Translated by New Age Islam Edit Desk
16 April 2021
Translated by New Age Islam group of scholars from the original Arabic Chapter on Jihad in "Al-Mausu'ah Al-Fiqhiyah" i.e., Encyclopaedia of Islamic Jurisprudence (45 volumes). This is also known as "Kuwaiti Encyclopaedia for Islamic jurisprudence," as it is the fruit of an effort of the Ministry of Awqaf (religious matters) of Kuwait to build up an encyclopaedia of jurisprudence reconciling all four Sunni Madhahib (schools of thought).
Main Aspects Covered In Part 3:
Jihad by Fighting Is Not Mandatory on The Muslims Incapable of Fighting
The people whom the Imam prevents from going out for Jihad
Collecting the Ju’l (payment/wage) for fighting
Calling towards Islam [dawah] Before Fighting
Security [Amaan] during the War
Seeking Help from Non-Muslims to fight the Enemy
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(a) Safety from Damage
Jihad is not mandatory for the disabled Muslim incapable of fighting, because the disability denies the mandatory. Only the able-bodied person who is free from disease can participate in Jihad.
Accordingly, the seriously ill person who is unable to travel and fight is better not to go out for Jihad, because in that state his disease will be unbearable.
The obligation of Jihad does not fall if the disease is light and does not make the person incapable of fighting, such as pain of tooth and mild headache and so on, therefore Jihad cannot be abandoned by him in that state.
If the person can go out but not to fight, then he should go out for Jihad to increase the number of the forces. (Raddul Muhtar 3/221 and Fath-ul-Qadeer 5/193)
The blind, the lame, the disabled, the Muqa’d (having a disease which constrains a person to remain sitting) and the one-armed man is not obliged to go out for Jihad, because such disabilities prevent them from Jihad. Allah Almighty says, “No blame is there on the blind nor is there blame on the lame nor on one ill (if he joins not the war): but he that obeys Allah and His Apostle (Allah) will admit him to Gardens beneath which rivers flow; he who turns back (Allah) will punish him with a grievous Penalty.” (48:17).
He almighty says, “There is no blame on those who are infirm or ill or who find no resources to spend (on the cause) if they are sincere (in duty) to Allah and His apostle: no ground (of complaint) can there be against such as do right: and Allah is Oft-Forgiving Most Merciful.” (9:91)
The blind is not fit for fighting, so he is not obliged to go for Jihad. The same ruling is for those who have serious conjunctivitis and the person whose sight is weak and cannot save from the weapon. But in case he can save from weapon and fight, then Jihad is mandatory upon him.
Jihad is mandatory upon the one-eyed and the night blind person who can see in the light of the day. He is treated as the seeing person in joining the battle. (Nihayat-ul-Muhtaj 8/55 and Al-muhazzab 2/282 and Kashshaf-ul-Qina 3/36)
By the lame is meant only the person whose lameness makes him unable to walk and travel freely, even though it is only in one leg. In the state of being able to ride and walk, he will be obliged to participate in Jihad.
This ruling, like the lame, is also for the one-armed man and the paralyzed, even though many fingers of his one hand are broken.
Those who despite having the broken fingers in the leg can walk are not exempt from joining the battle.
The People Whom The Imam Prevents From Going Out For Jihad:
22. The Shaafiis and the Hanbalis hold that it is essential for the Imam to keep away the Mukhadhdhil (the discouraging person) and the Murjif (i.e. the one who tries to cause mutiny on the battlefield) from going out for Jihad and attending the row [of the army]. [However, Mukhadhdhil or Murjif has already entered into the row of Jihad] The Imam ought to take him out from the row in case there is no fear of Fitna (sedition/disorder). This even becomes Wajib (imperative) upon the Imam to take him out, when having overwhelming probability (Zanne Ghalib) that his existence will be harmful to others. (Nihayatul Muhtaj 8/57, Al-Mughni 8/351, Raudatut Talibin 10/240)
Mukhadhdhil (in the context of war) is the one who prevents and discourages others from joining the battle. He uses the words like “it is scorching hot”, or “it is biting cold”, “there is severe hardship” and “the defeat of the army is not to be trusted” and so forth. Allah Almighty says, “If they had come out with you they would not have added to your (strength) but only (made for) disorder hurrying to and fro in your midst and sowing sedition among you and there would have been some among you who would have listened to them. But Allah knows well those who do wrong.” (9:47).
It is said in the interpretation of this verse: They would have done nothing but created disputes, and it is also reported that they would have rushed to disunite your group. (Al-Muhadhdhab 2/230)
Murjif is the one who says: “the brigade of Muslims has perished”, “Muslims have neither support nor power to fight against the Kuffar (infidels/non-believers)” and so forth. So, the Murjif should be kept away from the battle, because Allah Almighty says, “If they had intended to come out they would certainly have made some preparation, therefore; but Allah was averse to their being sent forth; so He made them lag and they were told, "sit ye among those who sit (inactive).” (9:46)
The Imam ought not to permit the one who spies on Muslims and keeps the Kuffar abreast of the defects and weaknesses of Muslims, their lodges and whereabouts. Similarly, the one who creates enmity among Muslims and tries to raise sedition [Fitna] should also not be permitted. This is because of the verse, “but Allah was averse to their being sent forth” and also that they are harmful to Muslims, so Imam must prevent them from going out for Jihad with Muslims.
If any of these spies goes out with the Imam, he will not be given any share (from the war booty), even though he shows support for Muslims, because he is likely to do it as a hypocrite that is harmful to Muslims and thus he does not deserve anything from the war booty. In case the Imam is one of these spies, it is un-commendable to go out with him.
This and all other excuses that deny the validity of Hajj also deny the validity of Jihad. However, when there are chances of confronting with harms by Kuffar on the way, Hajj can be postponed while Jihad cannot be because it already contains such dangers.
Collecting The Ju’l (Payment/Wage) For Fighting
23. The Hanafis and the Malikis hold that it is Makrooh (condemned) to receive ju’l(payment) for fighting as long as the Muslims have Fay’ (that is taken from the disbelievers without a fight) because then there is no need for ju’l. The wealth of Bait ul Maal (translated as the House of money or wealth that serves as the State treasury) is prepared for the necessities of Muslims. Collecting ju’l for fighting is Makrooh-e-Tahrimi (condemned) because the origin of the Ujrat (wage) in exchange for the obedience is haram (forbidden) and so receiving whatever resembles such a Ju’l (payment)is Makrooh(condemned).
It is reported from Imam Malik that it is severe Makrooh (condemned) to receive Ju’l (payment) for fighting.
If there is nothing in the Bait ul Maal, it will not be Makrooh to receive Ju’l for meeting the needs of fighting such as removing the greater harm i.e. evil of Kuffar moving towards Muslims, by the lesser harm i.e. receiving Ju’l. Ibn Abidin said: the lesser harm can be accepted for removing the greater harm.
However, the Malikis make a condition in the permissibility of Ju’l, that is, the Kharjah (literally means payment or going out once) is only once, for example, the ja’ai’l (the one who gives wage to someone to fight in the battle as a substitute) says to the outsider: I will give you wage on the condition that you go out this year in place of me. On the other hand, if he makes a contract that whenever the people set out for Jihad, he will have to go out as a substitute for him; it will be impermissible due to severe jeopardy. So the Kharja is meant here to go out only once.
Similarly, the one who can participate in Jihad with his body and money, Jihad is obligatory on him, and he should not receive Ju’l for that. If the one who sits (shirking from the fight) says to a ghazi (warrior), “take this money in exchange for fighting as a substitute for me”, then it is not permissible, because it then becomes the process of hiring for Jihad. (Ibn Abidin 3/222, Al-Mudawwinah 3/31,44)
The Shaafi’i position is that one’s Jihad will not be performed as a substitute for others. This ruling is the same in both cases, whether by taking wage or not. The reason is that when attending the fighting, it becomes obligatory upon him, and therefore, it cannot be performed by other than him.
It is not permissible for the Imam or others to hire a Muslim for Jihad, because this duty is directly performed by him rather than others.
Whatever the Mujahidin takes from the Diwan (council) of Fay’ and whatever the Mutatawwi’ (volunteer) takes from zakat as aid is not considered to be wage.
As regards the Hanbalis, Al-Kharqi says: If the Amir hires people to fight along with Muslims for their benefits, they will not be given any share (from the booty of war), except the wages fixed before the fighting. Ibn Qudama says the proof of Ahmed on this is regarding jamaa’h. It is mentioned in the report of Abdullah and Hanbal: If the Imam hires the people by whom he enters the city of the enemy, they will not be given any share from the war booty except their promised wages. Al-Qadhi says, “This is applied for hiring those upon whom Jihad is not imperative, such as the slaves and the Kuffar.
As for the free Muslim men, it is not permissible to hire them for doing Jihad, because when Jihad becomes Farz Ayn, it is obligatory upon them too. So this duty cannot be done by others, as the case is with the issue of Hajj that the obligation of which cannot be performed by other than the one who is capable of doing it. Then Ibn Qudamah says, it is probable that the view of Ahmed and Al-Kharqi is apparently regarding the legitimacy of hiring those upon whom the battle is not obligatory, because Abu Dawud narrated in his isnad from Abdullah bin Umar that the Messenger of Allah (peace be upon him) said, “The warrior gets his reward and the one who equips him gets his reward” (Related by Abu Dawud 3/37).
It is narrated by Said bin Mansoor from Jubair bin Nafir who said, “The Messenger of Allah (peace be upon him) said, “those of my Ummah who goes on an expedition and take ju’l (compensation) with which to fortify themselves against their enemy are like the mother of Moses as she suckled her child while accepting her wage” (Related by Abu Dawud in his marasil as it is in tuhfatul ashraf)
This is also because there is no specification of its doer being one among AhlulQurba (the relatives), so it is permissible to hire for that as it is done for building the mosques. If Jihad is not obligatory upon him, it will be fair to hire him for that purpose like the slave. (Almughni 8/467)
As regards those who speak of taking benefit from the ju’l (compensation) in the battle other than Jihad, the Hanafis hold the view that it is permissible for the warrior to leave some amount of Ju’l for the expenditure of his family because he does not get ready for going out except for this reason (Ibn Abidin 3/222). The Hanbalis state: The warrior would not leave anything from the ju’l for his family, as it is not his property. But after he achieves the purpose for which he got ju’l, he can send some of it to his family. He should not spend any amount of ju’l before going out for the battle lest he should lag from it. He, therefore, does not deserve anything of it to spend for himself. But before going out for the battle, he can spend Ju’l to purchase weapons or any equipment required for the battle. (Al-Mughni 8/370)
If the person is given any amount of money, he should take benefit from it in the battle itself. After the battle, whatever money remains will become his property. This is what the Hanbalis have stated and also been adopted by Ata’, Mujahid and Said bin Al-Musayyab. When Abdullah Ibn Umar gave something in the battle, he would say to its owner: “if you reach Wadiul Qura (located on the outskirts of Madina), then it is your affair”. This is because he gave him as an aid and expenditure and not as wage, so after that whatever remained became his property. If the person is given something to spend absolutely in the battle and after that something of it remains, then he will spend it in other battles because all it has been given to him is meant only for the battle. (Al-Mughni 8/370)
Calling Towards Islam [Dawah] Before Fighting
24. The jurists unanimously agree that, if Muslims enter Darul Harb (the House of war) and besiege a city or fort, they will be obliged to call the Kuffar towards [accepting] Islam, as it is proved by the speech of Ibn Abbas (May Allah be pleased with him), “The Prophet (peace be upon him) never fought any people unless he called them towards Islam”. Therefore, if they accept it, they will have to desist from fighting them due to having achieved the purpose. Allah's Messenger (peace be upon him) said: “I have been ordered (by Allah) to fight against the people until they testify that none has the right to be worshipped but Allah and that Muhammad is Allah's Messenger (peace be upon him), and offer the prayers perfectly and give the obligatory charity, so if they perform that, then they save their lives and property from me except for Islamic laws and then their reckoning (accounts) will be done by Allah” (Related by Bukhari (Alfatah 1/75 and Muslim 1/53 on the authority of Abdullah Ibn Umar.)
If they do not accept Islam, they will be called to pay jizya. This is for those from whom jizya is accepted. As for those whose jizya is not acceptable such as murtaddin (apostates) and idolaters of the Arab, there will be no benefit in calling them towards accepting jizya. This is the right of those to whom the message has not yet reached because they will not adhere to Islam before knowledge. The evidence in this regard is that Allah Almighty says, “We do not inflict punishment until We send forth a Messenger [Rasool] to make truth distinct from falsehood” (Surah Al-Isra 15). It is, therefore, not permissible to fight such people and also because it has been reported from Sulaiman bin Buraida through his father that when the Messenger of Allah (peace be upon him) appointed anyone as leader of an army or detachment he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He would say: “When you meet your enemies who are polytheists, invite them to three courses of action. If they respond to any one of these, you also accept it and withhold yourself from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then invite them to migrate from their lands to the land of the Muhajireen and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajireen. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims and will be subjected to the Commands of Allah like other Muslims, but they will not get any share from the spoils of war or Fai' except when they fight with the Muslims (against the disbelievers). If they refuse to accept Islam, demand from them the Jizya. If they agree to pay, accept it from them and hold off your hands. If they refuse to pay the tax, seek Allah's help and fight them. When you lay siege to a fort and the besieged appeal to you for protection in the name of Allah and His Prophet, do not accord to them the guarantee of Allah and His Prophet, but accord to them your guarantee and the guarantee of your companions. When you besiege a fort and the besieged want you to let them out following Allah's Command, do not let them come out following His Command, but do so at your (own) command, for you do not know whether or not you will be able to carry out Allah's behest about them”. (Related by Sahih Muslim 3/1357-1358 Alhalabi and see Al-Ikhtiyar 4118, and Fathul Qadeer 5/195, Hashiyatu Raddil Muhtaar 3/222, HashiyatudDusuqi 2/172, JawaharulIklil 1/252, Al-Muhadhdhab 2/231, KashshafulQina 3/40 and Al-Mughni 8/361)
This is also because of the hadith of the prophet (peace be upon him) in which he recommended the leaders of the soldiers, “Call them (the Kuffar) to Shahadah (witness) that there is no god but Allah so that they know by Da’wah that we are fighting them for causes of the Deen not for plundering their wealth nor for taking their offspring as prisoners. So that perhaps they accept (Da’wah) and then we save from the burden of the fighting”. (With this meaning it has been related above f/24)
The Malikis state: calling Kuffar towards (accepting) Islam is Wajib (imperative) for three days continuously; once every day. If they refuse to accept it, they will be called to pay jizya only once. If they do not accept this too, they will then be fought. Once they are called towards Islam, it is not Wajib(imperative) to call them again in the rest of three days. [So calling them three times is ranked as Mustahabb (commendable) not Wajib(imperative)]. But if Muslims fight them before the commencement of Da’wah they will be sinners due to doing what has been prohibited, but no penalty will be imposed on them for damaging the blood and money. The Hanafis are of the same view. This is because they are not innocent but bereft of the [values] of the Deen or because they are not in the protection of [Darul Islam]. So this sin will be treated like that of killing their women and children [during fighting]. (As-Sarakhsi 10/30 and Ibn Abidin 3/223)
This is in the right of those whom the call (Da’wah) has not yet reached such as the idolaters and so on. Similarly, if one of the people of the book (Ahlul Kitab) whom the call has not reached as yet is found, he will be called towards Islam before fighting.
As regards those whom the call has reached such as the people of the book, the Majoos, it is not Wajib (imperative) to call them. The reason is that call has spread and been common to them and hardly is there anyone whom the Da’wah has not yet reached.
Ibn Abidin has quoted from Al-Fatah: the subject of the dominant probability (Galba-e-Zann) is that they are those whom the call has not reached. (Ibn Abidin 3/223)
Ahmed said: Surely the call has reached and spread [all around]. However, if there is a possibility of some people living behind the Rome and the Turks whom the Da’wah may not have reached, then in that case it is impermissible to fight them before Da’wah. This is because Sulaiman bin Buraidah narrated that the Messenger of Allah (peace be upon him) said, “When you meet your enemy among the idolaters, then call them to one of the three options or choices, whichever of them they respond to then accept it from them, and refrain from them” (Related by Bukhari, this hadith has been mentioned above) (Al-Mudawwinah 3/2)
Malik said: if the warriors rush towards you before your calling them towards Islam, then fight them. When asked about a nation who came to another nation intending to kill them and take their money, Malik said, “invite them towards Allah and if they refuse [to accept it], then there will be the sword [fighting]. (Al-Mudawwinah 3/3)
Yahya Bin Saeed said: it is not unfair to seek the defect of the enemy day and night because the Da’wah has reached them and the prophet (peace be upon him) deputed some people to Khaibar, so they killed their Amir Ibn Abi Al-Huqayq deceitfully. Similarly, this happens to a nation that, if you sit in your land, they will come to you, and if you walk towards them, they will fight you.
It is narrated by Ibn Wahhab through Rabi’a that he said: If there are enemies whom the Dawah has not reached, nor the saying of the prophet (peace be upon him), they will be invited, Islam will be offered to them, examples and lessons will be presented to them, the Qur’an will be recited upon them, till the ‘uzr (excuse) becomes severe in their da'wah and they refuse to accept it, then they will be informed of their faults and negligence. After that, they will be warned and there is harm for Muslims in it. (Al-Mudawwinah 3/3,4)
Ibn Qudamah, one of the Hanbali scholars, said: the call before the fighting was possibly Wajib (imperative) in the initial stage before the advent of Islam and spread of the da'wah. As for today, the Da’wah has spread [everywhere] so the call is not required before fighting.
Ahmed said the prophet (peace be upon him) used to call towards Islam before fighting till Allah Almighty revealed the Deen and elevated Islam. I do not know today that anyone is called [before fighting] because the Da’wah [call] has reached everyone. As for Rome, the Da’wah has reached them and they have got to know what is intended from them. Undoubtedly the Da’wah was in early Islam, but if someone is called [before fighting] today, there is no wrong with it. (Al-Mughni 8/361)
It is Mustahabb (commendable) to call [the Kuffar] before fighting to overstate the warning. Sahl bin Saa’d narrated: The Messenger of Allah (peace be upon him) said to Ali (May Allah be pleased with him) on the day of Khaibar, “Go to them patiently and calmly till you enter the land. Then, invite them to Islam, and inform them what is enjoined upon them, for, by Allah, if Allah gives guidance to somebody through you, it is better for you than possessing red camels” (Related by Sahihul Bukhari (Al-Fatah 7/476). However, while giving them da'wah if there is any harm and a strong probability that they will get ready or strengthen themselves for fighting, then it is not required to call them.
But the Dawah before fighting is not Wajib (imperative) because it is authentically narrated that “the Messenger of Allah (peace be upon him) made a raid upon Banu Mustaliq while they were unaware” (Related by Bukhari (Al-Fatah 5/170) and Muslim 3/1356 from the hadith of Abdullah bin Umar) and the raid is not made during Dawah. (SharhuFathil Qadeer 5/195, HashiyatuRaddil Muhtar 3/223, and Al-Muhadhdhab 2/231)
Ibn Qayyim states that before fighting the Dawah is Wajib (imperative duty) for those whom it has not reached and Mustahabb (commendable act) for those whom it has reached. But if the Kuffar aim at fighting against Muslims, it is required of Muslims to fight against them without giving them any dawah [call towards Islam] to defend their lives and women. (Kashshaf-ul-Qina 3/41)
Security [Amaan] during the War
25. The origin of giving Amaan to the Kuffar by the Imam or any leader of Muslims or seeking Amaan is permissible. But sometimes it becomes haram (forbidden) or Makrooh (condemned) if it leads to violating any Wajib (imperative duty) or Mandoob (commendable act).
The ruling of Amaan is to provide the Kuffar with security and protection from the killing, prison, taking their wealth as booty. With the existence of Amaan, it is forbidden [haram] to kill their people, seize their women and children and take their wealth as booty. (Al-Badai’ 7/107, Al-SharhusSaghir 2/288, RadudatutTalibin 10/281, Al-Mughni with Al-Sharah Al-Kabir 10/432)
This has been explained in the two terms of (Amaan) and (Musta’min)
Seeking Help from Non-Muslims to fight the Enemy
26. There is disagreement among the Jurists about the legitimacy of seeking help from non-Muslims to fight against the enemy. The Hanafi and the Hanbali Schools hold the view of its legitimacy. The Shaafi’is other than Ibn Munzir, Ibn Habib from the Maliki School and a statement of Imam Malik refer to the permissibility of seeking help from the non-Muslim if needed.
The Shaafi’is and the Hanbalis make a condition that it is only when the Imam knows about the good opinion of the non-Muslims and trust their not doing any treason. The Shaafi’is add that the Muslims must be more in number so that they can resist and fight these people in case of their treachery and those who are being fought together.
Al-Marudi stipulates that they [non-Muslims from whom help is being sought] should be from those who disagree with the doctrine of the enemy.
The Malikis, except for Ibn Habib, and a group of scholars including Ibnul Munzir and Al-Jawzjani hold that it is not permissible to take help from any Mushrik (polytheist). (Ibn Abidin 3/235, Al-Mabsoot 10/33, Fathul Qadeer 5/242,243, Al-Hutab 3/352, Al-Mudawwinah 3/40, MughniulMuhtaj 4/221, RaudatutTalibin 10/239, Al-Mughni 8/414, and Kashshaful Qina’ 3/48)
The subject of seeking help from the non-Muslims has been explained in the chapters of ‘Istia’anah’ (Seeking help) and ‘Ahlul Kitab’ (the people of the book)
As regards hiring the Kafir for Jihad, the Shaafi’is state that it is permissible to hire dhimmi, Musta’min and Mua’ahid. As for the Harabi Kafir [the Kafir who is at war with Islam], he will be hired only by the Imam, as it is permissible to take help from him, but he will not be given any share from the war booty. Other than the Imam cannot hire him, for this [the process of hiring Harabi Kafir] requires more precaution and ijtihad. (Nihayatul Muhtaj 8/62, 63)
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