Islamic Research Institute, International Islamic University, Islamabad

The Notions of Dār al-Ḥarb and Dār al-Islām in Islamic Jurisprudence with Special Reference
to the Ḥanafī School

Author(s): MUHAMMAD MUSHTAQ AHMAD
Source: Islamic Studies, Vol. 47, No. 1 (Spring 2008), pp. 5-37
Published by: Islamic Research Institute, International Islamic University, Islamabad
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Islamic Studies 47:1 (2008) pp. 5-37
The Notions of Ddr al-Harb and Ddr

allsldm in
Islamic Jurisprudencewith Special Reference to the
Hanafi School*
MUHAMMAD MUSHTAQ AHMAD
Abstract
The article argues that the bifurcation of theworld into two domains?Dar al-Islam
and Dar al-Harb?is essentially an affirmationof theprinciple of territorial
This principlewas enunciated
jurisdiction. with a highdegreeof clarityand its
were worked out with rigour and consistency by theMuslim jurists,
implications
reasons that have mainly led to
especially those of theHanafi school. Among the
on thequestion are:
confusion and misgiving
(i) Dar al-Harbgaveriseto theimpression

The useof theterm thathostility
should
inform the relations betweenDar al-Islam and all other entities.
(ii) Thefirmnessshownby theProphet{peacebe on him)duringthelastyearsofhis
life to root out theforces actively inimical to Islam and establish a secure
Arabianpeninsulahasat timesbeendetached
for Islam in the
foothold from its
space-time context and considered to be the norm for theMuslims in their
relationshipwith all non-Muslim entities.
The paper argues that seventh centuryArabia was a very special case and Muslim
jurists, especiallyHanafi jurists, consider it sui generis which may not be extended
beyond its space-time context. The general principle guiding Muslims in their
relationship with non-Muslim entities remains that the

Muslims in
may engage fighting
against the non-Muslims who are belligerent towards them, rather than against non
Muslims qua non-Muslims.
Introduction
It iswell known thatMuslim juristsdivided theworld into theDomain of
Islam (Dar al-Islam) and the Domain ofWar (Dar al-Harb). There is no
*
Iwish to recordmy debt of gratitudeto several colleagues especiallyDr Zafar Ishaq Ansari and
Professors ImranAhsan Nyazee andMuhammad Munir with whom I discussed this subject in
depth.

6
denying the fact that to comprehend thedoctrine of jihad as expounded by the

fuqaha' it is important to understand themeaning and implicationsof this
division. But unfortunately the works of the fuqaha' are presently not
receiving the attention they deserve, often because they are considered
outdated and out of tunewith the realitiesof the time.However, some recent
developments in theMuslim world have made it evident that the ideas and
concepts of thefuqaha' continue to impact theminds of a very largenumber
ofMuslims.1
The basic contention of thispaper is that in the present times the real
purport of thisdivision has generallybeenmisunderstood. It is often assumed
that there is a direct and necessary linkbetween thedivision of theworld into
two domains and theview that thenormal relationshipbetweenDar al-Islam
andDar al-Kufr is thatof hostility. In view of the above, it is often contended
that one either has to accept both the doctrines or to reject both of them.2
Hence, those scholarswho believe that the two are inextricablyinterrelated,
are of the opinion that this division envisaged by Muslims jurists is of a
character. For instance, according to Bernard Lewis:
permanent
The basis of theobligationof jihad is theuniversality

of theMuslim revelation.
God's word and God's message are for all mankind; it is the duty of those who
to strive (jdhada) unceasingly to convert or at least to
have accepted them
subjugate those who have not. This obligation iswithout limit of time or space.
It must continue until the whole of the world has either accepted the Islamic
faith or submitted to the power of the Islamic state. Until that happens, the
world is divided into two: theHouse of Islam (dar al-Islam), where Muslims rule
and the law of Islam prevails; and theHouse ofWar (dar al-Harb) ... comprising
1
As early as in 1988,Montgomery Watt predicted that the traditionalnotions of Islamic Law
would be frequentlyused in the futureencounters. "The division of theworld into the sphereof
Islam and the sphere of war is by no means a thingof the past. In so far as traditional Islam
grows in strength it could come into the forefrontof world politics." Montgomery Watt,
IslamicFundamentalism andModernity (London: Routledge, 1988), 4.
2
Cf. Muhammad Munir: "A thorough study of the relevantQur'anic verses, ahddith, the
conduct of the Prophet (pbuh) and his rightlyguided successors in their relationswith other
nations, communities, and tribes reveals that permanent relations between Islamic and non
Islamic territoriesare peaceful and not hostile. To uphold the opposite view, that permanent
relations are hostile, is to seek acceptance of a parallel theory.The theory is that the cause of
war in Islam is the elimination of infidelityand the subjugation of non-Muslims. The two
theories (ofhostile relations and elimination of infidelity)give birth to a third theory that is the
division of theworld into two domains: Dar al-Islam, andDar al-Harb... These three theories
are inseparable from each other and must either be accepted togetheror rejected togetherand
cannot be accepted or rejected independently."Muhammad Munir, "Public InternationalLaw
and Islamic InternationalLaw: Identical Expressions ofWorld Order," Islamabad Law Review,
1: 3& 4 (2003), 372.

THENOTIONS OF DAR AL-HARB
AND DARAL-ISLAM
IN ISLAMICJURISPRUDENCE
7
the rest of the world. Between the two there is a morally necessary, legally and
stateofwar, until thefinaland inevitabletriumphof Islam
obligatory
religiously
over unbelief.3
Those who reject the theory that the normal international relationship
betweenMuslim and non-Muslim political entities is that of war, however,
argue that the juristsmade thisdivision keeping in view the realitiesof their
time and, hence, it has no permanence.4This differenceof opinion has its
bearing on the nature of the relationshipbetween an Islamic state and non
Muslim states on the one hand, and on the relationshipof the Islamic state
with Muslims living temporarilyor permanently in non-Muslim territories,
on the other.
This paper attemptsto examine theMuslim jurists'division of theworld

intoDar al-Islam and Dar al-Harb, especially as expounded by theHanafi
jurists,and to ascertain thebasis of thisdivision in theQur'an arid theSunnah.
After identifyingthe real purport of thisdivision an attemptwill be made to
examine whether there does indeed exist any necessary link between the
division of theworld intoDar al-Islam andDar al-Harb and the theory that
thenormal relationshipbetween the two should be thatof hostility.This will
be followed by an analysis of the traditional interpretationof the relevant
textswhich underlie this theory that hostility informs the relationship
betweenMuslim and non-Muslim entities.Finally, an attemptwill bemade to
provide an alternativeinterpretation of these textsand to referto the relevant
evidence in theFiqh literaturefor this interpretation.
Dar al-Islam andDar al-Harb
We will firstexamine the views of theHanafi school on the division of the

world intoDar al-Islam andDar al-Harb afterwhich we will brieflydiscuss the
3
Bernard Lewis, The Political Language of Islam (Karachi:Oxford University Press, 2004), 73.
(Emphasis added). See also,Majid Khadduri, ed. and tr.,Kitab al-Siyarwa al-Kharajwa al-'Ushr
min Kitab al-Asl li H-Shaybani(Karachi: Idarat al-Qur'an, 1996), 22-30.
4
Tariq Ramadan, [Tariq Ramadan], a contemporary scholar, says: "Dar al-Islam and dar al-harb
are two conceptswhich cannot be found either in theQur'an or in theSunna. They actually do
not pertain to the fundamental sources of Islam whose principles are presented for thewhole
world (lil-'alamin), over all time and beyond any geographical limitation. It was the 'ulama'
who, during the first three centuries of Islam, by considering the state of the world ?its
geographical divisions, the powers in place through religious belonging and influenceaswell as
themoving game of alliances? startedto classifyand define the differentspaces in and around
them." Tariq Ramadan, To be A European Muslim: A studyof Islamic Sources in theEuropean
Context (Leicester:The Islamic Foundation, 1999), 23. See also,Wahbah al-Zuhayli,Athar al
Dar al-Fikr, 1981), 192-196.
Harb ft n-Fiqh*/-/sfem*,(Damascus:

MUHAMMADMUSHTAQAHMAD
8
views of other legal schools.5

The Hanafi school distinguishesbetween two perspectivesof theSharVah.
We might term the firstof theseperspectivesas a predominantlypietisticone.
According to thisperspective, since themain sanction behind the commands
of theSharVah is the love ofGod and seeking toward offHis displeasure, and
the full reward for adherence to, and the full punishment for violation of,
God's commands is thatwhich will be awarded in theHereafter, the law, in
this sense,knows no territoriallimits.Hence, aMuslim is required to follow
theprecepts of the SharVahwherever hemight be.6 Ifhe violates a rule of the
SharVahhe will be responsible for it beforeGod on theDay of Judgment.In
keeping with thisperspective,humanity has been divided into two different
categories: thosewho commit themselves to submit to God's will ?that is,
Muslims ? and thosewho do not? that is, non-Muslims.As a corollary of
this,aMuslim formspart of theMuslim ummah across theworld and thus the
tie of brotherhood binds aMuslim residentof even a non-Muslim state to his
Muslim brethren in the Islamic state.So faras theMuslims who live inDar al
Islam are concerned, theyare protected {ma 'sum)by the law.However, forthe
Muslims who live outside the Islamic state, their 'ismahor protection only
implies that thosewho violate theirrightswill mainly be held responsible in
the court ofGod in theNext World. This iswhat is called 'ismahhi 'l-Isldm,i.e.
protection by virtue of affiliationto Islam.7This, according to theHanafi
means that the rightsof thoseMuslims who live outside the territorial
jurists,
limitsofDar al-Islamwill not be enforcedby the courts in the Islamic state
because these courts can exercise their jurisdictiononly over the territory
under the effectivecontrol of theImam (ruler)ofDar al-Islam. If the cause of
legal action arisesoutside that territorytheycannot take cognizance of it.
This raises the issue of territorialjurisdictionof the courts in the Islamic
state,which we may call the municipal law perspective of the SharVah.
According to the founderof theHanafi school,Abu Hanifah al-Nu'man b.
Thabit (d. 150/767) and his well-known disciple,Muhammad b. al-Hasan al
Shaybani (d. 189/805),Muslim courtshave no jurisdictionto trya case if the
5
This analysis is primarily based on the exposition of the great Hanafi juristAbu Bakr
Muhammad b. Ahmad ibnAbi Sahl al-Sarakhsi (d. 490/1097) as contained in his commentary
on al-Siyar al-Saghlr ofMuhammad b. al-Hasan al-Shaybani, namely, al-Mabsut.Moreover, in
understanding these issues thewriter has been influencedby the views expressed by Sayyid
Abu 1-A'la Mawdudi (d. 1399/1979), a greatMuslim scholar and thinkerof the 20th century, in
his treatiseon interest,namely, Sud (Lahore: Islamic Publications, 2003), especiallyAppendix 3,
281-351.
6
See, Abu Bakr Muhammad b. Ahmad ibnAbi Sahl al-Sarakhsial-Mabsut (Beirut:Dar al-Kutub
al-'Hmiyyah,2001), 10:104.
7Ibid.; 10: 62.

AND DARAL-ISLAM
9
cause of action arisesbeyond the territoriallimitsof the Islamic state.8In other

words, the courts cannot enforcethe rightsof a citizen beyond the territorial
limitsof the Islamic state.Hence, from this perspective,persons outside the
jurisdictionof the Islamic state are, legally speaking,ghayrma sum, that is,
they are not guaranteedprotectionof theirrightsby the Islamic state.On the
contrary,the Islamic state is required to protect therights of thosewho live
permanentlyor even temporarily within its territoriallimits,be theyMuslims
or non-Muslims. Thus, all persons,whether Muslims or non-Muslims,who
livewithin the territoriallimitsof the Islamic state are guaranteed the legal
protection of theirrights.This is called 'ismahhi %dary i.e. protection of one's
rightsby virtue of livingin the territoryunder Islamic jurisdiction.9
It is from this perspective that theworld is divided into two territories:
Dar al-Islam (theDomain of Islam) andDar al-Kufr (theDomain ofDisbelief).
Speaking fromtheperspectiveof ultimate resultsin theHereafter, aMuslim in
any part of theworld isma'sum (protected). However, from theperspectiveof
municipal law, 'ismah is guaranteedonly to the personswho livewithin the
territoriallimitsof the Islamic state irrespective
ofwhether theyareMuslims or
non-Muslims.
Moreover, Islamic law also distinguishesbetween differentnon-Muslim

political entitiesdependingon theiractual attitude towardsIslam andMuslims.
Thus, if a Dar al-Kufr is in a stateofwar with Dar al-Islam, itwill be called
Dar al-Harb.On the other hand, if it has a peace treatywith Dar al-Islam it
will be calledDar al-MuwadacahorDar al-'Ahd.10From the perspectiveof the
territorialjurisdictionof the Islamic state and its courts the people living in
Dar al-Harb do not enjoy 'ismah (legal protection). In the case of Dar al
Muwdda'ahy however, since the Islamic state has concluded a treaty with that
8
Although from the legal point of view theremay be some important technical differences
between the concept ofDar al-Islam and that of Islamic state,modern scholars have generally
assumedDar al-Islam and Islamic state to be equivalent. Thus the ruleswhich thefuqaha' have
laid down aboutDar al-Islam are applied to the Islamic state. It isbeyond the scope of thispaper
to compare these concepts.We propose to undertake an in-depthanalysis of the two concepts in
a separate study dealing with personality, statehood and recognition in Islamic international
law. As far as the present paper is concerned,we will be using these terms interchangeablyfor
the sake of convenience. Similarly,Ahl Dar al-Islamwill be presumed to denote to the citizens
of Islamic state.
9
Al-Sarakhsi, al-Mabsut, 10: 62-63.
10
Muwadaah is the technical name for the peace treatywhich Muslims conclude with other
sovereign entities. Such a treatymay eitherbe for a specificperiod or itmay be of a permanent
nature. The Hanafi juristssee no need for specifyingthe timeperiod in such a treaty.By virtue
of such treatytheAhl al-Muwada'ah are entitled to some degree of legal protection ('ismah). See,
fordetails, al-Sarakhsi,al-Mabsut, 10: 94-104. See also,Abu Bakr b.Mas'ud al-Kasani,BadaT al
Sana'i'fi Tartib al-SharaY (Quetta: al-Maktabah al-Rashidiyyah,n.d.), 6: 75-77.

10
entity,some jurisdiction might be grantedto the Islamic stateas a consequence

ofwhich some kind of 'ismah might be establishedfor those personswho are
livingwithin thatDdr al-Muwdda'ah.This will depend, however, on the actual
termsof the treaty that has been concluded. There is a third hypothetical
possibility as well: a non-Muslim state that is neither atwar with theDdr al
Isldmnor has any peace treaty with it.The fuqahd*generallydo not discuss the
legal consequences of an act committed in such a state.This could be either
because such a statedid not exist in their surroundings,or more importantly,
because in the absence of a treatythepeople in such a statedid not enjoy the
legalprotection of the Islamic state.The courts of the Islamic state,therefore,
could not exercise jurisdictionover thewrongs committed in a territory
outside the boundaries of the Islamic state,unless it had a treatywith the
over that territory as a consequence some
entity that has suzerainty of which
jurisdictionwas created for these courts.This was the reasonwhy thefuqahd'

considered everyDdr al-Kufrlegallyequivalent toDdr al-Harb unless it had a
peace treatywith the Islamic state.This rulingwas based on the principle of
and ithad nothing to do with theview regarding
territoriality what should be
thenature of the relationshipbetween the Islamic stateand other states.11
As opposed to theHanafis, the generality of Shafi'I,Maliki and the
Hanbalis, is of theview that Islamic law knows no territoriallimits.Hence, if
aMuslim violates a rule of the SharVahhe will be liable forpunishmentnot
only in theHereafter, but also by the courtsof the Islamic state in thisworld.
Similarly, if a non-Muslim resident of a non-Muslim state violates the rights of
anyMuslim, according to the opinion of these jurists,thewrongdoer can be

punished by the courts of the Islamic state ifhe is capturedbyMuslims or ifhe
enterstheIslamic state. In otherwords, these juristsdo not subscribe to the
principle of territorialjurisdiction.Ismah, i.e. legal protection, according to
them, is grantedon thebasis of a person's religiousaffiliation(din) ratherthan
on the basis of his affiliationto a political entity (ddr).As far as non-Muslim
citizens of the Islamic state (Ahlal-Dhimmah) are concerned, in theiropinion
they enjoy protection becauseMuslims had concluded the treatyof dhimmah
with them. They consider these non-Muslims to alien non
comparable
Muslims (musta'minuri)inDdr al-Isldmwho enjoy protection by virtue of the
contractof amdn (quarter)given to thembyMuslims.12
11
On this issue, Abu Yusuf Ya'qub b. Ibrahim (d. 183/799), the famous disciple of Abu
Hanifah, has a differentopinion from that of Abu Hanifah and al-Shaybani.He accepts the
principle of territorialityonly for non-Muslims. But as far as Muslims are concerned, he
considers them to be bound by the laws of Islam wherever theymight be. See, Abu Yusuf
Ya'qub b. Ibrahim,Kitab al-Khardj (Cairo: al-Matba'ah al-Salafiyyah, 1934), 166. See also, al
Sarakhsi, al-Mabsut, 10: 104; Al-Kasani, BadaTal-SandY, 6: 112.
12
Muwaffaq al-Din 'AbdAllah b.Muhammad IbnQudamah, al-Mughni
fi Fiqh Imam al-Sunnah

THE NOTIONS OF DAR AL-HARB
AND DARAL-ISLAM
11
We shall reproduce below some passages from thewritings of various

juristsespecially thatofHanafi school, to establish that the doctrine of ddr in
fact signifiesthe principle of territorialjurisdiction.
Abu BakrMuhammad b.
Ahmad ibnAbi Sahl al-Sarakhsi (d. 490/ 1097), one of the greatestMuslim
juristsof all time,explains theHanafi viewpoint as follows:
If a Muslim enters Ddral-Harb with amdn and lends money to or borrows

money from the inhabitants of that territory, or usurps their property or his
propertyisusurped [by them]there,his casewill not be heard [in thecourtsof
Ddr al-Isldm], because thewrong was committed outside Muslim jurisdiction. For
theMuslim who usurped their property after guaranteeing them not to do that,
we hold this opinion because he violated his promise, not the promise of the
Muslim ruler. However, he will be counselled by way of fatwd to return the
property though he will not be compelled to do so by the court. As for the
inhabitants of that land who usurped the property of theMuslim, we hold this
opinion because they violated their promise at a place where theywere not under
theMuslim jurisdiction... Yet according to his religion it is reprehensible for the
Muslim to violate his promise with them, for the violation of promise is
forbidden... It is on account of this that itwould not be desirable for another
Muslim to purchase the usurped property, if he knew that it was a
usurped
property.13
Ahmad ihnHanbal al-Shaybani (Cairo:Dar al-Manar, 1367 ah), 8: 291, 432. As thesefuqahd' do
not recognize the principle of territoriality,al-Shawkani unequivocally declared that the
division of the world into two dars has no legal consequence. See, Muhammad b. 'All b.
Muhammad al-Shawkani, al-Sayl al-Jarrdr(Beirut:Dar al-Kutub d-'Ilmiyyah, 1987), 4: 547. In
fact, these three differentviews about the territorialityof Islamic Law still exist among
contemporary Muslim scholars. Incidentally,the same tensions are also reflectedin other legal
systems. For instance, the courts inUK do not exercise jurisdictionoverwhat they call "foreign
torts" unless some other essential conditions are fulfilled.The Pakistani Supreme Court has
recentlygiven verdict on the applicabilityof Section 295-C of thePakistan Penal Code in regard
to blasphemous cartoons published in certainEuropean countries.Makhdoom Ali Khan, the
Attorney-General of Pakistan, contended that the Court did not have jurisdiction over the
matter because the act was committed outside Pakistan. But the Court decided that these
cartoons had injured the feelingsof Pakistani citizens. So, in the opinion of theCourt, the cause
of action arosewithin Pakistan. The Court, accordingly,ordered to lodge theFirst Information
Report (FIR) against the cartoonist and the editors of the newspapers that published these
cartoons. See, The News International, Islamabad, April 18, 2006. Another interesting issue
before theCourt was its jurisdictionin the cyberspace because these cartoonswere being shown
on severalwebsites in Pakistan. The Pakistan ElectronicMedia Regulatory Authority (PEMRA)
did not block thesewebsites until very late inMarch 2006when the SupremeCourt was moved.
The websites were registeredoutside Pakistan but theywere being accessed fromPakistan as
well. The Court, however, did not give a detailed verdict on this important issue because
PEMRA blocked thewebsites afterwhich the petitionerdid not stressupon his petition and the
Court disposed of iton technical grounds.
13
Al-Sarakhsi, al-Mabsut, 10:104. Muhammad Hamidullah (d. 1423/2002),while commenting

12
Burhan al-Din 'All b.Abi Bakr al-Marghinam(d. 593/1197), the author of

the famousHanafi textal-Hiddyah,says that ifaMuslim tradergoes toDdr al
Harb and acquires somethingby stealth,the courts ofDdr al-Isldmwill not
punish him, even thoughhe violated his promise and committeda violation of
the SharVah forwhich he will be responsible beforeGod}4 The statementof
Zayn al-cAbidinb. Ibrahim IbnNujaym (d. 970/1563) is evenmore explicit in
this regard:
According to Abu Hanifah, the position of a person who embraces Islam inDdr
al-Harb and does not migrate [toDdr al-Isldm] is like that of a harbi [alien non
Muslim] in the sensethathis property15
isnot protected[by the lawof theland
inDdr al-Isldm].16
Furthermore, if a citizen of Ddr al-Isldm commits themurder of even a

Muslim inhabitantofDdr al-Harb, the courts ofDdr al-Isldmdo not have the
jurisdictionto trythe case. So, theycan neither award thepunishmentof qisds
nor require themurderer to pay diyah to theheirs of thevictim.17 However, if
a citizen ofDdr al-Isldmcommitsa crime againstanotherof itscitizens even in
Ddr al-Harb, he will be liable for it in the courts of Ddr al-Isldm.This is
because even ifhe was outsideDdr al-Isldmphysically, legallyhe was under the
jurisdictionof the courts ofDdr al-Isldm.nAgain, if two citizens ofDdr al
Isldm are held as captives inDdr al-Harb and one of themkills the other, the
courts of Ddr al-Isldm cannot take cognizance of the matter because, by virtue
on the above passage, has the following to say: "[TheHanafis] make a sharpdistinction between
jurisdictionofMuslim court and thatof a foreigncourt over aMuslim, on the one hand, and
moral obligations on the other; and theydo not hold him responsible in aMuslim court for acts
done in a foreign territory.And on the same basis, they acquit a foreignnon-Muslim from all
acts committed in foreign even a Muslim such as murder or theft."
territory against subject,
Muhammad Hamidullah, TheMuslim Conduct ofState (Lahore:Muhammad Ashraf, 1945), 104.
14
Burhan al-Din 'All b. Abi Bakr al-Marghinani,al-Hidayahft SharkBidayat al-Mubtadi (Beirut:
Dar Ihya' al-Turath al-'Arabi, n.d.), 2: 395. Other juristsare of the opinion thathe should be
held liable forhis act in the courts of the Islamic state, and the property recovered fromhim
should be given back to therightfulowner, ifpossible. See, IbnQudamah, al-Mughni,8: 284.
15
And also his life,as discussed below.
16
Zayn al-'Abidin b. Ibrahim IbnNujaym, al-Bahral-RayiqSharhKanz al-Daqa'iq (Cairo:Dar al
Kutub al-'Arabiyyah, 1978), 5: 147.
17
Al-Marghinani, al-Hidayah, 2: 396.
18
Ibid. It seems that the principle of "active nationality" has also been recognized here because
thedispute arose outsideDar al-Isldm,but the courtwould exercise jurisdictionbecause both the
partieswere "nationals" ofDdr al-Isldm.See, fordetails on the "active nationality" principle and
other principles of jurisdiction in Public International Law, Martin Dixon, Textbook on
International Law (London: Blackstone, 2000), 133-144. See also Malcolm N. Shaw,
InternationalLaw (London: Cambridge University Press, 2003), 452-490.

THENOTIONS OF DARAL-HARB
AND DARAL-ISLAM
13
of theircaptivity,they are consideredoutside the jurisdictionofDdr al-hldm.

So, if one of the captives commits unintentionalmurder of the other, the
cuplritwill not be liable to pay diyah, although he will be required to offer
kaffarah (expiation).19Kamal al-DinMuhammad Ibn al-Humam al-Iskandari
(d. 861/1457),while commentingon thisopinion ofAbu Hanifah, hasmade a
finedistinctionbetween thedifferent perspectivesof IslamicLaw:
So, according to Abu Hanifah, there is no worldly punishment for themurderer,

except kaffarah in case of unintentional murder and punishment in the hereafter
in case of intentional murder... This is because due to imprisonment he [the
victim] became like them [aliens]... and thus, he resembles aMuslim [inhabitant
ofDdr al-Harb]who did notmigrate [toDdr al-Isldm],as both lackworldly
protection (al-(ismah al-dunyawiyyah).20
The precision and clarityof the concepts ofHanafi juristshere seem to be at

theirzenith.21
Hence we are of the considered opinion that the doctrine of ddr as
propounded by theHanafi juristshas nothing to do with the theory that the
normal relationship between the Islamic state and other political entities,
unless theyare bound by truceor peace treaty,is thatof hostility.22In fact,the
doctrine of ddr representstheprincipleof territorialjurisdiction.
Here itwill not be out of place tomention thedefinitionsofDdr al-Isldm
and Ddr al-Kufr as given by theHanafi fuqahd\Ddr al-Islam, according to
them, is the territorywhere Islamic law is applied,23or at leastwhere Muslims
have the potential capability of applying Islamic law even if they do not
actually apply it.24In otherwords, it is the territoryunder the effectiveand
seeminglypermanent control ofMuslims.25Ddr al-Kufr,as distinguishedfrom
19
Kamal al-Din Muhammad Ibn al-Humam al-Iskandari,Fath al-Qadir 'aid 'l-HiddyahShark
Bidayat al-Mubtadi (Cairo:Dar al-Kutub al-'Arabiyyah, 1970), 5: 451.
20
Ibid.
21
SayyidMawdudi opined that Imam Abu Hanifah not only distinguished between different
perspectives of Islamic Law but also distinguished between differentkinds of Ddr al-Kufr.
According toMawdudi, Abu Hanifah would never say that the life and property of those
outside Dar al-lslam were mubah (permissible); rather, he used the phrase ghayr ma'sum
even some of theHanafis, unfortunately
(unprotectedby themunicipal law). The later jurists,
could not always maintain this importantdistinction, and that is why the opinions of Abu
Hanifah could not be fullyappreciated. See,Mawdudi, Sud, 312-313.
22 we
As shall see later. See pp. 23 ff.below.
23
Al-Kasani, BaddTal-SandY, 6: 112.
24
Zakariyya al-Ansari,Asnd 'l-Matdlib fi SharkRawd al-Talib (Cairo: al-Matbacah al-Misriyyah,
1357 ah), 4: 204.
25
"A territoryis ascribed to them [non-Muslims] or to us [Muslims] on the basis of [who has]
the rulingpower and effectivecontrol."Al-Sarakhsi, al-Mabsut,10: 39.

14
Ddr al-lsldm, is the territoryunder the effectivecontrol of non-Muslims in

which they apply their own laws. A Ddr al-Kufrmay become Ddr al
Muwada'ah by concluding a treatyof peace with Ddr al-Islam.26 As compared
which is atwar with Ddr al-lsldm}1
to this,Ddr al-Harb is the territory
There exists the possibility that a non-Muslim statemay not be at war

with Ddr al-lsldmand at the same time itmay also not have a peace treatywith
it. As discussed earlier, there was no fundamental difference from the perspec
tive of the jurisdictionofmunicipal courts between such a state and the state
thathad hostile relationswith Ddr al-lsldm in so far as the courts ofDdr al
Isldm could not exercise jurisdictionin any of these territories.
Therefore, the
termsDdr al-KufrandDdr al-Harb came to be used interchangeably. From the
perspective of international law, however, they were different;the Islamic
state could not attack the formerbecause the cause ofwar against it did not
exist.
Ddr al-lsldmwill not change intoDdr al-KufrorDdr al-Harb, aswe have

already noted, even ifMuslims do not actually apply Islamic law in it,
provided theyhave thepotential capabilityof doing so. Similarly,themere act
26
It has been generally assumed that thefuqahd* did not approve of peace treaties.Some have
even claimed that if a peace treaty is concluded without specifyingthe time period (which the
fuqaha* call al-muwdda'ah al-mutlaqah) itwill be invalid by a consensusof thefuqahd\ See,
Wahbah Athar al-Harb, 675-676. This is, however, a wrong
al-Zuhayli, assumption, especially
with regard toHanafi fuqaha' who have explicitly declared that al-muwada'ah al-mutlaqah is
valid. See, al-Kasani,BadaT al-SandT, 6: 77. There is a differenceof opinion on this issue among
the Shafi'i and Hanbali schools, and Shams al-Din Muhammad b. Abi Bakr Ibn Qayyim al
Jawziyyah (d. 751/1350), the famousHanbali jurist and disciple of the illustriousAhmad b.
'Abd al-Halim Ibn Taymiyyah (d. 728/1328), has made a strong case for the validity of such
treaties.See, Shams al-Din Muhammad b. Abi Bakr Ibn Qayyim al-Jawziyyah,Ahkdm Ahl al
Dhimmah (Beirut:Dar al-Kutub al-'Ilmiyyah, 2002), 1: 336-344. ImamMuhammad b. Idris al
Shafi'I (d. 204/820) has himself explicitly stated that such a treatywill be valid if the parties are
given the option to terminate the treaty at will. See,Muhammad b. Idris al-Shafi'I, al-Umm
(Cairo: Dar al-Fikr, 1961), 4:110. Hence, to declare that theMuslim juristsunanimously reject
such treaties is inaccurate.Wahbah al-Zuhayli has made this claim, although he himself is in
favour of such treaties and has, therefore,criticized thefuqaha' for entertaining thiswrong
supposition. See, for furtherdetails on this issue,Muhammad Mushtaq Ahmad, "Jihadand Peace
Treaties," Journal of theHuman Rights Conflict Prevention Centre, Special Issue on Human
Rights and the Use of Force in Islamic International Law, University of Bihac, Bosnia
Herzegovina, 4: 1-2 (2006), 789-828.
27
Although, as noted above, the termsDdr al-Harb and Dar al-Kufr have been used
interchangeably,it is evident from themanuals offiqh that the termDar al-Harbwas specifically
coined for the entitywhich had hostile relationswith Muslims. Thus, as we shall see later,the
rules applied toDdr al-Harb were differentfrom those applied toDar al-Muwdda'ah, and the
reason for thisdistinctionwas thatwhile the formerhad hostile relationswith Dar al-Isldm the
latter'srelationswith itwere peaceful.

THE NOTIONS OF DAR AL-HARB AND DAR AL-ISLAM1N ISLAMIC JURISPRUDENCE
15
of occupation by non-Muslims is also not deemed sufficientto convertDdr al

Isldm intoDdr al-Harb. After occupation when the occupiers enforce their
own laws insteadof Islamic laws andwhen theMuslims lose the capability to
a
apply those laws in that territory,majority of jurists,includingthe twomost
prominent disciples of Abu HanifahAbu Yusuf and al-Shaybani? believe
thatDdr al-Isldmchanges intoDdr al-Harb.2SSo, in theopinion of these jurists
the truly deciding factor is whether or not Muslims have the actual or
potential capability of applying Islamic law there.However, Abu Hanifah
puts two furtherconditions, namely, contiguity to Ddr al-Harb and the
terminationof amdn granted toMuslims.29The firstconditionwas stipulated
owing to practical considerations.What itmeant was that because of the
contiguity of the occupied territory, Ddr al-Harb's occupation of it was
a
presumably not temporary,that itwould possibly last for long time.The
rationale of the second conditionwas to ascertain the legal position of the
inhabitantsof theoccupied territory.If theyremained thereon the basis of the
permission granted to them by theMuslim community, the territory would
continue to be calledDdr al-Isldm.But ifthe authorityto grantpermission for
living in the territorypasses on to the occupying non-Muslim power, the
territorywill convert intoDdr al-Harb.30In otherwords, Abu Hanifah would
considerDdr al-Isldm to have been converted intoDdr al-Harb onlywhen the
over it.31
occupiers annex the territoryand enjoy effectivecontrol
28
See, al-Kasanii,Badai'i al-Sand'i\ 6:112-113.
29
See, ibid.
30
See, ibid. It may be noted here that the same principle applies toMuslim occupation. If
Muslims occupy a territory,it does not automatically change intoDar al-Isldm by themere act
of occupation. Itwill change intoDar al-Isldmonly if the ruler applies the laws ofDar al-Isldm
there,or when he declares thathe has made it a part ofDar al-Isldm. See, al-Sarakhsi,al-Mabsiit,
10: 39. In other words, it becomes Dar al-Isldm after its formal annexation. Before such
annexation the ruler cannot distribute thewar booty therebecause, according to theHanafis,
war booty can be distributedonly inDar al-Isldm.See, ibid. Similarly,before annexation he can
vacate the territory,althoughwhen he annexes it andmakes it a part ofDar al-Isldm,he isduty
bound to defend it like other parts of Dar al-Isldm. See, ibid. It may be noted that the
a
contemporary international legal order does not consider occupation or annexation to be
sound basis for acquiring territories.
31
In this regard the controversyover the statusof India aftertheBritish had established effective
control over large territoriesof it includingthe capitalmay also be recalled. Itwas the genius of
Shah 'Abd al-'Aziz (d. 1239/1824), the son of the illustrious ShahWall Allah (d. 1176-1762),
who feltthe need to declare India asDar al-Harb afterwhich all the rules ofDar al-Harbwere to
a
apply. This fatwa paved theway for theJihadMovement against the occupants and, then, for
full-fledged War of Independence against the British rulers. See, for details,Mahmood Ahmad
Ghazi, Muslim Renaissance in South Asia 1707-1867: The Role of Shah Wall Allah and His
Successors(Islamabad: IslamicResearch Institute,2002).

16
Bases for the Principle of Territorial Jurisdiction in theQur'an and the

Sunnah
Hanafi juristssupport theprinciple of territorialjurisdictionby referringto a

number ofQur'anic verses and ahddith,some ofwhich will be mentioned and
analysed below.
These verses and traditionslaydown varying rules for theMuslims living
inDar al-Isldm and those livingoutside it.For instance,when Muslims were
persecuted inMakkah theywere ordered tomigrate to the Islamic state of
Madlnah.32 Those who did not migrate were denied the protection of the
Islamic state. Itwas explicitlymentioned that the Islamic statedid not have
any legal responsibility(wildyah)to protect theirrights.But if they asked the
Islamic stateforhelp "in thematter of religion," itwas duty-bound to support
them, ifneeded, evenmilitarily.However, itwas required to actwithin the
termsimposed by the treaties,ifany.33
The following traditionis also explicit in treatingtheMuslim residentsof
the Islamic statedifferentlyfromthose livingoutside theborders of that state:
When you meet the enemies who are polytheists, invite them to three courses of
action. If they accept any one of these, you too should accept it and restrain
yourself from doing them any harm. Invite them to [embrace] Islam; if they do
so, accept it from them and desist from fighting against them. [When they accept
Islam], invitethem tomigrate fromtheirlands to the land ofMuhdjirin and
inform them that if they do so they shall have all the privileges and obligations of
theMuhdjirin. If they refuse tomigrate, tell them that theywill have the status of
Bedouin Muslims and will be subjected to the commands of Allah like other
Muslims, but theywill not receive any share from the ghariimah or fay*34 except
when they actually fight along with Muslims.35
32
See,Qur'an 16: 106-110 and 4: 97-99.
33
See,Qur'an 8: 72 and 4: 75-76.
34
Ghanimah is the termused for the goods captured in amilitary campaign andfay1 is the term
for the goods captured from the opponentswithout using forceagainst them, such as the tribute
they pay after concluding a peace treatywith Muslims. Moreover, moveable property is
generally included in ghanimah while immoveable property is included infay1. The rule for
ghanimah is thatone-fifthof itwill go to thebaytal-malwhile the restwill be distributedamong
themujahidin (Quran 8: 41). As forfay1, itwill not be distributed among themujdhidin', rather,
all of itwill go to the bayt almdl andwill be used for the benefitof allMuslims (Qur'an 59: 7)
within Dar al-Isldm. See, for details, al-Mawsii'ah al-Fiqhiyyah (Kuwait:Ministry of Religious
Affairs, 1995), 31:302-321 and 32:227-234. See also, Muhammad Rawwas Qal'aji, Mu'jam
Lughat al-Fuqaha1 (Karachi: Idarat al-Qur'an, n.d.), 335 and 351.
35
See, Muslim b. al-Hajjaj al-Qushayri, SahihMuslim; Kitab al-Jihad,Bab Ta'mir al-Imam al
Umara'; Abu Tsa Muhammad b. 'Isa al-Tirmidhi,Sunan al-Tirmidhi,Kitab al-Siyar,Bab Ma Ja'
fiWasiyyatihi fi l-Qital; Muhammad b. Yazid IbnMajah, Sunan IbnMajah, Kitab al-Jihad,Bab
Wasiyyat al-Imam. See also Abu Dawud Sulayman b. al-Ash'ath al-Sijistani,Sunan Abi Dawud,

AND DARAL-ISLAMWISLAMICJURISPRUDENCE
17
Significantly,theQur'an calls thoseMuslims who migrated fromMakkah to

Madinah as fuqard* (poor; empty-handed) (Qur'an 59: 8) although some of
themhad property inMakkah. The reason, according to theHanafi Juqahd\ is
that they lostownership of theirproperty in theiroriginalhomeland by virtue
of theirmigration toDdr allsldm. Another proof of their loss of ownership is
that even afterthe conquest ofMakkah theProphet (peace be on him) did not
return these to them.36
properties
Likewise, differentruleshave been laid down forunintentionalmurder or
aMuslim depending on whether he was the inhabitantof an Islamic state,or
an enemy state,or of a statewith whichMuslims had a peace treaty.37
Finally, the case ofAbu Busayr (d. 7/628) and his friendsestablishes the
principle of territorialjurisdictionbeyond any doubt. Abu Busayr had fled
fromMakkah due to persecutionbutwas handed over to theMakkans by the
Prophet (peace be on him) under the termsof theTreaty ofHudaybiyyah
Abu Busayr, however, succeeded in fleeingto a place outside the jurisdiction
of theMadinan state on the highway to Syria. Subsequently, several other
Muslims fled fromMakkah and gathered there.They formed a group and
startedattackingthe caravans of theMakkans. Then theMakkans themselves
waived the condition of theHudabiyyah Treaty under which theMuslims
were bound to hand over to theMakkans the persons who had fled from
Makkah.38
Abu Busayr and his group were beyond the jurisdictionof the Islamic
state.The Prophet (peace be on him) did not quite like theiractivity,39but he
was not legallyobliged to hand over thesepeople to theMakkans. It is to be
noted thatamong non-Hanafi scholars,the famousHanbali jurist,IbnQayyim
al-Jawziyyah,findsa justificationfor theprinciple of territorialjurisdictionin
this case.He argues thatwhen the Prophet (peace be on him) did not put a
Kitab al-Jihad,Bab fiDu'a' al-Mushrikm.

36
See for details, al-Sarakhsi,al-Mabsut, 10:60-63; Al-Kasani, BadaY al-Sana'i\ 6:130-136. See
for furtherdetails,Hamidullah, TheMuslim Conduct of State, 104-15;MawducS, Sud, 281-351;
Idem, Islamic Law and Constitution, tr. and ed.Khurshid Ahmad (Lahore: Islamic Publications,
1992), 185-189.
37
See,Qur'an 4: 92.
38
Abu 'Abd Allah Muhammad b. Isma'll al-Bukhari,al-Jdmi* al-Sahih,Kitab al-Shurut,Bab al
Shurutfi '1-Jihadwa '1-Musalahahma* Ahl al-Harb.
39
This is evident from thewording of the traditionas reported in the al-Sahih of al-Bukhari, the
most authentic of theHadith compilations: "Abu Busayr came and said, 'O Allah's Messenger,
me to them,but Allah
by Allah, Allah has made you fulfilyour obligations by your returning
has saved me from them.' The Prophet (peace be on him) said, 'Woe to hismother!What an
excellentwar kindlerhewould be, shouldhe onlyhave supporter^'
When Abu Busayr heard thathe
understoodthat theProphet (peacebe on him)would returnhim to themagain, so he set off tillhe
reached the seashore." Ibid.

MUHAMMAD
MUSHTAQAHMAD
18
stop to the activitiesof these people he did not violate any provision of the
treatybecause theywere "out of his hand" and as suchwere not under his
jurisdiction(tahtqahrih).40
Applicationof thePrincipleofTerritorialJurisdiction
inHanafi
Jurisprudence
We will now cite a few examples fromKitab alSiyar of al-Sarakhsi'sd-Mabsut
to show that the doctrine of ddr has nothing to do with the theory that the
Islamic state and other political entitieswill normally be engaged in hostility;
rather, it simply denotes territorialjurisdiction.These examples will also
demonstrate that theHanafi juristsapplied this principle not only in their
expositions of the internationallaw of Islam but in other branches of law as
well, such as commercial law, criminal law, the law of torts and even the
personal law.41The followingexampleswill amply illustratethis:
40
Shams al-DinMuhammad b. Abi Bakr IbnQayyim al-Jawziyyah,Zdd al-Ma'ddftHady Khayr
al-'Ibad (Cairo:Matba'at al-Halabi, 1928), 1: 913.Mawdudi also findsa basis in this incident for
the principle of territorialjurisdiction:"The SharVahdoes not admit of a situation inwhich the
Muslims may be deemed to be absolved of themoral responsibilityof the treatyentered into by
their state.But themoral responsibilityof the treatiesof the Islamic statewill devolve only on
theMuslims who are citizens of the Islamic State. Itwill not extend or apply to thoseMuslims
who are not citizens of the State binding itself by a treaty.That is why the Treaty of
Hudaybiyyah was not deemed to be binding on thoseMuslims ofMecca (e.g.,Abu Basir [sic]and
Abu Jandal) who had not yet become the citizens of the Islamic State."Mawdudi, Islamic Law
and Constitution, 187.
41
Instead of following the literalmeaning of the texts, theHanafis try to derive a general
principle from the set of textsavaiable on a particular issue and then apply it to thewhole field
of law. If a differentrule emerges from the literal interpretationof another text, they either
interpretit in lightof the general principle so as tomake it compatable with thatprinciple, or
when such an interpretationis not possible, they take the rulementioned in that text as an
exception from the general principle. In thisway, theHanafis maintain consistency in the legal
system. See for details, Imran Ahsan Khan Nyazee, Theories of Islamic Law (Islamabad:
International Institute of Islamic Thought & Islamic Research Institute, 1994), 147-176.We
have selected al-Sarakhsi's al-Mabsiit to explain the principle of territorialjurisdiction for two
reasons. Firstly, it is an invaluable commentaryon al-KdfifiFuru{al-Hanafiyyah of al-Hakim al
Shahid (d. 334/945),which in turn is an abridgedversion of Zahir al-Riwayah, the six basic texts
of theHanafi schoolwritten byMuhammad ibn al-Hasan al-Shaybanl.Mahmood Ahmad Ghazi
has also conclusively established that al-Kafi preserved the original text of al-Siyar al-Saghirof
Shaybani. See,Mahmood Ahmad Ghazi ShorterBook onMuslim InternationalLaw (Islamabad:
IslamicResearch Institute, 1998), vi-vii of theArabic text and 33-34 of theEnglish translation.
In otherwords, Kitab al-Siyar in al-Mabsut is a commentary on al-Siyar al-Saghir. Secondly, al
Sarakhsi not only elaborates themeaning and necessary implications of a principle but also
relates it to other principles.Moreover, he differentiatesbetween the apparently similar cases
and brings several cases from differentbranches of law under the umbrella of one principle.
Nyazee rightlysays that al-Sarakhsihad a "powerful legalmind" and that "there isno other law
book in the entire Islamic legal literaturethat can match the power of this book." Nyazee,

AND DARAL-ISLAM
19
1. According to theHanafi
jurists,non-Muslims acquire ownership of the property
they capture from Muslims if they carry it to Dar al-Harb. They put forward
several arguments to support this rule. Some of these have already been discussed
above. It isworth noting that forcefully taking possession of property does not
provide a justifiable reason for its ownership within Dar al-Isldm:
Forcefullytakingpossession[ofproperty]is illegalonlywhen itrelatesto a

legallyprotectedproperty(mdlma'sum) and the basis for 'ismah(legal
protection)is ihrdz(safecustody)thebasis forwhich is dar and not din.
This isbecauseof thefactthatihrdzbyvirtueofdin onlyoccurswhere one
believes that one should abide by the Shari'ah and that its violation is a sin.
Obviously, this does not apply to non-Muslims. For them, ihrdz takes place
only when the property is brought toDar al-Isldm because it [that is,Dar al
Isldm] physically defends [its residents] from external attacks. So when the
property is protected because of ihrdz inDar al-Isldm it cannot be owned by
virtue of mere possession. However, when this protection is removed
because of its being taken toDar al-Harb, he who possesses it becomes its
owner.42
Another important argument puts forth by al-Sarakhsi is that the enemy is not
liable to pay compensationforthedamagehe caused to the lifeand propertyof
Muslims. If property were protected by virtue of din, the enemy should have
been liable under Islamic law to pay compensation because "liability to
compensate is a more obvious consequence of 'ismah."*3But as this is not the
case, itmeans that 'ismah is not by virtue of din; rather, it is by virtue of dar.
Hence, the enemy owns the property when it is taken toDar al-Harb.
2. If after enteringDar al-Harb with amdn aMuslim steals the property of a resident
thereof and brings it toDar al-Isldm, "itwill not be lawful for another Muslim to
buy it from him because he brought it by way of treachery, and he is responsible
to them, although the ruler cannot compel him to do
before God to return it
so."44However, a
if Muslim buys it from him the contract will be held valid.45
On the other hand, when a Muslim steals the property of a person inDar al
a peace treaty) and
Muwdda'ah (the land with which Muslims have concluded
brings it toDar al-Isldm, the rulerwill award him ta'zir punishment. Moreover, if
someone else bought the property from him the contract will be held void.46
However, if the people of another non-Muslim entity attack Dar at-Muwdda'ah
and seize some property, itwill be lawful forMuslims to buy it from them.47
TheoriesofIslamic Law, 60.

42
Al-Sarakhsi, al-Mabsut, 10: 62.
43
Ibid.
44
Ibid., 10:69-70.
45
Ibid., 10:104.
46
Ibid., 10:98.
47
Ibid. This passage also shows that theMuslim juristsdifferentiatedbetween the legalpositions
of differentpolitical entitiesof non-Muslims and that it iswrong to assume that they considered

MUHAMMAD
MUSHTAQAHMAD
If a Muslim exchanges one dirham with two dirhams in Ddr al-Harb the
transaction will be invalid according to Abu Yusuf because "a Muslim is bound
"48
everywhere by the laws of Islam. However, according to Abu Hanifah and
Muhammad ibn al-Hasan al-Shaybani, the transaction will be valid "because he
took their property with their consent... unlike the property of musta'minin49 in
our territory because their property becomes legally protected by virtue of the
contract of amdn."50
If some Muslims enter one Ddr al-Harb with amdn and another Ddr al-Harb
attacks the aforementioned Ddr al-Harb, itwill not be lawful for theseMuslims
to takepart inwar "forthepurposeofmakingtheword ofpolytheism but
supreme
[they can take part inwar] for thepurpose ofdefending themselves"51
If a Muslims al-Harb, the hadd punishment cannot
soldier commits zind inDdr
be awarded to him because the cause of action arose outside the jurisdiction of
the Islamic state.52However, ifhe commits this crime within the camps of the
Muslim army, and the ruler has already conferred upon the commander the
or the ruler himself is
authority to impose hadd punishments, leading the army,
then the hadd punishment can be awarded.53 The same holds true for awarding
the qisas punishment.54
If a person comes toDdr al-Isldm fromDdr al-Muwdda(ah without a fresh amdn

Muslims should still respect his rights.55 Similarly, ifhe enters Ddr al-Harb and
Muslims capture that territory they should respect his rights even there and "his
a a is later on captured by
position is like dhimmi who enters Ddr al-Harb, which
Muslims."56
thewhole of theworld outsideDar al-Isldm to be just onedar.

48
Al-Sarakhsi, al-Mabsut, 10:104.
49
Alien non-Muslimswho come toDar al-Isldmon the basis of aman.
50
51
Ibid., 10:106. This ruling again proves the point that theMuslim jurists differentiated
between the legal positions of the differentpolitical entitiesof non-Muslims. The referenceto
anotherDar al-Harb isvery significant.
52
Ibid., 10: 84.
53
See, ibid., 9:115-116.
54
See, ibid.The ruler cannot enforcehudud punishments inDar al-Muwdda'ah as well because
"by this kind of treaty they are neither accepting the enforcementof the Islamic Law nor are
theygivingup the statusof being aliens." Ibid., 10: 97. In otherwords, this treatydoes notmake
them citizens of the Islamic state. Similarly, if a citizen of the Islamic statekills a person from
Ahl al-Muwdda'ah or a musta'min, diyahwill be imposed upon him because, by virtue of the
treatyofMuwdda'ab or the contract of aman, itwas the duty of theMuslim ruler to protect
them.However, he cannot be given qisds punishment because this punishment requires legal
equality between thevictim and the culprit.This, however, is lacking in this case because while
one of them is the citizen ofDar al-Isldm,the other is the citizen of some other political
entity.
As opposed to this, ifaMuslim citizen kills a dhimml,he will be given qisds punishment because
of the legal equality between thevictim and the culprit.See, ibid., 10:104.
55
Ibid., 10: 98.
56
Ibid.

AND DARAL-ISLAM
21
7. The courts of Dar allslam cannot settle any of the disputes of musta'miriin that
arise in Dar al-Harb "because, by entering with aman they do not become
residents of our dar and the cause of action arose when theywere not under the
*57
control of our ruler. However, if they have a dispute after entering Dar al
Isldm the courts can settle the dispute "because the cause of action arose when
theywere under the control of the ruler."58

8. If aMuslim goes toDar al-Harb temporarily and leaves behind his wife inDar al
Islam, their wedlock is not terminated "because aMuslim is legally a resident of
Dar al-Islam even ifhe isphysicallypresent inDar al-Harb and physical separation
between the two dan cannot terminate thewedlock unless legal separation is also
there."59The same holds true for a musta'min in Dar al-Islam.*** It means that
wedlock will be terminated only when the spouses permanently settle in two
different ddrs (tabayun al-darayn).61
9. If a non-Muslim musta'min marries a non-Muslim woman who is resident ofDar

al-Islam(dhimmiyyah) becomea dhimmi;rather,
he does not thereby he remains
a musta'min "because by thismarriage he does not become a permanent resident
of our dar. Rather, [we will presume that] he came to us for trade purposes and
traders sometimes marry [even] in places where they do not intend to settle
permanently (tawattun)."62 However, if he overstays in Dar al-Islam the ruler

should serve him with a notice to either leave the territory or accept the status of
a dhimmi. If he chooses to become a dhimmi or does not leave the
territory after
the time prescribed in the notice the ruler may impose jizyah on him, thereby
making him a dhimmi. This is not compulsion "because his overstay after the
lapse of the timeprescribedin thenotice impliesthathe iswilling to settle

permanently in our dar... and the willingness to abide by the laws is indicated
sometimes explicitly and at others implicitly.*63When a non-Muslim woman
comes toDar al-Islam with aman and marries aMuslim or a dhimmi she
thereby
becomes a dhimmiyyah because this marriage implies that she wants to settle
permanently inDar al-Islam,64
10. Minor children of non-Muslim citizens of Dar al-Islam are considered legally to
be non-Muslims.65 The same holds true for children captured inwar along with
any of their non-Muslim parents. This is because while the child is inDar al
Islam he does not belong to it; rather, he belongs to his parents.66 So, the original
57
Ibid., 10:102.
58
Ibid.
9
Ibid., 10: 69.
60
Ibid., 10:100.
"Ibid.
62
Ibid., 10:93.
"Ibid.
"Ibid.
65
Ibid., 10:71.
66
IslamicLaw considers parents to be asl (root) and theirchild to be far' (branch). Ibid., 9:136.

MUHAMMAD
MUSHTAQAHMAD
22
presumption is that he is to be reckoned with his parents. It is only in absence of

parents that ddr takes their position.67 Hence, if a child is captured with any of
his parentsthelawpresumeshim tobe thefollowerof thereligionofhis parents.
If, however, he is captured without any of his parents and is brought toDdr al
Isldm, he will be presumed to be aMuslim until he attains the age of puberty.68
Finally, if any of his parents embraces Islam he is also presumed to be aMuslim
"because he follows the better of the parents in respect of religion."69
The Nature ofRelationship between Muslims and non-Muslims
As stated earlier, in themodern debate on the nature of the relationship

betweenMuslims and non-Muslims the doctrine of ddr has generally been
linkedwith the theorywhich presumes that thenormal relationshipbetween
the Islamic state and other political entities is thatof hostility.But it is clear
from the foregoingthat thedoctrine of ddr in theHanafi law ratherdenotes
the principle of territorialjurisdictionand that it has no necessary linkwith
the above-mentioned theory.70 So, it is possible thata personmight accept one
doctrine but reject the other. Those among themodern scholarswho reject
theperpetualwar theoryhave generallydeclared that this theorywas based on
the ground realities obtaining at the timewhen thefuqahd* wrote their
manuals offiqh. Hence, they argue directly from the textsof theQur'an and
theSunnah and ignore theworks of thefuqaha\71 While this contentionmay
carry some truth and arguingdirectly from the textsof theQur'an and the
Sunnahmay have itsown merit, disregardof theworks of thefuqahd* in this
connection is not a sound approach. The fuqahd* had themselvesprimarily
derived the rules from theQur'an and theSunnah.At the same time therecan
also be no denying the fact that ground realitiesdo affectthe outlook of all
concerned, including jurists.72 However, there were other more important
67
Ibid., 10: 71.
68
Ibid., 10:71-72.
69
Ibid.
70
We are referringhere to theHanafi law particularly because, as noted earlier, the other
schools do not recognize the principle of territoriality
and, hence, theydo not envisage the legal
consequences of the division of theworld into two dars. See, al-Shawkani, al-Sayl al-Jarrar,
4: 547.
71
See for example,Muhammad Abu Zahrah, "Nazariyyat al-Harb fi 'l-Islam,"al-Majallah al
Misnyyah li'l-Qanun al-Dawli (1958), 33; Wahbah al-Zuhayli, Athar al-Harb, 194-196;
Muhammad Munir, "The Protection ofWomen and Children in Islamic Law and International
Humanitarian Law: A Critique of JohnKelsay," Hamdard Islamicus, vol. 25 (July-September
2002), 69-82.
72
For many centuries the territoriesadjacent to the Islamic statewere atwar with that state. It
was natural, therefore,for thefuqaha* to be influencedby this fact in theirperception of the

AND DARAL-ISLAM
23
legal foundationsaswell. Itwould be pertinentto takenote of the textsof the

Qur'an and theSunnah towhich thefuqaha3 referinorder to substantiatetheir
views. Those modern scholarswho do not subscribe to the theory that the
normal relationship between the Islamic state and other political entities is
thatof hostility should attemptto offeran alternativeinterpretationof those
texts. This alternative interpretationshould not only resolve the issue of
analytical inconsistencywhich mars thewritings of several of these scholars,
but it should also clarifytheposition of thefuqaha* as towhy theybelieved in
the above-mentioned theory.
The textsof theQur'an and the Sunnah,which are profferedto prove
that theory,can be divided into two categories.First, some textsdeclare that
therecannot be any trucebetween Islam and itsantonym,kufr,because there
is an inherent discordance between the two. Second, there are some texts
which mention that theProphet's jihad would continue tillhis final triumph
over his opponents. Let us examine these two sets of texts separately.
DiscordancebetweenIslamandDisbelief
Ideological
We have noted earlier that thereexistsa conflictbetween Islam and disbeliefat
the ideological plane. The textsdealingwith this ideological discordance are
mistaken to signifymilitary confrontation between Muslims and non
Muslims. For instance,one of the oft-quotedverses in this regard is that of
Surat al-Mumtahinah:
There is foryou an excellentexample[to follow]inAbraham and thosewith

him when they said to their people: 'We are clear of you and of whatever ye
worship besides Allah: we have rejected you and therehas arisen between us and
you enmity and hatredforever unless ye believe inAllah and Him alone.m
However, it is also evident from the Qur'an and the Sunnah that this
encounter essentially takes place at the ideological plane and that itdoes not
necessitate perpetual hostility between Muslims and non-Muslims.
we find in the same surahMuslims are told that they
Significantly,therefore,
world order and this is reflectedin their rulings.Thus, when al-Sarakhsideclares thatweapons
should not be sold to those non-Muslimswith whom a peace treatyof temporarynaturewas
concluded, he puts forth the following argument: "Don't you see that after the period
will again become our enemies}"Al-Sarakhsi, al-Mabsut,10: 98.
prescribed in the treatypasses they
Obviously, this argument reflectsthe ground realityof al-Sarakhsi's time.Non-Muslim states,
more often than not,were perceived to be on a look-out for the opportunity to harmMuslims
and the Islamic state.This was not an attitudeof excessive suspiciousness on theirpart; rather,it
was a fairlyplausible readingof the obtaining realities.
73Qur*an,60:4.

24
may have differentkinds of relationshipwith differentkinds of non-Muslims

depending upon theirattitude:
Allah forbiddeth you not those who warred not against you on account of
religion and drove you not out from your homes, that ye should show them
kindnessand deal justlywith them.Lo! Allah loveth the justdealers.Allah
forbiddeth you only those who warred against you on account of religion and
have driven you out from your homes and helped to drive you out, that ye make
friends of them.Whosoever maketh friends of them, such are wrong doers.74
Several other verses of theQur'an and traditionsof theProphet (peace be on

him) also substantiatethis contention.For instance,theQur'an declares that
one of the grounds forwar with theMakkans was that theypersecuted those
who embraced Islam: "And fight them until persecution is no more, and
religion is all forAllah. But if theycease, then lo!Allah is Seer ofwhat they
do."75Similarly, it iswell known thatMuslims were allowed to use forceonly
after they had migrated to Madinah, and that too only against the
transgressors:"Fight in theway ofAllah against thosewho fightagainstyou,
but do not commit transgression. Lo! Allah loveth not the transgressors."76
Some Muslim jurists believe that the prohibition "do not commit
transgression"(la ta'tadu) in theverse above implies thatMuslims should not
initiatehostilities.According to other jurists,this prohibition also includes
prohibition of mutilation of the dead bodies of the enemy soldiers and
maltreatment of the prisoners of war. Yet another group of Muslim jurists
believes that this prohibition also implies thatMuslims must refrain from
killing thosewho are not capable of fightingsuch as women, children, the
aged, the monks and other non-combatants.77
It is on the basis of theseand other similar texts that themajority of the
fuqaha* declared that the ratio of war (Hllatal-qital) in Islamic law is not
disbelief but muharabah (wagingwar against Islam or Muslims).78 In other
74
Qur'an, 60: 8-9.
75
Qur'an, 8: 39.
76
Qur'an, 2:190.
77
See, for the details regardingthese interpretationsof theverse:Abu Ja'farMuhammad b. Jarir
al-Tabari,Jami*al-Baydn (Cairo: Dar al-Fikr, 1963), 2:110-111. See, for furtherdetails,Munir,
"The Protection ofWomen and Children," 69-82.
78
Ibn al-Humam, Fath al-Qadir, 4: 291; Sahnun 'Abd al-Salam b. Sa'id ibnHabib al-Tanukhi, al
Mudawwanab aUKubra (Cairo: Dar al-Baz, 1323 ah), 2: 6. According to some of the Shafi'i and
Hanbali jurists the cause of jihad is kufr (disbelief).See for example,Muhammad al-Khatib al
Shirbini,Mughrii *l-Muhtajila Sharh al-Minhaj (Beirut:Matba'at al-Halabi, 1933), 4: 223; Abu '1
Walid Muhammad b. Ahmad Ibn Rushd, Bidayat al-Mujtahidwa Nihayat al-Muqtasid (Riyadh:
Maktabat Mustafa al-Baz, 1995), 1: 714-716. To substantiate this claim they quote the textsof

THE NOTIONS OF DAR AL-HARB
AND DARALISLAMIN ISLAMICJURISPRUDENCE
25
words, Muslims are not allowed to take up arms against all non-Muslims just
because of theirdisbelief in Islam.Rather, they are allowed to use forceonly
against those who wage war against them.Al-MarghlnanI, elaborating the
cause of war, states:
Mere disbelief[in Islam]doesnot of itselflegalisekilling[anon-Muslim].

Rather,
it ismuhdrabahthatmakes itpermissibleto kill themuhdrib.That iswhy it is
not allowed to killwomen, children,people of old age, thehandicappedand
others who do not have the capability to fight.79
Moreover, ifdisbeliefwere the cause of qitdl then Islamic lawwould not have
guaranteedprotection to thenon-Muslim citizens of the Islamic state.Above
all, if disbelief is considered the reason of war, it leads to compulsion in
matters of religion which violates a fundamentalQur'anic prohibition.80
According to theQur'anic worldview, human are being tested in this lifeas to
whether they submit to, or rebel against, the law of God.81 This test
necessitatesfreechoice, or else the testwould have no meaning:
There is no compulsionin religion.The rightpath ishenceforth

distinctfrom
error. And he who rejects false deities and believes in Allah has grasped a firm
handhold, which will never break. Allah isHearer, Knower.82
The Qur'an also explicitlystatesthat theuse of coercivemeans to resolve

differencesinmatters of religiousbelief negates thevery purpose of granting
man the freedomof choice.83For Islam, as we know, is
opposed to religious
persecution and requiresMuslims to fightagainst thosewho persecute and
coerce people to accept a certain faith.84
The Prophet (peace be on him) was
theQur'an and the Sunnah, which declare that the

Prophet's wars were a kind of Divine
punishment of his opponents. For details see pp. 29 ff. below. It is noteworthy that Ibn
Taymiyyah has attempteda detailed analysisof this issue inhis Qd(idah fl Qitdl al-Kuffarand has
stronglyargued that the ratio ofwar ismuhdrabah and not kufr.See, Taqi '1-DlnAhmad b. 'Abd
al-Halim Ibn Taymiyyah, Ajwibat alMasa'il (Cairo: Matba'at al-Sunnah
al-Muhammadiyyah,
1949), 116-154.
79
Al-Marghinam, al-Hidayah, 2: 380.
80
See,Qur'an 2: 256 See fora scholarly analysis of this issue,Munir, "Public InternationalLaw
and Islamic InternationalLaw," 399-402.
81
"Blessed isHe inWhose hand is the Sovereignty,andHe isAble to do all
things;Who hath
created life and death thatHe may tryyou, which of you is best in
conduct; andHe is the
Mighty the For more details see, Ibn
Forgiving" (Qur'an 67:1-2): Taymiyyah, Ajwibat al
Masa'il, 123-125 andMawdudi, IslamicLaw and Constitution,45-49 and 124-164.
82
Qur'an 2: 256. See also,Qur'an 18: 29.
83
"If ithad been the Lord's Will theywould all have believed, allwho are on earth!Wilt thou
then compelmankind against theirwill to believe!"
84 Qur'an 10: 99. See also,Qur'an 11:118-119.
See, Qur'an 8: 39. This verse uses theword fitnab to denote religious persecution. See also
Qur'an 85: 10. Mawdudi says: uFitnah is a wider term,which encompasses several moral

MUHAMMAD
MUSHTAQAHMAD
26
told that he should call people to God's way "with wisdom and goodly
exhortation" and that he should reason with the opponents "in the best
manner possible."85If,however, some of them rejecthis call, he should leave
thedecision about their fate toGod: "Surelyyour Lord is best aware of him
who has strayedaway fromHis Path, andHe is best aware of thosewho are
guided to theRight Path."86Hence, the purpose of the obligation of jihad,
according to al-Sarakhsi,is "to enableMuslims to live in accordancewith their
religion."87
It might be asked: Had that been the case, how could thefuqaha\
particularlytheHanafis, declare thatjihadwould continue till theMuslim rule
is established in thewhole world? If this lattercontention is accepted it,
will
make redundant thewhole debate over the ratio of war because it equates
muharahahwith disbelief.88 How thefuqaha* could have done awaywith the
ratio ofwar, which theyhad derived from the texts,merely on the grounds
that in their times the adjacentnon-Muslim entitieswere in a continuous state
ofwar with Muslims? The answer to thisquestion is to be found in the second
set of the texts referred to earlier.
crimes... Figuratively, itmeans anything that testshuman beings, and that iswhy wealth and
a are also termed 2sfiinah
offspringshave been calledfiinah. Ups and downs in the lifeof nation
test ... means means
because they them It that fitnah actually test, be it through the things thata
person likes or through fearof damage and troubles. If this test is fromGod, then it is perfectly
rightbecause He is the Creator of human beings and He has the right to testHis creatures.
Moreover, the purpose of this test is to spirituallydevelop them. However, if this test is by a
human being it is absolutely unjust because ... the purpose of this test is to put restrictionson
the freedom of conscience. In this last sense of theword fitnah it is almost a synonym of the
English word "persecution," although the formerismuch wider in its scope."Mawdudi, al-Jihad
fi'l-Islam (Lahore: Idarah Tarjuman al-Qur'an, 1984), 106.While discussing the scope of jihad,
Mawdudi has included a variety of situations in themeaning offitnah,which in his opinion can
justifythe use of force byMuslims. See fordetails, ibid., 106-109.
85
Qur'an 16: 125.
86
Qur'an 16:125-128. See also,Qur'an 27: 76-81.
87
88
To illustratethis, let us suppose that there is a non-Muslim state thathas neitherwaged war
against the Islamic statenor concluded a peace treatywith it.Can the Islamic stateuse military
force against it?Those who say thatdisbelief is the ratio ofwar will allow it,while thosewho
believe that itsratio is non-Muslims' aggressionagainst and hostility toMuslims are likely to say
that the Islamic statecannot use forceagainst it because itdid not commit any act of aggression.
However, if one accepts the theory that the normal relationship between Islamic and non
Islamic states is that of hostility,one will say that the Islamic state can use force against such a
stateprovided there is no peace treaty!Itwill, thus, change the ratio ofwar from aggression to
disbelief.Herein lies the second problem. That is to say, can the ratio ('illah) of a rule be
changed?Al-Sarakhsi has stated explicitly that abrogation of one 'illahby another 'illah is not
allowed. See his, TamhU al-Fusulfi 'l-Usul(Lahore:Maktabah Madaniyyah, 1981), 2: 211.

AND DARAUSLAMIN ISLAMICJURISPRUDENCE
27
The Dominance of IslamandMuslims

There are some verses in theQur'an, particularly in Siirat al-Tawbah>which
commandMuslims to slay the pagans and overpower the Jews and Christians
and thus establish the supremacyof Islam over thewhole of the Arabian
Peninsula.
Then, when the sacred months have passed, slay the idolaters wherever ye find
them, and take them [captive], and besiege them, and prepare for them each
ambush. But if they repent and establish salah and pay zakdh, then leave their
way free.Lo! Allah is Forgiving, Merciful.89
Those who do not believe inAllah and theLastDay ? even thoughtheywere

andwho do not hold as unlawfulthatwhichAllah andHis
giventhescriptures,
Messenger have declared to be unlawful, and who do not follow the true
?
religion fightagainstthemuntil theypay thetributeout of theirhand and are
utterly subdued.90
He it isWho has sentHis Messengerwith theguidanceand theTrue Religion

thatHe may make it prevail over all religions, howsoever the pagans might desist
it.91
Many modern scholarshave suggestedthat theverses of Siirat al-Tawbah

must be understood in the lightof
that seem to have an absolute signification
the verses of Siirat al-Baqarah thatmention the condition of aggression for
having recourse to fighting.92 Thus, according to Muhammad Munir, the
apparently absolute commands of Siiratal-Tawbahwere not absolute in effect
because were about those the unbelievers who had on occasions
they
committed aggressionagainstMuslims. In otherwords, even thoughMuslims
were allowed to initiatea military campaign, itwas, in fact,a continuationof
theprevious hostilities.Their opponents had imposed a stateof relentlesswar
on them.They had to resistthis andwere thus forced to engage in different
wars. In thefinal stage,theMuslims were commanded to strikethe finalblow
to the
aggressors.93
After a careful examination,however, this interpretationdoes not seem
to be fullyconvincing.Firstly, theversesdo not say thatwar would endwhen
89
Qur'an, 9: 5.
90
Qur'an 9: 29.
91
Qur'an, 9: 33; 61: 9, and 48: 28.
92
See,Munir, "Public InternationalLaw and Islamic InternationalLaw," 374-379. See also, Ibn
Taymiyyah, Ajwibat al-Masd'il, 122.
93
See,Munir, "Public InternationalLaw and Islamic InternationalLaw," 389-398.

MUHAMMAD
MUSHTAQAHMAD
28
the opponents would stop aggression againstMuslims. Rather, they declare

that thepaganswere to be considered enemiesuntil they embraced Islam and
thatPeople of theBook were also to be treatedas enemies until they either
embrace Islam or are the above-mentioned
overpowered. Secondly,
interpretationignores the other related verses of this surah,which can be
divided into three categories.First of all, there are verseswhich declare that
thewars foughtby the Prophet (peace be on him) carried, as some scholars
have explicitly pointed out, an element of Divine punishment for his
opponents among his immediate addressees.94Secondly, there are also some
verseswhich declare thatGod and theProphet (peace be on him) will prevail
over his opponents and that Islam will have sway over thewhole of the
Arabian Peninsula.95Thirdly, thereare verses in this surahwhich declare that
therecan be no relationshipofwalay betweenMuslims and unbelievers.96
Taken these verses seem to make a case for the theory that
together,
Muslims' normal relationshipwith others should be thatof hostility. It is for
this reason thatwe had asserted earlier that ifmodern scholars reject this
theory theyhave to come up with some alternativeinterpretationof the texts
fromwhich this theoryis deduced.97Such an alternativeinterpretationshould
solve the problem of systemic inconsistency.So, what can be an alternative
interpretationof these texts?
94
See, Qur'an, 9: 14 and 9: 26.
95
See, Qur'an 9: 32-33. See also, Qur'an 48: 27-28 and 61: 8-9.
96
See,Qur'an 9: 16 and 9: 23-24.
97
One may referhere in this regard to thework ofReuven Firestone entitled,Jihad:TheOrigins
ofHoly War in Islam (New York: Oxford University Press, 1999). It is a good analysis of the
various interpretationsof theverses of theQur'an dealingwith jihad. Firestone identifiesseveral
problems with what he calls the 'classical' interpretationof these verses (pp. 47-65). The most
important flawhe points out is thatof inconsistencyand of looking into differentsetsof verses
in isolation.He proposes to look at theseverses collectively and for this purpose he classifies
them into four classes.The conclusion he draws is very important.He concludes that emphasis
on peace and harmony is foundnot only in theMakkan verses, but also in theverses of the late
Madman period (pp. 67-97). While one can agree in principle with Firestone's proposal of
reading all the relevantverses collectively, there is a drawback in his methodology with regard
to ascertaining the dating of theverses.Thus, while he analyzes the literatureabout 'abrogation'
aswell as 'occasions of revelation,'he gives littleweight to the internalevidence of the surahsin
which the verses are placed. This is because of the generally accepted theory that theverses of a
surah do not have a common theme and common 'occasion of revelation.' The theory of
'coherence' (nazm) in theQur'an gives a differentperspective and, as we shall see in the next
section, it perhaps offers a more convincing interpretation.For details about the coherence
theory see,Mawlana Amln Ahsan Islahi,Tadabbur-iQur'an, 9 vols. (Lahore: Faran Foundation,
2002), 1: 5-15. See also,Mustansir Mir, Coherence in theQur'an: A Study of IslahVsConcept of
Nazm inTadabbur-i-Qur'an (Indiana:American Trust Publications, 1987).

ANDDARAL-ISLAM
THE NOTIONS OF DAR AL-HARB IN ISLAMICJURISPRUDENCE
29
An Alternative Interpretation: The Prophet's Wars asDivine

Punishment
Mawlana Amln Ahsan Islahl (d. 1418/1997),a famousQur'anic commentator
of the fourteenth/twentieth century,contends that thewars foughtby the
Prophet (peace be on him) representedGod's judgmentabout the fateof his
opponents.98Islahl says that a Messenger of God establishes the truthof his
assertions so conclusively that thereremainsno doubt about the truthof those
assertions in theminds of his direct addressees.This iswhat Islahl calls itmam-i
hujjat (establishmentof the conclusive argument).99Islahl contends thatGod
chose selected human beings known as Prophets andMessengers to convey
His message, which is theultimate truth,to theirrespectiveaddressees,basing
theirevidence on the signswithin the souls of people (aydtal-anfus)aswell as
those external to them (aydtal-dfaq) and claiming to have been raised for this
purpose by God.100 As God alone knows who among the opponents of a
Messenger indeed actually clings to rejectinghis message because he fails to
bringhimself to accept itstruth,theMessenger keeps on preachinghismessage
untilGod Himself reveals to him this realityand commands him tomove out
of his habitat to some other place.101Islahl asserts that after theMessenger
98
Amin Ahsan Islahi has expressed thisview at several places in his writings, especially in his
commentaryof theQur'an. See, for instancehis, Tadabbur-iQur'an, 3: 546.
99
One of the verses Islahi quotes to substantiatethis claim isQur'an 4:165. "TheseMessengers
were sent as bearers of glad tidingsand as warners so that aftersending theMessengers people
may have no plea againstAllah." See Islahi's commentary on thisverse, ibid., 2: 432. See also,
ibid., 4: 434 and 6: 594. In order tomake itmam-ihujjat, says Islahi, theMessenger triesvery
hard to reach out to his addressees and tries to convince them in a variety of ways. Itmam-i
a
hujjatmay takemany years to happen. Those who do not accept themessage of Messenger
may raise numerous objections and questions and theMessenger tries his best to satisfythem.
The Qur'an testifiesthatNuh [Noah] (peace be on him) spent nine hundred and fiftyyears
on him)
preaching to his people (Qur'an 29:14). See also,Qur'an 71: 5-14 where Nuh (peace be
a 'summary report' of his efforts. At times theMessenger may also come forth with
gives
miracles as a finalproof of the truthof hismessage. See, Islahi,Tadabbur-iQur'an, 3: 343.
100
See, ibid. 5: 499 and 7: 311. See also,Amin Ahsan Islahi,Haqlqat-i Din (Lahore:Khuddam al
a
Qur'an, 1975), 204-59. Islahi also differentiatesbetween the position of Messenger (rasul) and
thatof a Prophet (nabi). In his opinion, a nabimay ormay not prevail over his opponents, but a
rasiilmust be able to do so. In otherwords, the opponents of a Prophet might possibly not be
a
given a punishment during his lifetime,but the opponentsof Messenger, if theypersist in their
enmity, are destroyed in his lifetime. See, Islahi,Tadabbur-iQur'an, 1: 478; 4: 33 and 7: 399. The
following are some of the verses which he quotes in this regard:Qur'an 58: 20-21; 40: 51;
14:14-15; 9: 23-33; 48: 28 and 61: 8-9.
101
The Qur'an says the following about the addressees of Nuh (peace be on him): "It was
revealed toNuh that no more of your people, other than thosewho already believe,will ever
come to believe. So, do not grieve over theirdeeds, and build theArk underOur eyes andOur
direction"Qur'an 11: 36-37. The entryofNuh (peace be upon him) in his Ark, according to

MUHAMMAD
MUSHTAQAHMAD
30
migrates fromhis home territoryalongwith his followers,God decimates his

opponents and assigns toHis Messenger the duty tomake the true religion
Hence, the opponents are destroyed by natural
prevail in that territory.102
calamities if the followers of theMessenger happen to be only few in
number.103 However, if there is a sizeable number of that Messenger's
followers, they are asked to fighttheiropponents and, thus, they become a

formofDivine punishment thatafflictsthem.104
Islahi also explains thedifferencebetween the treatmentof thepagans and
thePeople of theBook by assertingthat shirk (polytheism) is a guilt of such
awesome magnitude thatGod does not forgiveit.As opposed to the pagans,
the Jews and Christians did not accept shirk as their faith, even though
elements of it had made their inroads in theirbeliefs and practices.105
Javed
Ahmad Ghamidi (b. 1951), a famous disciple of Islahi, has furtherelaborated
Islahl's theory.He contends that thewars foughtby theCompanions of the
Prophet (peace be on him) against theByzantine and Persian Empireswere, in
fact,a fulfilmentand completion of hismission. That iswhy, he asserts,they
foughtonly against thosepeople towhom theProphet (peace be on him) had
sent lettersinvitingthem to embrace Islam.106
Islahi,was an act of hijrah (migration).The ProphetMuhammad (peace be on him) was even

taught the prayer formigration (Qur'an 17: 80). See, Islahi's commentary on this verse,
Tadabbur-i Qur'an, 4: 532.
102
The following are some of the verses of theQur'an on which Islahi relies for this assertion:
Qur'an 14: 9-15; 17: 76-77; 21: 105-106; 22: 39-41. See, ibid., 4: 314-318; 4: 529; 5: 194-199; 5:
252-259.
103
This is how Islahi explains the destruction of 'Ad, Thamud, Pharaoh and others. See, for
instance, his commentary on Surat Tadabbur-i 7: 87-116. See also Qur'an,
al-Qamar, Qur'an,
29: 40 and Islahi's commentaryon it,Tadabbur-iQur'an, 6: 41.
104
According to Islahi, thiswas thebasis for thewars foughtbyMusa andMuhammad (peace be
on them). It isworth noting that several scholarshave criticized theBiblical narratives of the
wars of Joshua on the basis that thesewere wars of "extermination." See, for instance,Karen
Armstrong,Holy War (New York: Anchor Books, 2001), 8-9. See also, idem,A History ofGod
(London:William Heinemann, 1993), 32-33. If Islahi's theory is accepted itmay also throw a
new lighton the nature and purpose of Joshua'swars. Islahi says that
although each individual
will be rewarded forhis (or her) deeds on theDay of Judgment,God has shown a sign of that
Divine justice several times in the history of mankind. Each time a Messenger comes to a
community, he brings with him God's judgment regarding that community. See, Islahi,
Tadabbur-iQur'an, 5: 320; 7: 285 and 8: 590.
105
See, ibid. 3: 540-541 and 560; 7: 397 and 456.
106
See, JavedAhmad Ghamidi, uQdnun-iDa'waf in his,Mizan (Lahore: Dar al-Ishraq, 2001),
201-204. Commenting upon the peculiar nature of thewars of the Prophet (peace be on him)
and of his Companions, al-Sarakhsi says: "Sufyan b. 'Uyaynah says:Allah sentHis Prophet
(peace be on him) with four swords.With one swordhe himself foughtwith theArab pagans;...
with the second sword Abu Bakr foughtwith the apostates; ...with the third sword 'Umar
foughtwith theMagians and thePeople of theBook; ... andwith the fourthsword 'All fought

AND DARAL-ISLAM
THENOTIONS OF DAR AL-HARB IN ISLAMICJURISPRUDENCE
31
Islahfs theory solves some very importantquestions about thewars of

theProphet (peace be on him). It explainswhy theQur'an told theMakkans
that their defeat in the Battle of Badr was the first instalment of the
punishmentmeted out to them.107 It also explainswhy theBattle ofHunayn
in fact representeda Divine punishment ((adhab) for the opponents.108 We see
that in the very firstrevelationpermittingtheMuslims to fightagainst their
oppressors was
it declared that this
would be a punishment for the latterin the
samemanner as the earliernations thathad rejected themessage ofGod had
been punishedwith natural calamities:
Sanction is given unto those who fight because they have been wronged; and
Allah is indeed able to give them victory.109... If they deny thee, even so the folk
ofNuh, and 'Ad andThamud, beforethee,denied;and thefolkof Ibrahimand
thefolkofLut and thedwellersinMadyan.AndMusa was denied;but I indulged
the disbelievers a long while, then I seized them, and how [terrible] was My
punishment!110
Likewise, when an ultimatumwas given to the opponents after the conquest

ofMakkah, theMuslims were asked to fightagainst them in the following
words: "Fight them!Allah will punish themat yourhands andHe will lay them
low."111This clearly shows that therewas indeed an element of Divine
punishment in the wars of the Prophet (peace be on him) against his
opponents.
It must be noted, however, that even after itmam-ihujjat, to borrow
Islahi's expression, theMuslim community did not initiate armed conflict;
rather, war was imposed on it by the opponents. Hence, the Prophet's wars
were at one and the same time defensive wars in response to muharabah and a
Divine punishment of thosewho knowingly rejected the truth.This resolves
theproblem of systematicinconsistency.
with the anarchists, the rebels and the iniquitous...." Al-Sarakhsi, al-Mahsut, 10: 4. In other
words, even thewars of theCompanions were considered as part of thePropheticmission. This
may explain the earlier Islamic conquests.We have pointed elsewhere thatmerely mundane
reasons, such as defence ofMuslim population and territoryor retaliation and hot pursuit,do
not fully justifythese conquests.Muhammad Mushtaq Ahmad, "Book Review on IsmailAdam
Patel,Medina toJerusalem:Encounterswith theByzantineEmpire? Islamic Studies, 44: 4 (2005),
636-638.
107
See,Qur'an 8: 38-40; Islahi,Tadabbur-iQur'dn, 3: 469-473.
108
See,Qur'an 9: 26; Islahi,Tadabbur-iQur'an, 3: 555.
109
Qur'an 22: 39.
110
Qur'an 22: 42-44; Islahi,Tadabbur-iQur'an, 5: 262-263.
111
Qur'an 9: 14; See also, Islahi,Tadabbur-iQur'an, 3: 546-547.

MUHAMMAD
MUSHTAQAHMAD
32
Now, thequestion is: canMuslims claim in thepresent times to have the

rightto punish non-Muslims fornot embracingIslam or fornot submittingto
theMuslim rule?According to Islahi's theory,only aMessenger has this right
because only he can claim to have establishedtheultimate truthbeyond every
shadow of doubt.112In otherwords, the rulesmentioned in Siirat al-Tawbah
are time-specificas well as place-specific.They were applicable only to the
immediate addressees of theMessenger of God in and around theArabian
Peninsula. They cannot be extended to non-Muslims of the latergenerations.
Hence, there is no room for the theory thatholds hostility to be the normal
stateof relationshipbetween the Islamic stateand otherpolitical entities.
Now, let us considerwhether there is sufficientevidence in thefiqh
literature to support this contention.
Evidence fromFiqh Literature
There has been disagreement among the fuqaha' about the validity or
otherwise of takingjizyah from theArab idolaters.The Hanafis have been of
the opinion that they could not be made citizens of the Islamic statebecause
theQur'an had orderedMuslims to fightagainst them until they embraced
Other juristsheld that theArab idolaterscould be made citizens of
Islam.113
the Islamic state and that therewas no differencein their legal position and
that of other non-Muslims.114 However, several verses and traditions of the
Prophet (peace be on him) prescribe a distinct dispensation for the Arab

idolaters.The Prophet (peace be on him) is reportedto have declared:
I have been ordered to fight against thepeople until they testify that none has the
right to be worshipped but Allah and thatMuhammad isAllah's Messenger, and

establish saldh and pay zakdh. So, if they do that, then they save their lives and
property fromme except on legal grounds and then their reckoning will be done
by Allah.115
112
See, JavedAhmad Ghamidl, "Qanun-iJihad" inhis,Mizdn, 264-70.
113
Abu Bakr Muhammad b. Ahmad ibn Abi Sahl al-Sarakhsi, Shark al-Siyar al-Kabir
(Hyderabad: Da'irat al-Ma'arif al-Nu'maniyyah, 1335ah), 1:102; Ibn al-Humam, Fath al-Qadir,
4: 370; Abu Muhammad 'Ali b. Ahmad Ibn Hazm, al-Mukaltd hi i-Athar (Cairo: Matba'at
Munlr al-Dimashqi, 1352 ah), 7: 345. The Hanafis generallyquote the followingverse as a basis
for this rule: "You will be called against thosewho possess greatmight and be asked to fight
against themunless theyembrace Islam"Qur'an 48: 16.
114
Muhammad b. Ahmad b. 'Arafah al-Dasiiqi,Hashiyah 'aid 'l-Sharhal-Kabir (Cairo:Maktabat
Mustafa Muhammad, 1373ah), 2:201; Muhammad b. 'All al-Shawkani,Nay I al-Awtar: Shark
Muntaqa 'l-Akhbar(Cairo: al-Matba'ah al-'Uthmaniyyah al-Misriyyah,1957), 7: 232;Muhammad
b. Jariral-Tabari, Ikktilafal-Fuqahd\ ed. Joseph Shacht (Leiden: E. J.Brill, 1933), 201.
115
Muhammad b. Isma'il al-Bukhari,al-Jdmi'al-Sabih, Kitab al-Iman,Bab Fa inTabu wa Aqamu
wa
'1-Salah Ataw 'l-Zakah.

THENOTIONS OF DAR ALHARBAND DARAL-ISLAMJN
ISLAMICJURISPRUDENCE
33
In this tradition, although the word "people" (alnas) is general, yet the
scholars ofHadith have generallyheld that here it specifically signifiesthe
Arab idolaters.116
One of the supportingproofs for this is that in one version
of the traditionone findstheword al-mushrikininsteadof theword
"people"
(al-nas)}17This is also evident from the fact that al-Bukhari includes this
traditionin a chapter towhich he gave the followingverse as the title:
Then,when the sacredmonthshave passed,slay the idolaters

whereverye find
them,and take them [captive],and besiege them,and prepare for themeach
ambush.But if theyrepentand establishsaldhand pay zakdh,then leave their
way free.Lo! Allah is Forgiving, Merciful.118
As noted above, thisverse ispart of a longdiscourse inwhich theArab pagans

were given an ultimatum. It isworth noting that in the verse theywere
required to repent,establish saldhand pay zakdh. In the tradition,however, in
place of "repentance"we find the requirementof testifyingto theOneness of
God and theProphethood ofMuhammad (peace be on him). Viewed in the
lightof this tradition theword "repentance" in the versemeant abandoning
idolatryand embracing Islam. The implicationwas that their refusalto do so
would bringGod's punishment on the pagans from among the immediate
addresseesof theProphet (peace be on him). Al-Sarakhsl,while justifyingthe
differencein the treatmentof theArab idolatersand othernon-Muslims, says:
Ahl al-Kitdb from among theArabs have the same status as those of the non-Arab
Ahl al-Kitdbinsofaras jizyah is acceptablefromthem...becauseoriginallythey
were not Arabs even if they settled inArabia. They were Israelites. Even if there
were some Arabs among them, their sin was not as grave as that of the pagans
because they[thatis,Ahl al-Kitdb]believedinmonotheism.That is thereason
why it is allowed to marry their women and eat the meat of the animals
slaughtered by them.119
This is exactlyhow Islahl explainswhy thePeople of theBook were treatedin

a manner differentfrom the idolaters.120 On the same principle,we hold that
this rulewould not apply to theArab idolatersof the latergenerations.Hence,
our conclusions is thaton the issue of jizyah, the opinion of theHanafis was
116
Ahmad b. 'All Ibn Hajar al-'Asqalani, Fath al-Bari hi Sharh Sahih alBukkm (Cairo: al
Matba'ah al-Misriyyah,1352 ah), 1:64.
117
See,Abu 'Abd al-RahmanAhmad b. 'All al-Nasa'i, Sunan al-Nasa% Kitab al-Muharabah,Bab
Tahrim al-Dam.
118
Qur'an 9: 5.
119
Al-Sarakhsi, al-Mabsut, 10:120.
120
See, Islahl,Tadabbur-iQur'an, 3: 560.

MUHAMMAD
MUSHTAQAHMAD
34
correctonly about theArab idolatersfromamong the immediateaddresseesof

the Prophet (peace be on him), while the opinion of themajority jurists is
correct about theArab idolatersof the latergenerations.121 What about the
Magians who were non-Arab polytheists?
The Prophet (peace be on him) is reported to have accepted jizyah from
some of theMagians.122He is also reportedto have advised his Companions to
treat them like thePeople of theBook, except inmarrying theirwomen and
eating themeat slaughteredby them.123 Basing on these reports,Shafi'I jurists
considered theMagians to be part of thePeople of the Book, and thus they
laid down the rule thatjizyah can only be accepted from the People of the
Book.124
The Hanafls, however, do not accept thisposition.Al-Sarakhsi says that
the Qur'an applies the phrase "People of the Book" only to Jews and
He furthersays that there isno doubt that theMagians* religion
Christians.125
was centred upon shirk because theyworshipped two gods. So, the rule,
according to him, is that itwere only theArab idolaters fromwhom jizyah
could not be accepted.126 Here the question arises:why were theMagians
treateddifferentlyfrom theArab mushrikinwhen both the groups had fallen
Ifwe go by the theory of Islahi, the
prey to shirk in their religious life?127
answerwill be that theProphet (peace be on him) personally established the
truthbefore theArab mushrikin and, hence, they could not be granted any
relaxation. In other words, the crime of theMagians was not as grave as that of
theArab mushrikin.This is exactlywhat theHanafi juristshave stated.Al
Marghinani, for instance, remarks that the guilt of theArab idolaterswas
more grievous than thatof theMagians because theProphet (peace be on him)
lived in theirmidst and theQur'an was revealed in theirlanguage.128
121
Itmay also be mentioned here that according to IbnQayyim al-Jawziyyahthisdisagreement
among the earlier jurists did not have any practical implication because by the time this
ultimatumwas given, virtually allArabs had either embraced Islam or were slain in the course
ofwars. See his,Zad al-Ma'ad, 1: 914. See also, idem,Ahkam Ahl al-Dhimmab, 1: 24.
122
See,Al-Bukhari? al-JamVal-Sahih,Kitab al-Jizyah,Bab al-Jizyahwa 1-Muwada'ah Ma* Ahl al
Harb; Al-Tirmidhl, Sunan al-Tirmidhi,Kitab al-Siyar,Bab Ma ja' fi Akhdh al-Jizyahmin al
Majus.
123
See,Abu 'UbaydQasim b. Sallam,Kitab al-Amwal (Cairo:Dar al-Fikr, 1353 ah), 30.
124
Al-Shafi'i, al-Umm, 4: 95.
125
See, al-Sarakhsi,alMabsut, 10:121.
126
See, ibid.
127
Ibn Tamiyyah was of the opinion that the crime of theMagians was more grievous than that
of theArab pagans. See his,Ajwibat al-Ma$a% 131-133.
128
Al-MarghlnanI, al-Hidayah, 2:402. One of the commentators of theHiddyah further
elaborates this rule as the following: "The truthof his message was clearer to them [that is, the

THENOTIONS OF DAR AL-HARB IN ISLAMICJURISPRUDENCE
AND DARAL-ISLAM
35
While theMagians resembled thePeople of theBook in this respect,they

were differentfrom them in other respects.So, other rules about theArab
mushrikinwere to apply to them, such as the prohibition to marry their
women and to eat the fleshof animals slaughteredby them.
Another related issue is thedismantlingof the symbolsof shirkaswell as

on him) dismantled all
places ofworship ofmushrikin.The Prophet (peace be
the idols found in theKa'bah and other places inArabia.129 It is significant,
however, that theCompanions did not destroy any place of worship in the
territoriesthey conquered. For example, the treatyconcluded by Khalid ibn
al-Walid (d. 21/642) with the people of al-Hlrah during the caliphate of Abu
Bakr (r. 11-13/632-634) contained the following provisions: "Neither a
church nor monastery will be destroyednor a fortwhere theyused to take
nor
refuge in case of attack; nor will they be prohibited from ringingbells
from displaying crosses on Christmas."130 They were, however, required to
take due care of the timings of prayers of Muslims and their religious
sentiments.131
The same conditionswere laid down in differenttreatiesconcludedwith

thenon-Muslims during the caliphateof 'Umar (r. 13-23/634-644),132In some
treaties itwas explicitlymentioned thatnon-Muslims "will not be coerced in
matters of religion"133or that "theywill not be forced to change theirreligion
and they should not be prohibited from settling their personal issues in
accordance with their own laws."134
The reason for this difference,according to the theoryof Islahx, is that

what theProphet (peace be on him) did was a specificfeatureof hismission.
aware of his character even before he

Arabs] because he lived in theirmidst and theywere well
startedhis preaching. That iswhy theygave him the titleof al-amin (the trustworthy)and they
knew quite well that he always avoided telling a lie. If he never fabricateda statementabout
humans how could he fabricate a statement about God? Moreover, since theQur'an was
revealed in their language theyhad a better appreciation of themeaning of theQur'an, the
content. So, itwas a conclusive proof for them.*Jalal
majesty of itswords and themiracle in its
al-Din al-Khwarzami, al-Kifayah, on themargin of Fath al-Qadir (Cairo:Mustafa al-Babi, n.d.),
5: 292.
129 Bab Izalat al-Asnammin Hawl al
See,Muslim b. al-Hajjaj, alSahih, Kitab al-Jihadwa '1-Siyar,
Sunan Kitab
al-Tirmidhi, al-Tafsir,Bab wa min SuratBan! Isii'il.
Ka'bah; Al-Tirmidhi,
130
Abu Yiisuf, Kitab al-Kharaj, 154.
131
See, ibid., 158.
132
See, ibid., 149.
133 Ibn al
See, for instance, the text of the treaty concluded with theChristians of Najran,
Qayyim, Zad al-Ma'ad, 3: 53.
134
Ibid.

MUHAMMAD
MUSHTAQAHMAD
36
Since he established theultimate truthbeyond everydoubt he was entitledto

remove all the symbols of shirk from the Arabian Peninsula which was
consecrated as Islam's centre:
religious
He it isWho has sentHis Messengerwith theguidanceand theTrue Religion

thatHe may make it prevail over all religions, howsoever the pagans might desist
it.135
Practices aswell as overt symbolsof polytheismwere done awaywith across

the Arabian Peninsula which was made the focal centre of unadulterated
monotheism as expounded by Islam.136This was a part of the Prophet's
mission, was specificto him, andwas restrictedtoArabia. Hence, itwas clear
to the earlyMuslims that theyare not allowed to destroyplaces ofworship of
non-Muslims outside Arabia in the name of dismantling the symbols of
shirk.137
Conclusion
To recapitulate,thedivision of theworld byMuslims juristsintoDdr al-Isldm

and Ddr al-Harb, especially as expounded by theHanafl jurists,has no
necessary linkwith the view that that the Islamic state should normally be
looked in hostilitywith non-Islamic states.This division ratherrepresentedan
affirmationof the principle of territorialjurisdiction.The territory wherein
the courts of the Islamic state could exercise jurisdictionwas calledDdr al
Isldm.From theperspectiveof jurisdictionof the courts, the restof theworld
was considered justone ddr?the so-calledDdr al-Kufr.From theperspective
of internationalrelations,however, thisDdr al-Kufrcould be of different kinds
depending upon the nature of the actual relationship obtaining between a
given territoryand the Islamic state.Thus, a statehaving hostile relationswith
the Islamic statewas Ddr al-Harb,while a statehaving peaceful relationswith
the Islamic statewas called Ddr al-Muwdda'ah.The law of the land in the
Islamic state recognized some rights for the people of Ddr al-Muwdda'ah
because, by virtue of peace treaty,some jurisdictionwas established for the
courtsof the Islamic state.As theHanafl school follows the
theoryof general
principles in interpretingthe textsof theQur'an and theSunnab, theyapplied
thedoctrine of territorialityto everybranchof law.
135
Qur'an, 9: 33,61:9, 48: 28.
136
See for theProphet's directive,Malik b. Anas, alMuwatta\ Kitab al-Jami',Bab Ma ja' fi Ijla'
al-Yahudmin al-Madlnah.
137
The Taliban regimedemolished the statuesof Buddha inBamyan, Afghanistan, and cited the
destruction of idols by theProphet (peace be on him) as the reason fordoing so.

AND DARAL-ISLAMINISLAMICJURISPRUDENCE
37
As for the theory thatIslamic state'srelationshipwith other statesshould

be thatof hostility, itwas based not only on the ground realitiesobtaining at
the timewhen thefuqaha* formulatedit, but also on a particular reading of
some textsof theQur'an and theHadith, some ofwhich declared the existence
of an ideological conflictbetween Islam and disbelief,while others declared
that themission of the Prophet (peace be on him) will be completed only
when all his opponents are subdued.The formersetof the textswas perceived
to provide theoreticalbasis for the theoryof hostility betweenMuslim and
non-Muslim political entitiesmentioned above. This set of texts does not
necessitate a stateof continuous hostilitybetweenMuslims and non-Muslims,
however,were the application of the rulementioned in the second set of the
textsnot considered to be confined to the space-timecontext inwhich itwas
proclaimed, it is only then that itcould serveas thebasis of the theorythat the
normal relationship between Muslims and non-Muslim entities is that of
hostility.The texts of theQur'an and the Sunnah, however, do not lend
themselvesto such an extension.For theProphet'swars carried an elementof
Divine punishmentwith regard to his opponents, just like in the case of all
otherMessengers ofGod, because he had conclusively established the truthof
his mission beyond all doubt at least as far as his immediate addressees of
seventh centuryArabia are concerned.Apart from the immediate addressees
of theProphet (peace be on him), other non-Muslims cannot be subjected to
anyworldly punishment for theirdisbelief in Islam. This is because itwill
violate the fundamentalQur'anic prohibition of compulsion inmatters of
religion (See Qur'an 2: 256). The fuqaha* also recognized this aspect of the
mission of theProphet (peace be on him) and considered it to be the basis of
several rules that they derived.
Jihad, in any case, does not seek forcibleconversion of non-Muslims to

Islam.Rather,Muslims are required to fightagainst thosewho try to disturb
theDivine schemeof thingsby persecutingpeople in order that theyaccept or
rejecta particular faith.Hence, thefuqaha3 categoricallydeclared that thenon
Muslims' muharabah (wagingwar against Islam andMuslims), if and when
was the
theyembarkupon it, ratherthan themere factof theirdisbelief (kufi)
proper ratio of war.
? $ Q


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The Notions of Dār al-Ḥarb and Dār al-Islām in Islamic Jurisprudence with Special Reference

to the Ḥanafī School

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The Notions of Ddr al-Harb and Ddr

(i) Dar al-Harbgaveriseto theimpression

relationship with non-Muslim entities remains that the

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denying the fact that to comprehend thedoctrine of jihad as expounded by the

The basis of theobligationof jihad is theuniversality

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This paper attemptsto examine theMuslim jurists'division of theworld

Dar al-Islam andDar al-Harb

We will firstexamine the views of theHanafi school on the division of the

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views of other legal schools.5

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cause of action arisesbeyond the territoriallimitsof the Islamic state.8In other

Moreover, Islamic law also distinguishesbetween differentnon-Muslim

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entity,some jurisdiction might be grantedto the Islamic stateas a consequence

jurisdictionwas created for these courts.This was the reasonwhy thefuqahd'

anyMuslim, according to the opinion of these jurists,thewrongdoer can be

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We shall reproduce below some passages from thewritings of various

If a Muslim enters Ddral-Harb with amdn and lends money to or borrows

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Burhan al-Din 'All b.Abi Bakr al-Marghinam(d. 593/1197), the author of

Furthermore, if a citizen of Ddr al-Isldm commits themurder of even a

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of theircaptivity,they are consideredoutside the jurisdictionofDdr al-hldm.

So, according to Abu Hanifah, there is no worldly punishment for themurderer,

The precision and clarityof the concepts ofHanafi juristshere seem to be at

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Ddr al-lsldm, is the territoryunder the effectivecontrol of non-Muslims in

There exists the possibility that a non-Muslim statemay not be at war

Ddr al-lsldmwill not change intoDdr al-KufrorDdr al-Harb, aswe have

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of occupation by non-Muslims is also not deemed sufficientto convertDdr al

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Bases for the Principle of Territorial Jurisdiction in theQur'an and the

Hanafi juristssupport theprinciple of territorialjurisdictionby referringto a

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Significantly,theQur'an calls thoseMuslims who migrated fromMakkah to

Kitab al-Jihad,Bab fiDu'a' al-Mushrikm.

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provide a justifiable reason for its ownership within Dar al-Isldm:

Forcefullytakingpossession[ofproperty]is illegalonlywhen itrelatesto a

TheoriesofIslamic Law, 60.

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If a person comes toDdr al-Isldm fromDdr al-Muwdda(ah without a fresh amdn

thewhole of theworld outsideDar al-Isldm to be just onedar.

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theywere under the control of the ruler."58

9. If a non-Muslim musta'min marries a non-Muslim woman who is resident ofDar

permanently (tawattun)."62 However, if he overstays in Dar al-Islam the ruler

lapse of the timeprescribedin thenotice impliesthathe iswilling to settle

permanently inDar al-Islam,64

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presumption is that he is to be reckoned with his parents. It is only in absence of

The Nature ofRelationship between Muslims and non-Muslims

As stated earlier, in themodern debate on the nature of the relationship