30.1 Its meaning
[ Linguistically jihad is derived from jahd, which, acording to al-Misbah, is effort
in what someone does, or juhd which is ability. It is a technical term for the Muslim fighting the unbelievers who
have no treaty with the intention of elevating the word of Allah or presenting Islam.
Jihad has obligations which must be met. They are:
- Obeying the ruler and so when he recommends going in a particular direction to fight, it is binding
to go there.
- Ghulul (misappropriation) must be abandoned: it means to take from the booty before it is divided.
- He must be honour to a safe-conduct, and so when an unbeliever is granted safe-conduct, he must abide
by it and he is not permitted after that to deem it lawful to kill him.
- One must not flee when the odds are two to one: which means standing firm in the fray.
Jihad has two categories; individual obligation and general obligation. When it becomes a specific
duty to do it and it cannot be opposed, whether it the person is one of those who are responsible for the obligation
of jihad or not, like the slave and child who cannot fight and women, as when the enemy arrives suddenly in the place and
only these people are available, then it is an individual obligation for them.]
30.2. How and when it is obligatory
30.2a. An obligation
Jihad is an obligation which can be taken on by some of the people on behalf of others.
[By the words of the Almighty: "Those believers who stay behind – other than those forced by
necessity – are not the same as those who do jihad in the way of Allah." (4:95) Allah has promised both good, ie. the
best reward which is the Garden. There is mutawatir sunna that the Prophet sent some people rather than others.]
30.2b. Inviting people to Islam first
And it is preferable, according to us, that the enemy are not fought until they have been invited
to the din of Allah except if they attack first.
[The Malikis prefer that each group be called upon to abandon their disbelief and be called
to the shahada whose contents are not prescribed. He calls to the general message of the Prophet for three days in succession
unless they attack first. Then the call is not recommended. Indeed, it becomes obligatory to fight them.]
30.2c. Offering a choice between Islam and jizya
They can either accept Islam or pay the jizya (tax on non-Muslims); if not they are to be fought.
[His apparent words mean that they are given a choice between the two at the same time. If they accept
one, they are left. Otherwise they are fought. Al-Jawhar describes the call as Islam being offered to them. If they
answer, they are left. If they refuse, then jizya is offered to them, If they refuse, they are fought. All of that is when
there is a delay and there is time. If they attack before the call, preventing our call, they are fought because then the
call is unlawful.]
30.2d Where jizya is acceptable
Jizya is only acceptable in places where they are subject to our law. If they are a long way from
our jurisdiction jizya can only be accepted from them if they move to our territory. If they do not do this they are to be
[Ibn 'Umar said that this precondition is about the people of force. As for the people of truce,
it is not a precondition for them. Jizya is accepted from them where they are because they restrained themselves until they
paid peace for themselves and their lands. ]
30.2e. Fleeing from the enemy not allowed
Fleeing from the enemy is a major wrong action when their number is twice that of the muslims or
[This is when the unbelievers are twice that of the Muslims in strength or stronger, or the business
is not known. It is the well-known position when they are considered weak according to the number, not the force, as opposed
to Ibn al-Majishun. He says that they must be established as more than twice the number if they are superior to the unbelievers
in weapons and stronger in strength and resolve. The prohibition against flight is when he flees and does not intend to return.
If he does that as a trick or to join another group so that the enemy sees the retreat and follows him and he returns or he
rejoins the amir or the group of the Muslims to help them, then it is not unlawful.]
30.2f When flight is allowed
If there are more than that there is no wrong in doing so.
[If there are more than twice the number of Muslims, there is no harm in flight. Such it would appear,
even if the Muslims number as many as 12,000, which is in an-Nawadir from Sahnun. Ibn Rushd related from group of the
people of knowledge and he is thinks that when the Muslims reach 12,000, they are not permitted to flee, even if the unbelievers
are more than twice their number.]
30.2g. Fighting under any commander
The enemy are to be fought whether the commander of the muslims is right-acting or not.
[It is obligatory for those for whom jihad is obligatory to fight the enemy. The Prophet said, "Allah
will support his deen by the impious man." Perhaps if he does not fight with him, there might be harm for the Muslims.]
30.2h Killing prisoners
There is no harm in killing an enemy prisoner but you may not kill anyone after a pledge of security
has been given, nor may you break a treaty.
[When there is benefit in killing him. After security is given by the Imam or someone else in
the well-known position, contrary to the one who says that security given by other than the Imam is dependent on the view
of the Imam. The basis of the well-known position is the words of the Prophet about a banner being set up for the treacherous
on the Day of Rising, when it will be said, "This is the betrayal of so-and-so." It means that he will be known as treacherous
on the Day of Rising so that the people there will censure him. Nor is a treaty to be broken.]
30.2i Not killing women and children
Nor may you kill women and children.
[Since that prohibition is sound from the Prophet. Similarly jizya is not imposed on them. The Imam
can give them choice between three: enslavement, freedom and ransom.]
30.2j Monks and priests and women who fight
Killing monks and priests should be avoided unless they are involved in the fighting. Similarly,
women who fight can also be killed.
[The prohibition against killing monks is not by virtue of their monasticism, because they are
further from Allah because of the strength of their disbelief. They are left since the people of their deen leave them and
so they are like women. Priests (rabbis) are left unless they actually fight. It is said that this refers to women and children
as well. Women can be killed if they are involved in the actual fighting. Ibn 'Umar limits this to the state of fighting.
When fighting is over, women are not killed. The predominant opinion is that when women fight with weapons, they can be killed
during the fighting or afterwards, even if they did not fight anyone. According to the Mukhtasar, monks and nuns retain
their freedom, and it is forbidden either to kill them or to reduce them to slavery.]
30.2k pledge of security
A pledge of security given by the least of the Muslims is binding on the rest of then.
[This security is granted to specific people, i.e. specific unbelievers. The people of a region or
town are not granted security except by the ruler. If someone else makes such a contract, the ruler can break it if he wishes.
We read in al-Jawahir, "The precondition of the security is that there is no harm in it for the Muslims. If someone
grants security to a spy or scout or one who contains harm, it is not binding."
30.2l Women and children giving security
This also applies when women do this, and also children provided they are able to understand what
is involved. It is also said that this is only acceptable if the man in charge says it is acceptable.
[i.e. if the child knows that it is unlawful to violate security, then he is obliged to observe
30.3a. The fifth
When the Muslims gain booty by having fought and won it, their leader takes one fifth and divides
the remaining four-fifths between those doing the fighting. It is better for this dividing up to take place where the battle
[He divides the fifth as he thinks best. He can put it in the treasury or spend it on the welfare
ot the Muslims by buying weapons or other things beneficial for the Muslims. If he likes, he can give it to the family of
the Prophet or others or give part of it to them and the rest to others. This is when they take booty other than land: horses,
linen, slaves, money and grain. Land is not divided in fifths or allotted. It is entailed and its land-tax is spent on the
best interests of the Muslims. After the fifth is taken, the rest of the booty is divided in that place whre the fighting
took place since the Prophet did that because it is a punishment for the enemy.]
30.3b Which booty is divided
Only booty that has been fought for using horses and camels or taken after combat is to be divided
up in this way.
[As for what is taken without combat or force, like that which is take from the one who people have
left when they hear that the Muslim army has advanced against them, there is no fifth nor division. It is at the discretion
of the Imam as he can dispose of the fifth of the booty wherever he wishes.]
30.3c Use of food or fodder
If part of the spoils consist of food or fodder, there is no harm in any who need it taking some
before the division takes place.
[This means it is permitted with or without the permission of the leader. What is meant by food
is what can be eaten: meat or other things. The basis for what he said is found in the Sahih in the words of Ibn 'Umar,
"We used to get honey and grapes in our raids and we ate them and did not present them to the commander.
The four-fifths of the booty is divided between the army according to the preconditions in the Shari'a.]
30.4 Distribution of shares
30.4a Those actively involved in jihad
A share of the booty is only given to those who take part in the fighting or who are prevented from
doing so by being occupied with the jihad in some other way.
[An active presence is meant, whether fighting or being present to face the enemy. When the
rows are formed and fighting has not begun, there is no share for someone who dies then, but there is a share for the one
who dies after the fighting stops. Also those who are prevented by things like scouting or bringing equipment or the like
receive a share. There is a share for the one who gets lost from the army in enemy territory.]
30.4b If someone is ill
Anyone who falls sick is given a share as is any horse that falls sick.
[If he becomes ill after or during the fighting, i.e. he is present healthy at the beginning of it
and then becomes ill and continues to fight while ill. If he becomes ill before being present at the fighting, whether his
illness began in enemy territory or Muslim territory, he has no share. If the horse goes lame after fighting or during it,
it has a share. Ibn 'Umar said, "It has no precondition, and that is the same if it becomes ill by for some other reason."]
30.4c The share of the horse
A horse gets two shares
[This is the horse and not the camel, mule and ass which have no share. It is limited to one since
he spends more for its provision and has no share.]
30.4d The share of the rider
and a rider gets one share.
[There is allowance of what is not ridden. The rider is said to the rider of camels. As for the rider
of horses, he is called a horseman. The basis in what is mentioned is that it is sound that the Prophet gave the horse two
shares and the rider one share.]
30.4e Slaves, women and children
Slaves do not get a share nor do women nor do children, unless the children are really able to fight,
have been given permission by the Imam, and do actually participate in the fighting in which they are given a share.
[Freedom is a precondition to receive it, and so the slave, whether he fights or not, does not
get a share. He must be male, so the woman does not get a share, whether she fights or not. He must be an adult, so the child
does not get a share except with three preconditions: that child who has not reached puberty is able to fight, has the permission
of the Imam and actual participated. Bahram transmits from the Mudawwana that it is explicitly stated as well-known
that he has no share, whether he fights or not. The literal meaning of the hadith indicates lack of shares. The hadith quoted
by Ibn Wahb related that the Prophet did not give a share to slaves, women or children.]
A hired servant is not given a share unless he actually fights.
[He must go out with the intention of jihad, especially the one whose uses are owned, like the hired
servant, and like the general hireling in the lack of the share. Ibn 'Umar makes a distinction about those who actual fight.
Three preconditions remain: sanity. Islam and health. The madman has no share by agreement. The dhimmi
has no share by disagreement if he does not fight or does fight in the well-known position.]
30.4g When the enemy becomes Muslim and has Muslim property in his possession
If anyone from the enemy becomes a Muslim and has in his possession property previously belonging
to the Muslims, that property remains in his possession. If anyone buys any of it from him it becomes theirs and the original
owner can only get it back by paying the correct price for it.
[Ibn Naji said it is clear from his words that if he becomes Muslim with free Muslims in his
possession, they are taken from him, and it is the well-known position. According to him he is not recompensed for this. If
a Muslim buys something in the Abode of War, be it the property of Muslims or that of the dhimmis, it belongs to him, and
the owner can only get it back by paying the price which he paid for it if it is lawful to own. If it is something unlawful
to own like wine and pigs, its owner takes it without buying it.]
30.4h Rights of the original owner
If property of this kind is divided up as part of the booty the original owner of a particular piece
of property has the first right to it provided he pays the correct price for it.
[This is if he finds it with someone who bought it from the booty. If he finds in in the share
of someone or who is ignorant of the price, he only takes it for the price connected the right of the other to it.]
30.4i Claiming it before division
If the division has not yet been made he can reclaim his property without having to pay anything
[He means when the Muslim or the dhimmi finds his goods in the booty before the division has taken
place and has clear evidence of ownership, he takes it without paying anything, but pnly after taking a legal oath that he
did not sell it, give it away, nor was it removed from his property by legal means. Thus it is still be his property.]
30.4j. No one receives more than his basic share
No one is permitted to receive more than their allotted share unless it is given by the leader at
his discretion from the fifth apportioned to him and this cannot be done before the basic division is made.
[This is based on what Ibn Wahb related about the Messenger of Allah allotting extra from the
fifth at the Battle of Hunayn. This extra is only allotted after the division. On this basis, allotting it before the division
is only conceivable by a promise. For instance he says, "Whoever has killed someone has whatever is taken from the corpse."
These words can imply prohibition or dislike, i.e. the Imam or general of the army is prohibited from saying this before having
power over the enemy because that might lead to the invalidation of their intentions because some of them expose themselves
to death for the sake of the goods of this world, and then he would fight for the reward. After the fighting, that does not
need to be guarded against.]
30.4k Arms, clothing and personal effects of the enemy
The arms, clothing and personal effects of enemy soldiers killed in the battle is treated as part
of the fifth that can be given away at the leader's discretion.
[The Imam only gives them from the fifth according to his discretion. Pickings are what are
found with the dead person: clothes, weapons and similar equipment rather the dead idolaters have of bracelets and crowns.
It is like that with money. These things are not part of pickings in the well-known school, i.e. as opposed to Ibn Habib who
includes the bracelets, crowns and money in the pickings.]
30.5 Forts (Ribat)
30.5a. Their excellence
Guarding a frontier post is an action of great excellence, which increases in virtue
[Lingustically ribat means to reside, and in the Shari'a it means to reside at the frontiers in order
to defend them. It includes money and other things, the dhimmi and the Muslim. Guarding other things is a consquence of guarding
the frontiers. The frontier is the place where there is a possible defensive weakness.
It is related that ribat is beter than jihad based on what is in the Sahih where the Prophet
said, "Ribat one day in the way of Allah is better than this world and what is in it." It is better because the bliss of the
Next World remains and does not run out, and also because ribat is in order to preserve the blood of the Muslims, and preserving
their blood is better than shedding the blood of the idolaters.]
30.5b The amount of danger
according to the amount of danger experienced by the people manning that post and the amount of
caution they have to take.
[This excellence varies. It according to the number of the enemy, fear and caution. Fear increases
30.6a Permission of parents
You cannot go on jihad without the permission of your parents
[If they are both Muslims according to Ibn al-Qasim and with Sahnun in general whether they are Muslims
30.6b. A surprise attack
unless the enemy makes a surprise attack, raining your town, in which case it is obligatory for
you to put up a defence. In such case parents' permission is not required.
[If there is a sudden attack on the people of a certain town, then the people of the town have
to defend it. It is obligatory for the one with a father or without, slave or free. In this slaves have shares because they
are called on to perform jihad because when we denied them a share, it was because it was not their responsibility. It is
now is their responsibility as mentioned in at-Tahqiq. He mentioned that it is obligatory for those near them to help
them. The author said that he does not ask for his parents' permission in such a case, since it has become an individual obligation
like hajj, the prayer and individual seeking knowledge because he is obliged to obey them in abandoning permissible and supererogatory
things, not specific obligations.]