Is Islam Essentially Violent? A Response to Robert Spencer

Introduction

Robert Spencer claims to write about Muslims and Islam in the strident and shrill manner that he does because he believes the global “jihadist threat” proceeds from a mainstream understanding of Islam’s core texts. He therefore interprets not just the “jihadist threat” in this light, but nearly all kinds of Muslim activism and even petty criminal acts committed by Muslims. Over and over he writes “there is an expansionist and supremacist imperative shared by all orthodox sects and schools of Islam” which is essentially “the idea that it is part of the responsibility of the Muslim community to wage war against unbelievers in order to convert or subjugate them”. This conclusion is important as it asserts that Islam is by its very essence violent. Furthermore, the topic is poorly understood by many neutral observers of Islam and the Muslim world.

Spencer believes this view of Islamic supremacism and expansionism is so acutely tied with the Qur’anic view and Muhammad’s sayings (hadith) and practice (sunna, sira) that any attempt at an Islamic reformation of this idea is doomed from the start; he also claims independent juristic reasoning in Islam, as embodied in the activity known as ijtihad, has ceased to be in practice and therefore is an impediment to progress in Islamic jurisprudence. The following will firstly lay out the proofs that Spencer uses to support this narrow view of jihad in Islam, and will then objectively examine the above claim. The notion that ijtihad (juristic reasoning) no longer functions, and that as a result this idea cannot be authentically challenged, will also be analysed. Finally, the notion that the global “jihadist threat” proceeds from this traditional formulation, which Spencer takes for granted, will briefly be considered.

The Argument for Jihad Expansionism

There are essentially four strands of evidence used to prove that Islam in its authentic form, as Spencer argues, is expansionist and supremacist. They are: firstly, the opinions expressed by the orthodox Islamic schools of jurisprudence; secondly, an interpretation of the Qur’an that involves progressive revelation and an “abrogation” (naskh) scheme with regards to the Qur’anic verses on fighting; thirdly, a similar progressive evolution in the life and example of the Prophet Muhammad; and finally, the recorded sayings of the Prophet Muhammad in the hadiths. These will be looked at in turn. The evidence used by Spencer will firstly be laid out without any attempt to rebut them and a refutation will subsequently follow.

The Opinions of the Four Schools of Thought

To prove his assertion that this is the view accepted by “all” mainstream schools and sects, Spencer quotes texts from the four schools of thought:

“Shafi'i school: A Shafi'i manual of Islamic law that was certified in 1991 by the clerics at Al-Azhar University, one of the leading authorities in the Islamic world, as a reliable guide to Sunni orthodoxy, stipulates that “the caliph makes war upon Jews, Christians, and Zoroastrians...until they become Muslim or pay the non-Muslim poll tax.” It adds a comment by Sheikh Nuh ‘Ali Salman, a Jordanian expert on Islamic jurisprudence: the caliph wages this war only “provided that he has first invited [Jews, Christians, and Zoroastrians] to enter Islam in faith and practice, and if they will not, then invited them to enter the social order of Islam by paying the non-Muslim poll tax (jizya)...while remaining in their ancestral religions.” ('Umdat al-Salik, o9.8)...

Hanafi school: A Hanafi manual of Islamic law repeats the same injunctions. It insists that people must be called to embrace Islam before being fought, “because the Prophet so instructed his commanders, directing them to call the infidels to the faith.” It emphasizes that jihad must not be waged for economic gain, but solely for religious reasons: from the call to Islam “the people will hence perceive that they are attacked for the sake of religion, and not for the sake of taking their property, or making slaves of their children, and on this consideration it is possible that they may be induced to agree to the call, in order to save themselves from the troubles of war.”

However, “if the infidels, upon receiving the call, neither consent to it nor agree to pay capitation tax [jizya], it is then incumbent on the Muslims to call upon God for assistance, and to make war upon them, because God is the assistant of those who serve Him, and the destroyer of His enemies, the infidels, and it is necessary to implore His aid upon every occasion; the Prophet, moreover, commands us so to do.” (Al-Hidayah, II.140)

Maliki school: Ibn Khaldun (1332-1406), a pioneering historian and philosopher, was also a Maliki legal theorist. In his renowned Muqaddimah, the first work of historical theory, he notes that “in the Muslim community, the holy war is a religious duty, because of the universalism of the Muslim mission and (the obligation to) convert everybody to Islam either by persuasion or by force.” In Islam, the person in charge of religious affairs is concerned with “power politics,” because Islam is “under obligation to gain power over other nations.”

Hanbali school: The great medieval theorist of what is commonly known today as radical or fundamentalist Islam, Ibn Taymiyya (Taqi al-Din Ahmad Ibn Taymiyya, 1263-1328), was a Hanbali jurist. He directed that “since lawful warfare is essentially jihad and since its aim is that the religion is God’s entirely and God’s word is uppermost, therefore according to all Muslims, those who stand in the way of this aim must be fought.”” (1)

Abrogation of Peaceful Qur’anic Verses

Spencer says the Qur’anic text can be understood either peacefully, as tolerating the other, or in expansionist and intolerant terms. However, he argues, mainstream classical interpretation understood that there was a progression in the Qur’anic revelation which culminated in a total war against unbelievers to subjugate them under Islamic law. He refers to a “cluster of [Qur’anic] verses containing general and open-ended commands to fight”(2), most importantly verses 9:5 (“slay the idolaters wherever ye find them, and take them (captive), and besiege them, and prepare for them each ambush”) and 9:29 (“Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued”), which are thought to be the last verses in this progressive scheme of abrogation. In support of this kind of interpretation Spencer refers to classical commentaries like Ibn Kathir’s, Ibn Juzayy’s and others.

The Sira

Adding further support to the above interpretation is the example of the Prophet Muhammad, who firstly forbade retaliation in the face of persecution and encouraged patience, but later legalised warfare for defensive purposes before pursuing a total warfare against unbelievers. In support he offers Ibn Ishaq’s (d. 767) interpretation of Qur’anic verses in light of the Prophet’s biography:

“The apostle had not been given permission to fight or allowed to shed blood...He had simply been ordered to call men to God and to endure insult and forgive the ignorant. The Quraysh had persecuted his followers, seducing some from their religion, and exiling others from their country. They had to choose whether to give up their religion, be maltreated at home, or to flee the country, some to Abyssinia, others to Medina...When Quraysh became insolent towards God and rejected His gracious purpose, accused His prophet of lying, and ill treated and exiled those who served Him and proclaimed His unity, believed in His prophet, and held fast to His religion, He gave permission to His apostle to fight and to protect himself against those who wronged them and treated them badly.

The first verse which was sent down on this subject...was: “To those against whom war is made, permission is given (to fight), because they are wronged;- and verily, God is most powerful for their aid;- (They are) those who have been expelled from their homes in defiance of right, (for no cause) except that they say, "our Lord is God". Did not Allah check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of God is commemorated in abundant measure. Allah will certainly aid those who aid his (cause); for verily God is full of Strength, Exalted in Might, (able to enforce His Will). (They are) those who, if We establish them in the land, establish regular prayer and give regular charity, enjoin the right and forbid wrong: with Allah rests the end (and decision) of (all) affairs.” (22:39-41) The meaning is "I have allowed them to fight only because they have been unjustly treated while their sole offense against men has been that they worship God. When they are in the ascendant they will establish prayer, pay the poor-tax, enjoin kindness, and forbid iniquity, i.e., the prophet and his companions all of them." Then God sent down to him: "Fight them so that there be no more seduction," i.e. until no believer is seduced from his religion. "And the religion is God's," (2:193), i.e. until God alone is worshipped." (3)

The Hadiths

There are two important hadiths utilised in this reading:

1. “I have been commanded to fight against people so long as they do not declare that there is no god but Allah, and he who professed it was guaranteed the protection of his property and life on my behalf except for the right affairs rest with Allah” (4)

2. “It has been reported from Sulaiman b. Buraid through his father that when the Messenger of Allah (may peace be upon him) appointed anyone as leader of an army or detachment he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He would say: Fight in the name of Allah and in the way of Allah. Fight against those who disbelieve in Allah. Make a holy war, do not embezzle the spoils; do not break your pledge; and do not mutilate (the dead) bodies; do not kill the children. When you meet your enemies who are polytheists, invite them to three courses of action. If they respond to any one of these, you also accept it and withold yourself from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then invite them to migrate from their lands to the land of Muhairs and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajirs. If they refuse to migrate, tell them that they will have the status of Bedouin Muilims and will be subjected to the Commands of Allah like other Muslims, but they will not get any share from the spoils of war or Fai' except when they actually fight with the Muslims (against the disbelievers). If they refuse to accept Islam, demand from them the Jizya. If they agree to pay, accept it from them and hold off your hands. If they refuse to pay the tax, seek Allah's help and fight them. When you lay siege to a fort and the besieged appeal to you for protection in the name of Allah and His Prophet, do not accord to them the guarantee of Allah and His Prophet, but accord to them your own guarantee and the guarantee of your companions for it is a lesser sin that the security given by you or your companions be disregarded than that the security granted in the name of Allah and His Prophet be violated When you besiege a fort and the besieged want you to let them out in accordance with Allah's Command, do not let them come out in accordance with His Command, but do so at your (own) command, for you do not know whether or not you will be able to carry out Allah's behest with regard to them.” (5)

Ijtihad

Spencer’s final line of proof is that after the death of Ahmad ibn Hanbal in 855 AD no mujtahid (a Muslim jurist capable of independent juristic reasoning) of this standard was ever assumed to have lived thereafter, and the process of ijtihad itself was severed, or “the gates of ijtihad were closed”. As evidence, he quotes modern scholars on religion, most prominently Cyril Glasse (6). His point in offering this argument is to give the impression Muslim scholars today cannot argue against what he suggests is the mainstream classical position.

Response

Firstly, by way of a disclaimer, this is not meant to prove that the idea Spencer expounds, jihad expansionism, did not exist, rather that the idea was not universally accepted by the mainstream as Spencer claims, nor is it a logical conclusion of the Islamic texts themselves. I also aim to show that such a worldview was inspired by the global political climate of that period; hence even Christendom adopted the same position.

The Early Juristic Opinions

Juristic reasoning (fiqh) first systematically appeared in the late seventh and early eight centuries, less than a century after the Prophet Muhammad’s death, its major pioneers being Malik (d. 795), Abu Hanifa (d. 750) and al-Shafi‘i (d. 820). Nearly all of the major Islamic conquests occurred in the first Islamic century from 634 to 732 AD, i.e. before fiqh (jurisprudence) became a recognised intellectual science. In this early foundational period, the roots of the later schools of jurisprudence and the legitimate points of contentions were established.

If we were to believe Robert Spencer’s assertion that “all mainstream schools and sects” accepted the “idea that it is part of the responsibility of the Muslim community to wage war against unbelievers in order to convert or subjugate them”, we should expect to see an agreement in this early period between all the fuqaha (jurists) that this was a religious mandate for the Muslim community. Instead, what we see is a clear divergence of opinion. Broadly speaking, from the seventh to the eleventh century, the jurists were divided according to three major perspectives representing the Maliki, Shafi‘i and Hanafi strain of thought.

The Maliki perspective, which was popular among other prominent schools of thought at this time, took the opinion that it is obligatory to fight disbelievers only in the event of an attack, but if they are not the aggressors the decision to fight is discretionary (nafila) and depends on the opinion of the Muslim leader. Ibn Abd al-Barr (d. 1071), a relatively late prominent Maliki jurist, said “[Jihad] is an obligation when one is in a state of fear (insecurity), while discretionary when one is enjoying security” (7). Likewise the Kufan jurist Sufyan al-Thawri (d. 778), who had his own school of thought which lasted all the way till the twelfth century before it eventually died out, said “fighting the idol-worshippers is not an obligation unless the initiative comes from them. If that is the case they must be fought in fulfilment of Allah’s command ‘if they fight you, kill them’ (2:191) and His saying ‘fight all the idol-worshippers as they fight you all’ (9:36)...” (8). This point of view was adopted by Imam Malik himself and the Maliki Sahnun (d. 854) as well as Ibn Umar (d. 693), Ata ibn Abi Rabah (d. 734), Ibn Shibrima and ‘Amr ibn Dinar (d. 788), all influential fuqaha in this period (9).

The second prominent position was that of the Hanafis as represented by Abu Hanifa’s student, Muhammad ibn al-Hasan al-Shaybani’s remarkable work on international relations, al-Siyar, in which a “state of hostility” is assumed although not expressly mentioned, but aggression is identified specifically as the trigger for war, and toleration, peace and mutual cooperation are emphasised. Majid Khadduri, an American scholar on jihad quoted extremely selectively by Spencer, wrote in the introduction to his translation of al-Siyar “We have seen how Abu Hanifa and his disciples, especially Shaybani, laid down general rules and principles governing Islam’s external relations, based on the assumption that a normal state of war existed between Islamic and non-Islamic territories; but they made no explicit statements that the jihad was a war to be waged against unbelievers solely on account of their disbelief (kufr). On the contrary, the early Hanafi jurists seem to have stressed that tolerance should be shown unbelievers, especially scriptuaries, and advised the Imam to prosecute war only when the inhabitants of the dar al-harb came into conflict with Islam” (10). In other words, this position does not explicitly profess that there should be a total warfare against unbelievers in order to subjugate or convert them, but assumes that such a warfare already exists and seeks to amend relations beginning from this premise. It is perhaps for this reason, that Abu Hanifa and the Hanafis explicitly said that a peace treaty between Muslim nations and non-Muslim nations may be permanent and unlimited, making peaceful coexistence a legal possibility.

The last mainstream position was first explicitly formulated by al-Shafi‘i in his work al-Umm. Majid Khadduri describes it as follows: “It was Shafi‘i who first formulated the doctrine that the jihad had for its intent the waging of war on unbelievers for their disbelief and not merely when they entered into conflict with Islam. The jihad was thereby transformed into a collective duty enjoined on Muslims to fight unbelievers “wherever you may find them” (9:5), although not every Muslim was necessarily obligated to fight. This legal principle provoked a discussion among Shafi‘i’s contemporaries and led to a division of opinion among the Hanafi jurists who followed Shaybani. Some, like Tahawi (d. 993), adhered more closely to the Hanafi doctrine that fighting was enjoined only in conflict with unbelievers; but Sarakhsi (d. 1097), the great commentator on Shaybani’s works, accepted the Shafi‘i doctrine that fighting the unbeliever was “a duty enjoined permanently until the end of time” (11). It is significant that the Hanafi school of thought dominated in most historical Islamic polities, including the Abbasid, the Seljuk and the Ottoman governments. Hence, when the Hanafi commentator on Shaybani’s Siyar, Sarakhsi, adopted the Shafi’i point of view described, it is no wonder that this is the view that became dominant in all the other madhhabs after the eleventh century. It is therefore unsurprising that all the ulama Spencer quotes appear after the eleventh century: Ahmad ibn Naqib (d. 1368), al-Marghiyani (d. 1197), Ibn Taymiyya (d. 1328) and Ibn Khaldun (d. 1406).

The Reason for this Early Juristic Dispute

Most Muslim jurists held, at the time of authoring their works, in the early period that Abyssinians, Nubians and Turks may not be fought based on an explicit statement of the Prophet Muhammad (12). Yet, Shaybani’s Siyar the medieval text outlining Islamic international relations par excellence appears to assume a permanent state of hostility. The apparent contradiction in these perspectives can be resolved by understanding as Khaled Abou El Fadl wrote “(Early) Muslim jurists hardly discussed issues relating to jus ad bellum [conditions justifying warfare]; they focused nearly exclusively on jus in bellum [rules in warfare]” (13). What this meant for early jurists is al-Shafi‘i’s more explicit formulation came to be the starting point of debate for the jus ad bellum, and eventually became the accepted premise of war across most madhhabs. Likewise, the hadiths rarely concern themselves with jus ad bellum, and instead outline rules of warfare and how one should conduct oneself while fighting.

However, the reason why al-Shafi‘i’s juristic view had favour and dominated in the eleventh century does require an explanation. As Sherman Jackson shows in this article empires and nations all over the world were in constant fear of threat and war. War between empires was the assumed state of affairs. It is therefore no wonder that Christendom too had the same view of international relations. As Majid Khadduri wrote “Similar to the law of ancient Rome and the law of medieval Chrisendom, the Muslim law of nations was based on the theory of a universal state. Both Christendom and Islamdom, as divine universal nomocracies, assumed that mankind constituted one community, bound by one law and governed ultimately by one ruler...their rules for foreign relations, accordingly, were the rules of an imperial state which would recognise no equal status for the other party (or parties) with whom they happened to fight or negotiate [jus fetiale in ancient Rome]. It follows therefore that the binding force of such a law of nations was not based on mutual consent or reciprocity, but on their own interpretation of their political, moral and religious interest, as they regarded their principles of morality and religion superior to others.” (14) Hence, although al-Shafi‘i’s view, that it was a communal obligation for the collective Muslim body to extend Islamic rule by conversion or conquest, became accepted by all schools following the eleventh century, the underlying motivation was security not conversion or expansion; Jackson for example finds an example of this in Ibn Rushd the Elder’s writings:

“To take one example, the juridical writings of the Spanish jurist, Ibn Rushd the Elder (d. 520/1122), a major legal authority and grandfather of the celebrated Averroes of Western fame, clearly reflect the influence of the perceived "state of war." Because Ibn Rushd perceived it to be impossible for Muslims to live as Muslims outside of Muslim lands, he insisted that it was forbidden for Muslims to take up residence abroad. In fact, he even banned travel to non-Muslim countries for purposes of commerce, going so far as to urge the ruler to build check-points and light-houses to stop Muslims from leaving the lands of Islam. As for individuals in non-Muslim countries who converted to Islam, Ibn Rushd insisted that they were religiously obligated to migrate to a Muslim polity. On this understanding, it comes as no surprise that Ibn Rushd endorsed the traditional doctrine on aggressive jihad as a communal obligation. During the course of his discussion, however, it becomes clear that his ultimate consideration was the security of the Muslims rather than either conquest or conversion. After exhausting the point that jihad is a communal obligation, Ibn Rushd comes to the following conclusion:

So, whenever we are placed beyond the reach of the enemy and the outlying districts of the Muslim lands are secured and the gaps in their fortifications are filled, the obligation to wage jihad falls from all the rest of the Muslims ... (al-Muqaddimat 1:374)

The purpose of jihad, in other words, is to provide for the security and freedom of the Muslims in a world that kept them under constant threat.” (15)

This also forms part of the explanation of what motivated the early Muslim conquests. Majid Khadduri notes that the ideology propelling the early conquests “was not a consciously formulated policy” (16). Sherman Jackson describes how the Muslims found themselves in a pre-existing “state of war” with which they had to contend. Having already had violent clashes with the Byzantines of the Levant [prompted by the unjust execution of a messenger who was sent with the purpose of inviting them to Islam] and encountered the Arab allies of Byzantium from Northern Arabia during the lifetime of Muhammad, the Muslims were aware of the threat they faced. They were not militarily superior to either the Byzantine Romans or the Sassanid Persians, but their growing presence meant they had to become part of the heterogenic world of hegemonic empires, for had they not, their destruction would have been inevitable. It is not that the religious concept of “jihad” had no part to play in this process, but jihad was merely an instrument whereby the ideology was legitimised and internalised. After citing a few examples of the state of hostility between sovereign empires assumed throughout the world, Jackson writes “In the case of the Muslim empire, an identical assumption would collude with the presumed "state of war" and produce a sense of mission that was reinforced by the overall medieval thirst for conquest. Jihad, for its part, like the Roman-Byzantine "charismatic victoriousness," would lend itself well to these ambitions and these concerns.” But, he notes, “the Muslim conquests were neither for the sole purpose of conversion nor annihilating the infidel. In addition to the fact that non-Muslims paid higher taxes -- and thus non-conversion operated to the financial advantage of the state -- the rules of jihad stipulated that non-Muslims remained free to practice their religion upon payment of the so-called jizya, or income tax, in exchange for which the Muslim state incurred the responsibility to protect them from outside attack. While the imperial quest for empire invariably informed the policies of every Muslim state, Muslim juristic writings continued to reflect the logic of the "state of war" and the assumption that only Muslims would permit Muslims to remain Muslims. They continued to see jihad not only as a means of guaranteeing the security and freedom of the Muslims but as virtually the only means of doing so. For even peace-treaties were usually the result of one's surrender to demands that had been imposed by a real or anticipated defeat by the sword.”

The Permanent Hudna and Later Juristic Thought

Al-Shafi‘i’s construction of a fiqh-based jihad ideology described above was formulated with the caveat that peace treaties between Muslim and non-Muslim nations may only be for a maximum duration of ten years so that the permanent state of hostility is not diminished into permanent peace. However, as other madhhabs began to adopt the Shafi‘ite jihad ideology, their initial preference for peace and toleration did not disappear; rather it was upheld via the more widespread acceptance of a long-term truce which did not have a limit. Khaled Abo El Fadl writes “an increasing number of jurists [from all madhhabs] after the fifth/eleventh century rejected the ten-year limit, with many of them arguing either that the Muslim ruler may continue to renew a peace treaty for ten-year periods indefinitely, or that permanent peace treaties are lawful in Islam [Fadl’s note: See: Imam Ibn Muflih, “al Mubdi' fi sharh al-Muqni”, [ Beirut: al-Maktab al-Islami , 1973 ] , 3:398–99; al-Sarakhsi, “Sharh” 3:46–47; al-Najafi, “Jawahir al-Kalam” 21:298–99; Abu Bakr Muhammad b. Ahmad; al Shashi al-Qaffal, “Hulyat al-'Ulama' fi Ma'rifat Madhahib al-Fuqaha” 7:718–21 ; al-Ramli, “Nihayat al-Muhtaj”, 8:107; Al-Nawawi “Rawdat al-Talibin”, 10: 334–35 ; Ibn Qudama, “al-Mughni”, 8:460–61]. A prominent jurist such as Ibn Taymiyya (d. 1328) argued that there is no evidence supporting a particular term limit on peace treaties” (17). The famous fourteenth century scholar Ibn al-Qayyim al-Jawziyya (d. 1350) also favoured the view that an imam may enter into a permanent peace treaty (hudna) but each party should have the freedom to revoke the pact whenever they like, so long as the other is informed (18). In fact in describing Abu Hanifa’s view on the matter, Ibn Qudama writes that he not only believed peace treaties may be without term, he took the opinion that “the interest of the Muslims lies more in peace than it does in war” (al-maslaha qad takunu fi l-sulhi akthara minha fi l-harb) (19).

Not only were the jurists in favour of the permissibility of a permanent peace treaty, it became an actual reality during Ottoman rule. Majid Khadduri wrote:

“[A] significant change in the relationship of Islam with other nations was the adoption by Islam of the principle of peaceful relations among nations of different religions, replacing the classical principle of the permanent state of war between Islamic and non-Islamic territories. The jihad, as we noted earlier, became inadequate as a basis for Islam’s relations with other nations. Peace treaties extending beyond the ten-year period provided under the classical law of nations necessarily replaced the jihad as a normal relationship between Islam and other states.

The most notable instrument that recognised peace as the normal relationship between Islamic and non-Islamic states was the Treaty of 1535, concluded by Sultan Sulayman the Magnificent with Francis I, the King of France. The treaty provided quite a few innovations in the relationship between Islam and other nations. The preamble treated the King of France and his envoys on an equal footing with Sultan Sulayman and his representatives. Article I provided for the establishment of “valid and certain peace” between the Sultan and the King “during their lives” and granted the subjects of each sovereign reciprocal rights in the territory of the other…Article 15 stated that such privileges would be extended to other sovereigns if they adhered to the treaty, thereby indicating that the Sultan sought to establish a principle applicable to other Christian princes…Nor was this all. The treaty modified yet another classical principle by exempting from the poll tax French subjects who resided in the Ottoman Empire, even for a period exceeding one year” (20)

This period of consolidation lasted from the eleventh to the nineteenth century. It remains the case, therefore, that establishing a fundamental relationship based not on jihad warfare but peace and mutual cooperation was a possibility even in this period. In the nineteenth century Muslim scholars and the general population had to come to terms with colonialism. As a direct effect of colonialism, individual opinion about the Qur’an and hadith rapidly multiplied and the authority of the ulama diminished. As a result, many innovative ideas emerged at this time, including cults like the Ahmadiyya. I will return to the opinions of the ulama in this modern period from the nineteenth to the twenty-first century a little further down.

Abrogation and the Verses of Peace

The view that the duty of jihad as prescribed in the Qur’an transformed from a non-confrontational form of peaceful preaching to defensive war and finally to a total war against all disbelievers to convert or subjugate under Islamic law reflected al-Shafi‘i’s viewpoint. The major early Qur’an commentator al-Tabari (d. 923) did appear to follow this method in determining which verses were abrogated and which were not, as he was a follower of the Shafi‘i school. However, the view that the verses of peace were abrogated by 9:5, 9:29 and some other verses has been proven to be largely based on personal opinion and not on sound authority from the apostolic period. This is demonstrably the case as all verses that were thought to have been abrogated were disputed, revealing the arbitrary, circumstantial and inconsistent nature of such a task. Reuven Firestone wrote “Despite the lack of consistency, these verses are cited by the legal literature (and, following them, Western scholars) in such a way as to suggest a historical development in the qur’anic conception of holy war…The fact is that the conflicting qur’anic verses cannot prove an evolution of the concept or sanction for religiously authorised warring in Islam from a nonaggressive to a militant stance” (21) This is because, if we are to see a consistent evolution “we should expect…a substantial degree of repetition and agreement in the sources over the occasions of revelation and the hierarchy of abrogation. In reading a representative sample of commentaries and naskh and asbab works from the first five Islamic centuries, however, we find tremendous disagreement over what interpretations inspired the major war verses, when they occurred, and to what or whom they refer. This decided lack of agreement destroys the classic argument of divinely guided evolution and reveals its origin as a theoretical solution to the problem of qur’anic contradiction.” As for the origin of such a view, Firestone writes “in fact, this classic Islamic “evolutionary theory” of warring presumes from the outset that war against non-Muslims would be essentially unrestricted even before the Muslims engaged in the process because that was the policy of the empire under which the theory evolved” (22).

If analysed carefully, it can be observed that this Qur’anic exegesis involving an evolution in this manner often leads to contradictions and is therefore self-defeating. For instance, al-Tabari in commenting on Qur’an 60:8 which recommends friendliness and equitability to non-aggressive disbelievers cannot accept the conclusion of some individuals that this verse was abrogated as the Prophet used this verse to encourage friendly behaviour towards non-Muslims near the end of his Prophetic career; instead al-Tabari says: “The preferred (view) from these opinions which is correct is the (view of the) one who says that by (the statement) ‘Allah forbids you not, with regard to those who fight you not for (your) Faith’ is meant from all the various types of religions and sects that you be friendly to them and maintain (family) bonds and are equitable to them. Allah Glorified and Exalted be He generalised by His saying ‘those who fight you not for (your) Faith nor drive you out of your homes’ all those whose description this is, and He did not specify thereby some apart from others...The truth of what we have said is clear from the report we mentioned [of the Prophet using this verse as evidence towards the end of his life]” (23)

Although the prevailing paradigm for understanding Qur’anic verses that apparently contain contradictory imperatives was to invoke the concept of “abrogation” (naskh) with regards to the verses of fighting, the stringent rules of abrogation the classical ulama outlined, like attempting to reconcile the verses before postulating abrogation, prohibits such a view. Clearly, as Firestone pointed out, the impulse for the prevalence of this view came not from an internal contextual analysis of the Qur’anic text but an external circumstantial imperative. It is for this reason many contemporary Qur’anic exegetes do not accept this paradigm and offer an alternative one which takes inter-textual and contextual analysis more seriously. Some of these ulama will be mentioned below. However, reading the Qur’an in context reveals that there is a way all the verses on fighting can be reconciled. Some of the major sections in the Qur’an dealing with fighting are: 2:190-5, 216-8, 2:246-51, 256, 4:74-7, 88-91, 5:51-2, 8:15-19, 38-40, 53-62. 65-7, 9:1-13, 29-36, 122-3, 22:39-41, 47:1-4, 34-5, 49:9-10, 60:7-9. The verses generally command warfare only against those who fight the Muslims (2:190, 9:13, 36, 4:75) and exhort believers to cease fighting when aggression ends (2:193, 4:90, 8:61, 60:8, 9:4,6,7); the open-ended command to warfare are generally placed in the midst of verses describing persecution and aggression, so 47:4 is preceded by a verses describing disbelievers who prevent people from following God’s religion (47:1) and 9:5 is surrounded by verses describing the polytheists’ treachery in breaking the peace agreement.

After citing the verses that suggest fighting may only be for defensive purposes and must stop when aggression ends, Rudolph Peters writes “Taking the aforementioned verses as the decisive ones in the relationship with unbelievers, modernists were obliged to reinterpret the verses that were traditionally understood as giving an unconditional command to fight them. They accomplished this by means of contextual exegesis. Thus 9:5, which is traditionally taken as the sword verse, must according to the modernists, be read in the context of the first part of sura 9 directed against the Meccans that had broken their treaty-obligations...In the same way 9:29 is reinterpreted. The modernists deny the verse contains an unconditional command to fight all People of the Book until they pay the poll-tax but infer from the context that only those Jews and Christians were meant that had violated their pledges and assailed the propagation of the Islamic mission. An additional argument for this interpretation is to be found in the phrase “have been humbled” which implies, according to modernist authors, that previously, they were recalcitrant and that there had been reasons for Muslims to fight them.” (24) These scholars who Peters describes as “modernists” are in fact mainstream ulama working within a mainstream interpretation of the Qur’an and fiqh, as will be demonstrated below.

The view described by Ibn Ishaq above, outlining a change from non-confrontation to defensive fighting is also mentioned explicitly in the Qur’an (4:77), but as would be expected his description of the final stage is unclear and ambiguous. The very first verses to be revealed on fighting (22:39-41) describe the trigger for jihad as injustice, expulsion and the forceful prevention of remembering God in “monasteries, churches, synagogues, and mosques” (22:40); 2:193 which provides a similar justification and exhorts believers to stop fighting when aggression ceases is in fact the verse used by Ibn Ishaq in describing the final stage in the Prophet’s mission; hence, there is no Qur’anic evidence that the initial command to fight found in the very first verses revealed, and the justifications found in them, was ever “abrogated” or superseded.

The Hadiths

The two hadiths cited above are used by Spencer to prove that the jihad ideology formulated by al-Shafi‘i is proven by the canonical sayings of the Prophet Muhammad. However, with regards to the first hadith, most Muslim traditionists and jurists understood it to refer to the polytheists or idolaters (mushrikun), and the Hanafis restrict these to the polytheists of Mecca. Furthermore, it is significant that the hadith uses the word “fight” and not “kill”. Ramadan al-Buti writes extensively on the difference between “fight” (uqatil) and “kill” (aqtulu) drawing on Ibn Hajar’s classical commentary on Sahih al-Bukhari (25). The word that is used, uqatil, denotes mutual participation in the act from both the subject and the object. In other words, the command wouldn’t be in effect if resistance was absent, and therefore must refer to hostile polytheists. Conversion to Islam is only one way the hadith describes that a peaceful solution can be reached, the other being a peaceful settlement that involves mutual recognition of the other, as was the case in the Prophet's own lifetime. Ibn Taymiyya in his Risalat al-Qital wrote "[The Prophet's] biography demonstrates that anyone who signed a pact from the non-Muslims did not fight him whether from the polytheists of the Arabs or others. This is documented in the biographical literature, and the narrations, Quranic exegesis, jurispudence, tales of prophetic battles speak of this. This is mass transmitted from his example; the Prophet never initiated war with anyone from the non-Muslims." (quoted in Wahba Zuhayli, Athar al-Harb, p. 105)

As regards to the second hadith, the Prophet Muhammad exhorted the fighters to maintain good ethical conduct during war, so he prohibited them from mutilating the bodies and killing children. Furthermore, the hadith refers to offering the three options mentioned to polytheists, not all disbelievers. For this reason, as al-Nawawi notes in his classical commentary on Sahih Muslim, Malik and Awza‘i held the opinion that the jizya could be extracted from polytheists too, and not just scriptuaries (Jews and Christians); Abu Hanifa opined that the jizya was not an option for the Meccan polytheists but was for all other polytheists and scriptuaries; it was only al-Shafi‘i who took the opinion that the term “polytheists” may include scriptuaries and this hadith is meant specifically about the latter (26). Nonetheless, the hadith gives no indication of the jus ad bellum, the reason(s) for going to war, and the view of the majority that war is legitimised by aggression, not disbelief, is therefore not negated by this hadith.

Did the Gates of Ijtihad Close?

Wael Hallaq wrote a pioneering article on the topic of “closing the gates of ijtihad” in the early 1980s which has transformed Western scholarly views on this issue (27). In this important article, Hallaq shows that Western studies on Islam was dominated by Joseph Schacht’s view that “by the beginning of the fourth century of hijra (about AD 900)...a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law”. This view that the “gates of ijtihad” were closed at about the end of the third/ninth century was commonly accepted by Orientalists. W.M. Watt was aware of some inaccuracies about this standard account but did not offer any alternative formulation. As Hallaq explained “many scholars would have us believe that the closure of the gate had an impact on, or was influenced, by this or that element in Islamic history. Some use it to explain the immunity of the Shari‘a against the interference of government, and others to illustrate the problem of decadence in Islamic institutions and cultre” (28). Spencer uses it in this case to prove that Muslims cannot challenge what he believes to be the orthodox classical view.

However, a “systematic and chronological study of the original legal sources” reveals that these views are “entirely baseless and inaccurate” (29). The gates of ijtihad were not closed, neither “in theory nor in practice”. He proves in his study that ijtihad was practiced by competent jurists in every age and the theoretical notion of “closing the door of ijtihad” only appeared in the literature at about 1100 AD (i.e. two centuries after Western scholars assumed it happened). Hallaq shows that the major legal theorists who wrote on the prerequisites of practicing ijtihad like Ghazali (d. 1111), Amidi (d. 1234) and their successors did not list intellectual tools that were superhuman or impossible. Nearly all of these legal theorists divided (tajzi’a) ijtihad so as to make it feasible at least in some specialised areas e.g. family law for a scholar who had complete expertise in this field. Hallaq writes “It would therefore be implausible to maintain that the qualifications for ijtihad as set forth in Muslim legal writings made it impossible for jurists to practice ijtihad” (30). Hallaq describes two early schools, Zahirism and extreme Hanbali Traditionalism, which were inherently opposed to ijtihad and qiyas (analogical deduction) and thus came under heavy criticism and eventual expulsion from mainstream Sunnism. Hallaq runs through dozens of ulama from every century beginning from the ninth century who practiced independent reasoning and thus often diverged from the madhhab which’s broad legal theory they operated under; examples include al-Tabari (d. 923), Ibn Abd al-Barr (d. 1071), al-Suyuti (d. 1505) and Shah Wali Allah al-Dehlawi (d. 1762). In fact even commentaries and legal exegeses represent clear stages of advance from earlier works of the school (31).

Ijtihad was believed to be a communal obligation (fard kifaya) so could not be abandoned by the collective body of Islamic scholars. The Hanbali Ibn Aqil (d. 1119) was perhaps the first to consider the question of whether a qualified mujtahid must exist; he contended that the world cannot be absent of a qualified mujtahid as it is a communal obligation. He wrote “It is not possible for an age to be devoid of a mujtahid. This is contrary to the claim of some muhaddiths who argue that there remained no mujtahids at our age.” (32) Al-Amidi (d. 1234) summed up a debate that was brewing at his time between the Hanbalis and Shafi‘is on one side and the Malikis and Hanafis on the other; the first believed based on the evidence of the hadith and the fact that ijtihad is a communal obligation that a mujtahid must always exist, while the latter argued that there may eventually be a time when mujtahids become extinct. Subki (d. 1369) agrees that this difference highlighted by Amidi exists among legal theorists, but argued that although the extinction is a theoretical and theological possibility, it did not actually take place. This debate was furthered by legal theorists like Isnawi (d. 1370), Taftazani (d. 1388) and Ibn Amir al-Hajj (d. 1474); although the debate raged on about its possibility very few (Baydawi was amongst these few) argued that the mujtahids were actually extinct. Ibn Amir argued that the highest rank of mujtahid was absent from the twelfth century but the “limited/affiliated mujtahid” or the mujtahid that operated within the legal system of a madhhab still existed. Another legal theorist, Siddiqi (d. 1563), also argued that the extinction of muhtahids is a possibility but that jurists right up to his time were mujtahids. Hallaq demonstrates that although there was general agreement that jurists practiced ijtihad of the “affiliated” type (i.e. affiliated to a madhhab’s legal system) although not of the “independent” type, without pause in Islamic history, there was a great deal of confusion over terminology which led to an apparent disputation over whether ijtihad was in practice. Normally when it was said mujtahids no longer existed it was meant the mujtahid independent of following a legal system from one of the four maddhabs, but mujtahids affiliated to madhhabs were always believed to exist. Ibn Abd al-Salam (d. 1261) wrote that Muslims “disagreed as regards to the closure of the gate of ijtihad. They expressed different views to the effect of the closure...but these views are all null and void because if a new case comes up and no solution is found in the scripture, or the case is a subject of controversy among our forefathers, ijtihad is needed” (33).

Ijtihad however did begin to decline from the fourteenth century on until al-Suyuti seeing this decline assumed the rank of mujtahid himself and penned the polemical work al-Raddu ‘ala man Akhlada ila l-Ardi wa jahila anna l-Ijtihad fi Kulli ‘Asr Fard (Refutation of He Who Clings to the Earth and is Ignorant of (the fact that) Ijtihad in Every Age is Obligatory); although al-Suyuti faced opposition, it was directed more towards his boastfulness of claiming the title for himself than it was with regards to the existence of mujtahids; however al-Suyuti listed a number of ulama from every period who practiced ijtihad up to his time like Ghazali (d. 1111), Razi (d. 1209), Ibn Daqiq al-Id (d. 1302) and al-Bulqini (d. 1403). In the seventeenth and eighteenth centuries there was an apparent decline in ijtihad but Hallaq explains that this was simply because the ijtihad practiced by the jurists was not recognised by the term. In the nineteenth century there was a steep rise in the practice of ijtihad (34).

In sum, although there was a popular understanding that the degree of ijtihad could not be reached, this was normally restricted to “independent” ijtihad i.e. those not working within a broad framework of legal theory from one of the four traditional madhhabs; “affiliated” ijtihad however was practiced and defended by mainstream Sunni scholars throughout all of Islamic history, and the effect was certainly an advancement in positive law in every century. There was, however, some disagreement over terminology that confused the issue.

Modern Views on Jihad

Modern views on jihad have evolved to take the early divergence and the ambiguity with regards to the jus ad bellum into account. In his analysis on the differences between classical and modern discourse on jihad, Rudolph Peters finds the definition of jihad is much broader in modern readings as compared to classical definitions. For example, following the Rwanda genocide of 1994 in which the state-backed Hutu death squads murdered nearly a million Tutsis supported all the while by Catholic church leaders, Muslims who did not participate in the genocide harboured and saved thousands of Christian Tutsis in the mosques, the head Mufti of Rwanda, Saleh Habimana, described the Muslim struggle during and after the genocide as a “struggle to heal” in Rwanda and he described it as a “jihad”; as a result the Muslim population in Rwanda has more than doubled (35). In modern discourse “the principle of peaceful relations between the Islamic and the other states” dominates based on Qur’anic verses such as 8:61 and 4:90 (36). The legal aims of jihad to defend Muslim land and protect minorities against oppression (i.e. jus ad bellum) are more emphasised, and an overall effort to avoid the classical approach of conflating Muslim security with jihad expansionism is made. These authors indeed began as Western-influenced modernists like Sayyid Ahmad Khan (d. 1898), Cheragh Ali (d. 1895), Molvi Abu Said Hussain, Syed Amir Ali (d. 1928) from nineteenth century India; and Muhammad Abduh (d. 1905) and Rashid Rida (d. 1935) from nineteenth century Egypt. However, in the twentieth century this viewpoint was adopted by mainstream ulama from all the traditional madhhabs, as it certainly had its roots in Islamic tradition but was merely poorly defined.

Rashid Rida (d. 1935), the author of the most renowned work of Qur’anic exegesis in the twentieth century, wrote “everything that is mentioned in the Koran with regard to the rules of fighting, is intended as defence against enemies that fight the Moslems because of their religion” (37). Mahmud Shaltut (d. 1963), who was the grand shaykh of al-Azhar in Egypt, showed in his tract al-Qur'an wa l-Qital (The Qur’an and Fighting) (38) that by taking an inter-textual and contextual approach to the Qur’an as opposed the classical “evolution theory”, jihad becomes primarily defensive, and the fundamental relationship between Muslim and non-Muslim nations is established as one of peace.

In his extensive thesis on Jihad, the modern academic Muhammad Khayr Haykal quotes many modern authorities (ulama) on the subject of jihad and he discovers most of them believe it to be primarily defensive and one that envisages peaceful coexistence (39). I will quote a few examples here (all references are taken from Haykal’s work).

Abd al-Wahhab Khallaf (d. 1956), who was a teacher at Azhar and supervisor of Shari'ah courts in Egypt, wrote: “Islam establishes relations between Muslims and others as peace and security, not as war and fighting, except when they are targeted with harmful (intentions) to reek havoc in their religion, or quell their call (to Islam), for then jihad would be made obligatory in order to deter the harm and protect the call...and if non-Muslims withhold from their persecution and leave them free to call (to Islam), Muslims should not display a sword or initiate war” (40)

Abd al-Hafiz Abd Rabbih wrote, quoting and approving another authority, Dr. Muhammad Abd Allah al-Darraz: “We agree expressly that the war legislated in Islam is a defensive war only, and none besides, and it behooves us to point out that defence includes within it two types, both of which the Qur'an alludes to: 1. defending lives and 2. the necessary aid for the Muslim subjects...we see from this, war in Islam is an evil, and there is no recourse to it except in (cases of) necessity” (41) In his foreword to this work Dr Muhammad Muhammad al-Fahham (d. 1975?), the grand shaykh of Azhar from 1969-1973, commends the author and approves of the book.

Dr Mustafa al-Siba‘i (d. 1964), who was Professor of Law at the University of Damascus and established the Faculty of Shariah there in 1955, wrote: “Jihad in Islam is legislated for two purposes: 1. repelling the enemy to free the (Muslim) community in its land and its religion, and 2. rescuing oppressed people from tyrant rulers” (42)

Sayyid Sabiq (d. 2000), a jurist from the Muslim Brotherhood, a teacher at Azhar as well as Umm al-Qura in Mecca and author of the renowned work Fiqh al-Sunna (Understanding Tradition), wrote: “Since the fundamental principle is peace and war is the exception, there is nothing permitting war in Islam whatever the situation except in two instances: 1. when defending life, honour and property, and land when it is occupied; 2. when defending the call to God if one is hampered along his path, by torturing the one who believes it or by preventing one who intends to engage in it or by stopping the caller from his call” (43)

The Egyptian judge Ali Ali Mansur wrote: “Islam does not approve of offensive warfare with the intention of conquest (fath) or expansion (tawassu)...the war that is legislated in Islam is defensive war, to repel the hostility which an enemy initiated, or to defend an established clause in a treaty or an agreement broken by the opposition, or to protect the call (to Islam)” (44)

Wahba al-Zuhayli (b. 1933), Professor of Islamic jurisprudence at Damascus University, wrote “The jurists of both Sunni and Shiite orientation believed, in the age of juristic innovation of the second century, that the fundamental relationship between Muslims and others is war … on the premise of what they understood from the verses of the Qur’an upon its apparent (meaning) and absolute (rendering), without efforts to reconcile and combine between them…perhaps their pretext for this ruling is their condition of being affected by the state of the Muslims at that time of the necessity of firmness before the enemies who surrounded them from every side” (45). Based on Qur’anic verse 8:61 and others and the Prophet’s biography, Zuhayli goes on to argue the fundamental relationship between Muslim and non-Muslim nations according to the Muslim scriptures is in fact one of peace. The opinions described here have been adopted by ulama throughout the world e.g. the world renowned Indian scholar Abu l-Hasan Ali Nadwi (d. 1999) and Wahiduddin Khan (b. 1925) of Delhi; and from the West, such scholars as Mustafa Ceric, Zaid Shakir and Abd al-Hakim Murad

In his book, al-Jihad fi l-Islam, Ramadan al-Buti (b. 1933) conclusively proves that military jihad has been legislated for the purpose of averting aggression (hiraba) not disbelief (kufr) based on the opinions of the majority of the ulama and texts of the Qur’an and hadiths. He writes “The majority, that is the Hanafis, Malikis and Hanbalis, have adopted (the view) that the ratio legis for military jihad is averting aggression, and al-Shafi‘i adopted (the view) in the most prominent of his two pronouncements that the ratio legis is disbelief, and this is also the madhhab of Ibn Hazm” (46) [references he cites: Bidayat al-Mujtahid 1:369-372, al-Mughni 9:301, Fath al-Qadir 5:452, al-Sharh al-Saghir ‘ala Aqrab al-Masalik 2:275, Mughni al-Muhtaj 4:234, al-Tuhfa 9:231]. He elaborates on this point in terms of evidence from the Qur’an and hadith and finds the minority Shafiite view is based on a weak interpretation of the evidence (47).

Rudolph Peters suggests the idea of the “exclusively defensive character of jihad” may have been a popular understanding even before the modern period: “Although the exclusively defensive character of jihad was only recently put forward by the modernists, there are indications that this concept is much older...The collection of Thousand and One Nights contains the didactic story of Tawaddud, a slave girl that astonishes the ulama by her extensive knowledge of Islam. With regard to jihad, we read: ‘He said: “What is the jihad and what are its essential elements (arkan)?” She answered: “As for its essential elements, they are: an attack on us by the unbelievers, the presence of an Imam, preparedness and constance when one meets the enemy”’(Alf layla wa layla Vol. 2, p. 309)” (48).

Modern Jihadism

Falsely claiming that the view he describes, jihad expansionism and supremacism, was never genuinely challenged or opposed, Spencer cites selectively from modern Muslim ulama to buttress this claim. In the modern period, Salafi, Wahhabi and (many) Deobandi ulama hold to the jihad ideology ascribed initially to al-Shafi‘i. Hence Sepncer quotes selectively from these scholars e.g. Abd Allah ibn Humaid and Mufti Ibrahim Desai, but does not engage with any of the ulama quoted above.

Although working within the broad framework of the Shafi‘ite jihad ideology, even Wahhabi and Deobandi ulama strongly condemn jihadist terrorist activity. Mufti Desai of the Deobandi background, Salafist ulama like Al-Albani (d. 1999) and Wahhabi ulama like al-Ouda, Bin Baz (d. 1999), Ibn Uthaymin (d. 2001) and Salih al-Fawzan have strongly condemned suicide terrorism and the targeting of civilians as they are opposed to the essence of jihad. There was no equivalent of al-Qaeda until the 1990s. Speaking of Muslim activism in Egypt and elsewhere in the early 90s, Rudolph Peters wrote “They first and foremost wanted to change the government of the countries they lived in. Of course, they supported the jihads of Islamic people elsewhere (Palestine, South Philippines, Afghanistan) who were struggling against foreign occupation, but that was a matter of Islamic solidarity and not part of a strategy to realise a unified Islamic polity” (49). Global jihadism is therefore a late invention with no equivalent in classical Islam. In fact even suicide terrorism was a new introduction in the Muslim world with strong evidence that it was borrowed from the example of the Tamil Tigers in the seventies and eighties (50). Terrorism itself was part of Islamic legal vocabulary long before it was in the West and was thus denounced centuries earlier (51), and the act of deliberately targeting civilians began in Palestine in the sixties when Muslim nationalists recognised the success of earlier Zionist terrorism.

The global jihadism of al-Qaeda which has suffused, in small or large part, into groups such as AQIM, Abu Sayyaf and al-Shabaab is a reflection of the internalisation of some Western norms and ideologies related to revolution and freedom, not the Islamic concept of jihad which plays a small role. John Gray wrote “No cliche is more stupefying than that which describes Al-Qaida as a throwback to medieval times. It is a by-product of globalisation. Its most distinctive feature - projecting a privatised form of organised violence worldwide - was impossible in the past. Equally, the belief that a new world can be hastened by spectacular acts of destruction is nowhere found in medieval times. Al-Qaida’s closest precursors are the revolutionary anarchists of late nineteenth-century Europe” (52). It is therefore not surprising to find that the major architects and actors of global jihadism are not qualified ulama, but trained rather in secular subjects. The major revolutionary thinker Syed Qutb was a literary critic who read such Nazist authors as the French Aliexis Carrel; similarly, the author of The Neglected Obligation, Abd al-Salam Faraj, was trained as an electrician and was not a recognised alim; likewise Bin Laden, al-Zawahiri, al-Zarqawi, Abu Mus‘ab Abdel Wadoud, and most members of ideological groups like Hizb al-Tahrir and al-Muhajiroun are not ulama, but generally doctors, engineers, businessmen and lawyers; this type of education is conducive to such revolutionary rhetoric and ideas (Exceptions like the alim and Afghan mujahid Abdullah Azzam (d. 1989) are exceptions precisely for the reason that they opposed Bin Laden’s tactics and in large part advocated only a defensive jihad, hence aren’t really exceptions at all; the mainstream “moderate” Islamism of the Muslim Brotherhood does include many ulama). The effect of the colonialist and neo-colonialist destruction of traditional Islamic institutions has had the effect of diluting the authority of the ulama, facilitating such radical ideologies, which are un-Islamic and opposed to the norms of the Shari‘ah (53).

Conclusion

Is Spencer correct in his assertion that “all -- not just one, or a few, but all -- the orthodox sects and schools of Islamic jurisprudence teach that it is part of the responsibility of the Islamic community to wage war against unbelievers and subjugate them under the rule of Islamic law”? When all the evidence is objectively analysed such a conclusion is easily dismissed as essentialist and ignorant. The view presumes that Islam cannot authentically embrace such notions as mutual recognition and peaceful coexistence. Rather, a survey of the divergent and multiple views throughout Islamic intellectual and political history reveals that these were always possibilities and often actualised realities.

Summary

1. The jurists in the early period (700-1100 AD) were divided on the nature of jihad, the majority favouring the view that peace and mutual cooperation should define the Muslim government’s relationship with the other, with only one strain of Shafi‘ite thought teaching the obligation of military jihad against unbelievers because of their unbelief for the purpose of conversion or conquest (the reason for this lack of clarity in early discourse on jihad was the lack of interest in the topic of jus ad bellum); eventually, however, in the eleventh century al-Shafi‘i’s view became accepted as the general consensus amongst the various schools of jurisprudence because of internal and external dynamics underlying legal thought on Islamic international relations

2. After the eleventh century following Sarakhsi’s acceptance of al-Shafi‘i’s paradigm, the “jihad-ideology” became normative across all four schools, but the “permanent hudna” became a viable route for establishing permanent peace as most jurists began accepting this as permissible; in fact such a permanent truce based on mutual recognition of the king and caliph and peaceful coexistence did in fact take place in the French-Ottoman treaty of 1535

3. From the nineteenth century onward the ulama began to return to the early Maliki orientation which favoured peace as the fundamental relationship between Muslim and non-Muslim nations, the view that is now the dominant position amongst the ulama; military jihad was only meant for the purpose of defence, e.g. the jihad in Bosnia, Chechnya, Afghanistan and Palestine

4. Modern day jihadists who operate under a global terrorist movement do not operate according to the principle of Islamic expansionism (although they do embrace it) but argue for defensive jihad, and the means that they use to achieve this has been condemned by nearly all ulama, even those of their own orientation like the Salafi Al-Albani and the Wahhabi Bin Baz, who condemn suicide terrorism and targeting civilians; furthermore, none of their intellectual forebears or members are qualified ulama

5. The verses of the Qur’an do not demand an “abrogation” scheme and can easily be reconciled by using the methods of inter-textual and contextual analysis as espoused, for example, by Mahmud Shaltut (d. 1963) in al-Qur’an wa l-Qital and Muhammad Asad (d. 1992) in The Message of the Qur’an

1 link
2 Robert Spencer, Religion of Peace, p. 75
3 Alfred Guillaume, The Life of Muhammad, pp. 212-3; online in Arabic
4 Sahih Muslim
5 Sahih Muslim
6 link
7 Muhammad Khayr Haykal, Al-Jihad w’al-Qital fil-Islam (Beirut: Dar al-Bayariq, 1996), 1:893
8 quoted in Richard Bonney, Jihad: From Qur’an to Bin Laden, pg. 71
9 for references, see Muhammad Khayr Haykal, al-Jihad wa l-Qital fi l-Islam, pp. 893-4
10 Majid Khadduri, The Islamic Law of Nations, pp. 57-8
11 Ibid, p. 58
12 Sunan Abu Dawud
13 Khaled Abou El Fadl, The Use and Abuse of Holy War in Ethics and Internation Affairs, vol. 14, Issue 1 [March 2000], pp. 137-8
14 Majid Khadduri, War and Peace in the Law of Islam, p. 45
15 Sherman Jackson, Jihad in the Modern World, Journal of Islamic Law and Culture, Spring/Summer 2002
16 Ibid, p.51
17 Khaled Abou El Fadl, “Conflict-Resolution as a Normative Value in Islamic Law – Handling Disputes with Non-Muslims” in Faith-Based Diplomacy: Trumping Realpolitik, pp. 191-2
18 Ibn al-Qayyim, Ahkam al-Dhimma
19 Ibn Qudama, al-Mughni
20 Khadduri, The Islamic Law of Nations, pp. 62-4
21 Reuven Firestone, Jihad: The Origins of Holy War in Islam, p. 64
22 ibid pp. 50-1
23 Al-Tabari, Tafsir al-Tabari
24 Rudolph Peters, Jihad in Classical and Modern Islam pp. 126-7
25 Ramadan al-Buti, al-Jihad fi l-Islam, pp. 58-62
26 Imam al-Nawawi, Sharh Sahih Muslim
27 Was the Gate of Ijtihad Closed? Wael B. Hallaq, International Journal of Middle East Studies, Vol. 16, No 1 (Mar., 1984), pp. 3-41
28 ibid, pg. 4
29 Ibid, pg. 5
30 ibid, pg. 7
31 see ibid, pg. 18
32 quoted in ibid, pg. 21
33 quoted in ibid, pg. 25
34 see ibid, pg. 31
35 Islam Attracting Many Survivors of Rwanda Genocide, Washington Post
36 Peters, Jihad in Classical and Modern Islam, p. 112
37 quoted in ibid, p. 125
38 translated in Rudolph Peters’ Jihad in Medieval and Modern Islam
39 see: al-Jihad wa l-Qital fi l-Islam p. 585 onwards
40 Abd al-Wahhab Khallaf, al-Siyasat al-Shar'iyya aw Nizam al-Dawlat al-Islamiyya pp. 76-77
41 Abd al-Hafiz Abd Rabbih, Falsafat al-Jihad fi l-Islam p. 45
42 Mustafa al-Siba‘i, Ishtirakiyyat al-Islam p. 245
43 Sayyid Sabiq, Fiqh al-Sunnah, 2/613
44 Ali Ali Mansur, al-Shari'at al-Islamiyya wa l-Qanun al-Dawliyy al-Amm p. 296
45 Wahba al-Zuhayli, Athar al-Harb, pp. 113-114
46 Ramadan al-Buti, al-Jihad fi l-Islam, p. 94
47 ibid pp. 94-106
48 Peters, Jihad in Classical and Modern Islam, p. 187
49 Ibid, p. 171
50 Abdal Hakim Murad, Bombing Without Moonlight
51 Jackson, Sherman A., Domestic Terrorism in the Islamic Legal Tradition, Muslim World (Hartford, Conn.) v. 91 no3/4 (Fall 2001) p. 293-310
52 John Gray, Al-Qaeda and What it Means to be Modern (London, 2003), pp. 1-2
53 As a typical example of a traditionalist (in this case, Shafi‘i) reply to a jihadist pseudo-fatwa, see this article