BOOK O: JUSTICE

Table of Contents:

o1.0 WHO IS SUBJECT TO RETALIATION FOR INJURIOUS CRIMES

(O: Injurious crimes includes not only those committed with injurious weapons, but those inflicted otherwise as well, such as with sorcery (def: x136). Killing without right is, after unbelief, one of the very worst enormities, as Shafi`i explicitly states in (n: Muzani's) The Epitome. The Prophet (Allah bless him and give him peace) said:

``The blood of a Muslim man who testifies that there is no god but Allah and that I am the Messenger of Allah is not lawful to shed unless he be one of three: a married adulterer, someone killed in retaliation for killing another, or some-one who abandons his religion and the Muslim community,''

and in another hadith,

``The killing of a believer is more heinous in Allah's sight that doing away with all of this world.''

Allah Most High says:

``... and not to slay the soul that Allah has forbidden, except with right'' (Koran 6:151),

and,

``O you who believe, retaliation is prescribed for you regarding the slain...'' (Koran 2:178).)

o1.1 Retaliation is obligatory (A: if the person entitled wishes to take it (dis: o3.8)) against anyone who kills a human being purely intentionally and without right. (O: Intentionally is a first restriction and excludes killing someone through an honest mistake, while purely excludes a mistake made in a deliberate injury (def: o2.3), and without right excludes cases of justifiable homicide such as lawful retaliation.)

o1.2 The following are not subject to retaliation:

1. a child or insane person, under any circumstances (O: whether Muslim or non-Muslim.

   The ruling for a person intermitently insane is that he is considered as a sane person when in his right mind, and as if someone continously insane when in an interval of insanity. If someone against whom retaliation is obligatory subsequently becomes insane, the full penalty is nevertheless exacted. A homicide committed by someone who is drunk is (A: considered the same as that of a sane person,) like his pronouncing divorce (dis: n1.2));
    

2. a Muslim for killing a non-Muslim;
3. a Jewish or Christian subject of the Islamic state for killing an apostate from Islam (O: because a subject of the state is under its protection, while killing an apostate from Islam is without consequences);
4. a father or mother (or their fathers of mothers) fir killing their offspring, or offspring's offspring;
5. nor is retaliation permissible to a descendant for (A: his ancestor's) killing someone whose death would otherwise entitle the descendant to retaliate, such as when his father kills his mother.

o2.0 INTENTIONALITY IN INJURIOUS CRIMES

o2.1 Injurious crimes (O: of all types, whether killing or something less) are of three types:

1. an honest mistake;
2. a mistake made in a deliberate injury;
3. or purely intentional.

o2.2 An honest mistake is an act such as shooting an arrow at a wall and hitting a person (O: or shooting at a person and hitting someone else), or slipping from a height and falling on someone. The criterion for it is that the act is intended but not the person, or neither the act nor the person is intended.

o2.3 A mistake made in a deliberate injury is when one intends an injury that is not generally fatal, such as hitting someone with a light stick in a nonvital spot (A: from which the person dies) and the like.

o2.4 Purely intentional means to intend and injury of the type that is generally fatal, whether with a blunt instrument or a sharp one.

o3.0 RETALIATION FOR BODILY INJURY OR DEATH (QISAS)

o3.1 Retaliation is obligatory (A: if those entitled wish to take it (dis: o3.8)) when there is a (N: purely) intentional injury (def: o2.4) against life or limb.

o3.2 Retaliation is obligatory in return for injuries (A: part for commensurate part) whenever the retaliatory injury can be (O: fully) inflicted without exceeding the extent of the original injury, such as (A: when the retaliatory injury is on) an eye, eyelid, the soft part of the nose, the ear, tooth, lip, hand, foot, finger, fingertip, penis, testicles, vulva, and the like; provided that the retaliatory injury is like the origina, meaning that a right member is not taken for a left, an upper one for a lower, nor a functional member for a paralyzed one. (N: Nor is there retaliation for nonfatal bullet wounds in the stomach or chest, for example, because such injuries cannot be reproduced without risk of greater damage than the original, for which reason they call for an indemnity (dis: o4.15) alone.) There is no retaliation for (O: breaking) a bone (A: though payment is due to cover the cost of treatment and so forth).

o3.3 Females are entitled to retaliate against males, children against adults, and lower class people against upper class; whether the retaliation is a life for a life, or limb for a limb.

o3.4 It is not permissible to exact retaliation against someone without the presence of the caliph (def: o25) or his representative (O: meaning that it is necessary to have the permission of one of them because of the danger and lack of knowledge involved in exacting retaliation oneself, as it requires the judgement and personal reasoning of a ruler. If someone takes retaliation without the caliph's permission, then it is valid (A: i.e. suffices the demand for it) but the person who took it is disciplined (def: o17) for arrogating the caliph's prerogative, since administering retaliation is one of his functions, and to encroach upon it is wrong).

If a person who is entitled to retaliate is able to do so proficiently (O: being a strong man who knows how to do it), he is allowed to. If not, he is ordered (N: by the rules or his representative) to have another do it.

o3.5 If two (O: or more) people are entitled to exact retaliation against the offender, it is not permissible for just one of them to insist on doing so (O: though if they choose one of themselves to exact it, this is permissible, and the one chosen is considered as the other's commissioned agent. The two may not take retaliation together, as this amounts to torturing the person being retaliated against). If each insists that he be the one, they draw lots to see who will do it.

o3.6 There is no retaliation against a pregnant woman until she has given birth and the infant is able to suffice with another's milk.

o3.8 Whenever someone who is entitled to exact retaliation decides instead to forgive the offender and take an indemnity (def: o4) from him, then retaliation is no longer called for, and the deserving person is entitled to the indemnity. If some of a group of people who are entitled to retaliation agree to forgo it, as when a murder victim has children and one of them forgives the murderer, then retaliation is no longer obligatory, and the group deserves an indemnity from the offender. (A: Or the indemnity may also be waived.)

o3.9 When someone kills a group of people or maims them one after another, retaliation is exacted for the first individual attacked, and the other deserving parties receive an indemnity. If the offender injures them all at one, then those entitled to retaliate against him draw lots to determine who will do so.

o3.10 When a group of people together murder a single person, they are all killed in retaliation, no matter whether the amount of injury inflicted by each upon the victim is the same or whether it differs.

o3.12 There is no retaliation against anyone for an injury or death caused by someone who did so intentionally but in conjunction with someone who did so by mistake.

When an injurious crime is caused by a nonfamily member in cooperation with the victim's father, retaliation is only taken against the nonfamily member (dis: o1.2(4)).

o3.13 Retaliation is also obligatory (dis: o3.8) for every wound that cuts to the bone, such as a cut on the head or face that reaches the skull, or a cut to the bone in the upper arm lower leg, or thigh. To the bone means that it is known that a knife or a needle, for example, has reached the bone, not that the wound actually exposes the bone to view.

o4.0 INDEMNITY (DIYA)

(A: The rulings below concern the maximum that the victim or victim's family may demand. If both sides agree on an indemnity of lesser amount, or nothing at all, this is legally valid and binding.)

o4.1 An indemnity is obligatory (N: though it may by waived by deserving recipients, like retaliation) in cases of death caused:

1. by an honest mistake (def: o2.2)'
2. by a mistake made in a deliberate injury (o2.3);
3. or intentionally, if those entitled to retaliate agree to forgo retaliation (dis: o3.8).

o4.2 The indemnity for killing a male Muslim is 100 camels.

(N: Shafi`i scholars early converted the pastoral equivalents to gold dinars (n: one dinar equalling 4.235 grams of gold (dis: w15)), the amount due in the rulings below being the weight of the gold, regardless of its current market value.) (A: The stronger position in the Shafi's school is that indemnities should be reckoned in camels, after which both parties may agree on a lesser amount or another form of payment.)

THE INDEMNITY FOR A PURELY INTENTIONAL KILLING

o4.3 The indemnity for cases of purely intentional homicide (def: o2.4) is made severe in three ways:

1. it must be paid immediately;
2. it is due from the offender himself;
3. and the amount paid is (N: 1.333.3 gold dinars (n: 5,646.6 grams of gold) or else:) 30 she-camels in their fourth year, 30 she-camels in their fifth year, and 40 pregnant she-camels.

THE INDEMNITY FOR DEATH BY MISTAKE IN A DELIBERATE INJURY

o4.4 When the killing is a mistake made in a deliberate injury (def:o2.3), the indemnity is only made severe in one respect, namely that the payment consists of the three types of camel mentioned above (n: or 5,646.6 grams of gold), while it is less severe in that:

1. payment is deferred (def: o4.11);
2. and is due (N: not from the offender, but) from those of the offender's extended family who are required to pay (`aqila, def: o4.10).

THE INDEMNITY FOR A DEATH CAUSED BY AN HONEST MISTAKE

o4.5 When the killing occurred through an honest mistake (def: o2.2), the indemnity is less severe in three ways:

1. payment is deferred;
2. it is due from those of the offender's extended family who are required to pay (def: o4.10);
3. and the amount paid is (N: 1,000 gold dinars (n: 4,235.0 grams of gold) or: 20 she-camels in their second year, 20 she-camels and 20 he-camels in their third year, 20, she-camels in their fourth year, and 20 she-camels in their fifth year.

o4.6 But no matter whether the killing was a mistake or intentional, the three-types-of-camel- indemnity (def: o4.3(c)) must be paid if the person killed was:

1. an unmarriageable kin by birth relative of the killer (def: m6.1(1-8) and m6.2(1-6)):
2. slain in the Sacred Precinct in Mecca:
3. or killed during one of the sacrosanct months of Dhul Qa`da, Dhul Hijja, Muharram, or Rajab.

o4.7 Defective animals may not constitute payment.

o4.8 It is permissible for deserving recipients to accept payment other than camels if both parties agree.

o4.9 (A: For the rulings below, one multiplies the fraction named by the indemnity appropriate to the death or injury's type of intentionality and other relevant circumstances that determine the amount of a male Muslim's indemnity (def: o4.2-6 and o4.13).)

The indemnity for the death or injury of a woman is one-half the indemnity paid for a man.

The indemnity paid for a Jew or Christian is one-third of the indemnity paid for a Muslim. The indemnity paid of a Zoroastrian is one-fifteenth of that a Muslim.

When a miscarriage results from someone having struck the stomach of a pregnant woman (O: or other part of her, or when someone frightens her, resulting in a miscarriage), the indemnity for the fetus is a male or female slave worth one-twentieth of the indemnity payable for killing the fetus's father, or one-tenth that of its mother. (A: The indemnity is whatever they agree upon.)

o4.10 The members of the offender's extended family who are liable for certain kinds of indemnities consist of the offender's universal heirs, excluding his father, father's father (O: and on up), his son, son's son (O: and on down). (A: Meaning that they consist of those mentioned at L10.6(7-14).) Those of the extended family who are poor (A: poor meaning someone who has enough for himself but no more), prepubescent, or insane are not obliged to pay (N: anything in conjunction with the other members). If the offender is Muslim, then his non-Muslim relatives are not obliged to pay, as is also the case if the offender is non-Muslim and his relatives are Muslim.

o4.11 When the extended family is obliged to, they must pay the entire indemnity of 100 camels (N: or the gold equivalents) within three years. Every required extended family member who is well-off is obliged to pay one-half dinar (n:2.1175 grams of gold) at the end of each year, while every member who is between affluence and poverty is obliged to pay a quarter dinar (n; 1.05875 grams of gold). If any of the indemnity remains to be paid after three years (N: or if the offender has no family to pay it), it is paid by the Muslim common fund (bayt al-mal). If there is none, the offender himself must pay.

o4.12 When the indemnity due is less than a full indemnity (A: full meaning that which is due for a Muslim male (def: o4.2-6)), as when it is for a wound, miscarriage, female, or a Jewish or Christian subject of the Islamic state, then:

1. if it consists of one-third or less of a full indemnity, it must be paid within one year;
2. if it consists of two-thirds or less of a full indemnity, then one of the thirds must be paid in the first year, and the rest in the second year;
3. and if it amounts to more than two-thirds of a full indemnity, then the two-thirds must be paid within two years and the rest in the third year.

THE INDEMNITY FOR BODILY INJURIES

o4.13 If a nonpaired body part of aesthetic value and utility (A: a tongue, for example) is dissevered, then a full indemnity is paid, meaning the indemnity due if the member's owner were killed (def: o4.2-6, o4.9).

The same is due for each pair of limbs: if both are cut off, a full indemnity is paid, while if only one is cut off, then half the full indemnity. The same is true for the faculties of sense (A: such as hearing): for each faculty the injury eliminates, there is a full indemnity. Thus, a full indemnity is paid for cutting off two ears, and a half indemnity for one. This also holds for a pair of eyes, lips, jaws, hands, feet, buttocks, testicles, eyelids, the nipples of a female, vulval labia, the soft part of the nose, the tongue, head of the penis, or whole penis. A full indemnity is also paid for injuries which paralyze these members, or for injuring the peritioneal wall between vagina and rectum so they become one aperture, or for flaying a person, breaking his back, or eliminating the use of his mind, hearing, vision, speech, sense of smell, or taste.

o4.14 The indemnity for each finger is ten camels, and five for each tooth (N: or 10 and 5 percent respectively of the equivalent gold values (def: o4.3-5), depending on the relevant circumstances (dis: o4.9(A:))).

o4.15 As for wounds on the body, their indemnity consists of a fraction of the full indemnity proportionate (A: by the calculation of the Islamic magistrate) to the extent of the damage.

o4.16 The indemnity for wounds on the head or face, when not to the bone, is also such a proportionate fraction, though if such wounds are to the bone, as mentioned above (o3.13), the indemnity is five camels (dis: o4.14(N:)).

There are other injuries which I prefer to omit for the sake of brevity.

o4.17 There is no indemnity obligatory for killing a non-Muslim at war with Muslims (harbi), someone who has left Islam, someone sentenced to death by stoning (A: for adultery (def: o12)) by virtue of having been convicted in court, or those it is obligatory to kill by military action (N: such as a band of highwaymen).

o5.0 THE EXPIATION TO ALLAH FOR TAKING A HUMAN LIFE

o5.1 An expiation is due to Allah Most High from anyone who kills someone unlawful to kill, whether the killing is through a mistake or is intentional, and no matter whether retaliation (def: o3) or an indemnity (o4) is obligatory or not.

o5.2 The expiation consists of freeing a slave (def: k32), or if one cannot, then two consecutive months of fasting. (O: There is no difference in this precedence order whether the killer is legally accountable or not, as when he is a child or insane, in which case the guardian must free a slave on his behalf. (A: Though if a child fasts, it fulfills the expiation.))

o5.4 (O: There is no expiation for killing someone who has left Islam, a highwayman (def: o15). or a convicted married adulterer, even when someone besides the caliph kills him.)

o6.0 FIGHTING THOSE WHO REBEL AGAINST THE CALIPH

o6.1 When a group of Muslims rebel against the caliph (khalifa, def: o25) and want to overthrow him, or refuse to fulfill an obligation imposed by Sacred Law such as zakat, and rise in armed insurrection, he sends someone to them and redresses their grievances if possible.

If they obdurately refuse to obey him (O: no matter whether he is just or unjust, as Nawawi mentions in his commentary on Sahih Muslim, citing the consensus of Muslims (ijma`, def: b7) that it is unlawful to revolt against caliphs and fight them, even if they are corrupt), he fights them with (O: military) weaponry that does not cause general destruction, as do fire and mangonel (O: for the aim is to suppress them, not destroy them), and does not pursue those who retreat, or kill the wounded

o6.2 There is no financial responsibility for what they destroy of ours nor what we destroy of theirs in such military action.

o6.3 They are subject to Islamic laws (O: because they have not committed an act that puts them outside of Islam that they should be considered non-Muslims. Nor are they considered morally corrupt, for rebels is not a pejorative term, but rather they merely have a mistaken understanding), and the decisions of their Islamic judge are considered legally effective (O: provided he does not declare the lives of upright Muslims (def: o24.4) to be justly forfeitable) if they are such as would be effective if made by our own judge.

o6.4 If they do not rebel by war, the caliph may not fight them.

o7.0 WARDING OFF AGGRESSORS

o7.1 Someone whom a Muslim is trying to kill is entitled to kill the Muslim, though it is not obligatory to. Someone whom a non-Muslim or animal is trying to kill is obliged to defend himself.

o7.2 If an aggressor is trying to take one's money or property, it is permissible to defend it but not obligatory. If the aggressor intends one's womenfolk (O: such as one's wife or son's wife), it is obligatory to defend them.

o7.3 To defend means to use the minimum amount of force required. If one knows that shouting will repel the aggressor, one may not strike him. If a hand is enough, a stick may not be employed. If a stick will do, a sword may not be used. If cutting the other's hand will suffice, one may not kill him. (O: Mawardi states that this precedence order is for crimes that are not indecencies. As for when an aggressor is raping someone whom it is unlawful for him to have sexual intercourse with, it is permissible to kill him forthwith.) Someone who knows (O: i.e. believes) that an aggressor cannot be dissuaded by anything short of killing him may kill him and is not accountable for it.

o7.4 When one has warded off an aggressor, it is unlawful to take further measures against him.

o8.0 APOSTASY FROM ISLAM (RIDDA)

(O: Leaving Islam is the ugliest form of unbelief (kufr) and the worst. It may come about through sarcasm, as when someone is told, ``Trim your nails, it is sunna,'' and he replies, ``I would not do it even if it were,'' as opposed to when some circumstance exists which exonerates him of having committed apostasy, such as when his tongue runs away with him, or when he is quoting someone, or says it out of fear.)

o8.1 When a person who has reached puberty and is sane voluntarily apostatizes from Islam, he deserves to be killed.

o8.2 In such a case, it is obligatory for the caliph (A: or his representive) to ask him to repent and return to Islam. If he does, it is accepted from him, but if he refuses, he is immediately killed.

o8.3 If he is a freeman, no one besides the caliph or his representative may kill him. If someone else kills him, the killer is disciplined (def: o17) (O: for arrogating the caliph's prerogative and encroaching upon his rights, as this is one of his duties).

o8.4 There is no indemnity for killing an apostate (O: or any expiation, since it is killing someone who deserves to die).

o8.5 If he apostatizes from Islam and returns several times, it (O: i.e. his return to Islam, which occurs when he states the two Testifications of Faith (def: o8.7(12))) is accepted from him, though he is disciplined (o17).

o8.6 (A: If a spouse in a consummated marriage apostatizes from Islam, the couple are separated for a waiting period consisting of three intervals between menstruations. If the spouse returns to Islam before the waiting period ends, the marriage is not annulled but is considered to have continued the whole time (dis: m7.4).)

ACTS THAT ENTAIL LEAVING ISLAM

o8.7 (O: Among the things that entail apostasy from Islam (may Allah protect us from them) are:

1. to prostrate to an idol, whether sarcastically, out of mere contrariness, or in actual conviction, like that of someone who believes the Creator to be something that has originated in time. Like idols in this respect are the sun or moon, and like prostration is bowing to other than Allah, if one intends reverence towards it like the reverence due to Allah;
2. to intend to commit unbelief, even if in the future. And like this intention is hesitating whether to do so or not: one thereby immediately commits unbelief;
3. to speak words that imply unbelief such as ``Allah is the third of three,'' or ``I am Allah''-unless one's tongue has run away with one, or one is quoting another, or is one of the friends of Allah Most High (wali, def: w33) in a spiritually intoxicated state of total oblivion (A: friend of Allah or not, someone totally oblivious is as if insane, and is not held legally responsible (dis: k13.1(O:))), for these latter do not entail unbelief;
4. to revile Allah or His messenger (Allah bless him and give him peace);
5. to deny the existence of Allah, His beginingless eternality, His endless eternality, or to deny any of His attributes which the consensus of Muslims ascribes to Him (dis: v1);
6. to be sarcastic about Allah's name, His command, His interdiction, His promise, or His threat;
7. to deny any verse of the Koran or anything which by scholarly consensus (def: b7) belongs to it, or to add a verse that does belong to it;
8. to mockingly say, ``I don't know what faith is'';
9. to reply to someone who says, ``There is no power or strength save through Allah''; ``Your saying `There's no power or strength, etc,' won't save you from hunger'';
10. for a tyrant, after an oppressed person says, ``This is through the decree of Allah,'' to reply, ``I act without the decree of Allah'';
11. to say that a Muslim is an unbeliever (kafir) (dis: w47) in words that are uninterpretable as merely meaning he is an ingrate towards Allah for divinely given blessings (n: in Arabic, also ``kafir'');
12. when someone asks to be taught the Testification of Faith (Ar. Shahada, the words, ``La ilaha ill Allahu Muhammadun rasulu Llah'' (There is no god but Allah, Muhammad is the Messenger of Allah)), and a Muslim refuses to teach him it;
13. to describe a Muslim or someone who wants to become a Muslim in terms of unbelief (kufr);
14. to deny the obligatory character of something which by the consensus of Muslims (ijma`, def: b7) is part of Islam, when it is well known as such, like the prayer (salat) or even one rak'a from one of the five obligatory prayers, if there is no excuse (def: u2.4);
15. to hold that any of Allah's messengers or prophets are liars, or to deny their being sent;

    (n: `Ala' al-din' Abidin adds the following:
     

16. to revile the religion of Islam;
17. to believe that things in themselves or by their own nature have any causal influence independent of the will of Allah;
18. to deny the existence of angels or jinn (def: w22), or the heavens;
19. to be sarcastic about any ruling of the Sacred Law;
20. or to deny that Allah intended the Prophet's message (Allah bless him and give him peace) to be the religion followed by the entire world (dis: w4.3-4) (al-Hadiyya al-`Ala'iyya (y4), 423-24).)

There are others, for the subject is nearly limitless. May Allah Most High save us and all Muslims from it.)

o9.0 JIHAD

(O: Jihad means to war against non-Muslims, and is etymologically derived from the word mujahada signifying warfare to establish the religion. And it is the lesser jihad. As for the greater jihad, it is spiritual warfare against the lower self (nafs), which is why the Prophet (Allah bless him and give him peace) said as he was returning from jihad.

``We have returned from the lesser jihad to the greater jihad.''

The scriptural basis for jihad, prior to scholarly consensus (def: b7) is such Koranic verses as:

1. ``Fighting is prescribed for you'' (Koran 2:216);
2. ``Slay them wherever you find them'' (Koran 4:89);
3. ``Fight the idolators utterly'' (Koran 9:36);

and such hadiths as the one related by Bukhari and Muslim that the Prophet (Allah bless him and give him peace) said:

``I have been commanded to fight people until they testify that there is no god but Allah and that Muhammad is the Messenger of Allah, and perform the prayer, and pay zakat. If they say it, they have saved their blood and possessions from me, except for the rights of Islam over them. And their final reckoning is with Allah'';

and the hadith reported by Muslim,

``To go forth in the morning or evening to fight in the path of Allah is better than the whole world and everything in it.''Details concerning jihad are found in the accounts of the military expeditions of the Prophet (Allah bless him and give him peace), including his own martial forays and those on which he dispatched others. The former consist of the ones he personally attended, some twenty-seven (others say twenty-nine) of them. He fought in eight of them, and killed only one person with his noble hand, Ubayy ibn Khalaf, at the battle of Uhud. On the latter expeditions he sent others to fight, himself remaining at Medina, and these were forty-seven in number.)

THE OBLIGATORY CHARACTER OF JIHAD

o9.1 Jihad is a communal obligation (def: c3.2). When enough people perform it to successfully accomplish it, it is no longer obligatory upon others (O: the evidence for which is the Prophet's saying (Allah bless him and give him peace),

"He who provides the equipment for a soldier in jihad has himself performed jihad,"

and Allah Most High having said:

"Those of the believers who are unhurt but sit behind are not equal to those who fight in Allah's path with their property and lives. Allah has preferred those who fight with their property and lives a whole degree above those who sit behind. And to each, Allah has promised great good" (Koran 4:95).

If none of those concerned perform jihad, and it does not happen at all, then everyone who is aware that it is obligatory is guilty of sin, if there was a possibility of having performed it. In the time of the Prophet (Allah bless him and give him peace) jihad was a communal obligation after his emigration (hijra) to Medina. As for subsequent times, there are two possible states in respect to non-Muslims.

The first is when they are in their own countries, in which case jihad (def: o9.8) is a communal obligation, and this is what our author is speaking of when he says, "Jihad is a communal obligation," meaning upon the Muslims each year.

The second state is when non-Muslims invade a Muslim country or near to one, in which case jihad is personally obligatory (def: c3.2) upon the inhabitants of that country, who must repel the non-Muslims with whatever they can).

o9.2 Jihad is personally obligatory upon all those present in the battle lines (A: and to flee is an enormity (dis: p11)) (O: provided one is able to fight. If unable, because of illness or the death of one's mount when not able to fight on foot, or because one no longer has a weapon, then one may leave. One may also leave if the opposing non-Muslim army is more than twice the size of the Muslim force).

o9.3 Jihad is also (O: personally) obligatory for everyone (O: able to perform it, male or female, old or young) when the enemy has surrounded the Muslims (O: on every side, having entered our territory, even if the land consists of ruins, wilderness, or mountains, for non-Muslim forces entering Muslim lands is a weighty matter that cannot be ignored, but must be met with effort and struggle to repel them by every possible means. All of which is if conditions permit gathering (A: the above-mentioned) people, provisioning them, and readying them for war. If conditions do not permit this, as when the enemy has overrun the Muslims such that they are unable to provision or prepare themselves for war, then whoever is found by non-Muslim and knows he will be killed if captured is obliged to defend himself in whatever way possible. But if not certain that he will be killed, meaning that he might or might not be, as when he might merely be taken captive, and he knows he will be killed if he does not surrender, then he may either surrender or fight. A woman too has a choice between fighting or surrendering if she is certain that she will not be subjected to an indecent act if captured. If uncertain that she will be safe from such an act, she is obliged to fight, and surrender is not permissible).

WHO IS OBLIGED TO FIGHT IN JIHAD

o9.4 Those called upon (O: to perform jihad when it is a communal obligation are every able bodied man who has reached puberty and is sane.

o9.5 The following may not fight in jihad:

1. Someone in debt, unless his creditor gives him leave;
2. or someone with at least one Muslim parent, until they give their permission;

unless the Muslims are surrounded by the enemy, in which case it is permissible for them to fight without permission.

o9.6 It is offensive to conduct a military expedition against hostile non-Muslims without the caliph's permission (A: though if there is no caliph (def: o25), no permission is required).

o9.7 Muslims may not seek help from non-Muslims allies unless the Muslims are considerably outnumbered and the allies are of goodwill towards the Muslims.

THE OBJECTIVES OF JIHAD

o9.8 The caliph (o25) makes war upon Jews, Christians, and Zoroastrians (N: provided he has first invited them 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, def: o11.4)-which is the significance of their paying it, not the money itself-while remaining in their ancestral religions) (O: and the war continues) until they become Muslim or else pay the non-Muslim poll tax (O: in accordance with the word of Allah Most High,

"Fight those who do not believe in Allah and the Last Day and who forbid not what Allah and His messenger have forbidden-who do not practice the religion of truth, being of those who have been given the Book-until they pay the poll tax out of hand and are humbled" (Koran 9.29), the time and place for which is before the final descent of Jesus (upon whom be peace). After his final coming, nothing but Islam will be accepted from them, for taking the poll tax is only effective until Jesus' descent (upon him and our Prophet be peace), which is the divinely revealed law of Muhammad. The coming of Jesus does not entail a separate divinely revealed law, for he will rule by the law of Muhammad. As for the Prophet's saying (Allah bless him and give him peace),

"I am the last, there will be no prophet after me," this does not contradict the final coming of Jesus (upon whom be peace), since he will not rule according to the Evangel, but as a follower of our Prophet (Allah bless him and give him peace)).

o9.9 The caliph fights all other peoples until they become Muslim (O: because they are not a people with a Book, nor honored as such, and are not permitted to settle with paying the poll tax (jizya)) (n: though according to the Hanafi school, peoples of all other religions, even idol worshippers, are permitted to live under the protection of the Islamic state if they either become Muslim or agree to pay the poll tax, the sole exceptions to which are apostates from Islam and idol worshippers who are Arabs, neither of whom has any choice but becoming Muslim (al-Hidaya sharh Bidaya al-mubtadi' (y21), 6.48-49)).

THE RULES OF WARFARE

o9.10 It is not permissible (A: in jihad) to kill women or children unless they are fighting against the Muslims. Nor is it permissible to kill animals, unless they are being ridden into battle against the Muslims, or if killing them will help defeat the enemy. It is permissible to kill old men (O: old man (shaykh meaning someone more than forty years of age) and monks.

o9.11 It is unlawful to kill a non-Muslim to whom a Muslim has given his guarantee of protection (O: whether the non-Muslim is one or more than one, provided the number is limited, and the Muslim's protecting them does not harm the Muslims, as when they are spies) provided the protecting Muslim has reached puberty, is sane, and does so voluntarily (O: and is not a prisoner of them or a spy).

o9.12 Whoever enters Islam before being captured may not be killed or his property confiscated, or his young children taken captive.

o9.13 When a child or a woman is taken captive, they become slaves by the fact of capture, and the woman's previous marriage is immediately annulled.

o9.14 When an adult male is taken captive, the caliph (def: o25) considers the interests (O: of Islam and the Muslims) and decides between the prisoner's death, slavery, release without paying anything, or ransoming himself in exchange for money or for a Muslim captive held by the enemy.

If the prisoner becomes a Muslim (O: before the caliph chooses any of the four alternatives) then he may not be killed, and one of the other three alternatives is chosen.

o9.15 It is permissible in jihad to cut down the enemy's trees and destroy their dwellings.

TRUCES

o9.16 (O: As for truces, the author does not mention them. In Sacred Law truce means a peace treaty with those hostile to Islam, involving a cessation of fighting for a specified period, whether for payment or something else. The scriptural basis for them includes such Koranic verses as:

1. "An acquittal from Allah and His messenger..." (Koran 9:1);
2. "If they incline towards peace, then incline towards it also" (Koran 8.61);

as well as the truce which the Prophet (Allah bless him and give him peace) made Quraysh in the year of Hudaybiya, as related by Bukhari and Muslim.

Truces are permissible, not obligatory. The only one who may effect a truce is the Muslim ruler of a region (or his representative) with a segment of the non-Muslims of the region, or the caliph (o25) (or his representative). When made with other than a portion of the non-Muslims, or when made with all of them, or with all in a particular region such as India or Asia Minor, then only the caliph (or his representative) may effect it, for it is a matter of the gravest consequence whether globally or in a given locality, and our interests must be looked after therein, which is why it is best left to the caliph under any circumstances, or to someone he delegates to see to the interests of the various regions.

There must be some interest served in making a truce other than mere preservation of the status quo. Allah Most High says,

"So do not be faint-hearted and call for peace, when it is you who are the uppermost" (Koran 47:35).

Interests that justify making a truce are such things as Muslim weakness because of lack of members or materiel, or the hope of an enemy becoming Muslim, for the Prophet (Allah bless him and give him peace) made a truce in the year Mecca was liberated with Safwan ibn Umayya for four months in hope that he would become Muslim, and he entered Islam before its time was up. If the Muslims are weak, a truce may be made for ten years if necessary, for the Prophet (Allah bless him and give him peace) made a truce with Quraysh for that long, as is related by Abu Dawud. It is not permissible to stipulate longer than that, save by means of new truces, each of which does not exceed ten years.

The rulings of such a truce are inferable from those of the non-Muslim poll tax (def: o11); namely, that when a valid truce has been effected, no harm may be done to non-Muslims until it expires.)

o10.0 THE SPOILS OF BATTLE

o10.1 A free male Muslim who has reached puberty and is sane is entitled to the spoils of battle when he has participated in a battle to the end of it.

After personal booty (def: o10.2), the collective spoils of the battle are divided into five parts. The first fifth is set aside (dis: o10.3), and the remaining four are distributed, one share to each infantryman and three shares to each cavalryman. From these latter four fifths also, a token payment is given at the leader's discretion to women, children, and non-Muslim participants on the Muslim side.

A combatant only takes possession of his share of the spoils at the official division. (A: Or he may choose to waive his right to it.)

o10.2 As for personal booty, anyone who, despite resistance, kills one of the enemy or effectively incapacitates him, risking his own life thereby, is entitled to whatever he can take from the enemy, meaning as much as he can take away with him in the battle, such as a mount, clothes, weaponry, money, or other.

o10.3 As for the first fifth that is taken from the spoils, it is divided in turn into five parts, a share each going to:

1. the Prophet (Allah bless him and give him peace), and after his death, to such Islamic interests as fortifying defenses on the frontiers, salaries for Islamic judges, muezzins, and the like;
2. relatives of the Prophet (Allah bless him and give him peace) of the Bani Hashim and Bani Muttalib clans, each male receiving the share of two females;
3. orphans who are poor;
4. those short of money (def: h8.11);
5. and travellers needing money (h8.18).

o11.0 NON-MUSLIM SUBJECTS OF THE ISLAMIC STATE (AHL AL-DHIMMA)

011.1 A formal agreement of protection is made with citizens who are:

1. Jews;
2. Christians;
3. Zoroastrians;
4. Samarians and Sabians, if their religions do not respectively contradict the fundamental bases of Judaism and Christianity;
5. and those who adhere to the religion of Abraham or one of the other prophets (upon whom be blessings and peace).

o11.2 Such an agreement may not be effected with those who are idol worshippers (dis: o9.9 (n:)), or those who do not have a Sacred Book or something that could have been a Book.

(A: Something that could have been a Book refers to those like the Zoroastrians, who have remnants resembling an ancient Book. As for the psuedoscriptures of cults that have appeared since Islam (n: such as the Sikhs, Baha' is, Mormons, Qadianis, etc.), they neither are nor could be a Book, since the Koran is the final revelation (dis: w4).)

o11.3 Such an agreement is only valid when the subject peoples:

1. follow the rules of Islam (A: those mentioned below (o11.5) and those involving public behavior and dress, though in acts of worship and their private lives, the subject communities have their own laws, judges, and courts, enforcing the rules of their own religion among themselves);
2. and pay the non-Muslim poll tax (jizya).

THE NON-MUSLIM POLL TAX

o11.4 The minimum non-Muslim poll tax is one dinar (n: 4.235 grams of gold) per person (A: per year). The maximum is whatever both sides agree upon.

It is collected with leniency and politeness, as are all debts, and is not levied on women, children, or the insane.

o11.5 Such non-Muslim subjects are obliged to comply with Islamic rules that pertain to the safety and indemnity of life, reputation, and property. In addition, they:

1. are penalized for committing adultery or theft, thought not for drunkenness;
2. are distinguished from Muslims in dress, wearing a wide cloth belt (zunnar);
3. are not greeted with "as-Salamu 'alaykum";
4. must keep to the side of the street;
5. may not build higher than or as high as the Muslims' buildings, though if they acquire a tall house, it is not razed;
6. are forbidden to openly display wine or pork, (A: to ring church bells or display crosses,) recite the Torah or Evangel aloud, or make public display of their funerals and feastdays;
7. and are forbidden to build new churches.

o11.6 They are forbidden to reside in the Hijaz, meaning the area and towns around Mecca, Medina, and Yamama, for more than three days when the caliph allows them to enter there for something they need).

o11.7 A non-Muslim may not enter the Meccan Sacred Precinct (Haram) under any circumstances, or enter any other mosque without permission (A: nor may Muslims enter churches without their permission).

o11.8 It is obligatory for the caliph (def: o25) to protect those of them who are in Muslim lands just as he would Muslims, and to seek the release of those of them who are captured.

o11.9 If non-Muslim subjects of the Islamic state refuse to conform to the rules of Islam, or to pay the non-Muslim poll tax, then their agreement with the state has been violated (dis: o11.11) (A: though if only one of them disobeys, it concerns him alone).

o11.10 The agreement is also violated (A: with respect to the offender alone) if the state has stipulated that any of the following things break it, and one of the subjects does so anyway, though if the state has not stipulated that these break the agreement, then they do not; namely, if one of the subject people:

1. commits adultery with a Muslim woman or marries her;
2. conceals spies of hostile forces;
3. leads a Muslim away from Islam;
4. kills a Muslim;
5. or mentions something impermissible about Allah, the Prophet (Allah bless him and give him peace), or Islam.

o11.11 When a subject's agreement with the state has been violated, the caliph chooses between the four alternatives mentioned above in connection with prisoners of war (o9.14).

o12.0 THE PENALTY FOR FORNICATION OR SODOMY

o12.1 The legal penalty is obligatorily imposed upon anyone who fornicates or commits sodomy (A: provided it is legally established (def: n11.2 (O:))) when they:

1. have reached puberty;
2. are sane;
3. and commit the act voluntarily;

no matter whether the person is a Muslim, non-Muslim subject of the Islamic state, or someone who has left Islam.

o12.2 If the offender is someone with the capacity to remain chaste, then he or she is stoned to death (def: o12.6), someone with the capacity to remain chaste meaning anyone who has had sexual intercourse (A: at least once) with their spouse in a valid marriage, and is free, of age, and sane. A person is not considered to have the capacity to remain chaste if he or she has only had intercourse in a marriage that is invalid, or is prepubescent at the time of material intercourse, or is someone insane at the time of marital intercourse who subsequently regains their sanity prior to committing adultery.

If the offender is not someone with the capacity to remain chaste, then the penalty consists of being scourged (def: o12.5) one hundred stripes and banished to a distance of at least 81 km./50 mi. for one year.

o12.4 Someone who commits fornication is not punished if he says that he did not know it was unlawful, provided he is a new Muslim or grew up in a remote (O: from Islamic scholars) wilderness, though if neither of these is the case, such a person is punished.

o12.5 An offender is not scourged in intense heat or bitter cold, or when he is ill and recovery is expected (until he recovers), or in a mosque, or when the offender is a woman who is pregnant, until she gives birth and has recovered from childbed pains. The whip used should be neither new nor old and worn-out, but something in between. The offender is not stretched out when scourged, or bound (O: as his hands are left loose to fend off blows), or undressed (O: but rather an ankle-length shirt is left upon him or her), and the scourger does not lay the stripes on hard (O: by raising his arm, such that he draws blood). The scourger distributes the blows over various parts of the body, avoiding the vital points and the face. A man is scourged standing; a woman, sitting and covered (O: by a garment wrapped around her). If the offender is emaciated, or sick from an illness not expected to improve, then he or she is scourged with a single date palm frond (O: upon which there are a hundred strips, or fifty. If a hundred, such an offender is struck once with it, and if fifty, then twice), or with the edge of a garment.

o12.6 If the penalty is stoning, the offender is stoned even in severe heat or cold, and even if he has an illness from which he is expected to recover. A pregnant woman is not stoned until she gives birth and the child can suffice with the milk of another.

o13.0 THE PENALTY FOR ACCUSING A PERSON OF ADULTERY WITHOUT PROOF

o13.1 When a person (who has reached puberty and is sane) voluntarily:

1. accuses another person of adultery or sodomy, whether the accusation is in plain words or allusive words intended as an accusation;
2. and the accused is someone who could be chaste (def:o13.2) and is not the offspring of the accuser;

then the accuser is subject to the penalty for accusing a person of adultery without four witnesses (A: which, if it concerns his spouse, he may obviate by public imprecation (dis: n11.1)), no matter whether he is a Muslim, non-Muslim subject of the Islamic state, someone who has left Islam, or is of a group that has a truce with Muslims.

o13.2 Someone who could be chaste in this context means someone who has reached puberty, is sane, free, Muslim, and has not committed an act of fornication (O: that is punishable)(A: meaning it has not been legally established (def: r11.2(O:))).

o13.3 The penalty for making such an accusation without witnesses is to be scourged (def: o12.5) eighty lashes.

o13.4 Accusations in plain words include such expressions as "You have committed fornication," and the like, while allusive words means such expressions as "You lecher," or "You wretch," If the latter terms are accompanied by the intention to accuse, they amount to an accusation, though if not, they do not. The accuser is the one whose word is accepted (A: when there is no proof, if he swears an oath) as to what he intended by such allusive words.

o13.5 If someone accuses a whole group of people of adultery who could not possibly all be guilty, such as saying, "All the people in Egypt are adulters, he is disciplined (def: o17). But when his accusation is not impossible, such as saying, "The So-and-so clan are adulterers," then he must bear a separate penalty for every single person in the group.

o13.6 Someone who twice accuses someone of adultery without witnesses is punished only once. Someone who accuses a person of adultery and is punished for the accusation, but then again accuses the person of the same act of fornication is merely disciplined (def: o17).

o13.7 When someone accuses a person who could possibly be chaste (def: o13.2) of adultery, but the accuser has not yet been punished at the time the accused subsequently commits an act of fonication, then the accuser is not punished.

o13.8 The penalty for accusing a person of adultery without witnesses is only carried out when the Islamic magistrate is present, and the accused requests that it be carried out. If the accused forgives the offender, there is no punishment.

o13.9 When an accusation has been made, if the accused dies (A: before the accuser has been punished), then his right (A: to demand that the punishment be carried out) is given to his heirs.

o14.0 THE PENALTY FOR THEFT

o14.1 A person's right hand is amputated, whether he is a Muslim, non-Muslim subject of the Islamic state, or someone who has left Islam, when he:

1. has reached puberty;
2. is sane;
3. is acting voluntarily;
4. and steals at least a quarter of a dinar (n: 1.058 grams of gold) or goods worth that much (A:at the market price current) at the time of the theft:
5. from a place meeting the security requirements normal (A: in that locality and time for safeguarding similar articles (def: o14.3);
6. provided there is no possible confusion (dis: o14.2(3)) as to whether he took it by way of theft or for some other reason.

If a person steals a second time, his left foot is amputated; if a third time, then his left hand; and if he steals again, then his right foot. If he steals a fifth time, he is disciplined (def: o17). If he does not have a right hand (N: at the first offense), then his left foot is amputated. If he has a right hand but loses it after the theft (O: by an act of God) but before he has been punished for it, then nothing is amputated. After amputation, the limb is cauterized with hot oil (A: which in previous times was the means to stop the bleeding and save the criminal's life).

o14.2 A person's hand is not amputated when:

1. (non-(d) above) he steals less than the equivalent of 1.058 grams of gold;
2. (non-(e)) he steals the article from a place the does not meet normal requirements for safeguarding similar articles (dis: below);
3. or (non-(f)) when there is a possible confusion as to why he took it, as when it was taken from the Muslim common fund (bayt al-mal) (O: provided the person is Muslim, since he might have intended to use it to build mosques, bridges, or hospices), or when it belongs to his son or father.

o14.3 A place that meets normal security requirements for safeguarding similar articles means a place appropriate for keeping the thing, this varying with the type of article, the different countries, and with the justness of the ruler or lace of it, as well as the ruler's relative strength or weakness. A suitable place for safeguarding fine clothes, money, jewels, and jewelry, for example, is a locked box; the place for trade goods, a locked warehouse with guards; the place for livestock, a stable; the place for pallets and bedding, a shelf in the house; and the place for a shroud, the grave.

o14.4 If two persons jointly steal the equivalent of 1.058 grams of gold, then neither's hand is amputated.

o14.5 A freeman's hand may not be amputated by anyone besides the caliph or his representative (def: o25).

o14.6 There is no amputation for forcible seizure (O: meaning someone relying on force (N: to take people's money, who has a gang nearby to bet him in this)), snatching (O: meaning someone who depends on running away and is unarmed), or betraying a trust (O: of something entrusted to him, such as a deposit for safekeeping), or appropriating something by disavowal (A: i.e. denying that the victim loaned or entrusted him with such and such a thing), (O: because of the Prophet's (Allah bless him and give him peace) saying,

"There is no amputation for someone who seizes by force, snatches and runs, or betrays a trust,:"

a hadith Tirmidhi classified as rigorously authenticated (Sahih)). (A: But if one of the abovementioned persons is a repeated offender whom it is in the interests of society to kill, the caliph may kill him.)

o15.0 THE PENALTY FOR HIGHWAY ROBBERY

o15.1 The caliph is obliged to summon whoever uses a weapon (O: though force suffices to be considered a weapon, or taking money by dint of one's fists) and makes people afraid to use the road (O: no matter whether in the wilderness, a village, or in the country; meaning he frightens those who pass along the way by means of his strength or weapons). If the highwayman responds to the summons before he has injured anyone, then he is only disciplined (def: o17).

If he steals the equivalent of 1.058 grams of gold under the previously mentioned conditions (o14.1), both his right hand and left foot are amputated.

(A: The difference between a highwayman and someone who takes by forcible seizure (dis: o14.6) is that the latter does so within earshot of help, while the offense of the highwayman is far greater because he menaces the lifeline of the community, its trade routes.)

o15.2 If a highwayman kills someone, he must be executed, even when the person entitled to retaliation (def: o3) agrees to forgo it. If the highwayman robs and kills, he is killed and then left crucified for three days. If he wounds or maims someone, retaliation is taken against him, though it may be waived by those entitled to take it.

o15.3 (N: The penalty for highway robbery, such as mandatory execution, crucifixion, and amputating the hand and foot, is cancelled if the highwayman repents (A: desists, and gives himself up) before he has been apprehended, though he is still liable to retaliation (def: o3) by parties entitled to it (A: for injuries or deaths he caused to victims) and is financially responsible for restoring the money he has taken.)

o16.0 THE PENALTY FOR DRINKING

o16.1 Any beverage that intoxicates when taken in large quantities is unlawful both in small and large quantities, is unlawful both is small and large quantities.whether it is wine, (A: fermented) raisin drink, or something else.

o16.2 The penalty for drinking is obligatorily enforced against anyone who:

1. drinks;
2. has reached puberty;
3. is sane;
4. is Muslim;
5. does so voluntarily;
6. and knows it is unlawful (A: the restrictions mentioned above (o12.4) about the ignorance of the prohibition of adultery also applying here).

o16.3 The penalty for drinking is to be scourged forty stripes, with hands, sandals, and ends of clothes. It may be administered with a whip, but if the offender dies, an indemnity (def: o4.4) is due (A: from the scourger) for his death. If the caliph (def: o25) increases the penalty to eighty stripes, it is legally valid, but if the offender dies from the increase, the caliph must pay an adjusted indemnity, such that if he is given forty-one stripes and dies, the caliph must pay 1/41 of a full indemnity.

o16.4 Someone who commits adultery several times (O: or drinks several times, or steals several times) before being punished is only punished once for each type of crime.

o16.5 The penalty for a crime is not obviated by the offender's having repented for it, with the sole exception of the highwayman, who is not penalized at all (dis: o15.3) if he repents before he is caught.

o16.6 It is not permissible to drink an intoxicant under any circumstances, whether for medicine (O: or in bread, or to cook meat with it), or out of extreme thirst, with the sole exception of when one is choking on a piece of food and there is no other means of clearing it from one's throat save by drinking the intoxicant, in which case it is obligatory. (O: Sheikh al-Islam (A: Zakariyya Ansari) states, "It may not be used for medicine or extreme thirst, though there is no prescribed penalty for doing so, even when something besides it is available." The prohibition of using it for medicine or extreme thirst refers to when it is unadmixed, as opposed to when it is compounded with something else that renders it completely indistinguishable, such that no taste, color, or odor of it remains, in which case it is permissible.)

NONALCOHOLIC INTOXICANTS

o16.7 (Muhammad Shirbini Khatib:) The term beverage (dis: o16.1) excludes plants, such as hashish, which hashish users eat. The two sheikhs (A: Rafi'i and Nawawi) report in their section on foods the position of ruyani that eating it is unlawful, though no legal penalty is fixed for it (Mughni al-muhtaj ila ma`rifa ma`ani alfaz al-Minhaj (y73), 4.187).

(al-Mawsu`a al-fiqhiyya:) Just as any beverage that intoxicates when taken in large quantities is also unlawful in small quantities, so too it is absolutely unlawful to use any solid substance detrimental to mind or body which produces languor or has a narcotic effect, this prohibition applying to the amount that is deleterious of it, not to the minute, beneficial amounts prescribed to treat illnesses, for such substances are not unlawful in themselves, but unlawful because they are deleterious (mawdu' al-ashriba. Tab`a tamhidiyya li mawdu `at al-Mawsu`a al-fiqhiyya, no. 1(y134), 49).

o17.0 DISCIPLINARY ACTION (TA`ZIR)

o17.1 Someone who commits an act of disobedience to Allah Most High that entails neither a prescribed legal penalty nor expiation, such as bearing false witness, is disciplined to the extent the caliph (def: o25) deems appropriate. (O: He exercises his own legal reasoning (ijtihad) and does what he thinks should be done, whether imprisonment and beating, either one separately, or mere verbal reprimand. He may not administer a more severe degree of punishment than what he feels is strictly necessary.)

o17.2 Disciplinary action may not reach the amount of the least prescribed legal penalty. For example, a freeman (o: if scourged) may not receive forty stripes.

o17.3 If the caliph sees fit not to take any disciplinary action, this is also permissible (O: when it concerns a right owed to Allah Most High, for the ruler is entrusted with using his own legal reasoning. But if it concerns a right owed to a fellow human being who has demanded that it be fulfilled (A: such as when someone has been cheated) it is impermissible to do nothing. If a person is entitled to have another disciplined, but instead forgives him, the ruler may nevertheless discipline him).

o17.4 (O: A father or grandfather (and on up) is entitled to discipline those under his care when they commit an act that is unbecoming. And so may a mother with her child. a husband is entitled to discipline his wife for not giving him his rights (def: m5.1). A teacher may discipline a student. (A: Spanking a student, for example, is permissible if there is a valid lawful purpose to be served thereby, and the student's guardian has given the teacher permission.))

o18.0 OATHS (YAMIN)

(A: An oath is a solemn statement to do or refrain from something, or that something is true, such that if things turn out otherwise, the swearer must make an expiation (def: o20.2).)

o18.1 An oath is only valid from a person (O: whether Muslim or non-Muslim) who:

1. has reached puberty;
2. is sane;
3. makes the oath voluntarily;
4. and intends an oath thereby.

o18.2 The oath of someone whose tongue runs away with him and who unthinkingly swears an oath, or someone who intends a particular oath but unintentionally swears something else, does not count and is an unintentional oath (A: which is mentioned in the Holy Koran (n: at 5:89)).

o18.3 An oath is only validly effected if sworn by a name of Allah Most High, or an attribute of His entity (dhat).

(N: It is offensive to swear an oath by other than Allah if one merely intends it as an asseveration of one's statement, though it is unlawful to do so if one intends reverance to the thing sworn by.)

o18.4 There are some names of Allah Most High that are applied to no one but Him, such as Allah, the All-merciful, the All-vigilant, and Knower of the Unseen. An oath sworn by any of these is valid without restriction.

o18.5 Other names of Allah may be conditionally applied to other than Him, such as Lord (Rabb) (n: rabb bayt meaning, for example, home owner), the All-compassionate (al-Rahim) (n: rahim al-qalb meaning softhearted), or the Omnipotent (al-Qadir) (n:qadir 'alayhi meaning capabale of it; the second term of each of these examples indicating that Allah is not meant). An oath sworn by such names is validly effected unless the swearer specifically intends something else.

o18.6 Other of Allah's names are applied to both Him and His creatures, such as the Living (al-Hayy), the Existent (al-Mawjud), or the Seeing (al-Basir). An oath sworn by such names is not validly effected unless the swearer specifically intends it as an oath.

o18.7 An oath sworn by the attributes of Allah that are inapplicable to creatures, such as Allah's glory, His exaltedness, His endless eternality, or the Koran, is validly effected without restriction.

o18.8 An oath sworn by divine attributes that are sometimes used to allude to creatures, such as Allah's knowledge, His power, of His right, is validly effected unless the swearer intends something else by them, such as meaning by knowledge the things known, by power the things under its sway, or by right (n: the) acts of worship (n: that are His right), in which cases an oath has not been validly effected.

o18.9 An oath is validly effected when a person says, "I swear by Allah that...," or "I've sworn by Allah that...," unless the person merely intends to inform.

o18.10 Unless one particularly intends it as an oath, an oath is not validly effected when the following expressions are used: "I will not do such and such, by the life of Allah," or "I resolve by Allah," or "by the covenant of Allah," "His guarantee," "His trust," "His sufficiency," or "I ask you by Allah," or "I swear by Allah that you must do such and such."

o19.0 EXAMPLES OF BREAKING AND NOT BREAKING OATHS

o19.1 If one swears, "I will not eat this wheat," but then makes in into flour or bread (A: and eats it), one has not broken one's oath.

If one swears, "I will not drink from this river," but then drinks its water from a jug, one has broken one's oath.

If one swears, "I will not eat meat," but then eats fat, kidneys, tripe, liver, heart, spleen, fish, or locusts, one has broken one's oath.

o19.3 If one swears, "I will not enter the house," but then does so absentmindedly, in ignorance of its being the house, under compulsion, or by being carried in, then one's oath is not broken and is still in effect.

o19.5 When a person swearing an oath about something (O: in the future, affirming or denying that it will occur) includes the expression in sha' Allah ("if Allah will") before finishing the oath, then the oath is not broken in any event if he thereby intends to provide for exceptions. But if he merely says it out of habit, not intending to make an exception to his oath, or if he says it after having finished swearing the oath, then the exception is not valid (O: because when an oath has been completed, its efficacy is established and not eradicable by a statement of exception).

o20.0 THE EXPIATION FOR A BROKEN OATH

o20.1 An expiation is obligatory for someone who swears and breaks an oath. If the swearer is entitled to expiate by the expenditure of property (def: o20.2(1-3)), it is permissible for him to do so before or after breaking the oath. But if it consists of fasting, then he may only do so after breaking the oath.

o20.2 The expiation consists of (N: a choice of any) one of the following:

1. to free a sound Muslim slave;
2. to feed ten people who are (N: poor or) short of money (def: h8.8-11) each (0.51 liters of grain (O: though it is not a condition that it be grain, but rather the type of food payable for the zakat of 'Eid al-Fitr (def: h7.6), even if not grain (A: and the Hanafi school permits giving its value in money)):
3. or to provide clothing of any kind for ten such persons, even if it consists of a wraparound or clothing previously washed, though not if ragged.

If one is unable to do any of the above, one must fast for three days. It is better to fast them consecutively, though permissible to do so nonconsecutively.

o20.4 (O: Someone eligible to receive zakat funds or expiations because of being poor (def: h8.8) or short of (def:h8.11) may expiate broken oaths by fasting.)

o21.0 THE JUDGESHIP

o21.1 To undertake the Islamic judgeship is a communal obligation (def: c3.2) (O: for those capable of performing it in a particular area). If only one competent person exists who can perform it, then it is personally obligatory for him to do so. If he refuses, he is compelled to accept (O: though he is only obliged to accept the judgeship when it is in his own home area, not when it is elsewhere, for this would be like a punishment, involving as it does wholly leaving one's home). Such an individual person may not take a salary for it- (N: because in respect to him it has become personally obligatory, and it is not permissible to take a wage for something personally obligatory, as opposed to something that is a communal obligation (A: for which accepting a wage is permissible))- unless he is needy (O: in which case the Muslim common fund gives him enough to cover his expenses and those of his dependents, without wastefulness or penury. But if he agrees to judge without being paid (N: i.e. in expection of the reward from Allah), it is better for him).

o21.2 It is permissible to have two or more judges in the same town.

o21.3 It is not valid for anyone besides the caliph (def: o25) or his representative to appoint someone as judge.

o21.4 It is permissible for two parties to select a third party to judge between them if he is competent for the judgeship (def: o22.1) (O: provided the case does not concern Allah's prescribed penalties, (A: and they may select such a person) even when a judge exists), It is obligatory for them to accept his decision on their case, though if either litigant withdraws his nomination before the third party gives his judgement, the latter may not judge.

o22.0 THE JUDGE AND THE COURT

o22.1 The necessary qualifications for being an Islamic judge (qadi) are:

1. to be a male freeman;
2. to have full capacity for moral answerability (taklif, def: c8.1);
3. to be upright (o24.4):
4. to possess knowledge (O: of the rulings of Sacred Law, meaning by way of personal legal reasoning (ijtihad) (A: from primary texts), not merely by following a particular qualified scholar (taqlid) (A: i.e if he follows qualified scholarship, he must know and agree with how the rulings are derived, not merely report them). Being qualified to perform legal reasoning (ijtihad) requires knowledge of the rules and principles of the Koran, the sunna ( A: is this context meaning the hadith, not the sunna as apposed to the obligatory), (N: as well as knowledge of scholarly consensus (ijma', def: b7)), and analogy (def: III below), together with knowing the types of each of these. (A: The knowledge of each "type" below implies familiarity with subtypes and kinds, but the commentator has deemed the mention of the category as a whole sufficient to give readers as general idea.)
   1. The types of Koranic rules include, for example:
      1. those ('amm) of general applicability to different types of legal rulings;
      2. those (khass) applicable to only one particular ruling or type or type or ruling;
      3. those (mujmal) which require details and explanation in order to be properly understood;
      4. those (mubayyan) which are plain with out added details;
      5. those (mutlaq) applicable without restriction;
      6. those (muqayyad) which have restrictions;
      7. those (nass) which unequivocally decide a particular legal question;
      8. those (zahir) with a probable legal signification, but which may also bear an alternative interpretation;
      9. those (nasikh) which supersede previsouly revealed Koranic verses;
      10. and those (mansukh) which are superseded by later verses.
   2. The types of sunna (A: i.e. hadith) include:
      1. hadiths (mutawatir) related by whole groups of individuals from whole groups, in multiple contiguous channels of transmission leading back to the Prophet himself (Allah bless him and give him peace), such that the sheer number of separate channels at each stage of transmission is too many for it to be possible for all to have conspired to fabricate the hadith (A: which is thereby obligatory to believe in, and denial of which is unbelief (kufr));
      2. hadiths (ahad) related by fewer than the above-mentioned group at one or more stages of the transmission, though traced though contiguous successive narrators back to the Prophet (Allah bless him and give him peace). (n: If a hadith is transmitted through just one individual at any point in the history of its transmission, the hadith is termed singular (gharib). If it is transmitted through just two people at any stage of its transmission, it is termed rare ('aziz). If its channels of transmission, come through only three people at any point of its history, it is termed wellknown (mashhur). These designations do not directly influence the authenticity rating of the hadith, since a singular hadith, for example, might be rigorously authenticated (sahih), well authenticated (hasan) (N: hadiths of both types being obligatory for a Muslim to believe in, though someone who denies them is merely considered corrupt (fasiq), not an unbeliever (kafir)), or not well authenticated (da'if), depending on the reliability ratings of the narrators and other factors weighed and judged by hadith specialists);
      3. and other kinds. (n: Yusuf Ardabili mentions the following in his list of qualifications for performing legal reasoning (ijtihad):)
      4. hadiths (mursal) from one of those (tabi'i) who had personally met (N: not only met, but actually studied under) one or more of the prophetic Companions (Sahaba) but not the Prophet himself (Allah bless him and give him peace) (n: hadiths reported in the form, "The Prophet said (or did) such and such," without mentioning the Companion who related it directly from the Prophet);
      5. hadiths (musnad) related though a contiguous series of transmitters back to the Prophet (Allah bless him and give him peace);
      6. hadiths (muttasil) related though a contiguous series of transmitters (n: either from the Prophet (Allah bless him and give him peace). such a hadith being termed ascribed (marfu'), or else only from one of the Companions, such a hadith being termed arrested (mawquf));
      7. hadiths (munqata') related through a chain of transmitters of whom one is unknown (n: though if two or more are unknown, it is not considered merely incontiguous (munqata'), but rather problematic (mu'dal));
      8. the positive and negative personal factors (jarh wa ta'dil) determining the reliability ratings of the individual narrators of a hadith's channel of transmission:
      9. the positions held by the most learned of the Companions (Sahaba) on legal questions, and those of the scholars who came after them;
      10. and on which of these positions there is scholarly consensus (def: b7), and which are differed upon (Kitab al-anwar lia'mal al-abrar fi fiqh al-Imam al-Shafi'i (y11), 2.391).

          (n: The English glosses and remarks on the meanings of the above hadith terminology are from notes taken by the translator at a lesson with hadith specialist Sheikh Shu'ayb Arna'ut.)
           

   3. Types of analogical reasoning (qiyas) include:
      1. making an a fortiori analogy between acts p and q, where if p takes a ruling, q is even likelier to take the same ruling. For example, if saying "Uff!" to one's parents is unlawful (n: as at Koran 17:23), one may analogically infer that beating them must also be unlawful;
      2. making an analogy between acts p and q, where if p takes a ruling, one may infer that q is equally likely to take the same ruling. For example, if it is unlawful to wrongfully consume an orphan's property, then it must also be unlawful to destroy his property by burning it up;
      3. and making an analogy between acts p and q, where if p takes a ruling, one may infer that it is likely, though less certain, that q takes the same ruling (A: because of a common feature in the two acts which functions as the basis ('illa) for the analogy). For example, if usurious gain (riba) is unlawful in selling wheat (dis: k3.1), then it is also unlawful in selling apples, the basis for the analogy being that both are food.

         The meaning of knowledge of the above matters is (A: for a judge) to know part of what is connected with the Koran, sunna (A: i.e. hadith), and analogy, not complete knowledge of the Book of Allah, total familiarity with the rules of the sunna, or comprehensive mastery of the rules of analogical reasoning, but rather that which is pertinent to giving judgements in court (A: though an absolute giving judgements in court (A: though an absolute expert in Islamic legal reasoning (mujtahid mutlaq) such as Abu Hanifa. Malik; Shafi'i, or Ahmad, is obliged to know what relates to every subject matter inSarced Law). He must know the reliability ratings of hadith narrators in strength and weakness. When two primary texts seems to contend, he gives precedence to:

         1. those of particular applicability (Khass) over those of general applicability ('amm);
         2. those that take restrictions (muqayyad) over those that do not (mutlaq);
         3. those which unequivocally settle a particular question (nass) over those of merely probabilistic legal significance (zahir);
         4. whose which are literal (muhkam) over those which are figurative (mutashabih);
         5. and those which supersede previous rulings, those with a contiguous channel of transmission, and those with a well-authenticated channel of transmission, over their respective opposites.

      He must likewise know the positions of the scholars of Sacred Law regarding their consensus and differences and not contradict their consensus (A: which is unlawful (dis: b7.2)) with his own reasoning.

      If no one possesses the above-mentioned qualifications, and a strong ruler appoints an unfit Muslim to the bench, such as someone who is immoral, or who (A: is incapable of independent legal reasoning (ijtihad) and) merely follows other qualified scholars (taqlid), or a child, or a woman, then the appointee's decisions are implemented because of necessity, so as not to vitiate people's concerns and interests (A: and this is what exists in our day, when the conditions for an Islamic judge are seldom met with));
       

5. sound hearing;
6. sound eyesight;
7. and the faculty of speech.

(O: The author did not mention the necessary condition of being a Muslim, evidently feeling that uprightness ((c) above) was sufficient to imply it.)

o22.2 It is recommended that the judge be stern without harshness, and flexible without weakness (O: so the litigants do not despise or disdain him for otherwise, people entitled to rights would not be able to obtain them).

o22.3 If the judge needs to appoint another person to handle a part of his caseload because it is too heavy for him, then be may assign someone to deal with the extra cases if the person himself is qualified to be a judge. If the judge does not need to, he may not appoint such a person without special permission (A: from the regional ruler).

o22.4 If the judge needs a court secretary, he must be Muslim, upright (def: o24.4), sane, and learned (O: meaning familiar with writing up plaintiffs' cases, recording what is done in each case and the judge's decisions, and must be able to distinguish between writing it correctly and incorrectly. The above four conditions are obligatory, there only remaining to be mentioned that the secretary must be male and free).

o22.5 The judge should not have a doorkeeper (O: if there is no crowd), though if he needs one, the doorkeeper must be sane, reliable, and unbribable.

o22.6 When not in the area of his jurisdiction, the judge may not give legal decisions, appoint others, or hear evidence (O: or claims).

o22.7 He may not accept gifts except from someone who customarily gave him gifts before he became judge, who is not a plaintiff, and whose gifts are not more lavish than those given before the judge's appointment. (O: The same is true for entertaining the judge as a guest, as well as lending articles to him which are of rentable value, such as lending him lodgings.) It is better for a judge not to accept any gifts. (O: And whenever gifts are not lawful to accept, he does not legally own them but must return them.)

o22.8 He should not decide cases when angry, hungry, thirsty, overwrought, exultant, ill, tired, flatulent, annoyed, or when the weather is irritatingly hot or cold (O: it being offensive for a judge to decide a case in any state that affects his temperament for the worse), though if he does, his decision is implemented.

o22.10 The judge should not sit in a mosque to decide cases (O: lest voices be raised therein, and because he might need to bring in the insane, children, a woman in her period, or non-Muslims;' for which reasons sitting in a mosque to decide cases is offensive). But if his sitting in the mosque (O: in prayer, spiritual retreat (i'tikaf), or awaiting group prayer) happens to coincide with the coming of two litigants, then he may judge between them (O: without it being offensive).

o22.11 The judge should sit with tranquility and gravity (O: as it creates greater respect for him and makes it likelier that he will be obeyed). He should have witnesses present and scholars of jurisprudence to consult with on points of difficulty. If a case is not clear, he should postpone giving a decision on it. He may not merely imitate another's decision on a case (A: but must be capable of expert legal reasoning (ijtihad) himself).

o22.12 The judge handles the cases on a firstcome-first served basis, one case per turn. If two arrive at the same time, they draw lots to see whose case will be heard first.

The judge (O: obligatorily) treats two litigants impartially, seating both in places of equal honor, attending to each, and so forth, unless one is a non-Muslim, in which case he gives the Muslim a better seat. He may not treat either litigant rudely, nor prompt one (O: as to how to state his case).

o22.13 The judge may intercede with one of them on behalf of the other (O: meaning to ask the two parties to settle their differences, which is what a judge's "intercession" is. It does not take place until after the truth has been established, which obviates his unfairly inclining to either one) and he may also pay one litigant what the other owes him.

o22.14 (N: When assigned to a new jurisdiction,) the judge first looks into the cases of the imprisoned, then orphans, and then of lost and found items.

o23.0 COURT CLAIMS

o23.1 If a plaintiff makes a claim that is not true, the judge considers it as if he had notheard it (O: and need not ask the defendant about it).

When a claim is true, the judge asks the defendant, "What do you say?" If the defendant admits the claim is true, the judge does not give a decision on the case (A: there being no need to) unless the plaintiff asks him to. But if the defendant denies the claim, then if the plaintiff has no proof, the defendant's word is accepted if he swears an oath to that effect. (O: This is when the claim does not involve blood (A: i.e. retaliation (def: o3) or indemnity (o4)). If it does, then if there is obscurity in the matter, the plaintiff's word is accepted (N: provided fifty separate oaths are sworn by and distributed over all those entitled to take retaliation).) The judge does not have the defendant swear an oath unless the plaintiff: requests it. If the defendant refuses to swear, then the judge has the plaintiff swear (A: that his claim is true), and when he does, he is entitled (O: to what he has claimed (A: from the defendant). But if the plaintiff also refuses to swear, the judge, dismisses both of them (O:from his presence).If the defendantis silent(O: not responding to the claim against him) then the judge should say, "Would that your would answer, for unless you do. I'll give the plaintiff the opportunity to swear an oath." If the defendant does not, then the plaintiff may swear an oath, and if he does, he is entitled to his claim.

o23.2 If the judge knows the truth of the claim (O: against the defendant), and it concerns one of the prescribed penalties of Allah Most High, meaning for fornication, theft, rebellion, or drinking, then he may not sentence the defendant, on that basis alone (O: on the basis of his knowledge of one of the above crimes. It is related of Abu Bakr Siddiq (Allah be well pleased with him) that he said,

"Where I to see someone who deserved a prescribed legal penalty, I would not punish him unless two witnesses attested to his deserving it in front of me.")

But when the judge knows the truth about something other than prescribed legal penalties, he must judge accordingly (O: the necessary condition for which is that he plainly state that he knows, such as by saying, "I know what he claims against you to be true, and have judged you according to my knowledge").

o23.3 When the judge does not know the language of the litigants, then he refers to upright (def: o24.4) persons familiar with it, provided they are a number (O: two or more) sufficient to substantiate the claim (def: o24.7-10).

o23.4 If a judge gives a decision on a case but then learns of an unequivocal text relating to it (O: from the Koran or mutawatir hadith (def: o22.1 (d(II))), a consensus of scholars, or an a fortiori analogy (o22.1(dIII))), that controverts his decision, then he reverses it.

o23.5 A court claim is not valid except from a plaintiff possessing full right to deal with his own property.

o23.6 It is not valid to litigate over something that is not determinately known (def: k2.1 (e)), though some exceptions to this exist, such as claiming a bequest.

If the plaintiff is claiming a financial obligation (dayn), he must mention its type, amount, and description.

If he is claiming some particular article ('ayn) (O: such as a house), he must identify it. If he is unable to (O: as when the article is protable, and out of town), then he must describe it (O: with a description that would be valid for buying in advance (def: k9.2(d,g))).

o23.7 If a defendant denies a claim against him (A: and the plaintiff has no proof) then his denial is accepted (A: provided he swears on oath), as also when he says, "I owe him nothing."

o23.8 If the claim is for a particular article that is currently in the possession of one of the litigants, then the word of the person who has it is accepted when he swears an oath that it is his. If the article is in the possession of both litigants (O: together, and there is no proof as to whose it is; or when it is in the possession of neither, such as when a third party has it), then each swears an oath (O: that it does not belong to the other) and half the article is given to each of them.

o23.9 When another person owes one something, but denies it, then one may take it from his property without his leave (O: whether one has proof of it or not). But if the person acknowledges that he owes it to one, one may not simply take it from him (O: because a debtor may pay back a debt from whatever part of his property he wishes).

o24.0 WITNESSING AND TESTIFYING

o24.1 It is a communal obligation (def: e3.2) to both witness (A: i.e observe) legal events and to testify to have witnessed them. If there is only one person to do so, then it is personally obligatory upon him, in which case he may not accept payment for it, though if it is not personally obligatory, he may accept a fee.

o24.2 Legal testimony is only acceptable from a witness who:

1. is free;
2. is fully legally responsible (mukallaf, def: c8.1) (O: as testimony is not accepted from a child or insane person, even when the child's testimony regards injuries among children that occurred at play);
3. is able to speak;
4. it mentally awake;
5. is religious (O: meaning upright (o24.4) (A: and Muslim), for Allah Most High says,

   "Let those of rectitude among you testify" (Koran 65:2), and unbelief is the vilest form of corruption, as goes without saying);
    

6. and who is outwardly respectable (O: respectability (muru'a) meaning to have the positive traits which one's peers possess in one's particular time and place. Sheikh al-Islam (A: Zakariyya Ansari) says, "Respectability is refraining from conduct that is unseemly according to standards commonly acknowledged among those who observe the precepts and rules of the Sacred Law." It is according to standards commonly acknowledged (def: f4.5) because there are no absolute standards for it, but rather it varies with different persons, conditions, and places, Such things as eating and drinking (A: in the marketplace0 or wearing nothing on one's head may vitiate it (A: though the latter is of no consequence in our times), as may a religious scholar's wearing a robe or cap in places where it is not customary for him to do so).

The testimony of an absentminded person (O: meaning someone who often makes mistakes and forgets) is not acceptable (O: because he is unreliable).

o24.3 Nor is testimony acceptable from someone who:

1. has committed an enormity (O: meaning something severely threatened against in an unequivocal text fro the Koran or hadith (dis: book p) N: though if someone who commits such an act then repents (def: p77) and is felt to be sincere in this, he regains his legal uprightness and his testimony is accepted, provided he is tested after his repentance long enough to believe in its genuineness);
2. persists in a lesser sin (O: because it then becomes an enormity, as opposed to when one does not persist therin. A lesser sin in one that has not been severely threatened against in an unequivocal text);
3. or is without respectability (def: o24.2(f)), such as a street-sweeper, bathhouse attendant, and the like.

(A: A legally corrupt or immoral person (fasiq) is someone guilty of (1) or (2) above.)

o24.4 (A: Normal uprightness ('adala) for purpose other than giving testimony in court means that one avoids (1) and (2) above, while (3) concerns court testimony alone (N: i.e. uprightness for testimony in court means a person is none of the above).)

o24.5 The testimony of a blind person is accepted about events witnessed before he became blind, though not events witnessed after, unless they are public events that are discussed among people, or when someone says something the blind person hears (O: such as a divorce, for example), and he takes the speaker by the hand and conducts him to the judge and testifies as to what he has said.

o24.6 The testimony of any of the following is unacceptable:

1. a person testifying for his son (O: son's son, and on down) or his father (O: father's father, and on up);
2. a person who stands to benefit (O: by his own testimony);
3. a person who stands to avoid loss to himself though his testimony;
4. a person testifying about his enemy;
5. or a person testifying about his own act.

o24.7 The testimony of the following is legally acceptable when it concerns cases involving property, or transactions dealing with property, such as sales:

1. two men;
2. two women and a man;
3. or a male witness together with the oath of the plaintiff.

o24.8 If testimony does not concern property, such as a marriage or prescribed legal penalties, then only two male witnesses may testify (A: though the Hanafi school holds that two women and a man may testify for marriage).

o24.9 If testimony concerns fornication or sodomy, then it requires four male witnesses (O: who testify, in the case of fornication, that they have seen the offender insert the head of his penis into her vagina).

o24.10 If testimony concerns things which men do not typically see (O: but women do), such as childbirth, then it is sufficient to have two male witnesses, a man and two women, or four women.

o25.0 THE CALIPHATE

(n: This section has been added here by the translator because the caliphate is both Obligatory in itself and the necessary precondition for hundreds of rulings (books k through o) established by Allah Most High to govern and guide Islamic community life. What follows has been edited from al-Ahkam al-sultaniyya wa al-wilayat ad-diniyya by Imam Abul Hasan Mawardi, together with three principal commentaries on Imam Nawawi's Minhaj al-talibin, extracts from which are indicated by parentheses and the initial of the commentator. Ibn Hajar Haytami (H:) Muhammad Shirbini Khatib (K:), or 'Abd al- Hamid Sharwani (S:).)

THE OBLIGATORY CHARACTER OF THE CALIPHATE

o25.1 (Mawardi:) The reason the office of supreme leadership has been established in Sacred Law is to fulfill the caliphal successorship to prophethood in preserving the religion and managing this-worldly affairs. The investiture of someone from the Islamic Community (Umma) able to fulfill the duties of the caliphate is obligatory by scholarly consensus (def: b7), though scholars differ as to whether its obligatory character is established through reason or through Revealed Law. Some say that it is obligatory by human reason, because of the agreement of rational individuals to have a leader to prevent them from wronging one another and to come between them when conflict and arguments arise. Without authorities, there would be a chaos of neglected people and a disorderly mob. Others hold that it is obligatory not through reason, but rather through Sacred Law, for the caliph performs functions that human reason might not otherwise deem ethically imperative, and which are not entailed by reason alone, for reason are not entailed by reason alone, for reason merely requires that rational beings refrain from reciprocal oppression and strife, such that each individual conform with the demands of fairness in behaving towards others with justice and social cohesion, each evaluating their course with their own mind, not anyone else's, whereas Sacred Law stipulates that human concerns be consigned to the person religiously responsible for them. Allah Mighty and Majestic says.

"You who believe, obey Allah and obey the Propeht and those of authority among you" (Koran 4:59).

thereby obliging us to obey those in command, namely the leader with authority over us. Abu Hurayra relates that the Propeht (Allah bless him and give him peace) said.

"Leaders shall rule you after me, the godfearing of them ruling you with godfearingness and the profligate ruling you with wickedness. So listen to them and obey them in everything that is right; for if they do well, it will count for you and for them, and if they do badly, it will count for you and against them."

(al-Ahkam al-sultaniyya wa al-wilayat al-diniyya (y87),(5-6)

o25.2 (H: The caliphate is a communal obligation (def: c3.2) just as the judgeship is (S: because the Islamic community needs a ruler to uphold the religion, defend the sunna, succor the oppressed from oppressors, fulfill rights, and restore them to whom they belong).)

THE QUALIFICATIONS OF A CALIPH

o25.3 (Nawawi:) among the qualifications of the caliph are that he be:

1. Muslim (H: so that he may see to the best interests of Islam and the Muslims (K: it being invalid to appoint a non-Muslims (K: it being invalid to appoint a non-Muslim (kafir) to authority, even to rule non-Muslim.) (S: Qadi 'lyad states that there is scholarly consensus (def: b7) that it is not legally valid to invest a non-Muslim as caliph, and that if a caliph becomes a non-Muslim (dis: o8.7) he is not longer caliph, as also when he does not maintain the prescribed prayers (A: meaning to both perform them himself and order Muslim to) and summon the people to them, and likewise (according to the majority of scholars) if he makes reprehensible innovations (bid'a, def: w29.3) (A: by imposing an innovation on people that is Offensive or unlawful). If the caliph becomes a non-Muslim, alters the Sacred Law- (N: such alteration being of two types, one of which consists of his changing the Law by legislating something which contravenes it while believing in the validity of the provisions of the Sacred Law, this being an injustice that does not permit rebellion against him, while the other consists of imposing rules that contravenes the provisions of the religion while believing in the validity of the rules he has imposed, this being unbelief (kufr) (A: it is questionable whether anyone would impose much rules without believing in their validity))- or imposes reprehensible innovations while in office, then he loses his authority and need no longer be obeyed, and it is obligatory for Muslims to rise against him if possible, remove him from office, and install an upright leader in his place. If only some are able, they are obliged to rise up and remove the unbeliever (A: whether they believe they will succeed or fail), through it is not obligatory to try to remove a leader who imposes reprehensible innovations unless they believe it possible. If they are certain that they are unable to (A: remove an innovator), they are notobliged to rise against him. Rather, a Muslim in such a case should emigrate from his country (N: if he can find a better one), fleeing with his religion (A: which is obligatory if he is prevented in his home country from openly performing acts of worship)));
2. possessd to legal responsibility (def: c8.1) (K: so as to command the people, it being invalid for a child or insane-person to lead):
3. free (K: so that others may consider him competent and worthy or respect):
4. male (K: to be able to devote himself fulltime to the task, and to mix with men, the leadership of a woman being invalid because of the rigorously authenticated (sahih) hadith.

   "A people that leave its leadership to a woman will never succeed"):
    

5. of the Quraysh tribe (K: because of the (H: well-authenticated (hasan)) hadith related by Nasa'i.

   "The Imams are of the Quraysh."

   a hadith adhered to by the Companions of the Prophet (Allah bless him and give him peace) and those after them, this qualification being obligatory when there is a member of Quraysh available who meets the other conditions) (H: though when there is not , then the next most eligible is a qualified member of the Kinana tribe, then of the Arabs, then of the non-Arabs);
    

6. capable of expert legal reasoning (ijtihad) (H: as a judge must be (def: o22). 1(d)) and with even greater need (K: so as to know the rulings of Sacred Law, teach people, and not need to seek the legal opinion of others concerning uprecedented events), scholarly consensus (def: b7) having been related concerning this condition, which is not contradicted by the statement of the Qadi (A: 'Iyad) that "an ignorant upright person is fitter than a knowledgeable corrupt one," since the former would be able to refer matters requiring expert legal reasoning to qualified scholars, and moreover the remark applies to when the available leaders are not capable of legal reasoning (S: while possessing the other qualifications for leadership));
7. courageous (K: meaning undaunted by danger, that he may stand alone, direct troops, and vanquish foes);
8. possessed of discernment (H: in order to lead followers and see to their best interests, religious or this-worldly discernment meaning at minimum to know the various capacities of people), sound hearing and eyesight, and the faculty of speech (K: so as to decisively arbitrate matters);
9. (H: and be upright (def: o24.4) as a judge must be, and with even greater need. But it is valid, if forced to, to resor to the leadership of a corrupt person, which is why Ibn 'Abd al-Salam says, "If there are no upright leaders or rules available, then the least corrupt is given precedence").

THE THREE WAYS A CALIPH MAY BE INVESTED WITH OFFICE

o25.4 The caliphate may legally be effected (K: through three means, the first of which is):

1. by an oath of fealty (H: like the one sworn by the prophetic Companions to Abu Bakr (Allah be well pleased with them)) which, according to the soundest position, is (H: legally binding if it is) the oath of those with discretionary power to enact or disolve a pact (ahl al-hall wa al-'aqd) of the scholars, leaders, and notables able to attend (K: since the matter is accomplished through them, and all the people follow them. It is not a condition that all those with discretionary power to enact or dissolve a pact be present from every remote region, or that there be a particular number present, as the author's words seem to imply, but rather, if discretionary power to enact or dissolve a pact exists in a single individual who is obeyed, his oath of fealty is sufficient.) (H: As for an oath of fealty from common people without discretionary power to enact or dissolve a pact, it is of no consequence) and they (H: those pledging fealty) must possess the qualifications necessary to be a witness (K: such as uprightness and so forth (def: o24.2)) (Mughni al-muhtaj ila ma'rifa ma'ani alfaz al-Minhaj (y73), 4.129-31, and Hawashi al-Shaykh 'Abd al-Hamid al-Sharwani wa al-Shaykh Ahmad ibn Qasim al-'Abbadi'ala Tuhfa al- muhtaj bi sharh al-Minhaj (y2), 9.74-76).

   (Mawardi:) When those with power to enact or dissolve a pact meet to select the caliph, they examine the state of the available qualified candidates, giving precedence to the best of them and most fully qualified, whose leadership the public will readily accept and whose investiture people will not hesitate to recognise. When there is only one person whom the examiners' reasoning leads them to select, they offer him the position. If he accepts, they swear an oath of fealty to him and the supreme leadership is thereby invested in him, the entire Islamic Community (Ummma) being compelled to acknowledge fealty to him and submit in obedience to him. But if he refuses the caliphal office, not responding to their offer, he is not forced to comply-as investiture comes of acceptance and free choice, not compulsion and constraint-and they turn to another qualified candidate (al-Ahkam al-sultaniyya wa al-0wilayat al-diniyya (y87), 7-8);
    

2. (Nawawi:) and (H: the second means (K: through which it may be effected is)) by the caliph appointing a successor (H: meaning someone after him, even if it be his descendant or ancestor, for Abu Bakr appointed 'Umar (Allah be well pleased with them) as his successor, and scholarly consensus (def: b7) was effected in recognizing its legal validity. This type of investiture consists of the caliph appointing a sucessor while still alive, to succeed him after death. Though actually his successor during his life, the successor's disposal of affairs is suspended until the caliph dies).

   If the caliph appoints a group to select a successor from among themselves, it is as if he had appointed a successor (K: though the successor is not yet identified) (H: resembling an appointment in it being legally binding and obligatory to accept the outcome of their choice) and they choose one of their number (K: after the caliph's death, investing the person they select with the caliphate) (H: because 'Umar appointed a committee of six to choose his successor from among themselves: 'Ali, 'Uthman, Zubayr, 'Abd al-Rahman ibn 'Awf, Sa'd ibn Abi Waqqas, and Talha, and after his death they agreed upon 'Uthman, (Allah be well pleased with them));
    

3. an (H: the third means is) through seizure of power b a individual possessing the qualifications of a caliph (H: meaning by force, since the interests of the whole might be realized through such a takeover, this being if the caliph has died, or has himself obtained office through seizure of power, i.e. when he lacks some of the necessary qualifications.) (S: As for when the office is wrested from a living caliph, then if he himself became caliph through seizure of power, the caliphate of his deposer is legally valid. But if he became caliph through an oath of fealty (def: o25.4(1)) or having been appointed as the previous caliph's successor (def: o25.4(2)), then the deposer's caliphate is not legally valid). A takeover is also legally valid, according to the soundest position, by someone lacking moral rectitude (dis: o25.3(i)) or knowledge of Sacred Law (o25.3(f)) (K: meaning the caliphate of a person lacking either condition is legally valid when the other conditions exist) (H: as is the takeover of someone lacking other qualifications, even if he does not possess any of them (S: besides Islam, for if a non-Muslim seizes the caliphate, it is not legally binding, and so too, according to most scholars, with someone who makes reprehensible innovations, as previously mentioned (dis: o25.3(a))). The caliphate of someone who seizes power is considered valid, even though his act of usurpation is disobedience, in view of the danger from the anarchy and strife that would otherwise ensue).

THE OBLIGATORY CHARACTER OF OBEDIENCE TO THE CALIPH

o25.5 (K: It is obligatory to obey the commands and interdictions of the caliph (N: or his representative (def: o25.7-10)) in everything that is lawful (A: meaning it is obligatory to obey him in everything that is not unlawful, offensive, or merely in his own personal interests), even if he is unjust, because of the hadith,

"Hear and obey, even if the ruler placed over you is an Ethiopian slave with amputated extremities,"

and because the purpose of his authority is Islamic unity, which could not be realized if obeying him were not obligatory. It is also obligatory for him to give sincere counsel to those under him to the extent that it is possible.)

THE INVALIDITY OF A PLURALITY OF CALIPHS

o25.6 (K: It is not permissible for two or more individuals to be invested with the caliphate (H: at one time), even when the are in different regions, or remote from one another, because of the disunity of purpose and political dissolution it entails. If two are simultaneously invested as caliph, neither's caliphate is valid. If invested serially, the caliphate of the first of them is legally valid and the second is disciplined (def: o17) for committing an unlawful act, together with those who swear fealty to him, if the are aware of the first's investiture as caliph) (Mughni al0muhtaj ila ma'rifa ma'ani alfaz al-Minhaj (y73), 4.132, and Hawashi al-Shaykh 'Abd al-Hamid al-'Abbadi 'ala Tuhfa al-muhtaj bisharh al-Minhaj (y2), 9.77-78).

DELEGATING AUTHORITY TO THOSE UNDER THE CALIPH

o25.7 (Mawardi:) The authority deligated to a minister of state may be of two kinds, full or limitary.

1. Full ministerial authority is when the caliph appoints as minister an individual who is entrusted with independently managing matters through his own judgement and implementing them according to his own personal reasoning (ijtihad).

   Appointing such an individual is not legally invalid, for Allah Most High says, quoting His prophet Moses (Allah bless him and give him peace),

   "And appoint for me a minister from any family. Aaron my brother; fortify me through him and have himshare my task" (Koran 20:29-32),

   and if valid respecting the task of prophethood, it is valid a fortiori regarding the function of the caliphate. Another reason is that the direction of the Islamic Community (Umma), which is the caliph's duty, cannot be fully conducted alone without delegating responsibility; for him to appoint a minister to participate therin is sounder than attempting to manage everything himself, a minister to help keep him from following mere personal caprice, that he may thus be further from error and safer from mistakes.

   The conditions necessary for such a minister are the same as those for a'caliph, excepting lineage alone (dis: o25.3(e)), for the minister must implement his views and execute his judgements, and must accordingly be capable of expert legal reasoning (ijtihad). He must also possess an additional qualification to those required for the caliphate, namely, by being specially qualified to perform the function he is appointed to.
    

2. Limitary ministerial authority is a lesser responsibility and has fewer conditions, since the role of personal judgement therein is confined to the views of the caliph and their implementation, this minister being, as it were, an intermediary between the caliph, his subjects, and their appointed rulers; delivering orders, performing directives, implementing judgements, informing of official appointments, mustering armies, and informing the caliph in turn of important events, that the minister may deal with them as the caliph orders. He is an assistant in carrying out matters and is not appointed to command them or have authority over them. Such a ministry does not require an appointment but only the caliph's permission.

o25.8 When the caliph appoints a ruler over a region or city, the ruler's the ruler's authority may be of two kinds, general or specific. The general may in turn be of two types, authority in view of merit, which is invested voluntarily; and authority in view of siezure of power, invested out of necessity.

o25.9 Authority in view of merit is that which is freely invested by the caliph through his own choice, and entails delegating a given limitary function and the use of judgement within a range of familiar alternatives. This investiture consists of the caliph appointing an individual to independently govern a city or region with authority over all its inhabitants and discretion in familiar affairs for allmatters of government, including seven functions:

1. raising and deploying armies on the frontiers and fixing their salaries, if the caliph has not already done so;
2. reviewing laws and appointing judges and magistrates;
3. collecting the annual rate (khiraj) from those allowed to remain on land taken b Islamic conquests, gathering zakat from those obliged to pay, appointing workers to handle it, and distributing it to eligible recipients;
4. protecting the religion and the sacrosanct, preserving the religion from alteration and substitution;
5. enforcing the prescribed legal measures connected with the rights of Allah and men;
6. leading Muslims at group and Friday prayers, whether personally or by representative;
7. facilitating travel to the hajj for both pilgrims from the regian itself and those passing through from elsewhere, that they may proceed to the pilgrimage with all necessary help,
8. and if the area has a border adjacent to enemy lands, an eighth duty arises, namely to undertake jihad against enemies, dividing the spoils of battle among combatants, and setting aside fifth (def: o10.3) for deserving recipients.

o25.10 Authority in view of seizure of power, invested out of necessity, is when a leader forcibly takes power in an area over which the caliph subsequently confirms his authority and invests him with its management and rule. Such a leader attains political authority and managementby takeover, while the caliph, by giving him authorization, is enable to enforce the rules of the religion so that the matter may brought from invalidity to validity and from unlawfulness to legitimacy. And if this process is beyond what is normally recognized as true investiture of authority with its conditions and rules, it yet preserves the ordinances of the Sacred Law and rules of the religion that ma not be left vitiated and compromised (al-Ahkam al-sultaniyya wa al-wilayat al-diniyya (y87), 25-39).

o26.0 THE CONCLUSION OF 'UMDAT AL-SALIK

o26.1 And Allah Most High and Glorious knows best what is correct (O: meaning that He knows best what actually 1" corresponds to the truth, in word and deed, the author thereby denying the claim to know better. There is scholarly disagreement as to whether the truth (A: about the rule of Allah for a particular ruling) is really one or multiple (A: many scholars holding that all positions of qualified mujtahids on a question are correct). In fact, it is one, the Imam who is right about it (Allah be well pleased with them all) receiving two rewards, one for his attempt and one for being correct, while the one who is not is mistaken, receiving a reward for his effort and being excused for his mistake. All of which applies to particular rulings of Sacred Law (furu'), as opposed to fundamentals of Islamic faith (usul, def: books u and v), in which the person wrong about them is guilty of serious sin, as is anyone who contradicts the tenets of the orthodox Sunni Community (Ahl al-Sunna wa al-Jama'a)).  

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