Michael van der Galiën is a 23-year-old American Studies student at the Rijksuniversiteit Groningen in the Netherlands, and correspondent in the Netherlands for Pajamas Media. In a post entitled "Islamic Law and Violence," he commented over a week ago on a response written by a student at Brown, Jebediah Koogler, to my Islamo-Fascism Awareness Week talk there. Since van der Galiën articulates so many common responses to and common misunderstandings of the work I am doing, I thought it might be useful to respond.Jeb Koogler explains the obvious: Islamic law isn’t static. It changes over time. I also get a bit tired of people who say that the Koran preaches much more violence than the Bible and Torah do. I’ve read the Koran and I disagree; it doesn’t teach violence any more than the Bible or Torah.I discuss this very common argument at length in my book Religion of Peace?; suffice it to say here that van der Galiën's statement, that the Qur'an doesn’t teach violence any more than the "Bible or Torah" is flatly false. For while the Bible contains descriptions of violent acts committed in the name of God, nowhere does it teach believers to imitate that violence. Where people are commanded to commit acts of violence, these are commands directed to specific individuals or groups in particular situations; they are not universal commands.
The Qur'an, on the other hand, quite clearly does teach believers to commit acts of violence against unbelievers -- see 2:190-193, 9:5, 9:29, 47:4, etc. There are no equivalents to such open-ended and universal commands, addressed to all believers to fight unbelievers, in the Bible. Of course, van der Galiën would respond that such passages have not been understood as such by all Muslims throughout history, and that is no doubt true. We'll discuss that in more detail in a moment. But it is not the point here, for when he says that the Qur'an "doesn’t teach violence any more than the Bible or Torah," he is not talking about interpretative traditions, but the content of the text.In fact, I’d say, the only way for people to defend terrorism or violence by the Koran is by quoting passages in it completely out of context and to ignore the spirit of the Koran, which is peaceful.Unfortunately for van der Galiën, there is not a single traditional school of Islamic jurisprudence that would agree with his assessment here, for all of the schools that are considered orthodox teach, as part of the obligation of the Muslim community, warfare against and the subjugation of unbelievers.
Shafi'i school: A Shafi'i manual of Islamic law that was certified in 1991 by the clerics at Al-Azhar University, one of the leading authorities in the Islamic world, as a reliable guide to Sunni orthodoxy, stipulates that “the caliph makes war upon Jews, Christians, and Zoroastrians...until they become Muslim or pay the non-Muslim poll tax.” It adds a comment by Sheikh Nuh ‘Ali Salman, a Jordanian expert on Islamic jurisprudence: the caliph wages this war only “provided that he has first invited [Jews, Christians, and Zoroastrians] to enter Islam in faith and practice, and if they will not, then invited them to enter the social order of Islam by paying the non-Muslim poll tax (jizya)...while remaining in their ancestral religions.” ('Umdat al-Salik, o9.8).
Of course, there is no caliph today, and hence the oft-repeated claim that Osama et al are waging jihad illegitimately, as no state authority has authorized their jihad. But they explain their actions in terms of defensive jihad, which needs no state authority to call it, and becomes "obligatory for everyone" ('Umdat al-Salik, o9.3) if a Muslim land is attacked. The end of the defensive jihad, however, is not peaceful coexistence with non-Muslims as equals: 'Umdat al-Salik specifies that the warfare against non-Muslims must continue until "the final descent of Jesus." After that, "nothing but Islam will be accepted from them, for taking the poll tax is only effective until Jesus' descent" (o9.8).
Hanafi school: A Hanafi manual of Islamic law repeats the same injunctions. It insists that people must be called to embrace Islam before being fought, “because the Prophet so instructed his commanders, directing them to call the infidels to the faith.” It emphasizes that jihad must not be waged for economic gain, but solely for religious reasons: from the call to Islam “the people will hence perceive that they are attacked for the sake of religion, and not for the sake of taking their property, or making slaves of their children, and on this consideration it is possible that they may be induced to agree to the call, in order to save themselves from the troubles of war.”
However, “if the infidels, upon receiving the call, neither consent to it nor agree to pay capitation tax [jizya], it is then incumbent on the Muslims to call upon God for assistance, and to make war upon them, because God is the assistant of those who serve Him, and the destroyer of His enemies, the infidels, and it is necessary to implore His aid upon every occasion; the Prophet, moreover, commands us so to do.” (Al-Hidayah, II.140)
Maliki school: Ibn Khaldun (1332-1406), a pioneering historian and philosopher, was also a Maliki legal theorist. In his renowned Muqaddimah, the first work of historical theory, he notes that “in the Muslim community, the holy war is a religious duty, because of the universalism of the Muslim mission and (the obligation to) convert everybody to Islam either by persuasion or by force.” In Islam, the person in charge of religious affairs is concerned with “power politics,” because Islam is “under obligation to gain power over other nations.”
Hanbali school: The great medieval theorist of what is commonly known today as radical or fundamentalist Islam, Ibn Taymiyya (Taqi al-Din Ahmad Ibn Taymiyya, 1263-1328), was a Hanbali jurist. He directed that “since lawful warfare is essentially jihad and since its aim is that the religion is God’s entirely and God’s word is uppermost, therefore according to all Muslims, those who stand in the way of this aim must be fought.”
Of course, these are all extremely old authorities -- such that one might reasonably assume that whatever they say couldn’t possibly still be the consensus of the Islamic mainstream. The laws of the United States have evolved considerably since the adoption of the Constitution, which itself has been amended. So why shouldn’t this be true of Islamic law as well? Many observers assume that it must be, and that contemporary jihadists' departure from mainstream Islam must be located in its preference for the writings of ancient jurists rather than modern ones. But in this, unfortunately, they fail to reckon with the implications of the closing of the gates of ijtihad.
Ijtihad is the process of arriving at a decision on a point of Islamic law through study of the Qur’an and Sunnah. From the beginning of Islam, the authoritative study of such sources was reserved to a select number of scholars who fulfilled certain qualifications, including a comprehensive knowledge of the Qur’an and Sunnah, as well as knowledge of the principle of analogical reasoning (qiyas) by which legal decisions are made; knowledge of the consensus (ijma) on any given question of Muhammad, his closest companions, and the scholars of the past; and more, including living a blameless life.
The founders of the schools of Islamic jurisprudence are among the small number of scholars -- mujtahedin -- thus qualified to perform ijithad. But they all lived very long ago; for many centuries, independent study of the Qur’an and Sunnah has been discouraged among Muslims, who are instead expected to adhere to the rulings of one of those established schools. Since the death of Ahmed ibn Hanbal, from whom the Hanbali school takes its name, in 855 A.D., no one has been recognized by the Sunni Muslim community as a mujtahid of the first class -- that is, someone who is qualified to originate legislation of his own, based on the Qur’an and Sunnah but not upon the findings of earlier mujtahedin.
Islamic scholar Cyril Glasse notes that “‘the door of ijtihad is closed’ as of some nine hundred years, and since then the tendency of jurisprudence (fiqh) has been to produce only commentaries upon commentaries and marginalia.” Shi’ite Muslims have never accepted that ijtihad is a thing of the past. Thus it is with a slight tone of disapproval that the Shi’ite scholar Murtada Mutahhari notes of the Sunnis:The right of ijtihad did not last for long among the Sunnis. Perhaps the cause of this was the difficulty which occurred in practice: for if such a right were to continue [for any great length of time], especially if ta`awwul and the precedence of something over the texts were to be permitted, and everyone were permitted to change or interpret according to his own opinion, nothing would remain of the way of Islam (din al islam).The Imam Hassan Qazwini, director of the Islamic Center of America, considers this closing off of new interpretations of Islamic law to be a serious error. According to David Smock, director of the Religion and Peacemaking Initiative of the United States Institute of Peace:
Perhaps it is for this reason that the right of independent ijtihad was gradually withdrawn, and the view of the Sunni `ulama became that they instructed people to practice taqlid of only the four mujtahids, the four famous Imams - Abu Hanifa [d.150/767], al Shafi`i; [d.204/820], Malik b. Anas [d.179/795] and Ahmad b. Hanbal [d.241/855] - and forbade people to follow anyone apart from these four persons. This measure was first taken in Egypt in the seventh hijri century, and then taken up in the rest of the lands of Islam.One of the gravest mistakes Muslims have committed, according to Qazwini, is closing the doors of ijtihad. They have limited legal interpretation to only four prominent scholars: Malik Ibn Anas, Abu Hanifa al-No‘man, Muhammad Ibn Idris al-Shafi‘i, and Ahmad Ibn Hambal—the heads of the Maliki, Hanafi, Shafi‘i, and Hambali [sic] schools of thought. The motivation for this was political. During the Abbasid Dynasty (750–1258 CE), the Abbasids decided to outlaw all other sects in order to strictly control religion and worship, as well as political matters.Other Muslims, however, disagree. Seyyed Hossein Nasr of George Washington University, in his consideration of Islam and modernity, Ideals and Realities of Islam, says: “Certain modernists over the past century have tried to change the Shari‘ah, to reopen the gate of ijtihad, with the aim of incorporating modern practices into the Law and limiting the function of Shari‘ah to personal life.
Closing the doors of ijtihad has had extremely detrimental ramifications for the Muslim world. According to Qazwini, this decision has resulted in chronic intellectual stagnation, as thousands of potential mujtahids and scholars have been prohibited from offering workable solutions to newly emerging problems. Muslim thinkers have become captive to rules that were made long ago, leaving little scope for liberal or innovative thought.
All of these activities emanate from a particular attitude of spiritual weakness vis-à-vis the world and surrender to the world. Those who are conquered by such a mentality want to make the Shari‘ah ‘conform to the times,’ which means to the whims and fancies of men and the ever changing human nature which has made ‘the times.’ They do not realize that it is the Shari‘ah according to which society should be modeled not vice versa.” In any case, whether it is a manifestation of “chronic intellectual stagnation” or fidelity to the Sharia, along with the stasis in other areas there has been a lack of development in the doctrines of jihad.
Even Islamic apologist Karen Armstrong admits that “Muslim jurists...taught that, because there was only one God, the whole world should be united in one polity and it was the duty of all Muslims to engage in a continued struggle to make the world accept the divine principles and create a just society.” Non-Muslims “should be made to surrender to God’s rule. Until this had been achieved, Islam must engage in a perpetual warlike effort.” But, she says, “this martial theology was laid aside in practice and became a dead letter once it was clear that the Islamic empire had reached the limits of its expansion about a hundred years after Muhammad’s death.”
The problem is that however much of a dead letter it became in practice during times of weakness in the Islamic world, this doctrine of Islamic supremacism was never reformed or rejected. No one seems to have told the warriors of jihad who besieged Europe through the seventeenth century that the Islamic empire had already reached the limits of its expansion centuries before. No one seems to have told the modern-day warriors of Islam from Bosnia to the Philippines that jihad is a dead letter, and that Islam isn’t doing any more expanding.
The Saudi Sheikh Muhammad Saalih al-Munajid (1962-), whose lectures and Islamic rulings (fatawa) circulate widely throughout the Islamic world, demonstrates this in a discussion of whether Muslims should force others to accept Islam. In considering Qur’an 2:256 (“There is no compulsion in religion,”) the Sheikh quotes Qur’an 9:29, as well as 8:39 (“And fight them until there is no more Fitnah (disbelief and polytheism, i.e. worshipping others besides Allaah), and the religion (worship) will all be for Allaah Alone [in the whole of the world]”), and the Verse of the Sword. Of the latter, Sheikh Muhammad says simply: “This verse is known as Ayat al-Sayf (the verse of the sword). These and similar verses abrogate the verses which say that there is no compulsion to become Muslim.”
Other modern writers agree. The Pakistani Brigadier S. K. Malik’s 1979 book The Qur’anic Concept of War (a book that made its way to the American mujahedin Jeffrey Leon Battle and October Martinique Lewis, and which carried a glowing endorsement from Pakistan’s then-future President Muhammad Zia-ul-Haq, who said that it explained “the ONLY pattern of war” that a Muslim country could legitimately wage) delineates the same stages in the Qur’anic teaching about jihad: “The Muslim migration to Medina brought in its wake events and decisions of far-reaching significance and consequence for them. While in Mecca, they had neither been proclaimed an Ummah [community] nor were they granted the permission to take up arms against their oppressors. In Medina, a divine revelation proclaimed them an ‘Ummah’ and granted them the permission to take up arms against their oppressors. The permission was soon afterwards converted into a divine command making war a religious obligation for the faithful.”
Muhammad Sa’id Ramadan al-Buti, a theology professor at Damascus University, echoes the classic Islamic legal tenet that Muslims can legitimately wage war against those who resist the proclamation of Islam in his book Jihad in Islam: How to Understand and Practice It. Al-Buti considers at great length the question of whether this armed struggle can be undertaken “to avert belligerency” or “to put an end to infidelity.” In other words, is jihad purely defensive, or can it be offensive? (Al-Buti, however, carefully defines “to avert belligerency” to allow for a pre-emptive strike against a perceived imminent attack.)
Al-Buti bases his discussion of this question on the Qur’an and Islamic traditions. After a thorough discussion of these hadiths and other elements of Muslim tradition, al-Buti concludes that Muslim forces shouldn’t attack unbelievers. They should fight when attacked, or when an attack seems imminent, but that’s all. In this conclusion he notes that he is siding with three of the four major Sunni schools of Islamic jurisprudence, the Hanafi, Maliki, and Hanbali: all agree, by his account, that military jihad should only be undertaken to ward off an attack or potential attack.
Of course, such restrictions can be and have been interpreted with great elasticity, but the fourth Sunni school school of jurisprudence (madhhab) goes even farther: the Shafi’is, as well as the minor Zahiri school, favor offensive jihad. The Shafi’is and Zahiris, according to al-Buti, “proclaimed that the fundamental cause of Jihad is to terminate Paganism.”
Imran Ahsan Khan Nyazee, Assistant Professor on the Faculty of Shari’ah and Law of the International Islamic University in Islamabad, in a 1994 book on Islamic law quotes the twelfth century Maliki jurist Abu al-Walid Muhammad ibn Ahmad Ibn Rushd. Ibn Rushd reports on a consensus (ijma) among Muslim scholars on jihad warfare – and in traditional Islamic legal terms a consensus among scholars, once reached, cannot be modified. “Why wage war?” asks Ibn Rushd, and then he answers his own question: “Muslim jurists agreed that the purpose of fighting with the People of the Book…is one of two things: it is either their conversion to Islam or the payment of jizyah.”
Nyazee concludes: “This leaves no doubt that the primary goal of the Muslim community, in the eyes of its jurists, is to spread the word of Allah through jihad, and the option of poll-tax [jizya] is to be exercised only after subjugation” of non-Muslims. But if this is so, why hasn’t the worldwide Islamic community been waging jihad on a large scale up until relatively recently? Nyazee says it is only because they have not been able to do so: “the Muslim community may be considered to be passing through a period of truce. In its present state of weakness, there is nothing much it can do about it.”
In this view, then, the jihad must continue as long as there are unbelievers, and only falls into abeyance when Muslims do not have the military strength to press forward with it. Making war on unbelievers is one of the responsibilities of the Muslim umma. That the three stages of jihad, culminating in offensive warfare to establish the hegemony of Islamic law – which stage is normative for all time -- can be found not only in the writings of contemporary Islamic jihadists, but also in ancient Muslim scholars, underscores the traditionalist character of contemporary Islamic jihad activity. Modern mujahedin are, in their own view, not “hijacking” Islam; they are restoring its proper interpretation – and they are successfully convincing peaceful Muslims around the world that they are correct in this.
For this to end, peaceful Muslims around the world would have to confront the fact that bin Laden and other jihad terrorists are regularly justifying their violence by reference to passages of the Qur’an and the words and deeds of Muhammad. If they don’t acknowledge this and formulate new and non-literalist ways of understanding this material, it will continue to be used to incite violence. In other words, the use that jihadists make of elements of the Qur’an and Muhammad’s teaching makes it incumbent upon peaceful Muslims to perform a searching reevaluation of how they understand those elements, so as to neutralize their capacity to set Muslims against non-Muslims.
People will do evil in all kinds of circumstances, and use all manner of justification for it; but the violent passages in the Bible are not equivalent to those in the Qur’an in content, in mainstream interpretation, or in the effect they have had on believers through the ages. The fact that in Islam violence against unbelievers has divine sanction in a way that it does not in Christianity makes religious violence more prevalent and harder to eradicate in Islam than it has ever been in Christianity. To equate it to a jumble of passages from the Bible to which no one would otherwise be paying any attention at all, at least as direct marching orders for twenty-first century warriors, is specious and dangerously misleading. Back to van der Galiën:As regards to Islamic law: Jeb’s completely right. Throughout the history of Islam there have been debates about what Islam means, what Islamic law should look like, etc. To Robert Spencer I would like to say one thing, one word: Mevlana.Certainly there has been and is diversity of Islamic law, but as I have shown above, there has been consensus on the necessity to wage war against and subjugate unbelievers. I would ask van der Galiën or Koogler to produce one orthodox school of Islamic jurisprudence, or one scholar recognized as orthodox, who explicitly rejected this necessity. Mevlana? That's Rumi, folks, the Persian poet and mystic. Rumi was a terrific poet, and a great mystic, but does Islamic mysticism in general preclude a proclivity for jihad warfare? Unfortunately, no. Here is a quote from the pioneering Sufi mystic Al-Ghazali:[O]ne must go on jihad (i.e., warlike razzias or raids) at least once a year...one may use a catapult against them [non-Muslims] when they are in a fortress, even if among them are women and children. One may set fire to them and/or drown them...If a person of the Ahl al-Kitab [People of The Book – primarily Jews and Christians] is enslaved, his marriage is [automatically] revoked…One may cut down their trees...One must destroy their useless books. Jihadists may take as booty whatever they decide...they may steal as much food as they need...There are other Sufi authorities who speak in the same vein.
[T]he dhimmi is obliged not to mention Allah or His Apostle…Jews, Christians, and Majians must pay the jizya [poll tax on non-Muslims]…on offering up the jizya, the dhimmi must hang his head while the official takes hold of his beard and hits [the dhimmi] on the protruberant bone beneath his ear [i.e., the mandible]… They are not permitted to ostentatiously display their wine or church bells…their houses may not be higher than the Muslim’s, no matter how low that is. The dhimmi may not ride an elegant horse or mule; he may ride a donkey only if the saddle[-work] is of wood. He may not walk on the good part of the road. They [the dhimmis] have to wear [an identifying] patch [on their clothing], even women, and even in the [public] baths…[dhimmis] must hold their tongue….  (From the Wagjiz, written in 1101 A.D.)In his response to Jeb Robert Spencer (whom Jeb criticized) writes: “I spoke of the oppression of their fellow Muslims by Salafists, and discussed at some length the fact that ‘the overwhelming majority of Muslims don’t actually follow the passages that [I] cited’.” This, of course, sounds better, but it still ignores the larger point, namely that these Muslims don’t ‘ignore’ the passages in the Koran that speak about using violence against unbelievers, but that they interprete them in their context. In other words, they don’t just look at such a passage and say “ah yes, kiell the infidel!,” they look at the entire Koran and understand that they shouldn’t use violence but should preach and practice peace and tolerance.Actually, I have never denied that alternative interpretations of the Qur'an exist. And I am all for them -- in fact, we need more. But what we really need are ones that are effective enough to begin to seize the intellectual vanguard away from the jihadists, who make recruits among peaceful Muslims by presenting their perspective as "pure Islam." Until this is effectively countered by peaceful Muslims, that recruitment will continue successfully.This means that Spencer et al. should stop arguing that ‘pure Islam’ is such and so. That’s not up to them to say. Pure Islam is whatever you want it to be. Rumi’s supporters thought and think that they are living true “Islamic” (or Muslim) lives. Bin Laden disagrees and would kill them if he could. Ahmadinejad thinks that what he preaches is the ‘pure’ Islam, Ali Eteraz disagrees and offers ‘his’ ‘pure’ version of Islam.Here van der Galiën gets me flatly wrong, as I have never said that the jihadist version of Islam is "pure Islam." I have said that the jihadists say it is, and that they appeal to broad support within the Qur'an and Sunnah and Islamic jurisprudence, as I've shown above. But does all that support mean that they're correct in saying that theirs is the "pure Islam"? No, and I have never said otherwise. If someone, even Ali Eteraz, could construct a version of Islam that could convince Muslims that the jihadists did not represent "pure Islam," no one would be happier than I. But I don't think they will succeed in doing that by denying the scope of the problem and playing fast and loose with the facts, like Eteraz. Reform doesn't occur by denying the need for reform. It occurs by confronting what needs reforming, and opposing it.Muslims should decide what ‘pure’ or ‘true’ Islam is and what’s not.Quite so. That's exactly what I've been calling upon peaceful Muslims to do for years now.And with regards to all religions, those who argue that it’s not about the letter but about the spirit usually have a stronger case than those who argue the opposite. We would do well to remember that. For instance when Spencer talks about how Islamic law has condoned the stoning of women. Or how Islamic law has grown to oppress women, etc. All true. From a modern Western perspective that is. If you look at what life was like before Mohammed came to power and before he established the new religion, you’ll see that Islam actually meant progress for Arabic women. You will also see that Mohammed treated his wives with kindness and depended on them (for advise, etc.). That’s the spirit of the Koran and of Mohammed’s life. If you copy the spirit you’ll get an entirely different result today, then when you only copy the letter.All true only from a modern Western perspective? So would van der Galiën deny that there are women awaiting death by stoning in Iran today? I suppose I, with my modern Western perspective, put them there? It may be wonderfully true that Muhammad liberated women in his day, but the application of the letter of his law is oppressing and killing women today. Van der Galiën can speak loftily about the spirit of that law all he wants, but that isn't preventing those women in Iran from being stoned to death. And I am not going to stop speaking out on their behalf, and for the human rights of women and religious minorities in the Islamic world, because Muhammad was ahead of his time in the treatment of women. It's time for all those who believe in the human dignity of all people, whether they are Muslim or non-Muslim, to stand up against this oppression. I hope that ultimately van der Galiën will join us in this stand, rather than making excuses for the oppressors.