Saving and taking life in war: Three modern Muslim views

Muslim World

Volumn 89, Issue 2, 1999, Pages 158-180

  Hashmi, Sohail H ^a  

^a MOUNT HOLYOKE COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 61049336935     PISSN: 00274909     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1478-1913.1999.tb03676.x     Document Type: Article

References (46)

1. In addition to the authors considered in this article, see Muhammad Abū Zahrā, Concept of War in Islam, trans. Muhammad al-Hady and Taha Omar (Cairo: Ministry of Waqf, 1961);
2. Yadh ben Ashoor, Islam and International Humanitarian Law (Geneva: International Committee of the Red Cross, 1980);
3. and the survey of Muslim doctrine and contemporary practice by Karima Bennoune, "As-Salāmu Alaykum? Humanitarian Law in Islamic Jurisprudence," Michigan Journal of International Law 15 (Winter 1994): 605-43.
4. See Ann Elizabeth Mayer, "War and Peace in the Islamic Law Tradition and International Law," in Just War and Jihad, ed. James Turner Johnson and John Kelsay (New York: Greenwood, 1991), 198.
5. Muhammad Hamidullah, Muslim Conduct of State, 7th ed. (Lahore: Sh. Muhammad Ashraf, 1961), 66-73.
6. Most recent writers making this claim rely upon Marcel Boisard, "On the Probable Influence of Islam on Western Public and International Law," International Journal of Middle East Studies 11 (July 1980): 429-50.
7. See Seyyed Vali Reza Nasr, Mawdudi and the Making of Islamic Revivalism (New York: Oxford University Press, 1996), 22-23, for the background to Mawdūdī's writing of al-Jihād fī al-Islām.
8. From the publisher's preface to Abū al-Ālā Mawdūdī, al-Jihād fī al-Islām (Lahore: Idāra Tarjumān al-Qurān, 1988).
9. Khurshid Ahmad, foreword to Abū al-Ālā Mawdūdī, Tafhīm al-Qurān, trans. and ed. Zafar Ishaq Ansari, Towards Understanding the Quran (Leicester, UK: The Islamic Foundation, 1988), 1: xiii.
10. Wahba al-Zuhaylī, Āthār al-harb fī al-figh al-islāmī: dirāsa muqārana (Beirut: Dār al-Fikr, 1981).
11. Wahba al-Zuhaylī, al-Alāqāt al-duwaliya fī al-Islām: muqārana bi-l-qānūn al-duwalī al-hadīth (Beirut: Muassasat al-Risāla, 1981)
12. a précis of al-Zuhaylī's views is available in French in Wahba Moustapha Zehili, "Dispositions internationales relatives à la guerre, justifiées au regard de l'Islam et leurs aspects humains caractéristiques," in Les religions et la guerre: Judaisme, Christianisme, Islam, ed. Pierre Viaud (Paris: Cerf, 1991), 389-419.
13. See Hasan al-Bannā, Sayyid Qutb, and Abū al-Ālā al-Mawdūdī, al-Jihād fī sabīl Allāh (Cairo: Sawt al-Haqq, 1977).
14. On Mawdūdī's influence on Sayyid Qutb, see for example Emmanuel Sivan, Radical Islam: Medieval Theology and Modern Politics (New Haven: Yale University Press, 1990), 84-86.
15. Ibrahim Abu-Rabi critically reappraises this view in Intellectual Origins of Islamic Resurgence in the Modern Arab World (Albany: State University of New York, 1996), 139.
16. Hamidullah does mention several sources beyond the Quran and Prophetic sunna as "roots and sources" of Islamic international law, including the practice of the four rightly-guided caliphs and other rulers who have not been repudiated by ulamā; arbitral awards; treaties, pacts, and other conventions; internal legislation; and custom and usage. But he concludes this discussion by suggesting that only the Quran and sunna form "permanent positive law," while all others are "temporary positive law," "non-positive or case law," and "suggested law." Hamidullah, Muslim Conduct of State, 18-37. His subsequent discussion of legal doctrine relies almost entirely on the corpus of medieval jurisprudence, which itself relied almost entirely on the Quran and precedents attributed to the Prophet and the first four caliphs.
17. Of the three, Hamidullah is most reluctant to adopt openly the goal of reinterpreting medieval theory. He writes in the preface to the third edition: "I am not writing on what, according to [the] modern average Muslim, ought to be the Muslim law, but what has always been considered to be the Muslim law." Hamidullah, Muslim Conduct of State, vi-vii. The process of adducing "what has always been considered to be Muslim law" is, however, itself an interpretive process, particularly when it is coupled with Hamidullah's underlying goal, which is to argue the medieval siyar 's essential compatibility with public international law.
18. In using the term "apologetic," I do not mean to link these three writers with the so-called apologists of the nineteenth century, mainly Indian, whose avowed goal was to refute point-by-point the charges of various Orientalists regarding jihad. This is clearly not the goal of the three considered here, particularly al-Zuhaylī. Their works are apologetic in the sense of advocating or defending a particular view, namely that Islamic law is as just and humane - if not more so -as public international law and other conceptions of world order. On this point see Mayer, "War and Peace in Islamic Tradition," 221, n. 8.
19. Majid Khadduri has discussed briefly the few philosophical treatments of this issue in War and Peace in the Law of Islam (Baltimore: Johns Hopkins University Press, 1955), 55-73.
20. This injunction is grounded in a Prophetic hadīth narrated by Muslim, Abū Daūd, and Tirmidhī.
21. See Khaled Abou El Fadl's article in this issue of The Muslim World; see also idem., " Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam," in Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic Tradition, ed. James Turner Johnson and John Kelsay (New York: Greenwood, 1990), 149-76.
22. Mustansir Mir, "Jihad in Islam," in The Jihad and Its Times, ed. Hadia Dajani-Shakeel and Ronald Messier (Ann Arbor: Center for Near Eastern and North African Studies, University of Michigan, 1991), 117-22.
23. Mawdūdī, al-Jihād fī al-Islām, 23.
24. Mawdūdī, Tafhīm al-Qurān, trans. Ansari, 2: 291-92.
25. Hamidullah, Muslim Conduct of State, 162.
26. Al-Zuhaylī, Āthār al-harb, 56-59.
27. See Aziz Ahmad, Islamic Modernism in India and Pakistan: 1857-1964 (London: Oxford University Press, 1967), 31-34.
28. See Masudul Hasan, Sayyed Abu'l A'ala Maududi and His Thought (Lahore: Islamic Publications, 1986), 185-96;
29. and Seyyed Vali Reza Nasr, The Vanguard of the Islamic Revolution: the Jamaat-i Islami of Pakistan (Berkeley: University of California Press, 1994), 120-21.
30. Hamidullah, Muslim Conduct of State, 84, 172.
31. al-Alāqāt al-duwalīya, 35-36.
32. Mawdūdī, al-Jihād fī al-Islām, 180, 216;
33. al-Zuhaylī, Āthār al-harb, 494-97
34. al-Alāqāt al-duwaliya, 70-71.
35. See John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox Press, 1993), 64-67.
36. Al-Zuhaylī, al-Alāqāt al-duwalīya, 46.
37. Mawdūdī, al-Jihād fī al-Islām, 82. Mawdūdī's party, the Jamaat-i Islami, has not been as reticent about nuclear weapons. It has long advocated Pakistan's acquisition of nuclear weapons, particularly after India's nuclear explosion in 1974. The Jamaat agitated for a Pakistani test in May 1998 following India's resumption of nuclear testing. Khurshid Ahmad, a leading Jamaat spokesman on foreign policy, has repeatedly urged the Pakistani government not to sign the Nonproliferation Treaty without Indian compliance, and to build a nuclear deterrence to counter India's arsenal. He bases his arguments in part on the Quranic verse 8: 60, as in his comments published in Tarjumān al-Qurān, December 1998 (transcript provided by the Jamaat-i Islami Pakistan).
38. Interview with Wahba al-Zuhaylī, Damascus, Syria, 2 January 1991.
39. Mawdūdī writes in his interpretation of verse 47: 4: "This verse's language and context make clear that it was revealed after the command to fight had been revealed, and before fighting had actually started." It must have preceded, therefore, verses 8: 67-69, which by wide agreement were revealed after the first battle fought at Badr. Mawdūdī, Tafhīm al-Qurān (Lahore: Idāra Tarjumān al-Qurān, 1989), 5: 11 (The English translation by Ansari has not yet reached this chapter).
40. Mawdūdi, Tafhīm al-Qurān, trans. Ansari, 3: 169-70.
41. Encyclopaedia of Islam, 2nd ed., s.v. "Darūra."
42. Cited in Malcolm Kerr, Islamic Reform: The Political and Legal Theories of Muhammad Abduh and Bashid Rida (Berkeley: University of California Press, 1966), 93-94.
43. Muhammad ibn al-Hasan al-Shaybānī, Kitāb al-siyar al-kabīr, trans. Majid Khadduri, The Islamic Law of Nations: Shaybani's Siyar (Baltimore: Johns Hopkins University Press, 1966), 102.
44. See Wahba al-Zuhaylī, Nazariyat al-darūra al-sharīya: muqārana bi-l-qānūn al-wadī (Beirut: Dār al-Fikr, 1997).
45. Al-Zuhaylī, al-Alāgāt al-duwalīya, 45.
46. Hamidullah briefly lists nineteenth- and twentieth-century Muslim works that preceded his book (pp. 30-31) and mentions English-language contributions to the field as they appear in the prefaces to the various editions of Muslim Conduct of State. Al-Zuhaylī refers only occasionally to earlier writers with whom he agrees, most notably Muhammad Abduh and Muhammad Abū Zahrā.