Permision to Stay in Enemy Territory

Permission to Stay in “Enemy” Territory?

H· anbalı juristic thinking on whether Muslims must emigratefrom non-Muslim lands

Steven GertzUniversity of Exeter

AbstractMuslim scholars writing about the legal situation of Muslims living under non-Muslimrule during the seventh/thirteenth and eighth/fourteenth centuries were primarilyconcerned with whether Muslims should be allowed to live under non-Muslim rule orwhether they should emigrate (or go on hijra) from it. Two H· anbalı legists, Ibn Qudama(d. 620/1223) and Ibn Muflih· (d. 763/1362), both of whom lived and wrote in Damascus(Ayyubid and Mamluk, respectively), address this issue in their legal works (fiqh). Theirscholarship, when compared with that of the H· anbalı scholar Ibn Taymiyya (d.728/1328), is instructive, particularly when one considers differences between thesescholars’ experiences of non-Muslim rule. A guiding question is how experience mayshape (or fail to shape) a jurist’s position on hijra, since the events of the time (theCrusades and, later, the Mongol invasions) forced Muslims living under non-Muslimcontrol to decide whether they must leave such lands. Loyalty to one’s school (taqlıd)appears to have influenced the jurists most in their thinking, but experience shaped howthey justified their positions on whether a Muslim must emigrate from lands undernon-Muslim control.

In his University of Manchester dissertation, Aboobaker M. Asmal laments thatif a scholar wants to look for material about Muslims living under non-Muslimrule in legal works (fiqh), he or she will be hard-pressed to find much on the

topic.

Muslims under non-Muslim rule, as a specific issue, does not seem to be dealt withby Fiqh works. Even a detailed look at the sections which usually deal with matterscovered by today’s “international law” like jihad, hijra, aman or siyar revealedvery little. On the contrary, one gets the impression on reading through such worksthat such a scenario was hardly contemplated or catered for. It is almost as if the

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jurists never anticipated Muslims living under non-Muslim rule once the Islamicstate or dar al-Islam had come into existence.1

What concerned the jurists, Asmal continues, was whether Muslims should beallowed to live under non-Muslim rule, or whether they must emigrate from non-Muslimlands. In his important article on emigration (hijra) from non-Muslim lands, KhaledAbou El-Fadl identifies the various positions taken by Sunnı jurists on the matter. Amongthe classical jurists, he observes, al-Shafi‘ı (d. 206/820) demonstrated the most accom-modating spirit, arguing that if Muslims could practice Islam openly, without fear ofconversion, they should feel no obligation to emigrate. By contrast, Malik b. Anas (d.179/795) advised Muslims not to live in non-Muslim lands because they would be forcedto submit to non-Muslim law; he went so far as to discourage Muslims from eventraveling in those lands.2

The Crusader invasion of Palestine and Syria at the end of the fifth/eleventh century(and later, the Mongol invasion of Iran and Iraq in the seventh/thirteenth century) lentpractical urgency to this question.3 Three notable Syrian jurists from the H· anbalı lawschool (madhhab) addressed this issue: Taqı al-Dın Ah·mad b. Taymiyya (d. 728/1328),Muwaffaq b. Qudama (541–620/1147–1223) and Muh· ammad b. Muflih· al-Qaqunı(710–763/1310–1362). These scholars are particularly interesting to compare becausetwo of them, Ibn Qudama and Ibn Taymiyya, had direct experience of non-Muslim rule,whereas Ibn Muflih· did not. As Yahya Michot has extensively analyzed the writings ofIbn Taymiyya on the subject of hijra, this article will not give as much attention to himbut will give more space to two lesser-known jurists.4

Muslims Under Mongol Rule: Ibn TaymiyyaIbn Taymiyya was born in H· arran in what is today Turkey. In 667/1269, at the age

of six, he fled to Damascus with his family as the Mongol armies of Abaqa Khan wereadvancing on H· arran, thereby making a kind of hijra. Ibn Taymiyya spent a significantpart of his life in Damascus (by then under Mamluk control), where he studied andtaught at the Sukkariyya madrasa or law school and then later at the H· anbaliyyamadrasa, the oldest in Damascus. After Baghdad surrendered to the Mongols in656/1258, Damascus replaced Baghdad in prominence as a place of learning.5

1 Aboobaker M. Asmal, “Muslims Under Non-Muslim Rule: the fiqhi (legal) views of Ibn Nujaym andal-Wansharisi” (PhD diss., University of Manchester, 1998), 11.2 Khaled Abou El Fadl, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minoritiesfrom the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society 1/2 (1994),146–7.3 The Reconquista of al-Andalus, which accelerated after the Christian conquest of Toledo in 478/1085,also brought this question to the fore.4 Yahya Michot, Muslims Under Non-Muslim Rule (Oxford: Interface, 2006).5 Abdul Hakim I. al-Matroudi, The H· anbalı School of Law and Ibn Taymiyya: Conflict or Conciliation(London: Routledge, 2006), 50.


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Ibn Taymiyya’s reputation there made him a notable scholar throughout the Mamlukempire.

When Ibn Taymiyya considered whether Muslims must emigrate from non-Muslimlands, he did so in the context of the Mongol conquests. He was asked to give a fatwa(opinion) as to whether Muslims should emigrate to Mamluk lands from the Mongol cityof Mardin, located on the edge of the Mongol Ilkhanate. Is land conquered by theMongols considered the land of war (balad al-h· arb), his questioners asked, or is it a landof peace (balad al-silm)? Are Muslims in the Mongol realms free to assist the Mamluksin their wars against the Mongols, or do they sin by doing so?

Ibn Taymiyya responded that if Muslims are unable to freely observe their religion,they must emigrate. He adds that anyone who departs from Islamic law (sharı ‘a) mustnot be assisted by a Muslim. However, he states that the status of Mardin is composite(murakkab) — although inhabited by believing Muslims, the government was notsufficiently Islamic.6 Clearly, Ibn Taymiyya felt that the juristic division of the world intothe abode of war and the abode of Islam no longer sufficed to describe the situation ofMuslims living under Mongol rule.

Yahya Michot has pointed out that it is difficult to know exactly what was happeningat the time Ibn Taymiyya was writing this fatwa.7 He no doubt was writing after theconversion to Islam of the Mongol ruler Ghazan in 694/1295. But one must rememberthat this conversion did not mean that Mongol government officials had all converted toIslam. Based on her analysis of the names of Mongol officers preceding the rule ofGhazan, Judith Pfeiffer concluded that during Ghazan’s reign, 21 percent of these hadPerso-Muslim names, a number that actually represented a decline from the number ofMuslim officers under his non-Muslim predecessor. Even by the end of Ghazan’s rule,many, if not most, Mongol leaders had still not embraced Islam.8 Ibn Taymiyya, then, wasright to distinguish between the non-Muslim government and the Muslim subjects wholived under Mongol rule. When he writes that “every land whose inhabitants arebelievers who fear [God] is a domain of the friends of God at that time,”9 he is saying thatif Muslims might live in obedience to Islam in Mardin, then it was not necessary toemigrate from the city. Much depended on the willingness of Mardin’s Mongol rulers toallow the public practice of Islam and to refrain from imposing laws that wouldcompromise that practice.

One other noteworthy item of interest in this fatwa is that Ibn Taymiyya says littleabout the subject of jihad in it, even though he was engaged in jihad against the

6 Ibn Taymiyya. Majmu ‘al-Fatawa, ed. ‘Abd al-Rah·man b. Muh· ammad b. Qasim, 37 vols. (al-Riyad· : Dar‘Alam al-Kutub, 1991), 28: 240–1; see also Michot, Muslims Under Non-Muslim Rule, 24–5, 65.7 Michot, Muslims Under Non-Muslim Rule, 8.8 Judith Pfeiffer, “Reflections on a ‘Double Rapprochement’: Conversion to Islam among the MongolElite during the Early Ilkhanate,” in Beyond the Legacy of Genghis Khan, ed. Linda Komaroff (Leiden:Brill, 2006), 374.9 Ibn Taymiyya, Majmu ‘al-Fatawa, 18:282; see also Michot, Muslims Under Non-Muslim Rule, 73–4.

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Crusaders and the Mongols at various times in his life.10 Michot draws out this point whenhe quotes the Lebanese shaykh Sa‘d al-Dın al-Kibbı as giving the opinion that “if fightinghad been an [unconditional] obligation” for Ibn Taymiyya, “it would have been madeobligatory or preferable for the weak, and not emigration.”11 Indeed, Michot places greatsignificance on the relative unimportance of jihad to Ibn Taymiyya in this fatwa, sincethe jurist is often quoted for support by Muslims enjaged in jihad. He writes:

“Any wolf eager to pounce on Mardin will certainly have been disappointed by IbnTaymiyya’s fatwa . . . the Damascene shaykh refuses to accord to it the status ofdomain of war. . . . His fatwa is thus quite the opposite of a green light to theunleashing of general hostilities.”12

Emigrants from the Holy Land: Ibn QudamaUnlike Ibn Taymiyya, Ibn Qudama (d. 620/1223) wrote about hijra in the context

of Crusader Palestine. He was born in the town of Jama‘ı l, less than ten milessouthwest of Nablus. When Ibn Qudama was nine years old, his father, a local shaykhnamed Ah·mad, left on hijra for Damascus, reportedly because the Franks “wereharming and imprisoning them, and were taking from them things like the jizya (polltax).” Ah·mad was unsurprisingly “not pleased with his residence under the rule of theunbelievers, [and he resolved to go to Damascus, fearing for his life] and his inabilityto display his religion.”13 Ibn Qudama emigrated from Palestine one year after hisfather. Although born in Palestine, he spent most of his life in Damascus as a jurist andtheologian.

Ibn Qudama figures prominently in the history of the H· anbalı madhhab as a man ofextraordinary piety, religion, and scholarship. He wrote in numerous areas of study:Qur’anic exegesis (tafsır ), the science of h· adıth, fiqh, us·ul al-fiqh, Arabic grammar,arithmetic, astronomy, and virtue. Distinguished scholars in the H· anbalı school attendedIbn Qudama’s lectures. According to the shaykh Abu Bakr Muh· ammad b. Ma‘al ı b.

10 Carole Hillenbrand has commented that the Mamluk period was one of “greater fanaticism,” and thatIbn Taymiyya led the way as a religious leader for Sunnıs more generally (not just H· anbalıs) in wagingwar against Islam’s enemies (Christians and Mongols) and against those who allegedly allied with them,such as the Shı’ ı of the Lebanese mountains. Carole Hillenbrand, The Crusades: Islamic Perspective(New York: Routledge, 2000), 241–3.11 Michot, Muslims Under Non-Muslim Rule, 45, 122.12 Ibid., 26.13 This account was related by the H· anbalı qad· ı and h· afiz· D· iya’ al-Dın (d. 642/1245). Diya’ al-Dınwrites that Ah·mad was preaching to large gatherings and that Ibn Barzan became angry with this publicdisplay of Islam because it was “distracting the peasants from their work.” See Muh· ammad b. ‘Alı b.T· ulun, Al-Qala’id al-Jawharıya fı Tarıkh al-S· alih· iya, ed. Muh· ammad Ah·mad Duhman (Damascus:1949), 26–27. See also Carole Hillenbrand, The Crusades: Islamic Perspectives (New York: Routledge,2000), 359–61.



Ghanıma, no-one reached a level of ijtihad as high as that of Ibn Qudama, who isespecially known for his works of law: al-Mughnı, al-‘Umda, and Rawd· at al-Nazir.14

In his al-Mughnı Ibn Qudama discusses whether Muslims must emigrate fromnon-Muslim lands in his chapter on jihad (he also addresses the subject briefly in hischapter on h· ajj).15 He begins by asking whether hijra is still relevant to Muslims. Hepresents the textual basis for emigrating from non-Muslim lands by quoting Qur’an 4(al-Nisa’):97–100, which suggest that some regimes on the earth are so evil that Muslimsmust emigrate from them:

97. When angels take the souls of those who die in sin against their souls, they say,‘In what plight were ye?’ They reply: ‘Weak and oppressed were we in the earth’.They say: ‘Was not the earth of Allah spacious enough for you to move (tuhajiru)yourselves away (from evil)?’ Such men will find their abode in Hell—what an evilRefuge! 98. Except those who are (really) weak and oppressed—men, women,and children who have no means in their power, nor a (guide post) to direct theirway. 99. For these, there is hope that Allah will forgive, for Allah doth blot out(sins) and forgive again and again. 100. He who forsakes (yuhajir ) his home in thecause of Allah, finds in the earth many a refuge wide and spacious. Should he dieas a refugee (muhajir ) from home for Allah and His Messenger, his rewardbecomes due and sure with Allah, and Allah is oft-forgiving, most merciful.16

Ibn Qudama then cites part of a h· adıth from Muh· ammad:17 “I am absolved [ofobligations] to every Muslim who takes up residence among the polytheists. One shouldnot [be so close as] to see their fire.” Ibn Qudama offers his interpretation: “Its meaning

14 See ‘Abd al-Rah·man b. Ah·mad b. Rajab (d. 795/1393), Kitab al-Dhayl ‘ala T·abaqat al-Hanabila, 2vols. (Beirut: Dar al-Ma ‘rifa, 1980), 2:133–49. Ibn Qudama’s entry is listed as number 272.15 Muwaffaq al-Dın ‘Abd Allah b. Ah·mad b. Qudama, al-Mughnı, ed. ‘Abd Allah b. ‘Abd al-Muh· sinal-Turkı and ‘Abd al-Fattah· Muh· ammad al-H· ulw, 15 vols. (Cairo: Hajr, 1990), 13:149–52.16 The Meaning of the Holy Qur’an, ed. Abd Allah Yusuf ‘Alı, (Beltsville, Maryland: Amana: 1997).17 See Abu Da’ud, Kitab al-Sunan, ed. Muh· ammad ‘Awwama, 6 vols. (Beirut: al-Rayyan Publishing,2004), 6:284; al-Nasa’ ı , al-Mujtaba, 9 vols. (Beirut: Dar al-Basha’ir al-Islamiyya, 1994), 8:36; andal-Tirmidhı, al-Jami ‘ al-Kabır, ed. Bashshar Awwad, 6 vols. (Beirut: Dar al-Gharb al-Islamı, 1998),3:252. The North African Malikı jurist al-Wansharısı (d. 914/1508) related this h· adıth in full. Seeal-Wansharısı, al-Mi ‘yar, 13 vols. (Beirut: Dar al-Maghrib al-Islamı, 1981), 2:125, and Asmal, 159, for histranslation. The h· adıth cited by Ibn Qudama is a tradition in which Muh· ammad sends out a military unitto fight the polytheistic Arab tribe of Khath ‘am in southern Arabia. When the polytheists saw the Muslimsoldiers, “they sought refuge in prostration, but the killing was too fast,” and Muh· ammad ordered thatonly half of the blood-money needed to be paid. Al-Wansharısı then relates the part of the traditioncited by Ibn Qudama: “I am absolved [of obligations] to every Muslim who takes up residence amongthe polytheists.” In context, the implications of the h· adıth are easier to see than it is in Ibn Qudama ‘sclipped citation. Ibn Qudama probably presented the h· adıth in clipped form because he was notprincipally concerned with whether or not hijra had come to an end; rather, he was considering theconditions under which Muslims might not need to emigrate. By contrast, al-Wansharısı had goodmotive for presenting the full h· adıth, which supports his categorical position that Muslims should notreside among non-Muslims.



is that he [viz., the Muslim] does not see the place of their fire [viz. the polytheists’ fire],but they see his fire when the fire is lit.” In other words, Muh· ammad seems to be warningMuslims to stay far away from unbelievers, like viewing a campfire from afar, andmotivating them to go on hijra. It seems clear that Ibn Qudama includes the h· adıth toemphasize that Muh· ammad put a premium on keeping his distance from unbelieversand that Muslims should follow his example.

Ibn Qudama relates a h· adıth from Muh· ammad that appears to question therelevance of hijra to the legist’s time: “There is no emigration after the conquests . . .Emigration came to an end, but jihad and intention (niyya) have not [come to an end].”He quotes the tradition without attribution, referring only to the “people of knowledge”(ahl al-‘ilm), though the h· adıth is reported by al-Bukharı.18 He then relates anothertradition as further evidence for this position:

It is related that S·afwan b. Umayya, after he became a Muslim, was told: “He hasno religion who does not emigrate.” He came to Madına, and the Prophet (mayGod pray for him and give him peace) said to him: “What brought you [here], AbuWahb?” He said: “It was said: ‘He has no religion who does not emigrate’.” [TheProphet said:] “Return, Abu Wahb, to the valleys of Mecca, settle [your people] inyour dwellings, for indeed emigration has come to an end, but there is jihad andniyya.”19

Ibn Qudama later explains that emigration has come to an end from Mecca inparticular “because emigration is the leaving of the land of the unbelievers, and whenit [viz., Mecca] was conquered, it did not remain as the land of the unbelievers. Inthis way, in every land that is conquered, [the concept of] emigration is no longerrelevant.”

Returning to the argument that hijra is still relevant to Muslims after the conquestof Mecca, Ibn Qudama cites various h· adıths including one well known on theauthority of Mu ‘awiya: “Emigration will not come to an end until repentance comes toan end, and repentance will not come to an end until the sun rises in the West.”20 Hefinishes this section by quoting another h· adıth, which presents the view that emigra-tion does not come to an end as long as there is jihad. Ibn Qudama appears to bejuxtaposing this last h· adıth with the one reported by al-Bukharı, which suggestsrather that hijra remains significant to Muslims along with jihad and niyya followingthe conquest of Mecca.

18 See al-Bukharı, S·ah· ıh· , ed. Ra’id b. Sabrı b. Abı ‘Alfa, 2 vols. (Riyad: Maktabat al-Rushd, 2005), 1:285.19 The h· adıth goes on to say that S·afwan returned to Mecca and resided there until he died. The h· adıthmay be found in al-Nisa’ ı ’s Mujtaba, 7/131. For more information on S·afwan b. Umayya, see Yusuf b.al-Zakı ‘Abd al-Rah·man al-Mizzı (d. 741/1341), Tahdhıb al-Kamal fı Asma’ al-Rijal, 35 vols. (Beirut:Mu’assasat al-Risala, 1994), 13: 180–3.20 See Abu Da’ud, Sunan, Kitab 2/3. Ibn H· anbal also includes this h· adıth in his Musnad 4/99.



At the end of his section on hijra, Ibn Qudama relates a h· adıth that details the storyof Nu ‘aym al-Nah· h· am’s hijra to Madına.21 Nu‘aym wishes to emigrate, but his people, theBanu ‘Adiyy, come to him and plead with him to stay, reminding him how much he hadhelped the community by looking after widows and orphans. Nu‘aym decides to emigrateanyway. When Muh· ammad encounters Nu ‘aym in Madına, he remarks that “your peoplewere better to you than my people were to me [because] they [viz., the Meccans] expelledme and wanted to kill me, but your people protect you and guard you.” Muh· ammadseems to wonder why Nu ‘aym would emigrate when he was treated so well. Nu‘aymresponds that “your people expelled you into obedience to God [and] jihad [against]His enemy. My people prevented me from emigrating and obeying God.” Ibn Qudamaappears to give Nu ‘aym the final word: hijra is a matter of obedience to God.

Ibn Qudama also discusses hijra in his Kitab al-H· ajj.22 He begins by quoting theeponym of his school, Ah·mad b. H· anbal (d. 241/855), who in turn relates a hadıth fromal-Tirmidhı in which Muh· ammad reflects on his “beloved” Mecca, saying that he wouldnot have left it, except that he was expelled from it, and that there is no harm in Muslimsliving in Mecca if they were not part of the original emigration to Madına. Next, IbnQudama quotes Ibn ‘Umar (d. 73/693): “Residing in Madına is more beloved to me thanstaying in Mecca, for those who have the ability to do it.”23 Ibn Qudama ends with ah· adıth in which Muh· ammad assures Muslims,” No-one shall endure its hardships [i.e.the hardships of hijra] and its adversity, except that I will be for him an intercessor onthe Day of Resurrection.”24 Ibn Qudama then comforts his reader by saying thatMuh· ammad himself will advocate for the emigrant on Judgment Day as his or her rewardfor emigrating.

What does Ibn Qudama’s choice of traditions and transmitters say about his positionon hijra? By quoting sound (s·ah· ıh· ) traditions in support of hijra from Muslim, AbuDa’ud, al-Tirmidhı, al-Nasa’ ı , and, especially, Ibn H· anbal, he appears to declare hissupport for the position that Muslims may continue to emigrate from non-Muslim lands.He cites sound traditions to the contrary, but he curiously neglects to attribute the h· adıthto al-Bukharı,25 possibly because he wishes to weaken the position that hijra has cometo an end (though it is equally possible he simply assumes the reader will recognize the

21 Yusuf b. ‘Abd al-Barr, al-Isti ‘ab fı ma ‘rifat al-as·h· ab, 2 vols. (Beirut: Dar al Kutub al- ‘Ilmiyya, n.d.),1:476. Nu ‘aym al-Nah· h· am was a companion of Muh· ammad and an early convert who hid his Islam dueto the religious persecution of Muslims in the Meccan period. He died in the year 13/634.22 Ibn Qudama, al-Mughnı, 15 vols., ed. ‘Abd Allah b. ‘Abd al-Muh· sin al-Turkı and ‘Abd al-Fattah·Muh· ammad al-H· ulw (Cairo: Hajr, 1990), 5:464–5.23 Ibn ‘Umar, son of the second caliph, is regarded as “the most scrupulous in neither adding to noromitting anything from the h· adıths narrated by him.” See EI2, s.v. ‘Abd Allah b. ‘Umar b. al-Khat·t·ab(L. Veccia Vaglieri).24 See Muslim, al-S·ah· ıh· , 8 vols. (Cairo: Dar al-Tah· rır, 1964), 4:118; al-Tirmidhı al-Jami ‘al-Kabır, ed.,Bashshar Awwad, 6 vols. (Beirut: Dar al-Gharb al-Islamı, 1998), 6:203, 7; Ibn H· anbal, Musnad, ed.Shu ‘ayb al-Arna ‘ut, 50 vols. (Beirut: Mu’assasat al-Risala, 1999), 10:159.25 al-Bukharı, S·ah· ıh· , ed. Ra’id b. Sabrı b. Abı ‘Alfa, 2 vols. (Riyad: Maktabat al-Rushd, 2005), 1:285.



well known h· adıth from al-Bukharı’s collection). Ibn Qudama also does not appear toaccept pronouncements like those given to S·afwan b. Umayya as applying to all Muslimsin all lands. Rather he acknowledges that if the land was conquered, as Mecca was, “itis no longer the land of the unbelievers” and hijra is no longer relevant. This implies thatthis is not the case in lands where unbelief reigns. Hijra continues to be relevant toMuslims living in lands where Islam is not dominant. In short, Ibn Qudama appears tobe affirming that hijra from non-Muslim lands to Muslim lands is always desirable, if notobligatory.

It is in Ibn Qudama’s Kitab al-Jihad that one finds his direct advice for those Muslimswho wish to remain under non-Muslim rule. Muslims unable to practice Islam in anon-Muslim land must emigrate, Ibn Qudama writes, citing as support for this rulingQur’an 4:97, which rebukes Muslims for not emigrating from an evil plight. Islamic lawassumes that five “universal” human interests (mas·alıh· ) must be protected for Muslimsto remain in a particular location: the ability to observe one’s religion, the sanctity oflife, the preservation of lineage, the protection of property, and the safeguarding ofrationality.26 The inability to practice Islam violates one of these fundamental interests,giving Muslims a legitimate reason to emigrate.

However, Ibn Qudama affirms that Muslims may have good reasons not to emigrate.Those incapable of travel or escape (including the ill, women, and children) may beexcused from hijra, as Qur’an 4:98–9 gives them permission to stay. Then he addsanother reason for not going on hijra:

But he [who] has the ability to [publicly] show his religion may stay in the land ofthe unbelievers. This is preferable for him [that he stay in the land so] that he mayhave the capability of waging jihad against them [viz., the unbelievers], and [aiding]the increase of the Muslims, supporting them, and that he will be able to free themfrom the increase of the unbelievers and mingling with them and seeing what is[ethically] objectionable among them. It is not incumbent upon him [to emigrate] ifit is possible for him to perform his religious duties.27

With this, Ibn Qudama at first appears to agree with the Shafi ‘ıs in allowing Muslims tostay in non-Muslim lands. However, Ibn Qudama clarifies this point in a way that seemsto undermine any kind of harmonious relationship between Muslims and theirnon-Muslim rulers. He appears particularly concerned that Muslims not mix withnon-Muslims, for fear that they might be exposed to people or experiences that would

26 See Bernard Weiss, The Spirit of Islamic Law (Atlanta: University of Georgia Press, 1998), 78. Theprinciple of human interests (mas·alih· ) as a basis for law was formalized by al-Shat·ibı (d. 790/1388), aMalikı scholar from Nas·rid Granada who undoubtedly would have been familiar with the situation ofMuslims living under Castilian and Aragonese rule. He accepted not only mas·alih· that had a textualbasis in the Qur’an or h· adıth, but also those that did not. In this he demonstrated flexibility in hisapproach to law. See EI2, s.v. al-Shat·ibı (Maribel Fierro).27 Ibn Qudama, al-Mughnı, 0: 151.



compromise them, and he argues that a large Muslim community would insulatemembers from compromising encounters with non-Muslims.

Why does Ibn Qudama mention jihad as a primary rationale for Muslims remainingin non-Muslim lands? Although Ibn Qudama does not elaborate on this point, hismention of jihad is not surprising, as this discussion takes place within his Kitab al-Jihad.Moreover, the traditions observed earlier mention jihad in the context of hijra — ofparticular significance is Nu ‘aym’s point that in migrating to Madına, Muh· ammad wasthereby able to engage in jihad against the enemy.

Ibn Qudama’s biography also sheds some light on this matter. He joined the Kurdishsult·an S·alah· al-Dın in his campaigns against the Crusaders. On the evening before thedecisive battle at the Horns of Hattin in 583/1187, Ibn Qudama read aloud Ibn Bat·t·a’s“Profession of Faith”28 to encourage the soldiers in their jihad. The following day, S·alah·al-Dın destroyed the bulk of the Crusader army, and over the next few years went on tocapture (or liberate) most of the cities and fortresses of Palestine, including the town ofJama ‘ı l.29 While the Crusaders were later able to make temporary contracts with Muslimrulers, for a time controlling even Jerusalem itself, they were never able to recapture themajority of the territory they lost to S·alah· al-Dın.

Ibn Qudama appreciated that Muslims living under Crusader rule could be ofassistance to S·alah· al-Dın by staying in Palestine and not leaving, as his father had done.When Ibn Qudama’s family emigrated from Palestine, they encountered Muslims alongthe way to Damascus who, emboldened by their arrival, refused to pay their taxes to theFranks, and killed the ruler of the town. (The rebellion was short-lived.)30 CaroleHillenbrand argues that such rebellions did not occur often, but the possibility of aidfrom subject Muslim populations must have been considered by S·alah· al-Dın and IbnQudama as they campaigned together against the Franks.

Why did Ibn Qudama choose to discuss hijra in his Kitab al-H· ajj? Daoud Casewithas pointed out that the ziyara to Muh· ammad’s tomb at Madına is a kind of “temporary”hijra that seeks to “reaffirm and deepen” Muslims’ love for Muh· ammad. This in turnstrengthens the resolve of Muslims to “live according to Islamic norms and prescrip-tions.”31 It is perhaps for these reasons that Ibn Qudama encourages Muslims to emigratefrom non-Muslim lands, even if they are not encountering persecution there. As IbnQudama hints, there is eternal merit in enduring the hardships involved in emigration (asthere was with the hijra to Madına). In addition, hijra to Muslim lands, while not

28 Ibn Bat·t·a (d. 387/997) was a H· anbalı theologian and jurist trained in Baghdad and Mecca. He livedduring the Shı ‘ı Buyid takeover of Baghdad, and became a critic of Shı ‘ism, and to a lesser extent ofMu ‘tazilism and philosophy ( falsafa). Two centuries later, ‘Abd al-Ghanı al-Maqdisı and Ibn Qudamarevived interest in Ibn Bat·t·a among the H· anbalıs. See EI2, s.v. Ibn Bat·t·a (H. Laoust).29 See C. Hillenbrand, The Crusades, 179, and EI2, s.v. Ibn Qudama al-Maqdisı (G. Makdisi).30 Ibn T· ulun, al-Qala’id al-Jawharıya fı Tarıkh al-S·alih· iya, 29.31 Daoud S. Casewit, “Hijra as History and Metaphor: A Survey of Qur’anic and Hadith Sources,” TheMuslim World, 88, 2 (1998), 127–28.



obligatory, is always recommended because a Muslim will be more likely to liveaccording to the sharı ‘a if he or she is surrounded by Muslims who are doing the same.One cannot err by emigrating, whereas it is possible to be corrupted by one’snon-Muslim ruler and neighbor. Ibn Qudama’s justifications for staying in non-Muslimlands, when viewed in this light, would appear to be more concessionary (and in thecase of jihad, intended to undermine the non-Muslim ruler) and less an encouragementto harmonious co-existence.

Loyalty to the Madhhab: Ibn Muflih·The much less well-known but nevertheless important H· anbalı jurist Muh· ammad b.

Muflih· al-Qaqunı (d. 763/1362) presents an interesting point of comparison to IbnQudama and Ibn Taymiyya. Unlike the other two jurists, Ibn Muflih· did not live under thethreat of Mongol or Crusader attack; like Ibn Taymiyya, he enjoyed the prosperity ofMamluk rule. Over the course of his lifetime, he witnessed the breakup of the MongolIlkhanate into smaller states, effectively ending Mongol rivalry with the Mamluks. Otherlong-time enemies were weakened as well. The Crusaders from Cyprus could at bestmake raids only along the coast, and in 696/1297, the Christian kingdom of CilicianArmenia, which lay just to the north of Syria, and which had allied itself with the Mongolsduring its assaults on Damascus in the seventh/thirteenth century, was reduced topaying a tribute of 500,000 dirhams each year to the Mamluk sult·an. This figure wasdoubled in 715/1315.32

Little is known about Ibn Muflih· ’s life. Like Ibn Qudama, he was born in Palestine (inJerusalem), then moved to Damascus, where he served as a judge under the chief judge(qad· ı al-qud· at) and gave formal legal opinions according to the H· anbalı madhhab. Hisloyalty to the school was such that he insisted that he be buried in the same graveyardas Ibn Qudama, in the district of S· alih· iyya, where Ibn Qudama had lived and worked.33

In Damascus, Ibn Muflih· was a student of Ibn Taymiyya’s — reportedly his best studentin jurisprudence. His four-volume Kitab al-Furu‘ has become an important treatise inH· anbalı law.

Ibn Muflih· discusses hijra in his chapter on jihad in his Kitab al-Furu‘.34 Like IbnQudama, he raises the question of whether or not hijra has come to an end. He beginswith the view that it has come to an end, citing a tradition related by Ibn Hubayra(d. 560/1165), an ‘Abbasid wazır and scholar of H· anbalı fiqh.35 In this h· adıth, the

32 Robert Irwin, The Middle East in the Middle Ages: The Early Mamluk Sultanate, 1250–1382(Carbondale: Southern Illinois University, 1986), 120.33 For a short biography of Ibn Muflih· , see ‘Umar Rid· a al-Kah· h· ala, Mu ‘jam al-Mu’allifın: tarajimmus·annifı al-kutub al- ‘Arabiyya (Beirut: Maktabat al-Muthanna; Dar Ih· ya’ al-Turath al- ‘Arabı, 1983),44. On Ibn Muflih· ’s relationship with his teacher Ibn Taymiyya, see al-Matroudi, The H· anbalı School ofLaw and Ibn Taymiyya: Conflict or Conciliation, 136–41.34 Muh· ammad b. Muflih· al-Qaqunı, Kitab al-Furu ‘, 6 vols. (Beirut: ‘Alam al-Kutub, 1981), 6:197–8.35 See EI2, s.v. Ibn Hubayra (George Makdisi).



Companion Ibn Mas ‘ud36 gives an oath to go on hijra to Madına. Muh· ammad declares,“There is no emigration after Mecca was conquered, but I make a covenant with him onIslam and the faith and jihad.” Ibn Muflih· then quotes from two traditions found in thecollections of al-Bukharı and Muslim respectively: “Hijra came to an end for herpeople,” and, “Indeed emigration came to an end for her people, but Islam and jihad and[what is] good [remain].” Ibn Muflih· seems to be repeating versions of h· adıths seenbefore.

Ibn Muflih· goes on to explain by way of a h· adıth transmitted by Ibn Hubayra whyhijra had to come to an end. He states that hijra was made to Madına so that “God canbe worshipped in peace.” He takes an approach not taken by either Ibn Qudama or IbnTaymiyya: “Had space been made after the conquest of Mecca for hijra to the cramped[situation] in Madına, the lands of its inhabitants [viz. Mecca’s inhabitants] would empty.”Here Ibn Muflih· is putting forward a practical reason for why hijra is no longernecessary, i.e. that too many people would be living in Madına when they could beliving elsewhere.

Interestingly, he does not follow this up with the opposing viewpoint that hijra hasnot come to an end. Instead, Ibn Muflih· narrates a h· adıth transmitted by Sa‘ıd b. Jubayr(d. 95/712)37 on the authority of Ibn ‘Abbas (d. 68/687–8)38 — citing Qur’an 29:56 assupport: “Emigration is not obligatory from among the people of the sinners/rebels.” IbnMuflih· ’s explanation of this tradition is confusing; he says that if “sins [are] beingcommitted in the land,” then Muslims must leave it. By this, he seems to insist against theforce of the tradition by saying that people should leave such lands, even if leaving is notobligatory. He admits that this tradition goes against the teaching of Muh· ammad: “Hewho sees from among you something reprehensible, let him change it by his hand.”While Ibn Muflih· does not clarify what he means by this statement, the context wouldseem to indicate that Muh· ammad intended Muslims to address sins where they find themrather than running from the situation. Ibn Muflih· , however, holds that emigration ispreferable to staying in the land.

How is one to make sense of Ibn Muflih· ’s use of h· adıths, and what do these choices,if anything, say about him? He seems to support Muslims who wish to emigrate, but his

36 Ibn Mas ‘ud, one of the earliest converts to Islam, took part in the hijras to both Abyssinia and Madına.He is said to have received the Qur’an directly from the mouth of Muh· ammad. See EI2, s.v. Ibn Mas ‘ud( Jean Claude Vadet).37 Sa ‘ıd b. Jubayr was a Kufan scholar accomplished in Qur’anic exegesis, jurisprudence and h· adıth. Hetook part in a revolt in Kufa against al-H· ajjaj, the Umayyad governor of Iraq. When that failed, he fledto Mecca, where he taught for several years. He later was apprehended by the governor of Mecca, andhanded over to al-H· ajjaj for execution. See EI2, s.v. Sa ‘ıd b. Jubayr (Harald Motzki).38 Ibn ‘Abbas is regarded as one of the greatest scholars of the first generation of Muslims. Born ten yearsbefore the hijra to Madına, he acquired a reputation as a teacher of Qur’anic exegesis, juridical issues,Muh· ammad’s expeditions, pre-Islamic history, and ancient poetry. See EI2, s.v. ‘Abd Allah b. al- ‘Abbas(Laura Veccia Vaglieri).



h· adıths focus on why emigration has come to an end, and they declare that Muslimsneed not emigrate. Fortunately, Ibn Muflih· clarifies his thinking about hijra from landsof unbelief. Like Ibn Qudama and Ibn Taymiyya before him, Ibn Muflih· holds that if aMuslim “is incapable of observing his religion in the abode of war in which the rule ofthe unbelievers prevails,” and he is able to emigrate, it is incumbent upon him to do so.Curiously, he mentions that “some of them” (presumably other scholars) liken “a land ofimmorality or innovation such as [that of] the Refusers [Shı ‘ıs]39 and the Mu ‘tazila” to theland of unbelievers. By including these groups, Ibn Muflih· implies that Muslims may beunable to practice Islam even inside dar al-Islam, in which case they still have theobligation to emigrate to a part of the dar al-Islam where Islam is rightly practiced.

To his argument that Muslims unable to practice Islam must emigrate, Ibn Muflih·adds that even if he “has no riding animal, and is not in a state of muh· ram (purity) [viz.ih· ram],” he nevertheless must still flee. On the other hand, if a Muslim is able to practiceIslam openly in this land of “unbelief,” hijra may be made only if the emigrant is in astate of purity, as in the h· ajj.40 Compared to Ibn Qudama, Ibn Muflih· shows moreconcern that Muslims undertaking hijra take care not to break Islamic law in the processof emigration, unless their plight is truly desperate. His discussion of hijra appears to betheoretical, since by his day, neither the Crusaders nor the Mongols posed much of athreat to Damascus. Yet Ibn Muflih· felt compelled to address the subject of hijra becausehe was writing in a tradition, and taqlıd, or loyalty to his madhhab, meant that he shouldimitate his predecessors, regardless of the subject’s direct relevance to the writer’s life.

What Ibn Muflih· chose not to discuss in his fiqh is also instructive. Even though hefollows juristic tradition and locates his discussion of hijra within his Kitab al-Jihad, IbnMuflih· does not trouble, as Ibn Qudama did, to list jihad as one of the valid reasons aMuslim may claim for emigrating from a non-Muslim land. (Indeed, he gives few reasonsat all for emigrating, mentioning only the customary point that a Muslim must leave if heor she cannot observe his or her religion.) For Ibn Muflih· , hijra was more a matter oftheory than it was one of practice, and there was no need to go into detail on an issuethat few Muslims would have been concerned about at the time.

ConclusionOf the three jurists studied here, Ibn Qudama and Ibn Taymiyya had either personal

experience of non-Muslim rule or lived during a time when fellow Muslims lived undernon-Muslim rulers. Neither of these jurists appears to have diverged from his school’s

39 The term rafid· a, pl. rawafid· (refusers) is a pejorative name that Sunnıs used for the Shı‘ıs, whorefused to recognise the first three caliphs Abu Bakr, ‘Umar, and ‘Uthman. A contemporary of IbnMuflih· , the Moroccan traveller Ibn Bat·t·ut·a (d. 770/1369), in his Rih· la repeatedly refers to the Shı ‘ıs asrawafid· . See H.A.R. Gibb’s comments on this subject in Ibn Bat·t·ut·a, Travels in Asia and Africa, trans.H.A.R. Gibb (London: Routledge, 1929), 39–40.40 Ibn Muflih· , Kitab al-Furu, 197.



position on hijra. Ibn Taymiyya wrestled with concrete problems of Muslims livingunder non-Muslim rule in a way that neither Ibn Qudama nor Ibn Muflih· did, but he stillfollowed the majority positions in his school. This demonstrates the power of taqlıd overadherents of the schools — even a scholar as dynamic as Ibn Taymiyya.

Personal experience played a significant role in how jurists articulated their ideaswithin the confines of the madhhab. Recall Ibn Qudama’s inclusion of jihad in hisreasons for remaining in a non-Muslim land. The fact that Ibn Qudama rode in battlealongside S·alah· al-Dın assuredly played a part in his articulation of jihad as one reasonfor remaining under non-Muslim rule. By contrast, Ibn Muflih· has no obvious connectionwith jihad, and does not write about it. Rather, he turned his attention to troublemakers(as perceived by H· anbalıs) within Islam, namely the Shı‘ıs and Mu‘tazilıs. This is not tosay that such experience was determinative; while Ibn Taymiyya neglected jihad in hisfatwa about Mardin, he engaged in jihad against the Mongols and Crusaders at othertimes in his life. Yet while practical experience of non-Muslim rule did not determine theposition on hijra adopted by the jurists studied here, its influence should neverthelessnot be underestimated. It always had the potential of influencing one’s fiqh, despite anypressure the jurist might feel from his school to conform to its majority opinion.



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Permision to Stay in Enemy Territory

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