The Book of Jihad

Excerpted from Qadi Abu Muhammad Abdul Wahhaab ibn Ali al-Baghdaadi's "At-Talqeen fil fiqhil Maliki" (The Instruction in Malik's Jurisprudence)

Purpose:  The purpose of this translation is to present an authentic and reliable source for the Sunni view of Jihad.  It is intended as a contribution to the current dialectic which posits that Jihad is either the free-for-all of homicidal terrorism described by the Islamophobes or the purely spiritual, sweetness-and-light struggle posited by the Muslim apologists.  It is neither.  Jihad is in some ways similar to the "just war" of Catholicism, but broader in scope and open ended.  It neither encourages the killing of civilians nor does it prohibit it entirely.  It certainly does not conform with modern standards of international law but it is not lawless.  It is also quite clear from the classical texts, such as the one presently translated, that it is neither obligatory on each and every Muslim nor something that can be entirely abandoned.  Between the extremes of the dialectic we can find the truth.

The author of this blog believes firmly in non-violence, except in strict self-defense.  Terrorism, pre-emptive war, slavery, apartheid, and occupation, along with most of the tactics, strategies, and weapons used in modern warfare, are morally repugnant and ought to be rejected, regardless of what any religion says.

Note on the translation: This translation is based on Darul Kutubil 'Ilmiyyah edition published in 1999.  The text begins on pg. 68. Being a student, and not a master, of Arabic, I welcome any corrections to my translation, provided permission is given to publish them with credit according to the terms of this blog's Creative Commons license. I have tried to render this translation into idiomatic English because keeping to the formal structure of the book would inhibit clarity. I have summarized rather than translated the section on the conditions for participating in the spoils due to lack of contemporary relevance. Anyone interested in this particular topic can consult Aisha Bewley's translation of the Risalah.

Jihad is a communal obligation* and is incumbent, some of the time, on those who face the enemy. It is not permissible to abandon it entirely in truce except from an excuse. He (the Mujahid**) does not desist from the enemy except that they embrace Islam or enter into our pact (dhimma) and hand over the poll-tax (djizya) in our abode. It is desirable that they are called to Islam before fighting them except that they swiftly descend upon us. It is permissible to harm the enemy via all possible means from among the following: burning of the planted gardens and of fodder, cutting date-palms and trees, wounding animals, and destruction of the country side. Do not touch the bees unless they are numerous. In that case the consensus transmits their destruction.

The spoils are divided in five, all of it, it’s substance and its incidentals, equally, except the gardens, for they are left as pious endowments (awqaaf). Looting and the like are, without distinction, not favoured during fighting except with the permission of the leader (Imam) when he deems that appropriate. The leader takes from the spoils one fifth (al-khums) of it and distributes among the army four fifths of it. It is not permissible to steal from the war booty before it is distributed and the doer of that is punished. His saddlebag is not burned and his portion is not forbidden. The army may eat the food, slaughter the livestock, and take the fodder of the enemy without the permission of the leader. The leader does not reckon it among the spoils.

...


[The author here gives the conditions for participating in the spoils, including that it was gained by fighting or at least by "the exertion of horses" and that it may be distributed to those who are part of the army but did not fight due to sickness and the like. Also, the shares due to cavalrymen and infantry are described. ]

…

Women and youths are not killed nor are very old men, nor hermits nor monks, unless harm or a ruse is feared from them. And their wealth is given back if they are many and what was left for them is only a little.

Protection of the enemy commanders is legally valid. Protection of other than them from the rest of mankind, according to Malik (Allah have mercy on him!), is also valid and their destruction is not permitted. And he also said: “To them [commanders in the Jihad] is the right to permit it or deny it. And when it is permitted it is all the same whether it is a man or a woman, or slave or free adult or adolescent."

In regards to captives, the leader has a choice in the disposition of one fifth. The choices are: killing them, enslaving them, freeing them as a gift or ransoming them, and contracting a covenant. In regards to spies and to the return of hostages, the leader exercises independent reasoning (ijtihad). If they become Muslims, then he who became Muslim is entitled to a settlement and he has the right of possession of his land. And he who became Muslim after his land was forcibly conquered, then it is of the spoils and not returned to them with his Islam. The leader secures it to whoever he deems appropriate. He takes its land tax from he who possesses it. The commandments of booty, the leader's fifth, the land-tax, and poll-tax are one; the leader takes his business from it without assessment and returns the remainder in consolation of the Muslims, and he gives the first quarter from it according to his independent reasoning.






Notes:


*-A Communal Obligation (fard kifayyah) is an act that must be performed by at least one member of the community else the whole community is sinful.

**-Mujahid is the active participle (ismul faa3il) of jaahada, meaning "to endeavor, strive; to fight...; to wage holy war against the infidels" according Hans Wehr. One who engages in Jihad is a mujahid.

Islam and Female Genital Mutilation

While not as much in the news lately as it has been in the past, Female Genital Mutilation is still a scourge of women worldwide.  Muslim apologists have repeatedly claimed that this practice is strictly cultural and has nothing to do with Islam as a religion. For example, the Muslim Women's League informs us that "According to Sayyid Sabiq, renowned scholar and author of Fiqh-us-Sunnah, all hadiths concerning female circumcision are non-authentic."  Shaykh Tantawi and Shaykh Ali Gomaa of Al-Azhar were both against the practice.

But what is the reality?  When we examine classical, relied upon texts on Islamic jurisprudence (fiqh), another picture emerges.  In Umdat as-Salik, translated as the "Reliance of the Traveler" we find that "Circumcision is obligatory... for both men and women." In the Risalah of Ibn Abi Zayd al-Qayrawani, a core text of the Maliki school of fiqh, it is recorded that circumcision for women is "honourable."  Notably, the translation for the commentary on male circumcision was provided while the commentary on female circumcision was omitted.  It gives some detail as to what is required and so I have decided to translate it myself.  The commentator, Shaykh Saalih Abdus Samee al-Azhari, tells us that "[Circumcision [literally: reduction] in women] And it is cutting the protuberance at the top of the vulva that is like the comb of the rooster. [is honourable] ... with the meaning that it is desirable."  Quite colourful.

What of the modern inheritors of the classical tradition?  Shaykha Shazia at Sunnipath tells us that "Female circumcision is it itself obligatory in the Shafi`i school, and Shaykh Nuh Keller’s translation in the Reliance of the Traveler is accurate and defines the meaning well. She emphasizes that the clitoris should not be completely cut off and laments " that the correct practice has become an almost-lost art."  Abu Haleema at the Hanafi Fiqh Blog informs us that the practice is "sunnah" according to "the view of the Hanafis and Maalikis, and [this] was narrated in one report from Ahmad." This is after giving an over view of the textual evidence in favor of the practice. The Guiding Helper, a modern Maliki fiqh text, defines circumcision as "the removal of the foreskin at the head of the penis or the small cap that covers the clitoris)" (Footnote 2186) and notes that "it is a fadilah (weaker mandub) to remove the small cap over the clitoris in females (of all ages).  [Nothing more than this small cap should be cut.]  Please note that cutting this small cap usually does not affect the ability of the female to reach orgasm (and by cutting this cap, the female will be able to get mandub credit in the next world for having performing circumcision)" (Footnote 2188).

What is one to make of all this?  First, the practice of cutting the sexual organs of women is definitely an Islamic practice.  It is not merely cultural and is either obligatory or encouraged in all of the four schools of law.  Second, the cutting countenance by the shariah is limited (it is not removal of the whole clitoris) and does not include common practices such as sewing up the vagina.  Some critics have maintained that Shaykh Nuh was being dishonest in his translation and that the text literally means to "cut off the clitoris."  The Arabic verb qaTa3a means both to cut and to cut off, among other things, but the Shaykh is drawing on the entire tradition of Shafi'i scholarship to which he is heir.  The intended audience of the Reliance is the body of English speaking Muslims, not non-Muslims, so I don't think there is a reason to be deceptive because this would constitute misleading fellow Muslims.  If his intent was to sugar-coat the issue, he would have simply removed the material entirely or left it untranslated, such as he did with the section of the Umdat that deals with slavery.
But, it must be said, the insistence of modern Shuyookh such as Faraz Rabani, that the practice is no longer recommended (besides being questionable from a fiqhi standpoint) implies that they recognize the abuses that can come out of even this limited permission to cut.  The question is, given that the proper procedure has become a "lost art" and horrendous abuse is rampant, why would any scholars recommend it all?  Is adherence to medieval formulations of religious law worth all the (female) suffering that results?