Top Menu

Jadaliyya: “Beyond Authenticity: ISIS and the Islamic Legal Tradition”

ISIS-Logo

One of the best contributions on the subject of ISIS and its relationship to Islam and the Islamic jurisprudence on war and violence.

Sohair Siddiqui, highlights points that have gone under the radar in most article covering ISIS, including the groups military strategy which is highly informed by the work, “The Management of Savagery” written by a pseudonymous author. Also discussed is the clear contravention of normative and majority historical Islamic jurisprudential rules of warfare.

by Sohaira Siddiqui, Jadaliyya

The Atlantic thinks ISIS is Islamic. President Obama and countless others disagree. As the debate rages on with no shortage of interlocutors, one must stop to ask, what is the utility of making such pronouncements? Is the simple binary of whether ISIS is Islamic or not an effective way to discuss and understand the various questions at stake concerning the Islamic tradition, its authenticity, continuity and change? In response to this basic question, Muslims globally have gone on the defensive, denying any relationship between the religion and the group. Whether it be the eighteen-page open letter issued by prominent Muslim clerics globally, the statement of the twelve largest mosques in Britain, or the fatwa written and distributed by Sunni and Shi‘i  clerics in Baghdad, Muslims are keen to distance themselves from any atrocities committed in their name. However most recently, Graeme Wood’s piece in The AtlanticWhat ISIS Really Wants” argues that ISIS’s actions are definitively Islamic. Since the publication of the article there has been an outpouring of critiques—some correcting factual errors, others noting that he ignores the political and social context which gave rise to ISIS, and others pointing to the absence of legitimate voices in the article who the majority of Muslims actually take as their authority.

As the war continues with growing numbers of willing Muslim recruits, and with provocative images of atavistic executions and offerings of justifications based on Islamic sources, the debate on whether ISIS is Islamic is not ending anytime soon. By situating ISIS within the Islamic tradition on the basis of their mere utilization of it, Wood’s article and others like it overlook the fundamental issue which stands at the heart of the debate—ISIS’s juridical understanding and its relationship to the classical Islamic legal tradition. Mapping ISIS onto a dichotomy of Islamic versus un-Islamic is far too simple an approach when trying to understand the phenomenon of ISIS. The parameters of the debate ignore the amorphous nature of law, that law is paradoxical in that it is both fixed and flexible and that the validity of law is dependent upon the framework and system of law issuance that is created. Indeed, if we step outside of the cyclical authenticity debate in order to understand ISIS’s methodology in relation to the Islamic juridical tradition, we will see that ISIS represents a very fundamental rejection of both its principles and its parameters of operation.

Historically, Islamic law has evolved and created an architecture that creates stability within the law while at the same time allowing for change. However, as a group that is seeking to be a legitimate manifestation of Islam, ISIS constructs its authority and the validity of its actions outside the boundaries of what has been normatively accepted both in terms of conceptualizing the law, and more specifically in the realm of warfare.

Warfare was a complex discussion within Islamic law. The discussion encompassed balancing Prophetic precedence, Quranic principles, and the need to protect and defend the Muslim community. The result was a variety of legal rulings that were connected by two principles which guided legal derivation when it came to warfare. The first was the protection of noncombatants, and the second was the limitation and restriction of war and violence. Jurists agreed that war was permissible, but to do so in a way that regulated the loss of life. Conversely, the basic operating principle of ISIS is the promotion of violence and instability which contradicts the principles of warfare the jurists constructed. Aside from this important difference in the substantive matters of law, this article will also demonstrate that ISIS conceptualizes the law broadly in a starkly different way. Classical jurists accepted and regulated between plurality of legal rulings which allowed for both jurists and rulers to engage with the law on a more intimate level. This meant that the law could evolve, and when deciding on rulings, the ruling selected would be on the basis of public interest (maslaha) which meant protecting the life, religion, property, and honor of all individuals, Muslim and non-Muslims alike. For ISIS, this plurality does not exist within the law; rather, law is implemented uniformly, not on the basis of general public interest, but in order to satisfy their overarching goal of establishing the caliphate, denigrating the enemy, and promoting chaos and violence. As such, even though ISIS may be invoking elements from within the legal tradition or historical precedence, they are doing so by contradicting its very principles and therefore cannot be understood as normative.

Violence and Brutality as ISIS’s Operating Principle

Some clarity with regards to the ideology of ISIS came in September 2014 when Jack Jenkins alerted the world’s attention to a book titled The Management of Savagery. The book was written in 2004 by Abu Bakr Naji, a pseudonym, and became very influential in Salafi-Jihadi circles globally. In 2006 it was translated by William McCants in an effort to bring more clarity to the direction various Salafi-Jihadi movements had taken. The four hundred-page text is a manual on how to establish the Caliphate through the systematic creation of pockets of instability, or “regions of savagery” which force individuals in these areas to search for some stabilizing factor. With widespread instability, individuals will willingly submit to a group which promises to bring stability. In the fourth section of the text entitled “Using Violence,” the author presents a detailed exposition on the necessity of violence, and brutality in achieving these aims.

One of the central concepts in this section is the idea of “paying the price.” Naji argues that if an enemy attacks the group, their response should be so intense that it should create a sense of hopelessness within the enemy and recognition that they have “paid the price” for their actions. Furthermore, when “paying the price” Naji argues that retaliation does not need to be directed at the enemy directly so “if the enemy undertakes a hostile action against a region in the Arabian Peninsula or in Iraq, then the response will occur in Morocco or Nigeria or Indonesia.” Speaking more directly to the general use of violence, Naji states “If we are not violent in our jihad and if softness seizes us, that will be a major factor in the loss of the element of strength.” In another context he states “the hostages should be liquidated in a terrifying manner which will send fear into the hearts of the enemy and his supporters.” For Naji, violence is not only important, but it’s random, unrestricted, and terrifying use will be of particular importance in establishing the caliphate. In this sense, violence is not simply a matter of a physical war, but it is a strategic tool which is intended to have psychological effects on both the perpetrators and the recipients.

If we move from the Management of Savagery to ISIS’s own publications, we see the same fixation on wanton violence amplified through the use of graphic images, exhortative manifestos, and vicious condemnations. ISIS has officially released numerous execution videos, a few longer propaganda videos and perhaps most importantly, seven issues of their official magazine, entitled Dabiq. In the first issue they devoted the most space to elaborating upon the necessity of the caliphate, but towards the end the magazine focuses on the use of violence. Echoing the Management of Savagery one feature article states,

To create maximum chaos, the Shaykh [Shaykh Abu Mus’ab] focused on the most effective weapons…vehicle bombs, IEDs, and istishhadiyyin (seekers of martyrdom). He would order nikayah (disruptive) operations in a dozen areas daily, targeting and killing sometimes hundreds of apostates…In addition to that he tried to force every apostate group in Iraq into an all-out war. So he targeted the Iraqi apostate forces (army, police and intelligence), the Shi‘a and the Kurdish secularists.” He then goes on to state, “These attacks will compel the apostate forces to partially withdraw from rural territories and regroup. The jama’ah [we] would then take advantage of the situation by increasing the chaos to a point of leading to the complete collapse of oppressive regimes, a situation some would refer to as ‘mayhem.’

In these statements unrestricted violence is encouraged as a means of creating chaos.

Similarly, in the fourth issue of the magazine in an article titled “Reflections on the Final Crusade,” ISIS spokesperson Abu Muhammad al-‘Adnani said,

Destroy their beds. Embitter their lives for them and busy them with themselves. If you can kill a disbelieving American or European—especially the spiteful and filthy French—or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill him in any manner or way however it may be. Do not ask for anyone’s advice and do not seek anyone’s verdict. Kill the disbeliever whether he is civilian or military, for they have the same ruling…Every Muslim should get out of his house, find a crusader, and kill him. It is important that the killing becomes attributed to patrons of the Islamic State who have obeyed its leadership. This can easily be done with anonymity. Otherwise, crusader media makes such attacks appear to be random killings.

For al-Adnani and other propagators of ISIS’ doctrine, violence is not limited to the war which is being waged within their territories. They are envisioning a constant cosmic war which requires the use of violence by every Muslim against anyone considered non-Muslim—simply put, there are no non-combatants and no method too brutal. These exhortations towards violence are matched with gruesome images of torture and killings, valorizing the very violence that they call to. From the totality of the images, articles, and statements of ISIS, their use of violence is guided by the basic principle that it is unrestricted and should be practiced with utmost brutality to not only physically defeat the enemy, but to psychologically impair it.

In contrast to ISIS, while the jurists were creating the laws of warfare in the eighth through eleventh centuries, they were doing so with the lens to regulate violence and protect the noncombatant and in accordance with the overall objectives of the law. Thus, even though ISIS may use historical precedence to justify their actions, they do so by manipulating the legal tradition and using non-majoritarian, often rejected juristic opinions of the past. For ISIS, spreading violence and expanding the Caliphate, irrespective of the loss of life, is the goal. Their legal architecture is created to fulfill this mission, regardless of what the majoritarian opinions are within the totality of Islamic juristic thought.

Interpreting What is Islamic and Un-Islamic

For the neophyte, Islamic law has never been absolute. It may strike one as odd that there can be plurality when it comes to God’s law, but the reality is that legal pluralism was the sine qua non of Islamic law. After the death of the Prophet it was understood by Sunnis that access to the Lawgiver, God, had been terminated and what remained were only the scriptural sources—the Quran and the hadith (reported sayings of the Prophet)—to guide individuals afterwards. The jurists were then tasked with the responsibility of creating a methodology which would allow for the deduction of law from the scriptural sources and also allow for the valid creation of law in the absence of any textual indicant. What was created was a jurisprudential system that could extract legal rulings from the scriptural sources, create new ones, and also adjust preexisting ones. All of this was done with the realization that the jurist was arriving at the best estimation of what God truly wants in a situation, but could not be certain that they have arrived at the correct answer given that the direct connection between humans and God was severed with the death of the Prophet.

Because no jurist could say with certainty that they have arrived at God’s law, multiple opinions could always exist on any issue. At the same time jurists were concerned with unbound plurality, so they restricted it in many ways—preventing lay individuals from engaging in jurisprudential reasoning, limiting jurisprudential reasoning even within jurists circles, and searching for overlaps whenever possible. Emerging from the plurality of rulings was an understanding that there would be a majority articulation of a ruling, alongside the acceptance that minority opinions would also exist. A comparable situation is the presence of differing opinions in the US Supreme Court on legal issues even when confronted with the same evidence.

In formulating Islamic law, jurists would start with the textual sources, namely the Quran and hadith. Of importance was the example of the life of the Prophet himself, and this was especially so with any discussion concerning warfare because the Prophet himself engaged in various military battles. When jurists began to speak about the law of warfare, they were not merely discussing the concept that we most commonly associate with Islamic warfare, namely jihad. In fact, they developed a dense legal discussion under the headings of siyar, translated today as Islamic International law. Discussions of siyar in legal texts encompassed jihad, military campaigns (maghazi), safe conduct (aman), dividing spoils, truce (hudana), and non-Muslim tax (jizya). Jurists were keen to answer three pivotal questions: when is it legitimate to fight, what is legitimate conduct during fighting, and what is to be done upon the completion of fighting. The focus of their attention was tackling the second question, namely what is legitimate conduct during war. Ahmed al-Dawoody, who has written a comprehensive book on the Islamic law of war has argued that the jurists categorized war into eight main topics.[1] They are:

  1. Noncombatant immunity
  2. Human Shields
  3. Night Attack
  4. Mutilation
  5. Weapons
  6. Aman (quarter and safe passage)
  7. Prisoners of War
  8. Treatment of Prisoners

While al-Dawoody concisely shows the sheer amount of diversity that was present within the legal discussions he also highlights that in each instance there was a majority opinion that was rooted in Prophetic practice or Quranic statements.

One of the elements of ISIS’s methodology of war noted above is their promotion of indiscriminate killing of individuals in countries all over the globe. Counter to this opinion is the juristic discussion of noncombatant immunity which was intended to restrict violence against any individual who was not actively fighting in the war, even if they ideologically agreed with the enemy. Scholars such as Sufyan al-Thawri (d. 788), al-Ghazali (d. 1111), al-Qarafi (d. 1285) and countless others safeguarded from combat women, children, the aged, the blind, the sick, the insane, the clergy, and perhaps most interestingly, any hired man (al-asif) such as a farmer, craftsman, or employee that was not directly engaged in warfare. While a few minority opinions did exist that belief alone would make individuals part of the “enemy,” the majority of jurists agreed that the aggression of the individual combatant is the decisive factor. Jurists were concerned with establishing who was considered a noncombatant to ensure that violence was restricted to those that only displayed outward aggression. Only after establishing those protected in times of war did the jurists then turn to discuss the actual conduct of war against the enemy.

Read the whole article…

, , , , , , , , , , , , , ,

  • HSkol

    So sorry, AJ, but I just giggled.

  • GaribaldiOfLoonwatch

    Your comments seem to be going through just fine.

  • AJ

    I might have accidentally banned myself on the polygamy thread (and everywhere else) by uttering the dreaded private body part names of male and females. Please check into that. Thanks.

  • AJ

    Okay, will do isa at least before we have another discussion 🙂

  • GaribaldiOfLoonwatch

    I take it you haven’t read the series yet, please do. I support the authors diagnosis and prescription.

  • AJ

    What would be your example of a reformed blasphemy law?

  • GaribaldiOfLoonwatch

    Reform by definition excludes repeal.

  • AJ

    Depends upon what you mean by reforming the laws. If you mean to completely repeal them with instances like those that happen in the West completely accepted, I am against that. If you mean having the laws evolve to something like in India, I am in favor.

  • GaribaldiOfLoonwatch

    I do not know what you refer to by the cases about “a moment in anger” but in Pakistan itself there are numerous upon numerous accusations that have little to do with “moment of anger.” It’s mostly personal squabbles, sectarian divides, personal interest as in the case of the little Rimsha Masih.

    I don’t want to belabor the point but I think the effort to reform these laws in Pakistan should be supported, and from the experience that led to reforming the rape laws it seems this HAS to be done with a language of religion and from that perspective.

    I think the West should be completely ignored in this regard as much as possible. They are not the be all, end all, life does not revolve around them.

  • AJ

    I think we can agree on the fact that Pakistan’s blasphemy laws need to evaluated and improved since I (forgot to clarify in my last comment) do not condone the punishment of death for blasphemy. I suggest fines and imprisonment. The punishments that were given so far seem unfair since the offenders cursed the Prophet (pbuh) in a moment of anger but weren’t really making public displays of incitement. Mob justice is of course a no-no. Also, capital punishment is serious business and if being awarded on an Islamic basis, really needs to have an Islamic basis. (But then again, if the cartoonist that drew Muhammad(PBUH) as a pig had his head chopped off in Saudi Arabia, I wouldn’t mind :)) However, I do not approve of the free-mudslinging-type-of-antics-for-all that happens in the West. So in a nutshell, I am pro-blasphemy laws not entirely from a religious viewpoint (I say entirely since the corruption verse is not totally clear to me at this point) but from being severely anti-bullying, anti-incitement, anti-troublemaking and anti-hate-speech basis. I think we agree on some and disagree on some:)

Powered by Loon Watchers