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There are substantial differences between the shari'a and secular systems with respect to the use of armed force The principal differences

According to Michael Cook, Forbidding Wrong in Islam (2003), 75; Michael Cook,

Commanding Right and Forbidding Wrong in Islamic Thought (2001), 39. The Prophet

said:

"The best djihad is the speaking of a word of truth (kalimat al-haq) to the unjust leader."

This hadith is confirmed in R L Euben and M Q Zaman (eds), Princeton Readings in

Islamic Thought (2009), 330.

The Holy Bible: King James Version, The Gospel According to St. Matthew (2000), 5 10.

Sardar Ali Shaheen and Rehman Javaid, 'The Concept of Jihad in Islamic International Law1 (2005) journal of Conflict & Security Law 321, 321. Djihad (JV-^) covers (i) the greater djihad(djihad al-akbar J^?-^and (ii) the lesser djihad

(djihad as-asghar which in this context can involve an armed struggle

and has religious aims and underpinnings.

Q ur'an 8:67, esp. n 1234; Rebellion (baghi) may in certain circumstances but not generally also be considered legitimate as discussed in Chapter 5, but subjectively,

Chapter 2 —42

arise in part from the different perspectives particularly with respect to reasons for hum an existence. Legitimacy too for Muslims ties in with this perspective. Thus, the sources of law, the means of deriving relevant laws and the phraseology used to characterise crimes will affect the legitimacy of applicable laws. The principled, open and transparent developm ent of Islamic law will lead to a greater acceptance of the law among Muslims, even when the resulting crimes and elements of crime have significant commonality with their equivalents in secular legal traditions. The

commonality that results is analogous to the similarities that exist between the common law and the civil law traditions, in spite of their not

insignificant foundational differences. This overlap results because at least some underlying principles, of say, even secular criminal law, and

particularly crimes universally considered egregious, derive from the abiding values of the Ten Commandments. From the shari'a perspective, Mosaic law is a sound source.5 On the other hand, developing SHL is not to be done as a matter of 'w indow dressing', a shallow concept which satisfies apologists but will never find broad consensus, and is likely to be rightly viewed as instrumental, dishonest and thus ultimately counterproductive.

The broader concept of djihad helps distinguish and properly characterise a given conflict as an armed djihad or otherwise.

Etymologically, djihad means 'to strain, to exert or to struggle',6 although in contemporary usage the term, quite inaccurately, is made synonymous with armed action. In clarifying the scope of djihad, the aims of its two constitutive components, (i) the greater djihad and (ii) armed djihad, are examined from both a theological and a legal perspective. The scope of the greater djihad is briefly examined and then armed djihad is defined,

analysed and examined in some detail in order to establish some principles that can be used as a yardstick to identify limits to the means of combat

is in the mind of a rebel, an armed djihad while the State views such fighting as rebellion.

Qur'an 48:29.

According to Milton J Cowan (ed) The Hans Wehr Dictionary of Modem Written Arabic (1980), 116. the word derives from the triliteral (JA £), that is, al-djihad (Jlf+Jt) and is a broad and complex concept which means 'to strain, to exert or to struggle'.

Chapter 2 —43

that may legitimately be employed.7 In order to do this, however, the scope of armed conflict (some of which falls outside the scope of djihad) is also identified and discussed. This is done in chapter 5 by examining briefly the scope and meaning of aggression, war and armed conflicts generally,8 particularly in order to distinguish these forms of combat from armed

djihad.

The M ean in g and Scope of Djihad

Djihad has a primary 'spiritual' meaning.9 The meanings of its constituent parts, the greater djihad and the armed djihad are first identified then discussed separately. The armed djihad, which encompasses the means that may be employed in fighting, is examined in some detail as a matter of importance. All djihad should be motivated in God's way alone,10 not for base motives11 and herein it is argued lies the key to peace.

The greater djihad is mandatory on all Muslims12 and aims primarily at taming a person's animal soul,13 thus making it receptive to the 'true' concept of One God. The shari'a provides a path of self-discipline by which this animal soul can develop further to reach a point of spiritual

developm ent which is characterised by peace and satisfaction.14 The greater

djihad is the means to achieving this end. An integral part of taming the

Recall that al-Qa'eda or sometimes now called The World Islamic Front for djihad

Against Jews and Crusaders ('WIF') broadly includes al-Qa'eda and other Islamist groups in different countries and as mentioned will be used as a case study or an example for the application of the shari'a rules. For information in English on the WIF please see:

<www.library.cornell.edu/colldev/mideast/>. [Accessed in 30 June 2006]. Aggression is ('uduwan u 1 J - ^ ) and war is (harb “ A both words are used extensively in siyar literature.

Djihad is composed of djihad al-akbar the greater djihad) and the armed

djihad or djihad as-asghar

That is, in Qur'anic language 'fi sabil Allah' [411/ as discussed in Chapter 2. IHL appeals to the 'soldier's honour': Jean-Marie Henckaerts and Louise Doswald- Beck (eds), Customary International Humanitarian Law, vol l (2005), xxv. Islamic law would likely consider this criterion subjective and is unlikely to accept armed conflict as justified solely based on an individual's belief that s/he was acting honourably for God, Queen, country or for that matter for family or tribal honour. Qur'an 25:52; The exception of necessity applies as always for Muslims in duress except for the element of 'faith' which may outwardly be renounced under duress but never inwardly, and one then has the obligation to escape the oppression and emigrate to a better freer place.

Chapter 2 —44

animal soul is a type of altruism which requires sharing what is good. The

Qur'an refers to the Prophet, inter alia, as a mercy to

all

'worlds

' , 15

Muslim,

non-Muslim, animate, inanimate and beyond, including 'all that lies

beyond human perception

' . 16

Further, Muslims, as the inheritors of the

Prophet, must exhibit the quality of mercy, believe in God and remind

Outline

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