1. Who are the Ahl-ul-Harb (people of war) from whom the giving of the Jizyah is accepted with the meaning of convening the ‘Aqd of Dhimmah with them and the cessation of the state of war with them following on from that?
There are a number of points of view amongst the Fuqahaa in regards to whom from the disbelievers it is permitted to contract the ‘Aqd of Dhimmah with and we will summarise the most significant of these views as follows:
1) The Hanafi Madh’hab
The following came within the text of ‘Tuhfat-ul-Fuqahaa’: “The taking of the Jizyah and the contract of the Dhimmah is legitimate in respect to all of the disbelievers except for the apostates from the Arab Mushrikeen as the Jizyah is not accepted from them” (Tuhfat-ul-Fuqahaa, As-Samarqandiy 526/3. Refer to Badaa’i As-Sanaa’i 110-111/7, Fat’h-ul-Qadeer 49/6 and the Haashiyah of Ibn ‘Aabideen 414/3).
2) The Maaliki Madh’hab, Al-Awzaa’iy and the Fuqahaa of Ash-Shaam
Al-Qurtubi said: “Al-Awzaa’iy said: The Jizyah is taken from every idol and fire worshipper or denier (i.e. atheist) and the Maaliki Madh’hab states the same as it viewed that the Jizyah is taken from all of the different types of Shirk and denial (unbelief) whether ‘Arab or foreign (i.e. non-Arab), Taghlibiy or Quraish whoever they may be, with the exception of the Murtadd (apostate)” (Al-Jaami’ Al-Ahkaam Al-Qur’aan, Al-Qurtubi 110/8. Refer also to Qawaaneen Al-Ahkaam Ash-Shar’iyah p175, As-Sharh Al-Kabeer of Ad-Dardeer and the Haashiyah of Ad-Dusooqi in addition to Manh Al-Jaleel 213-214/3).
3) The Shaafi’iy Madh’hab
Al-Imaam An-Nawawi defined those whom it is permitted to make the contract of Adh-Dhimmah with and whom the Jizyah is accepted from. He said: “Ash-Shaafi’iy said: It is not accepted from other than the people of the book and the ‘Arab and foreign Majoos” (Sharh As-Saheeh Muslim, An-Nawawi 313/7. Refer also to Al-Iqnaa’ of Al-Maawardiy p179, Al-Minhaaj and its Sharh Al-Mughni Al-Muhtaaj 244/4, Al-Iqnaa’ fee Hall Alfaazh of Abu Shujjaa’ 194/2, the Haashiyah of Al-Bajeeramiy upon Al-Iqnaa’ 249-250/4 and Fat’h-ul-Baari 259/6).
4) The Hanbali Madh’hab
It was mentioned in Al-Mughni: “It is not allowed to take the Jizyah except from the Jews and Christians and the Majoos, it is not affirmed for them and embracing Islaam is accepted alone from them and if they do not become Muslims then they are killed. This is the Zhaahir (apparent) opinion in the Madh’hab of Ahmad (Bin Hanbal)” (Al-Mughni of Ibn Qudaamah 573/10 and refer also to Ash-Sharh Al-Kabeer of Al-Maqdasiy 574-575).
The above in a general way is what was mentioned in the Fiqhi Madhaahib in regards to whom it is permitted and not permitted to contract the Dhimmah with and take the Jizyah from, from amongst the people of war.
In summary to what has preceded and with an explanation of how to link these Fiqhi opinions to the non-Islamic existing factions in our current age in light of their different types and beliefs that they hold, we say:
There is the opinion of the Ahnaaf and a report attributed to Al-Imaam Ahmad that states that it is permitted to contract the Dhimmah with all of the Kuffaar (disbelievers) except from the Arab Mushrikeen (polytheists). And who is intended by them are: Every person affiliated to an Arab kind and does not profess the Jewish, Christian or Majoosi (Magian) belief due to the existence of Shar’iyah texts (Nusoos) permitting the contraction of the Dhimmah with them.
Based upon this view then it is permitted in our current age for the Islamic State to contract the Dhimmah with all non-Muslims from all the non-Arab peoples irrespective of their religions and beliefs including the communists and atheists. As for the Arabs who are not Muslim, then if they are Jewish, Christian or Majoos then the Dhimmah is contracted with them. If they are not of these and they believe for instance in communism or atheism or any beliefs that contradict the Islamic beliefs and even if they claimed to be Muslims, then it is not permitted to contract the Dhimmah with them. As a consequence the war against them remains legitimate and this is the first opinion.
The second opinion states: It is permitted to contract the ‘Aqd of Adh-Dhimmah with all of the disbelievers irrespective of their religion and beliefs, like the Jews, Christians or even communists and atheists and other than these. This is irrespective of the kind whether they are Arabs or belong to non-Arab races and peoples. This is what has come in the Maalikiy Madh’hab and was stated by Al-Awzaa’iy amongst others. Based on this view then in our current age it is permitted for the state that has adopted Islaam (as its system) to contract the Dhimmah with non-Muslims from amongst the people of war whatever their religions are and even those who are communists or atheists even if in origin they belong to the Arabs.
The third opinion in this issue: It is the opinion of the Shaafi’iyah and the most apparent opinion of Ahmad’s Madh’hab and its summary is:
That there exists no place within the Islamic State for non-Muslims other than the Samaawiyah religions like Judaism and Christianity or those who have a resemblance to the Samaawiy religions like Majoosiyah to become subjects. So it is permitted to contract the Dhimmah with these whilst those who hold different religions and beliefs like idol worshippers, communists and atheists, it is not permitted to contract the Dhimmah with them. This is whether they are Arab or non-Arab and as such the war remains legitimate in regards to them.
Now at this point we will present the Adillah (evidences) from the Shar’iyah Nusoos (texts) that the above opinions relied upon and then outweigh the opinion that appear to us to most accord to the understandings of these texts.
The evidences of the aforementioned opinions
The opinion that nothing other than the embracing of Islaam or killing is accepted in regards to the non-Muslims Arabs who are not from the Jews, Christians and Majoos is deduced from the Aayah:
قُلْ لِلْمُخَلَّفِينَ مِنَ الْأَعْرَابِ سَتُدْعَوْنَ إِلَىٰ قَوْمٍ أُولِي بَأْسٍ شَدِيدٍ تُقَاتِلُونَهُمْ أَوْ يُسْلِمُونَ
“Say to the Arab Bedouins who lagged behind: “You shall be called to fight against a people given to great warfare (Uol-il-Ba’s Shadeed), you shall fight them, or they shall submit to Islaam”
This is with the consideration that the Uol-il-Ba’s Shadeed refer to the Arab Mushrikeen and Murtadeen (apostates) to the exclusion of all others. The Aayah states that they have only two options available to them, Al-Islaam or Al-Qitaal (to be fought) (Refer to ‘Ahkaam Al-Qur’aan’ of Ibn-ul-‘Arabiy 1693/4, ‘Tafseer’ of Al-Aaloosiy 105/26, ‘Fat’h-ul-Qadeer’ of Ibn-ul-Himmaam 49/6). As such it is not permitted to contract the Dhimmah with them.
In regards to this Ash-Sheikh Taqiy ud-Deen An Nabhaani said: “As for the Arab Mushrikeen then the Sulh (treaty) and the Dhimmah is not accepted from them but rather they are invited to Islaam and if they become Muslim they are left otherwise they are fought. Allah سبحانه وتعالى stated:
سَتُدْعَوْنَ إِلَىٰ قَوْمٍ أُولِي بَأْسٍ شَدِيدٍ تُقَاتِلُونَهُمْ أَوْ يُسْلِمُونَ
“You shall be called to fight against a people given to great warfare (Uol-il-Ba’s Shadeed), you shall fight them, or they shall submit to Islaam.”
So the Aayah relates to those whom the Messenger of Allah صلى الله عليه وسلم fought and they were the Arab idol worshippers. So it indicates that they are fought if they do not embrace Islaam”. (Ash-Shakhsiyah Al-Islaamiyah, 3rd part p204).
Also the author of ‘Fat’h-ul-Qadeer’ related a Hadeeth from the Nabi صلى الله عليه وسلم narrated by Ibn ‘Abbaas (ra): “Nothing is accepted from the Arab Mushriks except for Islaam or the sword” (Fat’h-ul-Qadeer, Ibn ul-Himmaam 49/6 and I have not found this Hadeeth anywhere except in this book).
It is also not accepted from the Murtadeen (apostates) from Islaam after having accepted it irrespective of the race or origin that they belong. By agreement of all the Fuqahaa nothing is accepted from them except their return to the fold of Islaam. If they do not then war remains legitimate and standing until they repent or cease. The Nabi صلى الله عليه وسلم said: “Whoever changes his Deen then kill them” (Saheeh Al-Bukhaari 6922 from Ibn ‘Abbaas, Marfoo’an. Fat’h-ul-Baari 267/12).
The permissibility of contracting the ‘Aqd of Dhimmah with the Ahl-ul-Kitaab (People of the book) is based upon the Aayah of Al-Jizyah which includes both the Arabs and non-Arabs. The permissibility of convening the ‘Aqd of Adh-Dhimmah with the Majoos is based on the Hadeeth recorded in Saheeh Al-Bukhaari from ‘Abdur Rahmaan Bin ‘Auf: “That the Messenger of Allah صلى الله عليه وسلم took it (i.e. the Jizyah) from the Majoos of Hajar (Bahrain)” (Saheeh Al-Bukhaari 3157, Fat’h-ul-Baari 257/6). The Majoos of Hajar were Arabs, and the Daleel for accepting the Jizyah from non-Arab Majoos was mentioned earlier in the discussion on the previous Mas’alah (issue) represented in the Hadeeth related by Al-Mugheerah Bin Shu’bah when he encountered the representative of Kisraa (Persian leader).
The following was mentioned in ‘Ad-Durru-l-Mukhtaar’ on the Matn (text) of ‘Tanweer Al-Absaar’ in regards to the Hadeeth of the Jizyah: “And it applies upon the person of the Book and the Majoosiy and even if they are Arab due to his صلى الله عليه وسلم’s placing it upon the Majoos of Hajar” (Haashiyah Ibn ‘Aabideen 414/3).
So based upon this, barring those who have been mentioned with a specific Daleel (evidence) allowing the Jizyah to be taken from them, the warring with them remains legitimate due to the general evidence:
فَاقْتُلُوا الْمُشْرِكِينَ حَيْثُ وَجَدْتُمُوهُمْ
“Then kill the Mushrikeen wherever you find them”
Whilst those who held the opinion that it is permissible to convene the ‘Aqd (contract) of Adh-Dhimmah with all of the Kuffaar from all religions and beliefs whether Arab or non-Arab, relied upon the generality of the Hadeeth related by Buraidah in Saheeh Muslim mentioned previously. It states: “When you meet your enemy from the Mushrikeen then call them to three matters… until he said…Then if they refuse (i.e. enter into Al-Islaam as Muslims) then ask them for the Jizyah. If they respond positively then accept that from them and refrain from them (i.e. fighting them)…”
This Hadeeth indicates that the enemy Mushrik is offered the Jizyah and that the Dhimmah is contracted with them built upon that if they accept it (the Jizyah) and reject entering into Islaam.
The expression ‘enemy from amongst the Mushrikeen’ in the Hadeeth is general to encompass all of its types, Arab and non-Arab just as it is general for all beliefs and religions other than Islaam. This opinion is the Raajih (strongest) from the Madh’hab of Maalik and it is the opinion that was voiced by Al-Awzaa’iy and the Fuqahaa of Ash-Shaam amongst others.
Al-Imaam An-Nawawi said in his explanation of the Hadeeth of Buraidah: “This is what Maalik used as evidence, Al-Awzaa’iy and those who agreed with them in regards to taking the Jizyah from every (type of) Kaafir whether Arab or non-Arab, from the people of the Book, the Majoos or other than them” (Shar’h Al-Muslim An-Nawawi 313/7).
As-San’aaniy said: “The Hadeeth is a Daleel indicating that the Jizyah is taken from every Kaafir (disbeliever), from the book or not, from the Arab or non-Arab due to the statement: ‘Your enemy’ which is ‘Aamm (general)… He then said: And that which is apparent is the generality of taking the Jizyah from every Kaafir due to the generality of the Hadeeth of Buraidah. As for the Aayaat – meaning the Aayah of Al-Jizyah that orders the fighting of the Ahl-ul-Kitaab until they give the Jizyah from their hands and they are Saaghiroon (submissive) – then it has established the taking of Jizyah from the Ahl-ul-Kitaab and it does not oppose taking it from other than them or not taking it. Whilst the Hadeeth makes clear that it is taken from other than them and including the Ahl-ul-Kitaab within ‘Your enemy’ is consistent… Until he said: As for not taking it from the Arabs then this is because it was legislated until after the Fat’h (Makkah, 8 Hijrah) and the Arabs had entered into Islaam. There remained no one to fight and no one to take as a Sabiy after Al-Fat’h and no one to put the Jizyah upon. Indeed those of them who left Islaam after that then there was no choice except to face the sword or return to Islaam just as this the Hukm (legal ruling) in regards to the Ahl-ur-Riddah (people of apostasy)… He then said: This Hukm continued after his time صلى الله عليه وسلم, the Sahaabah (rah) conquered the lands of the Romans and Persians and amongst their subjects their existed Arabs especially in Ash-Shaam and Al-Iraaq and they did not differentiate between the Arab and non-Arab. Rather the Hukm of As-Saby (taking prisoners as booty) and the Hukm of Jizyah was made general upon all whom they conquered. And with this it is known that the Hadeeth of Buraidah came after the revelation of the obligation of the Jizyah. And its obligation was after the Fat’h and it was made obligatory in the eighth year at the time of the revelation of Soorah Baraa’ah (At-Taubah)” (Subul As-Salaam, As-San’aaniy 47/4).
Ash-Shawkaani said in ‘Nail Al-Awtaar’ in regards to the Hadeeth of Buraidah: “His words: ‘Ask them for the Jizyah’, its apparent meaning is that there is no differentiation between the foreign (non-Arab) disbeliever and the Arab disbeliever and non-Kitaabiy (people of the book)…” (Nail Al-Awtaar, Ash-Shawkaani 245/7).
And Ash-Shawkaani also stated in his book ‘As-Sail Al-Jarraar’: “The apparent meaning of the evidences dictates that the Jizyah is taken from any Kaafir (disbeliever) makes it obligatory to refrain from fighting him… just like what came in the Hadeeth of Buraidah… ‘That when the Messenger of Allah صلى الله عليه وسلم appointed an Ameer for an army or expedition…Then he mentioned…then if they refuse then ask them to give the Jizyah. Then if they respond positively accept this from them and refrain from (fighting) them.’ His statement: ‘The Messenger used to…’ indicates that this was the same for every army that he sent out and this statement does not negate the statement of Allah:
حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ
“Until they pay the Jizyah with willing submission, and feel themselves subdued”
The Ahl-ul-Kitaab are one type from amongst the types of the disbelievers of whom it is obligatory to refrain from fighting if they give the Jizyah. This is also not negated by what has come in regards to the command to fight the Mushrikeen in the Aayah of As-Saif (the sword) (At-Taubah, 9:5) and other Aayaat. This is because fighting them is Waajib (obligatory) unless they give the Jizyah in which case refraining from fighting them is obligatory just as it is obligatory to refrain from them if they embrace Islaam. And this generality is not negated by what he صلى الله عليه وسلم did when he commanded the Jews and Christians to be expelled from Jazeerat-ul-Arab (the Arabian Peninsula) (Note: Saheeh Muslim: ‘Indeed I am expelling the Jews and Christians from Jazeerat-ul-Arab until I have no left except Muslims’ (1767) and in the two Saheehs: ‘Expel the Mushrikeen from Jazeerat-ul-Arab’ (3053) Fat’h-ul-Baari 170/6) and in Muslim 1637, 1258/3. This does not mean the Arabian Peninsula that stands today but rather the borders of Al-Hijaaz or Makkah and Al-Madeenah or other opinions. Refer to: An-Nihaayah of Ibn Al-Atheer 268/1 and Fat’h-ul-Baari 171/6). Its aim is that it is not permitted to make a treaty with them in the Jazeerat-ul-Arab and this does not negate the permission to do this and place the Jizyah upon them if they are not in Jazeerat-ul-Arab. The summary is that whoever claims that the Jizyah is not permitted to be taken from a certain faction from amongst the factions or types of disbelievers and that they only have the choice between embracing Islaam or facing the sword, then they need an evidence for this. And there is no evidence that can be used as proof except for that which relates to the Murtadd (apostate)” (As-Sail Al-Jarraar, Ash-Shawkaani 570-571/4).
In addition Ibn ul-Qayyim outweighs as the strongest view that it is permissible to take the Jizyah and contract the ‘Aqd of Adh-Dhimmah with all of the disbelievers of every kind and religion. This is based upon the permissibility of taking it from the Majoos as they are not from the Ahl-ul-Kitaab and as such every disbeliever is attached to them (in ruling) (Note: This is the Daleel of the Madh’hab of Maalik in regards to taking the Jizyah from all of the disbelievers except for the Murtaddeen (apostates): It was stated in ‘Al-Mudawwanah’ of Imaam Maalik (46/3): Maalik stated in regards to the Berber Majoos: That ‘Uthmaan Ibn ‘Affaan took the Jizyah from them.
Maalik said in relation to the Majoos what reached you from ‘Abdur Rahmaan Bin ‘Auf that he said: The Messenger of Allah صلى الله عليه وسلم said: “Treat them with the same Sunnah (way) as the Sunan (ways) of the Ahl-ul-Kitaab.” In my view therefore all peoples (nations) are accorded the same status as the Majoos).
Ibn ul-Qayyim stated: “A group said: It applies to all peoples that if they give the Jizyah then it is accepted from them. The people of the book are (proven) by the Qur’aan and the Majoos by the Sunnah. And others are joined to them because the Majoos are from the people of Shirk (polytheism) and they have no book and as such the evidence for them is a Daleel for all of the Muskrikeen (polytheists). It is only not taken from the Arab idol worshippers because they all accepted Islaam before the Aayah of the Jizyah was revealed because it was revealed after Tabook. And the Messenger of Allah صلى الله عليه وسلم had finished fighting the Arabs and bound all of them to Islaam and due to this it was not taken from the Jews who fought against him because it had not been revealed yet. So when it was revealed it was taken from the Christian Arabs and the Majoos and had there been at that time idol worshippers remaining to pay it then it would have been accepted from them just as it was accepted from the people of the As-Sulbaan and An-Neeraan (fire worshippers)! And there is no difference or influence given regard to in respect to the severity of disbelief of one group over another (This indicates a rebuttal of the Hanafi and Hanbali Madh’hab in regards to this idea: Refer to ‘Badaa’i As-Sanaa’i: 110-111/7, Fath ul-Qadeer 49/6 and Al-Mughni of Ibn Qudaamah 573/10). As such the disbelief of the idol worshippers is not more severe or regarded as worse than the disbelief of the Majoos and what is the difference between idol worshipping and fire worshipping! Indeed the Kufr (disbelief) of the Majoos is worse as the idol worshippers used to accept the oneness of Ruboobiyah and that there is no creator other than Allah but rather they worshipped their deities in an attempt to gain closeness to Allah.
In ‘Ad-Deen Al-Khaalis’ As-Sayyid Muhammad Hasan wrote (p182-183/1): “The disbelievers whom the Messenger of Allah صلى الله عليه وسلم fought… used to accept the Tawheed (oneness) of Ruboobiyah and that none other than Him creates, provides sustenance and manages affairs however the issue that they made them disbelieve was that they did not bear witness to the Tawheed Al-Uloohiyah, that none other than Him alone should be supplicated to, worshipped, feared, sought for hope, reliance and help”. Refer to: ‘Ar-Raudah An-Nidiyyah Sharh Al-‘Aqeedah Al-Waasitiyah p9-10).
And they did not believe that there were two creators: One the creator of good and the other the creator of evil as the Majoos said. And they did not seek to make Halaal marriage to mothers, daughters and sisters and were upon remnants of the Deen of Ibraaheem (as). As for the Majoos, they were not upon a book in origin and they did not follow a Deen from any of the Prophets either in their beliefs or Sharee’ah rules. The report that states that they have a book and that their Sharee’ah goes back to what happened between their king upon his daughter has absolutely no truth or validity to it (Refer to the Khabar in ‘Al-Umm’ of Ash-Shaafi’iy: 173-174/4, in the Musannaf of Abdur Razzaaq: 10029, Sunan Al-Bayhaqi: 188-189/9 and Ad-Diraayah Fee Takhreej Ahaadeeth Al-Hidaayah: 134/2, Fath ul-Baari: 261/6).
And even if it was verified to be true then they still would not be Ahl-ul-Kitaab (people of the book) as the Book has been removed and their Sharee’ah has been invalidated and they did not remain upon anything from it. And it was well known that the Arabs had been upon the Deen of Ibraaheem (as) and that they had Suhuf (scriptures) and a Sharee’ah. The change towards worshipping idols in respect to the Deen of Ibraaheem (as) and his Sharee’ah is not greater than the change of the Majoos in respect to the Deen of their prophet and their book even if this was true. This is because it is not known from them that they held on to anything from the Sharee’ah’s of the prophets (as) which is in contrast to the position of the Arabs! So how can the Majoos whose Deen is the most ugliest of Deens be seen in a better light and condition as compared to the Arab polytheists? Then Ibn ul-Qayyim declared that he views as strongest that the Jizyah is taken from all of the Kuffaar and even the Arabs who do not follow the religions of Judaism, Christianity and the religion of the Majoos and he states: That this opinion is the most correct in terms of evidence as can be seen” (Zaad Al-Ma’aad, Ibn ul-Qayyim, 91-92/5).
The opinion that we view to be strongest
I say: We are not able after all that has proceeded to outweigh as strongest the opinion that states that it is permitted for the Islamic State to convene the ‘Aqd (contract) of Adh-Dhimmah with all of the disbelievers of every type, Deen and Aqeedah… (Note: This opinion of permitting the Jizyah for all disbelievers is also the opinion of Doctor Wahbah Az-Zuhailiy, ‘Aathaar ul-Harb p701-702). Except that those who reside in the Jazeerat-ul-Arab (Arabian Peninsula), with the borders that the state adopts, are ordered to leave it and not reside in it unless it is for a temporary period or travelling through. It is permitted to convene the ‘Aqd of Adh-Dhimmah with them on the basis of them being citizens of permanent residency outside of the specified borders. When factions of these are inside of the Arabian Peninsula and they used to leave to outside the Peninsula by displaying force then fighting them is legitimate until they enter into Islaam or leave from it.
In addition those whom it has been established that they were Muslims or entered into it (Islaam) and thereafter became apostates, then in this case fighting them is obligatory until they return to the folds of Islaam or they are finished with.
And with that, all of the texts found related to this Mas’alah have been put together.
Therefore it is permitted for the State in Islaam to contract the Dhimmah with all groups and types and even with those who have Arab origins but do not follow a Samaawiy religion (i.e. with a revealed book), like communists and atheists. The exception to this permission is with apostates due to what has already been presented.
As such the ‘Aqd of Adh-Dhimmah and the giving of the Jizyah by the people of war (Ahl ul-Harb) is a general Sabab (cause/reason) from amongst the Asbaab (reasons/causes) for the cessation of Al-Qitaal in Islaam.
2. The conditions of the Jizyah
The discussion about the conditions of the obligation of the Jizyah, in its financial meaning, upon the individuals who have had the Dhimmah contracted to them, does not possess a strong link with the subject area that was intended in this section. This subject area is that the payment of the Jizyah and submission to the Ahkaam (rulings) of Islaam represent a cause (Sabab) from amongst the causes for stopping Al-Qitaal (fighting) in accordance to Islaam.
For this reason we will pass through this issue by quickly presenting these conditions as they have been found in some of the Fiqhiy sources (references) without delving into the evidences and going into further discussion, or examining the different opinions that exist in regards to this issue. This is to ensure that the aim of the paper (PHD) is complied with from one angle so as not to go outside of our subject in that which we do not see the necessity of going into detail in, from another angle.
The following was mentioned in ‘Badaa’i As-Sanaa’i’ in relation to the conditions of the Jizyah upon those whom the contract of the Dhimmah is placed: “As for the conditions of the obligation, then these include: Al-‘Aql (sound mind)… Al-Buloogh (maturity/pubescent)…Adh-Dhukoorah (being male)…As-Sihhah (health) and so it is not obligatory upon the sick person if he has been sick for the entire year… and included in this is being free from chronic illness, blindness and old age… in addition to the Faqeer (impoverished) who does not work… And as for the monks (Ashaab As-Swaami’) then the Jizyah is obliged upon them if they are capable of working because they are from the people of Al-Qitaal (fighting). This is because not working despite having the ability does not prevent the obligation… and from the conditions is Hurriyah (freedom) so it is not obligatory upon the ‘Abd (slave) because the slave is not from the people who own property…” (Badaa’i As-Sanaa’i: 111/7. Refer to: Fath ul-Qadeer: 50/6 and what follows and this is in regards to the Hanafi Fiqh. Refer for the Maalikiy Fiqh to: ‘Qawaaneen Al-Ahkaam Ash-Shar’iyah, 175, and ‘Ash-Sharh Al-Kabeer’ Ma’a Haashiyah’, Ad-Dusooqiy 201/2, and ‘Manh Al-Jaleel, 214/3. For the Shaafi’iy Fiqh: ‘Al-Muhadh’dhab’, Ash-Sheeraaziy, 252/2, ‘Mughni Al-Muhtaaj: 245/4 and in the Hanbali Fiqh: Al-Mughni, Ibn Qudaamah 571/10 and what follows it, ‘Ash-Sharh Al-Kabeer’, Al-Maqdasiy, 595/10 and what follows it).
In regards to what we have been presented of these conditions there exists various points of view amongst the Fuqahaa of the Madhaahib requiring a revision of these Fiqhiy sources which we do not deem necessary to be presented here for the reasons that we have already indicated.
To be continued in Part 3…
The above is a draft translation from the book: ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya’ by Sheikh Dr. Muhammad Khayr Haykal.