Chapter 47

People saying: 'He is brave'... this and the like is prohibited riya (showing off). However, if one performs jihad to obtain captives, horses, and weaponry from the enemy’s wealth, this does not harm him. Furthermore, the land of the enemy is a land of combat, a land of plunder, and a land of permissibility (ibahah), as evidenced by the Shariah’s permission to fight them and to seize their wealth as spoils. As long as the enemy's land remains in this state, the Muslim’s fighting therein is combat permitted by the Shariah, thus it takes the ruling of 'permissibility'. That is, there is no reward for it because it is devoid of righteous intention, just as there is no punishment for it because it is devoid of seeking fame or riya. This combat, which is judged as 'permissible', may take this ruling solely in regard to the individual fighter—such as one who fights to obtain a salary (the money designated for those who hold such a position) or solely to obtain his share of the spoils, even though the banner under which he fights is the banner of jihad to elevate the word of Allah, the Almighty. Thus, he is unique in that his fighting is permissible, while other fighters whose intentions are righteous have their fighting judged as 'obligatory' (wajib) or 'recommended' (mandub). This combat may also, in its essence, take the ruling of permissibility due to the intent that prompted its initiation. For instance, a Muslim ruler who wages war against the enemy to distract his people from internal problems, without intending in that war to elevate the word of Allah or honor the religion, yet also not intending riya or fame. I say: Such a ruler is waging war against a land of combat, permissibility, and plunder by the decree of the Shariah; therefore, it is a war permitted by the Shariah. For this reason, it is a permissible war in its essence. However, the individual fighters in this war are judged based on each person's intention and their motive for that fighting. 'Indeed, deeds are by intentions, and every person shall have what he intended.' ¶

Whoever fights for the sake of raising the Word of Allah, supporting the religion, and weakening the status of the disbelievers, their fighting is in the path of Allah (Fi Sabilillah), and they shall receive reward for performing what is either an obligation (fard) or a recommended act (mandub). - Whoever fights with the intention of showing off (riya) or seeking fame, their fighting is in the path of Satan, and they bear the sin due to that forbidden motive. - Whoever fights purely for the sake of material gain, their fighting is permissible (mubah), with neither reward nor punishment. In this regard, we have previously discussed in the research on 'raiding combat for the sake of seizing enemy property' more details and evidence regarding the ruling on combat based on its motive. Here, we have limited ourselves to what is necessary for our current research. We now come to another case where the ruling on fighting the enemy is that of permissibility (mubah). B - Some cases of single combat (Mubarazah): It may be useful to repeat what the author of Al-Mughni mentioned regarding the ruling on Mubarazah. He said: 'Mubarazah is divided into three categories: recommended (mustahabb), permissible (mubah), and disliked (makruh). - As for the recommended: If a disbeliever (alj) comes out demanding a duel, it is recommended for one who knows they possess strength and courage to duel them with the permission of the commander (Amir), because it is a defense for the Muslims and a demonstration of their strength. - As for the permissible: That a brave person initiates a request for a duel; this is permissible, but not recommended, because there is no necessity for it, and one cannot be certain they will not be defeated, which might break the hearts of the Muslims. However, because they are brave and confident in themselves, it is permitted for them, as they are ostensibly the likely victor. - As for the disliked: That a person of weak constitution who lacks self-confidence comes out to duel; for them, Mubarazah is disliked because of the potential for breaking the hearts of the Muslims by their apparent defeat.' The wording in Al-Minhaj and its commentary, Mughni al-Muhtaj, is as follows: 'Mubarazah—which is the appearance of two individuals from the ranks for combat—is permitted without being recommended, and it is disliked...' ¶

is permissible for us, because Abdullah ibn Rawahah and the two sons of Afra (may Allah be pleased with them) engaged in single combat (mubarazah) on the day of Badr, and the Messenger of Allah (peace be upon him) did not forbid them from doing so. Thus, it becomes clear that jurists have ruled some forms of single combat in fighting enemies as permissible. Let us now move to another category of actions that are ruled as permissible in the context of fighting enemies. ¶

C. Certain cases of killing women and children: The Messenger of Allah (peace be upon him) forbade the killing of women and children in war. It is stated in Sahih al-Bukhari: 'Ibn Umar (may Allah be pleased with him) reported that a woman was found killed in one of the expeditions of the Messenger of Allah (peace be upon him), and the Messenger of Allah (peace be upon him) forbade the killing of women and children.' Ibn Qudamah said: 'It is permissible to carry out a night raid (tabyit) on the disbelievers, which is to surprise them at night and kill them while they are heedless. Ahmad said: There is no harm in night raids; indeed, are not the wars against the Romans nothing but night raids? He said: We do not know of anyone who disliked night raids against the enemy. Sufyan recited to him, from al-Zuhri, from Ubaydullah, from Ibn Abbas, from al-Sa'b ibn Juthama, who said: I heard the Messenger of Allah (peace be upon him) asked about the homes of the polytheists when we raid them at night, and we might hit their women and their children. He replied: "They are of them."' He (Ahmad) said: Its chain of narration is good. If it is said: The Prophet (peace be upon him) forbade the killing of women and children. We reply: This is to be interpreted as intentionally killing them. Ahmad said: As for intentionally killing them, that should not be done. He said: The hadith of al-Sa'b is later than the prohibition of killing women, because the prohibition was issued when he sent the expedition to Ibn Abi al-Huqayq. Furthermore, reconciling the two is possible: the prohibition is interpreted as referring to intentional killing, and the permissibility applies to what is other than that. ¶

From the foregoing, we see that the permission granted by the Prophet ﷺ regarding the killing of women and children during raids on the enemy, after having previously forbidden their killing, indicates that such killing and combat is incidental (by way of 'arad) rather than intentional (by way of qasd). Thus, it falls under the category of permissibility (ibahah), and there is no harm in it. ¶

It is stated in Imam al-Shafi'i's 'Al-Umm': "If a critic says: How can you permit the use of catapults and fire against a group of polytheists that includes children and women, whom you are forbidden to kill? It is answered: We permitted it because the Prophet ﷺ conducted a raid on the Banu al-Mustaliq, ordering a night attack and the use of fire, while knowing full well that children and women were among them. This is because it is a domain of shirk (Dar al-Shirk) that is not protected. The prohibition against killing women and children applies only when the killer specifically targets them while recognizing them as individuals." (1) ¶

The phrasing of the author of 'Subul al-Salam' on this issue is as follows: "Scholars have differed on this. Al-Shafi'i, Abu Hanifah, and the majority hold the view that it is permissible to kill women and children during a night attack... His statement 'they are among them' means that the permissibility of killing is derivative, not intentional, when it is impossible to separate them from those who deserve to be killed. Malik and al-Awza'i held the view that it is not permissible to kill women and children under any circumstances." (2) ¶

Al-Shawkani stated: "Al-Shafi'i and the Kufans preferred to reconcile the aforementioned hadiths, stating: If a woman fights, it is permissible to kill her. Ibn Habib of the Malikis stated: It is not permissible to intend to kill her even if she fights, unless she actively engages in killing or intends to kill [the soldier]. This is supported by what Abu Dawud narrated in his 'Marasil' from Ikrimah: The Prophet ﷺ passed by a slain woman on the day of Hunayn and asked: 'Who killed this woman?' A man replied: 'I did, O Messenger of Allah. I captured her and placed her behind me, but when she saw our retreat, she reached for the hilt of my sword to kill me, so I killed her.' The Messenger of Allah ﷺ did not rebuke him. Al-Tabarani narrated this with a connected chain in 'al-Kabir'." (3) ¶

- Some jurists have determined: It is permissible to target and kill women and children in war in certain cases, even if they did not actively participate in the fighting, such as if the woman or child holds a position of sovereignty in the enemy's land. ¶

It is stated in Hashiyat Ibn Abidin: 'The female ruler is to be killed, even if she does not fight, and likewise the minor male ruler, because in killing the ruler lies the breaking of their power.' - Similarly, if actions occur from the enemy's women that remove the prohibition of their killing, then it becomes permissible to target them for combat and killing in this situation. ¶

It is stated in Al-Sharh al-Kabir by Al-Maqdisi: 'If a woman stands in the ranks of the disbelievers or on their fortress and insults the Muslims or exposes herself to them, it is permissible to intentionally shoot at her. This is based on what Sa'id narrated from Hammad ibn Zayd, from Ayyub, from Ikrimah, who said: When the Messenger of Allah (ﷺ) besieged Ta'if, a woman looked down and uncovered her private parts. He (ﷺ) said: 'There, take her, shoot her!' A man among the Muslims shot her, and he did not miss. It is permissible to look at her private parts out of the necessity of shooting her, as it is a requirement of that necessity.' ¶

These are cases and scenarios of fighting enemies in which fighting takes the ruling of permissibility according to all or some of the jurists, due to the specific circumstances surrounding such combat. ¶

There are other cases and scenarios of this nature that fall under issues related to some topics of jihad, such as the issue of fleeing from the enemy, the issue of using human shields (tatarrus), the issue of being taken captive, and so on. We will study these in due course. ¶

It is sufficient for us here to establish that the Muslims' fighting against their enemies may take the ruling of permissibility in cases and scenarios like those mentioned. The purpose here is not to exhaustively detail all such cases and scenarios in this research, because we see that studying many of them within the context of the specific issue to which they relate is more appropriate than studying them here. ¶

With this, we conclude this discussion, for which the proverb serves as our justification for its brevity: 'A necklace is sufficient if it encompasses the neck!' (i.e., a little is enough to represent the whole). Let us move on to another topic. ¶

The magnificent series of the authentic scholarly and reformative discourses (Malfuzat) of Hakim al-Ummah Hazrat Maulana Ashraf Ali Thanvi (may Allah have mercy upon him). Malfuzat Hakim al-Ummah (Volume I). Compiled by: Maulana Mufti Muhammad Rafi Usmani, Director of Darul Uloom Karachi. Maktaba Darul Uloom Karachi. ¶

Fifth Topic: Can Jihad be Makruh (Disliked)? ¶

We will proceed in our study of this topic following the same methodology we used in the previous one. We will address the following points: ¶

1. First Point: The definition of 'Makruh' (disliked) in Islamic legal terminology. 2. Second Point: Can fighting the enemy, in some instances, be considered 'Makruh' under Shariah? 3. Third Point: An exposition of certain situations where jurists have stated that fighting the enemy takes on the ruling of legal dislike (karahah). ¶

1. First Point: The definition of 'Makruh' in Islamic legal terminology. In the book 'Usul al-Fiqh al-Islami' by Dr. Muhammad al-Zuhayli, in the discussion on Makruh, it is stated: "... In terminology, we mention two definitions for it... ¶

First Definition: Makruh is that which the Lawgiver (al-Shari') has requested to be abandoned, but without a definitive demand. Dr. al-Zuhayli comments after citing this definition, saying: The definition is clear... Thus, Makruh is an action that the Lawgiver has requested to be abandoned and not performed, where this request is not binding or mandatory, which indicates the dislike of the act and the Legislator’s desire for one to refrain from it. ¶

Second Definition: Al-Isnawi defined Makruh, saying: (It is that for which the one who refrains is praised, and the one who commits it is not blamed). Dr. al-Zuhayli comments on this definition by saying: So, Makruh is that for which the one who abandons it deserves praise. ¶

And praise, and reward from Allah Almighty. As for the doer, he does not deserve punishment or condemnation, although he may deserve blame and reproach. (1) ¶

Furthermore, among the examples of what the Lawgiver (al-Shari') has requested to be left or prohibited—with a prohibition that indicates makruh (dislike) rather than absolute prohibition—is what is reported in Sahih al-Bukhari, Sahih Muslim, and others: "On the authority of Abu Hurairah (may Allah be pleased with him) that the Prophet (peace be upon him) said: When one of you wakes up from his sleep, he should not dip his hand into the vessel until he has washed it three times; for he does not know where his hand spent the night." (2) ¶

It is stated in al-Nawawi’s commentary on Sahih Muslim: "The intended benefit here is the prohibition of dipping the hand into a vessel before washing it, and this is unanimously agreed upon. However, the majority of scholars, both predecessors and successors, maintain that this is a prohibition of tanzih (dislike), not tahrim (prohibition). Therefore, if someone violates this and dips it, the water does not become impure, and the person who dipped it does not commit a sin." Then he explained the reason why the prohibition in the hadith is for tanzih, meaning makruh and not forbidden, by saying: "For the principle of water and the hand is purity, so it does not become impure through doubt, and the principles of the Shariah are consistent on this." Then he said: "All of this applies when there is doubt about the impurity of the hand. As for when there is certainty of its purity, and one wishes to dip it before washing, a group of our companions (Shafi'is) have said: There is no dislike in it, rather, he has a choice between dipping first or washing first; because the Prophet (peace be upon him) mentioned sleep and pointed out the cause, which is 'doubt', so when the cause is absent, the dislike is absent." (3) ¶

In Fath al-Bari, the commentary on Sahih al-Bukhari, it is stated: "The prohibition therein is for tanzih... His statement: 'He does not know' implies that the cause of the prohibition is the possibility of whether or not his hand touched something that would affect the water. The implication is that anyone who doubts this is subject to the same rule, even if he were awake. Its concept implies that whoever knows where his hand spent the night—such as if one had wrapped a cloth around it and woke up while it was in that state—then there is no dislike." (4) ¶

And it is stated in Sunan al-Tirmidhi: "This is a hasan sahih hadith. Al-Shafi'i said: I prefer for everyone who..." ¶

Upon waking from sleep (whether it be the midday nap or otherwise), one is instructed not to insert their hand into their wudu (ablution) water until they have washed it. If one inserts their hand before washing it, it is considered makruh (disliked), though the water does not become corrupt if there is no impurity on the hand. ¶

Furthermore, we have established in the preceding discussion what the limit of karahah (dislike) is in Islamic terminology, what is considered makruh, what its ruling is, and how the prohibition (nahy) contained in Shariah texts may shift from tahrim (prohibition) to karahah. This was understood in light of the hadith we presented and the commentaries provided by scholars regarding it. We now proceed to the second point of this research. ¶

2. The Second Point: Is it possible for fighting the enemy to be considered makruh in the Shariah under certain circumstances? In the previous research, we quoted Dr. Muhammad al-Zuhayli from his book 'Usul al-Fiqh al-Islami' regarding the five Shariah rulings, stating: 'These taklifi (obligatory/normative) rulings relate to the actions of the mukallaf (legally responsible person). These rulings may relate to a single act, and all five rulings, or some of them, may apply to it depending on the circumstances and conditions surrounding it, such as marriage, etc.' We noted there that among the actions of the mukallaf that are subject to the five rulings depending on surrounding circumstances is the fighting of enemies, even though the original ruling for this fighting is that it is a fard kifaya (communal obligation). Based on the above, we state here: It is possible for the Shariah ruling on Muslims fighting their enemies to shift from wujub (obligation) to karahah, depending on specific circumstances that necessitate such a shift. This is the primary subject for which this research was compiled, and it is what we will address in the following point. ¶

3. The Third Point: An exposition of certain situations in which jurists have stated that fighting the enemy carries the ruling of karahah under the Shariah. We reiterate what was previously indicated in the preceding chapter, which, concerning our research... ¶

The subject we are addressing is not intended to encompass every situation or scenario in which combat against the enemy is considered makruh (disliked); for many of these fall within specific issues related to the topic of jihad. Jurists have studied these matters in independent sections and have assigned the appropriate Shariah rulings to each case. These matters will be studied in due time. ¶

Indeed, the intent here is not to exhaustively list every condition under which combat against the enemy is makruh, as presented by the jurists in their books of fiqh. Rather, it suffices to present a number of such cases mentioned by the jurists to establish that combat against the enemy may indeed be makruh under Shariah in certain circumstances, even if only from the perspective of certain jurisprudential interpretations. ¶

Here are examples of such cases: ¶

1. When raids are launched against the enemy by individual Muslim fighters—other than the regular army—without obtaining prior permission from the Imam or the person in authority in this regard. ¶

We have already addressed this issue in detail in the study (Raiding for the sake of seizing the enemy's wealth). It is sufficient here to present the viewpoint of some jurisprudential interpretations as they appear in the books of fiqh, in a manner that fulfills the purpose of this research. ¶

It is stated in (Al-Minhaj by Al-Nawawi and its commentary, Mughni al-Muhtaj) the following: ¶

"It is makruh to wage war without the permission of the Imam or his deputy, out of respect for him, for he is more knowledgeable than others regarding the interests of jihad. It was not deemed haram because it involves nothing more than risking lives, which is permissible in jihad." ¶

"It should be—as Al-Adhra'i said—restricted to volunteers. As for the mercenary forces—meaning the regular army whose members receive fixed wages for their dedication to military service—they are not permitted to do this, because they are earmarked for the exigencies that may arise for Islam, and the Imam directs them; thus, they are in the position of employees." ¶

Then the author of Mughni al-Muhtaj said: (Note) Al-Bulqini excepted certain cases from being makruh: ¶

- First: That the opportunity would be lost if one went to seek permission. - Second: If the Imam halts military expeditions and devotes himself and his soldiers to worldly affairs, as is observed! ¶

Thirdly: If he believes with strong probability that if he were to ask him (the Imam) for permission, he would not grant it. I say: This text reflects the reality of Muslims in the past, when almost all fronts around them were open for jihad to all Muslims, whether they were members of the regular army or volunteers from outside the regular army. It was also the prevailing international custom that every state had the right to invade others as long as it was capable of doing so. However, Islam did not permit Muslims to exercise that right which was established by the international custom of that time. Instead, it categorized warfare into obligatory, recommended, permissible, disliked, and forbidden, according to what the Shariah evidences demand, in view of the various circumstances relating to both sides of the conflict and the conditions surrounding it. ¶

Yes, in light of that prevailing international custom and the ongoing reality, we can read the aforementioned juristic text and understand it correctly. ¶

Furthermore, we have addressed the issue of 'permission of the Imam' or the 'authority' in fighting enemies in light of the Muslims' situation under the modern international order in previous research, particularly the study on 'Raiding for the sake of acquiring enemy wealth,' so we will not repeat here what we said there! Moreover, the research here is not intended to establish new juristic rulings regarding combat conditions in the modern era; rather, it is designed to present examples of texts from classical jurists which state that combat in some cases may be disliked (makruh) in Shariah, not in and of itself, but only in view of those specific circumstances. ¶

Let us move on to another case among those we are discussing. ¶

2 - When Muslims declare war on an enemy country for one of the legitimate reasons for combat, and they intend to bombard it, and there are individuals among the Muslims in that country who might be affected by the consequences of that bombardment, whether those Muslims are citizens of that country or foreigners, such as detainees, or those who are there under a pledge of safety (musta'minin) for trade, visitation, tourism, pursuit of knowledge, medical treatment, or otherwise... ¶

In this situation, if there is no compelling necessity to bombard that country, then bombarding it is (disliked). ¶

Weapons whose effects extend beyond the combatants among the disbelievers are considered makruh (disliked) in the context of Shari'ah ijtihad. Imam al-Shafi'i states in his book 'Al-Umm': 'If there are Muslim captives in the enemy's territory, or merchants granted safety (musta'minun), I dislike launching attacks against them that involve general destruction such as burning or drowning, though it is not explicitly prohibited (haram). This is because when the territory is permissible to attack, it is not clear that it becomes prohibited simply because a Muslim whose blood is sacred is present therein. I only disliked it out of precaution, and because if there were no Muslims there, we would have the choice not to engage them, or if we did, we would do so without methods that cause general burning or drowning...' This applies if there is no necessity to bombard enemy lands with weapons of mass destruction. However, if necessity arises, there is no dislike in such cases. In 'Mughni al-Muhtaj', regarding our current subject, it is stated: '...The madhhab (school of thought) is that if there is no necessity, it is disliked (makruh) as a precaution to prevent the destruction of a Muslim, though it is not haram according to the most correct view. If there is a necessity, such as the fear of harm from them (the disbelievers) or if the fortress cannot be conquered otherwise, it is permissible without doubt. Just as a group of Muslims is treated like a single individual Muslim, as al-Rafi'i stated; the implication is that it is not permissible if there is a large number of Muslims present, which is correct.' 3- There is a case that was presented in the previous two discussions regarding mandub (recommended) and mubah (permissible) combat... which relates to dueling (mubarazah). Dueling may be makruh in some situations, as previously noted. We repeat what we quoted from Ibn Qudamah concerning our research here: 'It is makruh for a weak person who lacks confidence in his own abilities to challenge (a foe). Dueling is disliked for him because his apparent defeat would demoralize the Muslims.' ¶

4 - Another scenario of combat that may confront a Muslim fighter on the battlefield is finding, while pursuing an enemy, that the enemy is actually a relative by blood! In this situation, should the Muslim fighter continue to pursue and fight that relative-enemy to kill him if he is able, or should he turn away to someone else? ¶

It is stated in 'Al-Minhaj' and its commentary regarding the ruling on such a case: «It is makruh (disliked) for a ghazi (fighter) to kill his own infidel relative, because affection may lead to regret, which could become a cause for his weakness in jihad, and because it involves the severing of ties of kinship (silat al-rahim) which one is commanded to maintain. This is karahat tanzih (dislike of minor degree), although the second rationale suggests it might be karahat tahrim (dislike of major degree), and killing a relative who is a mahram is even more severely disliked. This is because the Prophet (peace be upon him) forbade Abu Bakr on the day of Uhud from killing his son Abd al-Rahman, and forbade Abu Hudhayfah from killing his father on the day of Badr... Then it adds: There is no dislike if the [enemy relative] intends to kill him, so he kills him in self-defense.»(1) ¶

I (the author) say: This legal text describes the common conditions of historical warfare, and it is accurate for those times, as most of those conditions involved man-to-man combat on the battlefield. Today, however, such individual confrontations rarely occur. Therefore, there is no basis to argue that it is disliked for a Muslim to silence a source of danger just because the person operating it is a relative—especially, as previously noted, since silencing the source of danger, destroying it, and eliminating the one operating it is considered a form of self-defense for that Muslim fighter. Thus, the ruling in the aforementioned legal text applies to him in this situation: «There is no dislike if he [the relative enemy] intends to kill him, so he kills him in self-defense.»(2) ¶

5 - Among the conditions in which fighting enemies carries a ruling of dislike are those we have already discussed in the research. ¶

"Permissible Combat" (Al-Qital al-Mubah) includes the ruling on 'night raids' (Qital al-Bayat), which refers to launching attacks on the enemy at night. ¶

We have cited what is stated in Al-Mughni regarding this: "Ahmad said: There is no harm in a night raid... and we do not know of anyone who disliked raiding the enemy at night..." (1). ¶

In reality, some jurisprudential interpretations (ijtihadat) have classified this type of combat as makruh (disliked). Perhaps this was deduced from the Prophet’s (PBUH) prohibition of killing women and children, as this type of combat is inherently linked to the risk of killing those who have been forbidden to be killed. Therefore, it is considered a prohibited form of combat. This interpretation did not distinguish between intentional killing and accidental or consequential killing... ¶

We have already discussed the reconciliation between apparently conflicting evidences in the previous section. ¶

However, in any case, since our discussion here is merely a review of the jurisprudential interpretations that classify certain forms of combat against the enemy as makruh, we are recording this interpretation found in our jurisprudential heritage... ¶

It is stated in Nayl al-Awtar by Al-Shawkani: "... It is permissible to conduct night raids on the disbelievers (kuffar). Al-Tirmidhi said: Some people of knowledge have granted a concession regarding raiding at night and conducting night attacks, while others disliked it. Ahmad and Ishaq said: There is no harm in attacking the enemy at night..." (2). ¶

6 - Finally, it is stated in the books of Usul al-Fiqh (Principles of Jurisprudence) that the term 'makruh' may also be applied to the abandonment of anything that contains a superior (rajih) interest (3). ¶

Thus, if the superior interest in the relationship with any non-Islamic state requires avoiding the initiation of [hostilities]... ¶

From a Shariah perspective, regarding the declaration of war against them for any reason—turning one's back on this interest and declaring war on such a state, even if it aligns with legitimate warfare in Islam, is considered a 'makruh' (disliked) war due to the resulting loss of a greater interest... unless the declaration of such a war and its expected consequences result in harm befalling the Muslims. In that case, it takes on the ruling of prohibition (tahrim) rather than mere dislike, as we will explain in the coming section. ¶

Furthermore, these were examples of the legal (fiqhi) rulings and opinions in which the points this research was intended to clarify have manifested. ¶

We shall now move to the final discussion within the context of the various Shariah rulings that combat against enemies assumes, depending on the diversity of circumstances and conditions. 935 ¶

Preface: All praise is due to Allah, who made the scholars the guides of the Ummah, lamps in the darkness, and the inheritors of the Prophets, and who made their speech a guide to the pleasure of Allah and His reward. Peace and blessings be upon our master Muhammad, who was given the gift of concise speech (jawami' al-kalim), and upon his family and companions who guided humanity to a straight path. ¶

To proceed: Fiqh (Islamic jurisprudence) in religion is the best of all forms of knowledge, to which all Shariah sciences return. Numerous evidences exist regarding its merit, the nobility of its practitioners, and its complete benefit. Among its greatest chapters, and the one most needed by people, is the chapter of transactions (al-mu'amalat), due to its connection to the daily lives of people and the new emerging issues (nawazil) that require the clarification of the Shariah ruling based on the firm foundations of our Islamic jurisprudence. ¶

Since this book, 'Contemporary Financial Transactions,' which is before us, addresses these issues with a rigorous scientific approach and a foundational presentation of transaction contracts—whileضبط (regulating) the relevant jurisprudential principles and applying jurisprudential adaptation (takyif fiqhi) to contemporary issues—it has become a beneficial volume for the student of knowledge and an important reference for the researcher. It clarifies the ambiguous, simplifies the difficult, and connects the foundational principles (al-asl) with their branches (al-far'). ¶

As I present this volume to the Islamic library, I hope that it is among those works through which Allah benefits the servants and the lands, that He places it in the scale of good deeds of its author, and that it serves as a brick in the edifice of scholarly jurisprudence that relies on evidence and is illuminated by the light of reasoning (ta'lil). ¶

I ask Allah to guide us to the truth and to give us insight into the markers of our religion; He is indeed All-Hearing, All-Responding. ¶

Written by: Prof. Dr. Abdullah bin Muhammad bin Ahmad Al-Tayyar ¶

Sixth Discussion: Can Jihad be Haram (Forbidden)? ¶

We direct the discourse in this discussion, just as we did in the previous two discussions, around specific points that we believe are sufficient for the purpose for which this entire chapter was established. That purpose is to clarify that jihad, or fighting the enemy, does not carry a single, rigid ruling in Islamic Shariah that remains unchanged regardless of the circumstances and conditions related to this subject. Indeed, for every situation—whether it involves exposure to the Islamic lands, the Islamic da'wah (call), the individual Muslim fighters or their enemies, or the two parties of the conflict in general, in terms of the balance of power or other matters—there is a specific Shariah ruling that is appropriate for it in the context of engaging and fighting the enemy. It is not necessarily the case that this ruling must be the original ruling of jihad, which is that it is a fard kifayah (collective obligation). We have already learned in the previous discussions that fighting the enemy may deviate from its original ruling of obligation (wujub), becoming recommended (mandub) at times, permissible (mubah) at others, and even disliked (makruh) in a third instance. This applies whether it concerns the declaration of war itself against one of the enemies of the Muslim Ummah due to an exceptional circumstance that necessitates such a ruling, or whether it concerns the individual Muslim fighter due to a specific personal reason that takes his participation in battle and carrying of arms out of the realm of obligation into another of the Shariah rulings we have mentioned. ¶

I say: Just as we learned this in the previous discussions, we now want to understand some of the situations that remove fighting against the enemy from the ruling of obligation to the ruling of prohibition (tahrim), following the same path we took in the preceding discussions. Accordingly, the points we will address in this discussion are: ¶

1. First Point: What is 'Haram' (the prohibited) in Islamic terminology? ¶

Second point: Can jihad, or fighting the enemies, be haram (forbidden)? Third point: An examination of some cases in which the Shariah ruling on jihad or fighting the enemies shifts from obligation (wujub) to prohibition (tahrim). ¶

First point: What is haram in Islamic legal terminology? Dr. Muhammad al-Zuhayli, in defining haram, states the following: 'In terminology, we cite two definitions for it... 'The first definition: Haram is what the Lawgiver (al-Shari') has demanded to be abandoned with certainty and obligation.' 'The second definition: Al-Baydawi defined haram by its quality, stating: It is that for which the doer is blameworthy in the Shariah.' Then Dr. al-Zuhayli said: 'Some scholars added to this definition the phrase: (and the one who refrains from it is praiseworthy), to correspond with the definition of wajib (obligatory).' Then he added: 'Synonyms for al-muharram (the forbidden) include: al-mahzur (prohibited), al-ma'siya (disobedience), al-dhanb (sin), al-mamnu' (prevented), al-qabih (ugly/vile), al-sayyi'a (evil), al-fahisha (immorality), al-ithm (sin), al-mazjur 'anhu (that which is warned against), and al-muta'wa'ad 'alayhi (that for which a threat/punishment is promised)' (1). After explaining the various rhetorical styles used to express the prohibition of an act—such as terms indicating prohibition (hurmah), avoidance (ijtihab), lack of permissibility (adam al-hill), or stern denunciation, or styles of prohibition (nahy), or attaching a penalty to an act—and after mentioning examples of forbidden acts such as riba (usury), killing a soul that Allah has forbidden, wine, and consuming wealth without the owner's consent, Dr. al-Zuhayli explains the ruling of haram: 'From the preceding definition and the explanation of the styles that indicate prohibition, it becomes clear that the ruling on haram is the obligation for the mukallaf (legally responsible person) to abandon it; if he commits it, he deserves punishment and condemnation from Allah the Almighty...' (2). Thus, this is what constitutes haram in Shariah terminology—its definition, its ruling, its styles, and its examples. (1) Usul al-Fiqh al-Islami by Dr. Muhammad Mustafa al-Zuhayli: pp. 278-282. (2) Usul al-Fiqh al-Islami by Dr. Muhammad al-Zuhayli: p. 282. ¶

We now move to the second point. ¶

2 - The Second Point: Can jihad or fighting the enemies be haram (forbidden)? ¶

It has been stated in the two previous chapters that the five Shariah ruling categories (al-ahkam al-taklifiyya)—namely: obligatory (wajib), forbidden (haram), recommended (mandub), disliked (makruh), and permissible (mubah)—relate to the actions of the legally responsible person (mukallaf). A single act may be subject to all or some of these rulings, depending on the circumstances surrounding that act. An example given for this was marriage... and we have stated that fighting the enemies is one of the acts to which these five rulings may apply. ¶

Accordingly, fighting the enemies may be haram due to an incidental reason that shifts it to this ruling, in light of what will become clear to us when we review some of the cases we will mention in the next point. ¶

3 - The Third Point: A review of some cases that shift the Shariah ruling on jihad or fighting the enemies from obligation (wujub) to prohibition (tahrim). ¶

In addressing this point, we will mention some cases where jurists have stated that jihad or fighting the enemies takes on the ruling of prohibition. ¶

These cases may pertain to the fighting of enemies in general; in such instances, it is not permissible to declare war against those enemies as long as that incidental condition governs the situation between them and the Muslims. ¶

- These cases may also pertain to individual Muslim fighters in their personal capacity; the war being waged against the enemies may be legitimate, yet it is forbidden specifically for those individuals who are characterized by those conditions to participate in the ongoing combat. ¶

Some of the cases we will present here have been mentioned in previous research, but we have included them here again due to their relevance to this study. ¶

There are other cases relevant to our current discussion, but we have deferred the discourse on them because they pertain to independent issues for which I have conducted specific research in this treatise, which will appear in their proper place. ¶

We now turn to present some cases where jurists have stated that fighting the enemy falls under the ruling of prohibition (haram) in Islamic Shariah, at least from the perspective of some jurisprudential ijtihad. ¶

1. The prohibition of Jihad if both or one of the parents forbid it, provided it is not fard al-ayn (individual obligation): The majority of jurists—notwithstanding the diversity of their ijtihad—agree that if a Muslim wishes to depart for Jihad, it is obligatory to obtain permission from both parents if both are alive. If they, or one of them, withhold permission, then engaging in Jihad at that time is haram in Shariah, as long as this Jihad is not an individual obligation (fard al-ayn) upon him. This is because to do otherwise would be to violate the legal ruling that prioritizes filial piety over Jihad when Jihad is not individually obligatory. However, if Jihad is fard al-ayn, then Jihad takes precedence in this situation. The Shariah texts have stipulated as much. ¶

It is stated in Muntaqa al-Akhbar: “Narrated Abdullah ibn Amr: A man came to the Prophet (PBUH) and asked his permission to participate in Jihad. He asked, ‘Are your parents alive?’ The man replied, ‘Yes.’ He said, ‘Then strive (in serving) them.’” (Narrated by al-Bukhari, al-Nasa’i, Abu Dawood, and al-Tirmidhi, who graded it Sahih). ¶

- It further states: “All this applies if Jihad has not become individually obligatory (ta’ayyun) upon him. If it does become obligatory, then abandoning it is a sin, and there is no obedience to a created being in disobedience to Allah Almighty.” ¶

al-Shawkani said: “His saying, ‘Then strive (in serving) them,’ means to dedicate yourself to the struggle of the self (jihad al-nafs) in seeking their pleasure.” ¶

- He further added: “It is obligatory to seek the parents’ permission for Jihad, and this is the position of the majority. They affirmed the prohibition of Jihad if the parents or one of them forbids it because being dutiful to them is fard al-ayn, whereas Jihad (in that context) is fard kifayah (collective obligation). If Jihad becomes fard al-ayn, then there is no need for permission. This is supported by what Ibn Hibban narrated from the hadith of Abdullah ibn Amr, who said: A man came to the Messenger of Allah (PBUH) and asked him about the best of deeds. He replied, ‘Prayer.’ He asked, ‘Then what?’ He said, ‘Jihad.’ He said, ‘I have parents.’ He said, ‘I command you to be good to your parents.’” ¶