on an arrangement made with the Ban‚ Taghlib during the time of the prophet. The tribe remained Christian but paid offering [zakat] rather than tribute [jizya] as other non-Muslims were required to pay.
[15]Some versions read: “then it is incumbent upon his people to restore that which is between them and between God the exalted.”