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PART I. THE CONDUCT OF WAR IN THE ANCIENT WORLD AND EARLY ISLAMIC HISTORY


Early Islamic Legal-Historical Precedents: Prisoners of War

LENA SALAYMEH


The inseparability of law and history is manifest when historical interpretation —an integral component of legal hermeneutics—results in juristic disagreement. This article is a foray into the shift from prohibition to permissibility of prisoner of war execution in early Islamic legal history that connects changing legal opinions to changing historiographical readings.1 Contemplating the contrast between historical and jurisprudential interpretations of historical events with legal implications will facilitate investigation of the interactions between historiography and legal discourse. Exploring a few questions will highlight the ambiguous, overlapping roles of historians and jurists as they construct (legal) histories: (1) Do historical narratives about all the battles that occurred during the Prophet's lifetime illustrate his legal practice concerning treatment of prisoners of war? (2) After the Prophet's death, how did Muslim jurists adjudicate this issue? (3) What legal reasoning did key Muslim jurists of the 'professionalization' period apply in permitting the execution of war prisoners?2 (4) What could explain the discrepancy between the chronologically earlier opinion (prohibiting prisoner execution) and the later, more dominant legal opinion (permitting prisoner execution)?3 1
      My focus is on historiography and on the legal reasoning of generations of a legal community as articulated in an array of legal and historical texts, rather than normative war practices that may have influenced legal opinions.4 Occasional references to contemporaneous war practices are noted, but full exploration is avoided because legal texts refer only to Islamic (especially Prophetic) precedents and because historical sources report an inconsistent variety of practices.5 Thus, historical analysis of each individual jurist's possible contextual influences is beyond the scope of this essay. 2
   

I. Prisoners of War in Early Islamic History

 
Concentrating on battles during the lifetime of the Prophet is significant because his actions and legal pronouncements are authoritative in dominant Islamic legal theory.6 The objective is to trace historical narratives from Islamic sources that would later form the basis for jurisprudential precedent. It is then Muslim historical consciousness—not authenticity or contemporarily accepted historiography—that forms the basis of this historical reconstruction. For our purposes, factuality is simply irrelevant and all references to historical events are based on histories related by Muslim historians. 3
      Since there were no battles during the first decade of the Muslim community's existence, this article investigates battles that occurred between 622 CE (the year of the åijrah, or migration) and 632 CE (the year of the Prophet's death). A distinction is made between raids and actual battles involving the military confrontation of two sides; only those events in which two armies appear to have challenged each other are categorized as battles.7 This categorization attempts to distinguish between conflicts motivated primarily by politics and by economics.8 Similarly, sources do not clearly delineate between combatants (killed during battle) and prisonercombatants (killed in captivity), but this distinction is mined from the narratives. The main sources for the following historical reconstruction of early Islamic warfare are the eighth-century biography of Ibn Isååq and several åadåth collections (primarily late eighth- and early ninth-century texts).9 These sources are not intended to be exhaustive or factually authoritative, but rather to represent conventional Islamic historical knowledge.10 4
      The first battle waged by the early Muslim community was at Badr in 624 CE/2 AH; a Muslim army of approximately 313 soldiers confronted an army of nearly 1000 Quraysh. (The Quraysh were the powerful pagan Arabs who had persecuted the Prophet and his followers in Mecca for approximately thirteen years.) Combat began with a traditional three-on-three challenge; the three Muslims defeated the three Quraysh. Open combat then began, but only lasted a few hours before most of the Quraysh army fled. Nearly 70 Quraysh were killed in battle, with a comparable number taken captive. 5
      Historical reports concerning the handling of the majority of Badr prisoners are relatively consistent and transparent: they were ransomed.11 The Prophet apparently consulted Abu Bakr and 'Umar on the situation of the prisoners; the former recommended ransoming and the latter recommended execution.12 It appears that the Prophet considered the possibility of executing the prisoners, but rejected it. Yet, there are also reports that two Quraysh 'prisoners'—both known for tormenting the Prophet when he was in Mecca—were executed: al-Naår bin al-Hårith and 'Uqba b. Abå Mu'aåå.13 Al-Naår had vehemently opposed the Prophet in Mecca, but it is indeterminable if the Prophet ordered or approved his killing, which may have occurred during battle.14 In Mecca, 'Uqba had placed the fetus of a she-camel on the Prophet's back while he was prostrating in prayer.15 The same åadåth that reports 'Uqba's active involvement in this humiliation of the Prophet also states that 'Uqba was seen "lying slain in the battlefield."16 This account directly contradicts the other report of 'Uqba's execution; consequently, a student of Muslim historiography may question the occurrence of these executions—or, at least, the timing (i.e., during or after battle). Indeed, both are listed as Quraysh losses, not prisoners, at Badr—possibly implying they were killed during battle.17 Moreover, it is unclear if these executions represent exceptional cases—for example, if these two individuals were killed in retaliation for a particular crime in accordance with tribal custom. To speculate on the status of this event as specific or general, we must analyze both the situations of the other Badr prisoners and prisoners from other battles. 6
      The two purported prisoner executions at Badr contradict the reported decision against execution, as well as many other accounts. The Prophet "divided the prisoners amongst his companions and said, 'Treat them well.'"18 One of the prisoners is described as recounting that "when they ate their morning and evening meals they gave me the bread and ate the dates themselves in accordance with the orders that the apostle had given about us. If anyone had a morsel of bread he gave it to me."19 It is also reported that the Prophet was unable to sleep because a Badr prisoner was bound too tightly; he relaxed once his bindings were loosened.20 A poor prisoner requested to be set free and the Prophet granted his request on condition that he not fight against the community again.21 The Badr prisoners of war were reportedly fed and clothed before being set free—some without and others with ransoms. Surviving historical evidence suggests that most prisoners from the battle of Badr were not executed and were specifically protected by the Prophet's command and practice. When these narratives about the majority of Badr prisoners being treated well are compared with the conflicting narratives about two prisoner executions, it becomes more difficult to determine a lucid historical precedent. The significance of these contradictory and vague narratives is in how this historical incident will be interpreted by later generations of Muslims—especially jurists. Scrutinizing narratives from early Muslim historiography about succeeding battles may illuminate a historical pattern. 7
      The second major Muslim battle was at Uåud in 625 CE/3 AH. The Quraysh of Mecca, angered by the preceding year's defeat, fortified their army and returned to battle the Muslim army. Interestingly, 'Umar is reported as claiming that after the Prophet consulted and rejected his advice at Badr (see above), prisoners were executed rather than ransomed at Uåud.22 But historical works do not indicate that any prisoners of war were taken.23 The subsequent battle occurred in 627 CE/5 AH and is known as the Battle of the Trench because the Muslim community dug a defensive trench around a critical part of the city of Medina. The battle was basically a prolonged siege: the confederation of troops led by the Quraysh could not cross the ditch and after three weeks of surrounding the city of Medina, cold, sand storm weather purportedly sent them fleeing. There are no reports of prisoners being taken.24 The subsequent battle was also a prolonged siege—this time at Khaybar in 628 CE/6 AH; no prisoners are reported to have been taken captive.25 In 629 CE/7 AH, the Prophet sent numerous letters to diplomatic figures around the Arabian peninsula. His emissaries were reportedly killed by Northern Arab tribes under Byzantine protection. Consequently, a Muslim army marched northward to Mu'ta to confront a large Byzantine army that defeated them. No prisoners appear to have been taken.26 The Battle of åunayn took place in 630 CE/8 AH. Women, children, and apparently combatants were taken as captives, but appear to have been released without ransom.27 8
      All these battles that occurred during the last decade of the Prophet's lifetime offer us only two clear situations in which he dealt with combatant prisoners of war—Badr and åunayn.28 At Badr, most prisoners were ransomed, in accord with tribal custom. At åunayn, the prisoners were set free without ransoms. In all the battles following Badr, no prisoners appear to have been executed. This series of events would be logical if the general directive after Badr to treat a prisoner well precluded the prerogative of execution and this was implemented in subsequent battles. Viewed in light of the historical evidence from all the battles during the Prophet's lifetime, the overall treatment of prisoners of war at Badr more likely suggests the impermissibility of poor treatment (including killing). 9
      This interpretation (the non-practice of prisoner execution) of the imperfect historical record is corroborated by miscellaneous evidence from raids during the Prophet's life. For instance, the Prophet ordered that Thumåma be set free when he was captured during a raid.29 Another åadåth explicitly suggests that not executing prisoners is divinely approved (or ordained).30 Similarly, the detailed history of raids compiled by al-Wåqidå relates that during the raid of Nakhlah a prisoner was taken and 'Umar ibn al-Khaåååb wanted to kill him, but the Prophet prohibited it.31 These isolated incidents of raids further imply that the Prophet's normative practice was to protect the lives of prisoners/captives. 10
      Ransoming prisoners was a profitable enterprise that benefited these struggling tribal communities. That execution of war prisoners was an economically poor choice—in comparison to ransoming or enslavement—is unmistakable. While there was a clear incentive not to execute war prisoners, there appears to be little evidence for why prisoners should be executed (other than retaliation/revenge against particular individuals). To answer the first question posed: if we examine historical narratives about all the battles that occurred during the lifetime of the Prophet, we cannot arrive at a definitive conclusion concerning the permissibility of executing prisoners of war. However, the strongest conjecture based on the available historical evidence in Muslim historiography suggests the historical-legal interpretation that the Prophet's legal practice was to treat prisoners well and not kill them.32 The remainder of this essay considers how jurists contended with the precedential value of this historical evidence, since these narratives were integral to their (legal) education. 11
   

II. Early Jurists

 
Surviving historical evidence offers limited materials from which to reconstruct judicial activity directly following the Prophet's death. But the Prophet's companions often acted as jurists and they may have prohibited prisoner execution.33 There is a more readily identifiable historical group in the Islamic legal tradition that prohibited prisoner execution.34 It is comprised of early and renowned figures in Islamic legal history (from the generation after the Prophet's companions): Sa'åd bin Jubayr (665–714 CE), åasan al-Baårå (642–728 CE), and 'Aåå' bin Abå Rabåå(d. 732/733 CE).35 These individuals were some of the earliest jurists in Islamic history and they adjudicated prior to the emergence of professional schools of law. They (and others) are reported to have cited the consensus of the Prophet's Companions, the historical practice of the Prophet, and a verse of the Qur'ån (Muåammad, 47:4) as limiting the options for dealing with prisoners of war to freeing or ransoming.36 Specifically, åasan al-Baårå prohibited prisoner execution based on Qur'ån 47:4 and asserted that prisoners may only be ransomed or freed.37 This verse states, "Therefore, when ye meet the Unbelievers (in fight), smite at their necks; At length, when ye have thoroughly subdued them, bind a bond firmly (on them): thereafter (is the time for) either generosity or ransom."38 This group of early Muslim jurists likely found no discrepancy between this Qur'ånic verse and the practice of the Prophet, with which they must have been intimately familiar. 12
      This opinion against prisoner execution was not, however, unanimous—although arguably at this point it was not simply a minority or dissenting one. 'Umar ibn 'Abd al-'Azåz (680–720 CE) is reported to have proscribed prisoner execution, but also to have executed one prisoner under peculiar circumstances.39 Other scholars from this period—including Ibråhåm al- Nakha'å (670–717 CE) and Sufyån al-Thawrå (716–778 CE)—permitted prisoner execution as one of several options available to a Muslim leader.40 Mujåhid (d. 718 CE) claimed that the Companions of the Prophet formed a consensus that Qur'ån 47:4 was abrogated by 9:5,41 thereby providing a Muslim leader with the options of execution, ransom, freeing, or enslaving.42 This brief overview suggests that jurists of this period sanctioned prisoner execution based on verse abrogation and (possibly) political expediency. How these legal opinions related to Prophetic practice is a more complicated matter because it is unclear what oral and written traditions were in circulation and what legal significance such traditions had for these jurists. At this point in Islamic legal history, many jurists appear to have understood the Qur'ån as prohibiting prisoner execution and to have disagreed about what the Prophet's practice was. Despite the diversity of opinions, it is clear that the prohibition of prisoner execution was a strong legal opinion supported by major jurists of the seventh/eighth centuries CE. 13
   

III. 'Professional' Islamic Legal Discourse

 
Succeeding generations of Muslim jurists gradually began to identify with a particular legal school as legal methodology became further codified. This section briefly summarizes the legal rulings of a few mainstream and prominent Muslim jurists from the 'professional' period (for which relatively more materials are extant). The legal opinions here represent several centuries and four major Sunnå legal schools (åanafå, Målikå, Shåfi'å, and åanbalå).43 This ahistorical presentation is an attempt to briefly identify trends or assumptions in dominant Islamic legal discourse, not to historicize the varying contexts in which these jurists were reasoning/writing. Rather than being exhaustive or authoritative, this is an outline of the discursive framework in which jurists treated the question of prisoners of war.44 The legal schools represented in this outline share a basic formula for deriving Islamic legal rulings, dictating that the highest authority is the Qur'ån and the secondary authority is the Prophet's statements or deeds. 14
   

Silent Authority and Missing Precedents

 
One of the earliest extant Islamic juristic texts discussing prisoners of war is Shaybånå's (750–805 CE) Siyar. Shaybånå recorded the teachings of Abu åanåfa on the authority of his teacher, Abå Yåsuf (d. 768 CE), a prominent figure in the åanafå school of legal thought; in this way, the substance of Shaybånå's text dates to the life of Abu åanåfa (699–767 CE). Abu åanåfa reportedly stated that "The Imåm is entitled to a choice between taking them to the territory of Islam to be divided and killing them ... [The Imåm] should examine the situation and decide whatever he deems to be advantageous to the Muslims."45 Although limited by the form of transmission, Abu åanåfa does not appear to have referred to any precedents or legal authority. The legal question and response are succinctly and simply presented because he likely assumes the legitimacy of these four options.46 Notably, Abu åanåfa was a contemporary of the three jurists who opposed prisoner execution. 15
      Al-Qayrawånå (922–996 CE), a Målikå jurist, declares that "It is not wrong to kill a non-Arab unbelieving prisoner, but no one is to be killed after being given a guarantee of safety (amån), and treaties with the enemy are not to be violated."47 A non-Arab unbelieving prisoner in Al-Qayrawånå's time could have been Byzantine; to give an example of contemporary war practices, Byzantine Emperor Nikephoros II Phocas (912–969 CE) advised his soldiers on prisoner execution in his military treatise.48 But since al- Qayrawånå did not elaborate, it would be mere speculation to link Byzantine war practices with his legal reasoning. As in the case of Abu åanåfa, al-Qayrawånå seems unconcerned with historical precedents or legal authority for this particular issue. 16
      Al-Nawawå (1233–1277 CE), a Shåfi'å jurist, asserts that a Muslim leader may kill, ransom, or enslave a prisoner of war based on the needs of society, without citing Qur'ån or historical precedents.49 Likewise, the åanbalå jurist Ibn Taymiyah (1263–1328 CE) also declares that a ruler has four options for dealing with prisoners; he asserts that "This is the opinion of the majority of the jurists, as they have concluded from the Book and the Sunna; though some jurists consider the liberation of such a captive as well as the ransom in return for his liberty as abrogated."50 The permissibility of executing war prisoners is so obvious that Ibn Taymiyah simply points to the Qur'ån and Prophetic practice, without any elucidation.51 For these distinguished jurists, representing each of the four main Sunnå schools of law, Qur'ån and history were either irrelevant or provided so obvious an authority/ precedent that it did not need to be explained. Since these legal texts are part of a broader discursive milieu—in which the text of the Qur'ån, content of åadåth, and historical precedents were intimately familiar—it is possible that this silence of authority and precedent is only striking to a present-day reader. Still, it is remarkable that historical precedents (Section I) or previous juristic opinions (Section II) are disregarded. 17
   

Qur'ån and History in 'Professional' Islamic Legal Discourse

 
While some jurists omitted discussion of legal authority or precedents, others cited and explained specific Qur'ånic verses and historical events to support the permissibility of prisoner execution. Måwardå (974–1058 CE), a Shåfi'å jurist, lists the same four options delineated above (execution, enslavement, ransoming, and releasing).52 Måwardå asserts an obscure interpretation of Qur'ån 47:4,53 in which he implies that bonds should be tied around executed soldiers.54 He fails to explain how executed prisoners could be shown grace or ransom (as the verse demands). In relying on this verse to substantiate his legal opinion permitting execution, he provides no historical context or examples of the Prophet (or his companions) executing war prisoners. In contrast, Måwardå mentions examples of grace and ransom from the biography of the Prophet and the history of the early Muslim community.55 By citing incidents from the Prophet's practice that legitimize only some of the legal options he lists, Måwardå demonstrates the inconsistent significance of precedent to his legal reasoning. 18
      To further support his ruling, Måwardå relies on a narrative alleging that the Prophet disapproved of ransoming. He cites the aforementioned åadåth concerning the Prophet's consultation with Abu Bakr and 'Umar at Badr and then uses it to interpret Qur'ån 8:6756 as a condemnation of ransoming and a reproaching of the Prophet for ransoming the Badr prisoners. Måwardå declares, "After this verse was revealed, God's Messenger, God bless him and grant him peace, said, 'Had God decreed our punishment in this verse, 'Umar, you would have been the only one to escape it.'"57 But other versions of this story do not cite the Prophet as approving 'Umar's previous suggestion to execute prisoners.58 Måwardå uses this specific historical narrative to imply the legitimacy of prisoner execution, but evades citing an actual historical example of its practice. 19
      Like Måwardå, Ibn Rushd (1126–1198 CE) scrutinizes the Qur'ån for evidence of how to treat war prisoners. This Målikå jurist and philosopher clarifies that the disagreement among jurists "stems from the conflict of the acts (of the Prophet), and the conflict of the apparent meaning of the Qur'ånic text with the acts of the Prophet."59 Ibn Rushd explains Qur'ån 47:460 as indicating that "after taking prisoners the imåm can only pardon or take ransom."61 But, like Måwardå, Ibn Rushd claims that Qur'ån 8:6762 implies that execution is better than ransoming (exemplified by the mistake made at Badr) and that the Prophet's acts relating to treatment of prisoners were inconsistent.63 What is curious about Ibn Rushd's interpretation of Qur'ån 8:67 is that he defines the key verb (yuthkhina) as killing whereas he interprets the same verb (athkhantumåhum) in Qur'ån 47:464 as overcoming or subduing. The root of this verb (th-kh-n) can mean slaughter, subdue, or even apply oneself energetically; it is peculiar that within one discussion of these two verses, Ibn Rushd defines the same verb inconsistently. He asserts that the status of this verse as abrogated or not is the crux of the legal controversy.65 He claims that those who argued that prisoner execution is not permissible believed that Qur'ån 47:4 abrogates the acts of the Prophet, which is contrary to the reported reasoning of early jurists (see Section II).66 Thus, he presumes that the minority opinion (prohibiting prisoner execution) relies on the same understanding of historical events as his own (i.e., that the Prophet executed war prisoners), rather than an alternative version. 20
      Al-Råfi'å (1162–1226 CE), another Shåfi'å jurist, claims that there are historical precedents of the Prophet practicing all four options, with the precedent of execution coming from the executions of al-Naår and 'Uqba at Badr, as well as that of Abi 'Azza al-Jumahåå at Uåud.67 He asserts that a leader must determine which of the four options is best for the community. He then cites two verses (8:67 and 47:4) and explains that they were context specific: he asserts that Qur'ån 47:4 demands either the freeing or ransoming of prisoners because the community was strong, whereas 8:67 recommends execution of prisoners (in his interpretation) because the community was weaker. While al-Råfi'å refers to a change in circumstances, he does not elaborate the relevant historical details. 21
      This brief presentation of the legal reasoning of some major jurists of the tenth through thirteenth centuries has demonstrated a remarkably disjointed use of Qur'ånic authority and inconsistent references to åadåth and historical precedent. All these jurists approach the issue of prisoners of war with little concern for expressly justifying the legal opinions they advocate with clear legal-historical precedents. None of the juristic texts cited here discussed the åadåth concerning the Prophet's commands that prisoners of war be treated well. Most jurists simply discussed the legal status of prisoners of war without even reconciling their judgments with the historical narratives about most war prisoners being ransomed or freed. 22
      A possible explanation for these inconsistent references to precedent is that these juristic opinions were outcome determinative or utilitarian and this is yet another example of jurists using legal rhetoric to arrive at their desired result. Perhaps the majority of jurists were legitimating 'executive authority' by asserting that a ruler has a multitude of options or expressing their individual opinions without regard for precedent/authority. But these explanations may be too simplistic or too cynical because these jurists probably believed in the legitimacy of their legal rulings. Still, despite their abstract commitment to implementing authentically 'Islamic' rulings, most of these jurists seem unconcerned with explicitly identifying and examining historical precedents from the lifetime of the Prophet. One reason for this phenomenon is that the jurists assumed the familiarity of the audience (likely other jurists or 'law students') with the text and exegesis of the Qur'ån, the biography of the Prophet, and early Islamic history. Even the jurists who did cite to legal-historical authority seemed to perceive executing a prisoner as historically normative in some way. This presumption of normativity arises from two interrelated traditions: exegesis and historiography. The outline above illustrates that jurists did not rigorously scrutinize historical materials to establish a definitive legal-historical precedent. Instead, by engaging the language of the Qur'ån (and not historical-legal precedents), the jurists were able to avoid an important historical-legal question: if the Qur'ånic ruling is to execute prisoners of war, when and how did the Prophet implement it after Badr? 23
   

IV. Prisoners of War in Qur'ån and Exegesis

 
The summary (above) of some Islamic legal opinions on prisoner of war execution indicates that interpretation of verses often relies on a historiographically- based presumption—that may be unarticulated—about a verse's context. As part of their training, jurists were educated in tafsår (Qur'ånic exegesis); one of the earliest and most influential texts was composed by åabarå, a historian, exegete, and jurist who was likely familiar with the materials used in Section I;68 his work illuminates the juristic understanding of certain verses and was likely one of their sources—since it is here that a jurist could presumably locate a post-Badr prisoner execution. 24
      åabarå explains 8:6769 as a criticism of the Prophet for ransoming prisoners of war at Badr and claims that execution would have been preferable. He interprets the verse as admonishing the Muslim community for trying to profit off of war prisoners, rather than killing them.70 åabarå expounds on 47:4 as an instruction to tie the bonds of a prisoner of war tightly lest he escape and cause harm.71 But he delineates a controversy about this verse that is evident in the juristic texts: some scholars believed that the verse is a valid, un-abrogated rule (thereby prohibiting prisoner execution); other scholars believed the verse was abrogated by 8:5772 or 9:5.73 åabarå refers to åasan al-Baårå's prohibition of prisoner execution and indicates that it was based on a report that 'Abdallåh bin 'Umar (son of the second caliph) refused to execute a prisoner in accordance with 47:4. åabarå expresses his opinion that verse 47:4 is not abrogated and is a valid legal command; but he claims that 9:5 is chronologically earlier than 47:4 and therefore offers a Muslim leader the additional option of executing war prisoners. åabarå alleges that it was the practice of the Prophet to kill some war prisoners and not others.74 The historical precedents he cites are the execution of 'Uqba at Badr (discussed above) and the Banå Qurayåa (discussed below). 25
      Two examples of juristic texts that appear to rely on or concur with the historical interpretation embedded in åabarå's exegesis or some other 'classical' work75 are briefly presented here. These examples highlight that in the Islamic juristic tradition, Qur'ånic exegesis and historiography are intertwined and integral to Islamic legal reasoning. The åanafå jurist, al-Sarakhså (d. 1090 CE) mentions the majority-condoned four options and then the minority opinion (within his legal school) against prisoner execution. He explains that dissenting jurists (al-åasan and åamåd bin abå Sulaymån) relied on a narrative reporting that the son of the Caliph 'Umar refused to execute a prisoner of war, implying that they considered this a binding precedent.76 Sarakhså alleges to have historical evidence for the permissibility of execution after imprisonment in the Badr executions (al- Naår and 'Uqba) and the story of Banå Qurayåa. Departing from åabarå's exegesis, Sarakhså declares that Qur'ån 47:4 was abrogated.77 26
      Similarly, Ibn Qudåmah (1147–1223 CE), a åanbalå jurist, begins his discussion of the treatment of prisoners of war by listing the same four options that the majority of jurists permit. He refers to the dissenting opinions of three early jurists (Sa'åd bin Jubayr, åasan al-Baårå, and 'Aåå' bin Abå Rabåå) and explains that they rely on the ransoming of Badr prisoners as precedent and on Qur'ån 47:4 as limiting the options for dealing with war prisoners to the two (ransoming and grace) in the verse.78 Ibn Qudåmah substantiates his legal opinion with allusions to the two executions at Badr (al-Naår and 'Uqba), the killing of the poet (Abu 'Azza) at Uåud, and the Banå Qurayåa. The ambiguity of these historical precedents was discussed above (Section I)—except the story of the Banå Qurayåa. åabarå's exegesis and the legal reasoning of both Sarakhså and Ibn Qudåmah accept the abrogation of a key verse (47:4) based on a historiographical identification of a weighty precedent: the Prophet executing prisoners after Badr. But does the Banå Qurayåa incident really offer a precedent for prisoner execution? 27
   

V. Slippage: An Error in Historical Categorization?

 
Most (if not all) jurists who permitted prisoner execution probably sincerely believed that the Prophet did execute prisoners of war. But the possibility that two isolated and specific prisoner executions at Badr or one execution at Uåud were sufficient for deriving such a significant ruling seems unlikely. As åabarå's exegesis and some juristic texts confirm, there was another incident that was selectively cited as a historical precedent for prisoner execution. Some Qur'ån commentators, åadåth compilers, and jurists inaccurately categorized an incident involving the tribe of Banå Qurayåa as one of warfare, rather than breach of treaty or treason.79 Readers familiar with Islamic history may have noticed the absence of references to this incident in the first section summarizing battles during the Prophet's life. This was an intentional attempt to engage these historical sources while resisting interpretations of historical events provided by Muslim historians or jurists.80 28
      The Banå Qurayåa was arguably the most powerful of the more than dozen Jewish Arab tribes in Medina.81 When the Muslim community settled in Medina, the Prophet entered into some kind of treaty agreement (likely based on tribal legal custom) with this Jewish Arab tribe as well as others.82 Several years later, it was suspected and alleged that the Banå Qurayåa collaborated with the enemy during the Battle of the Trench; after the battle, a Muslim army besieged their fortress. The Banå Qurayåa surrendered and Sa'd b. Mu'ådh (chief of a clan allied with them) was appointed arbitrator. Regardless of justifiability, he appears to have determined treason and imposed a tribal legal norm by ordering the execution of the 'combatants' (men beyond puberty) and enslavement of the women and children.83 29
      Early Islamic historiography was generally structured around the recording of battles, such that the very genre of early Muslim historical narratives is closely associated with warfare.84 Since this event immediately followed the Battle of the Trench, historical sources likewise place it directly after descriptions of the battle (which was actually a siege). This may explain why readers (historically and contemporaneously) interpret the Banå Qurayåa trial as part of the battle. This is, of course, an interesting case of the structure of a historical narrative having substantive (legal) implications. The only indication that this incident should be considered an Islamic legal precedent is contradictory references to the Prophet approving or implementing the order.85 But this presumption fails to appreciate the treaty agreement, third-party involvement, trial-like circumstances, indefinite legal application (tribal, Jewish, or Islamic?), and lack of combat that distinguish this event from a battle and obscure this event from having clear precedential value. 30
      The dissenting opinions cited at the beginning of this essay may attest to a period in Islamic history when this event was explicitly not understood as relevant to prisoners of war. Indeed, even the majority opinions (permitting prisoner execution) summarized in Section III attest to the inexplicit and ambiguous precedential value of this event. Juristic references to this incident fall under both discussions of non-aggression treaties and general ordinances for warfare, indicating that jurists themselves did not distinctly categorize this as war. For example, al-Shåfi'å cites the incident under treaty violation and does not clearly describe Banå Qurayåa as war prisoners.86 Moreover, of all the juristic texts examined for this article, only two explicitly cite Banå Qurayåa as a precedent for prisoner execution and both are relatively late. In the eleventh century, Sarakhså claimed that Banå Qurayåa was the precedent for permissibility of execution.87 A century later, Ibn Qudåmah observed that narratives about Banå Qurayåa (and two Badr executions) "were disseminated and well-known."88 More thorough and comprehensive legal-textual searches would be necessary in order to claim that the Banå Qurayåa situation became a precedent in a later period. But it is certainly remarkable that numerous earlier jurists and contemporaries of Sarakhså and Ibn Qudåmah did not cite the incident as a precedent. Whether stated or implied, if some jurists presumed this as precedent for executing war prisoners, then their reasoning discounts both the circumstances of this event and other historical precedents (Section I). It is unmistakable that many jurists evaded reconciling all the historical narratives pertaining to actual prisoners of war; this may be the result of this incident being the presumptive basis for their conceptualization of prisoner execution as normative. 31
      The apparent miscategorization of an internal dispute with one of the Jewish Arab tribes as a war also reflects a later conceptualization of the Jewish Arab tribes as clearly distinguishable from pagan and Muslim Arabs—a dichotomy that is not historically attested for most of the seventh century.89 Indeed, the overwhelming evidence of intermarriage90 and integration,91 as well as of socio-political contracts, indicates that Jewish Arab tribes were an integral component of Medinan society. Most historiographical works about this event reify the religious identity of the tribe, thereby ignoring that there were no apparent conflicts between the nascent Muslim community and the majority of Jewish Arab tribes in Medina and that there may be economic undercurrents to the strained relationship with Banå Qurayåa.92 It is probable that at least some early jurists (and possibly the Prophet's companions) did not share the same historiographical understanding of this incident as the 'professional' jurists; this could explain their lack of references to it. In contrast, 'professional' jurists either could not conceptualize the complex hybridity of Jewish-Muslim-Arab identity or chose not to accept it;93 both the exegesis and historiography employed by them signals this. 32
   

VI. A Historical Exegesis of the Qur'ån?

 
That the Qur'ånic interpretations of the majority of 'professional' jurists do not reconcile with the historical evidence has been advocated thus far without a lucid 'reconstruction' of an alternative (possibly earlier) exegesis. Reflecting this mosaic of historical interpretations (Section I) onto the Qur'ån may evoke the exegesis of the early jurists that substantiated their judgment against prisoner execution. Identification of a particular verse (47:4) as abrogated (or not) is at the crux of divergent historiographical and Qur'ånic readings that produce opposing legal judgments. A common means of identifying verse abrogation is to determine temporal order; while dif- ficult to ascertain definitively, in this case, it appears that 8:67 was revealed prior to 47:4.94 On its own, chronological order of Qur'ånic verses would necessitate a ruling that prisoners of war can only be pardoned or ransomed (as stated in 47:4).95 Viewing 47:4 as limiting treatment of war prisoners to pardon and ransom is in line with the clearest historical evidence presented here: after Badr (the occasion for 8:67), the Prophet freed all the captives from the battle of åunayn (the only other identifiable battle that resulted in prisoners).96 Yet, given that it is not entirely known what chronological ordering of the Qur'ån 'classical' scholars presumed, this may not fully explain the contrary legal rulings. 33
      Abrogation of verses also relies on the categorization of some verses as specific and others as general. 'Professional' jurists who permitted prisoner execution presupposed various conditions on verses, which led to verse 8:67 being viewed as general (and, sometimes, 47:4 as specific). In light of the historical evidence presented above, the criticism in 8:67 appears to be that war should not be a primarily profitable enterprise (as åabarå explained); that is, the verse instructs believers to battle for spiritual reasons, rather than economic incentives. This historical evidence also insinuates that 47:4 was not a specific regulation, since it appears to have been subsequently implemented. If 8:67 is not a general regulation and it does not override 47:4, then these two verses can be reconciled with the complex historical record. The historical summary (Section I), prohibition of execution by the early jurists (Section II), and historical reconstruction of a key event (Section V), all interconnect with an exegesis that rejects the abrogation of verse 47:4. The view that this verse was abrogated may have been prompted by genuine contentions, by projecting a particular historiography, by utilitarian objectives, or by adherence to a (legal or social) tradition. 34
   

VII. Another Possibility

 
Thus far, this essay focused on materials of continuity shared by early and 'professional' jurists: Qur'ån and historical narratives. However, these materials inherited traditions that may have influenced scriptural and historiographical interpretations. What constituted normativity for Muslim jurists of any time period cannot exclusively be located in Islamic texts or Muslim historical figures. The situation of war against the Byzantines or the Crusaders (among others) may have influenced—even if subconsciously—how the jurists viewed the legal status of prisoners of war. Prisoner exchange was common between the Byzantine and Islamic empires during the eighth through tenth centuries,97 but actual war practices varied across time and region. A more thorough analysis of socio-political contexts is beyond the scope of this essay and would likely be inconclusive. Moreover, to suggest that jurists were only concerned with overcoming their political adversaries would be unreasonable because—as the summaries in Sections II and III demonstrate—these jurists believed they were following Islamic tradition, or what they supposed was Islamic tradition. 35
      Perhaps jurists confounded some pre-Islamic traditions with Islamic texts/narratives; that is, a prior history may explain why some jurists presupposed the permissibility of prisoner execution. Generally, the Prophet and early Muslim jurists acted in harmony with the pre-existing socio-legal norms of the region.98 While difficult to establish definitively, it appears that pre-Islamic tribal custom was to ransom prisoners of war, but not to execute them. By comparison, Roman law assumed the enslavement of war prisoners, which was widely practiced.99 A significant pre-Islamic legal norm of the Near East that explicitly advocates prisoner execution is Biblical Law. Deuteronomy 20:13 states, "And when the Lord thy God delivereth it into thy hand, thou shalt smite every male thereof with the edge of the sword."100 In light of the role that Jewish tradition played in early Islamic legal thought, it is possible that the normativity of prisoner execution is a remnant of the Biblical tradition.101 Of course, no Muslim jurist cited the Torah as precedent for prisoner of war execution and there is an insufficient evidentiary basis for making such a claim.102 But the nature of legal interpretive communities is such that the normalcy of prisoner execution within Biblical custom could have subtly been integrated into Islamic legal thought.103 This suggests a deep-rooted historical tradition legitimating prisoner execution that is unrelated to the Qur'ån, or the practice of the Prophet and his companions, or normative Islamic legal methodology. After all, these communities (Arab/Islamic, Jewish, Byzantine) were not easily distinguishable in the earliest period of Islamic history. What was normative to a Muslim jurist was not grounded in a 'purely' Islamic tradition and this may explain the juristic tendency to read the historical record as permitting, even prescribing, prisoner execution. 36
   

Conclusion

 
This article avoided fully engaging the influence of actual, contemporaneous practice to legal hermeneutics in order to focus on the 'internal' dynamics of changing Islamic legal consciousness. The reasoning of jurists during the 'professional' period relied—among other things—on interpretation of historical texts and of the Qur'ån. In the case of prisoners of war, the majority of these 'professional' jurists arrived at interpretations that seem inconsistent—or, at least unconcerned—with historical evidence or with the opinions of earlier jurists. The historical section of this essay is not a 'radical' or 'modern' reinterpretation of history or legal precedent. Instead, it is likely the understanding of history shared by some early jurists and minority jurists (Ja'farå and åanafå) who prohibited prisoner execution.104 It is unclear what the majority ('professional' or contemporary) Islamic legal opinion on prisoner execution would be if early Muslim historians had clearly distinguished between the Battle of the Trench and the Banå Qurayåa incident. Nor can we determine what the prevailing legal opinion would be if 'professional' jurists had applied more precision in their concurrent analysis of historical precedents and Qur'ånic verses. Nevertheless, it is evident that legal reasoning of jurists does not simply arise from the methodology they purport to apply or from presumed utilitarian objectives. Interpretations of and assumptions about legal texts and precedents—rooted in complex, multi-layered traditions—intermingle to produce juristic opinions. Variations in Islamic historiography generate juristic disagreement. 37
      This article has suggested familiar claims: precedent can be used to support a contradictory ruling; jurists are subjective and may make outcome- determinative decisions; jurists are not skilled historians and employ historiography in problematic ways. But the contention insinuated in this article attempts to deepen these observations: most professional jurists began with a genuine presumption that executing prisoners of war is a viable option. In citing Qur'ån or åadåth, most jurists instinctively understood these sources as sanctioning prisoner execution. The intertwined historical and Qur'ånic interpretations propounded by these jurists demonstrate the significance of these normative suppositions. The intertextual process of 'creating' precedents, as depicted in this essay, is not unique to the Islamic legal tradition. For legal historians, this is a complicated inquiry into how historians construct histories, how jurists interpret those constructions, and how legal traditions apply these created legal-historical precedents. 38


Lena Salaymeh is a graduate student in History at UC Berkeley <lenas@berkeley.edu>. The author would like to thank Professors Ira Lapidus, David Lieberman, Hossein Modarressi, and the anonymous reviewer for comments and suggestions. (Of course, errors are the responsibility of the author.) The author also thanks Harry Scheiber and David Tanenhaus for their invitation to deliver an earlier version of this article at the Boalt-UNLV Symposium on "Law, War, and History" in February 2007.


Notes

1.  The legal category of 'prisoner of war' is arguably a modern one; however, for our purposes, 'prisoner of war' refers to soldiers or combatants captured during or immediately after warfare. In the context of seventh-century Arabia, 'combatants' generally means males above the age of puberty and capable of engaging in warfare. Familiarity with Islamic legal history or legal theory is unnecessary for understanding the underlying theme of this essay. For introductions to this area of study, see Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnå uåål al-fiqh (Cambridge, UK; New York, NY: Cambridge University Press, 1997). See also Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. ed. (Cambridge [England]: Islamic Texts Society, 1991). This article's approach to the sources presumes that "it seems plausible to assert that the traditional Islamic material, considered as a whole ... contains embedded within it sufficient material to reconstruct at least the main issues debated by Believers in the early Islamic period, and the basic attitudes of the main parties to those debates." Fred M. Donner, Narratives of Islamic Origins, Studies in Late Antiquity and Early Islam 14 (Princeton: The Darwin Press, 1998), 28–29.

2.  This period is commonly described as 'classical,' but 'professional' or 'professionalization' will be used here to emphasize the substantive characteristic of this historiographical category.

3.  In contrast to the 'majority' opinion (of the 'classical' period) permitting prisoner execution, there are 'minority' opinions prohibiting it—such as the Ja'farå (Shå'å) school of law. See al-åasan ibn Yåsuf Ibn al-Muåahhar al-åillå, Tadhkirat al-fuqahå' (Qum: Mu'assasat ål al-Bayt li-Iåyå. al-Turåth, 1993/1994 [1414 H]), 9:154–55. There is also a minority åanafå opinion—represented by al-åasan (bin Zåyåd) and åamåd bin abå Sulaymån—that prohibits execution. See Muåammad ibn Aåmad Sarakhså, Sharå al-Siyar al-Kabår, ed. åalååal-Dån Munajjid and Muåammad ibn al-åasan Shaybåni (750–804/5) (Cairo: Ma'had al-Makhåååat bi-Jåmi'at al-Duwal al-'Arabåyah, 1971/1972), 3:1024.

4.  Khaled Abou El Fadl suggests that the prohibition of prisoner execution disappeared from Islamic legal history because it was "inconsistent with the war practices of the age." Khaled Abou El Fadl, "The Rules of Killing at War: An Inquiry into Classical Sources," The Muslim World 89, no. 2 (1999): 153. For a brief overview of various Islamic legal opinions on prisoners of war, see åabarå, Kitåb al-jihåd wa-kitåb al-jizyah wa-aåkåm al-muååribån min kitåb ikhtilåf al-fuqahå', ed. Joseph Schacht (Leiden: Brill, 1933), 141–46.

5.  For instance, the Life of Theodota of Amid (d. 698 CE) reports collecting ransom money from church attendees (living under Islamic rule) for the purpose of ransoming captives (presumably held by the Byzantines). See MS Jerusalem (St Mark's) 199, fol. 557b (an 18th-century Arabic translation of a Syriac vita originally composed in the early eighth century). Writing in the twelfth century, Michael the Syrian reported both Muslim killing and freeing of war prisoners throughout the eighth century CE. See Michael the Syrian, Chronique de Michel le Syrien: patriarche jacobite d'Antioche (1166–1199), trans. Jean Baptiste Chabot (Paris: Ernest Leroux, 1899–1910), 2:479, 501, 526 and 3:1, 2. (Thanks to Jack Tannous for these references.) See also, Youval Rotman, Les esclaves et l'esclavage: de la Méditerranée antique à la Méditerranée médiévale: VIe-XIe siècles (Paris: Belles lettres, 2004), 56–62, 68–75.

6.  Application of the methodology of uåål al-fiqh is not what is intended. Instead, it is a legal-historical tradition, since "already in the first/seventh century people consciously resorted to the Qur'ån and to rulings of the Prophet as sources of the law, if not as extensively as in later times." Harald Motzki, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, trans. Marion H. Katz, Islamic History and Civilization. Studies and Texts, 41 (Leiden; Boston: Brill, 2002), 295.

7.  This intentionally modifies the list of battles reported in 'classical' sources, such as Muåammad Ibn Sa'd, Kitåb al-åabaqåt al-kabår, trans. S. Moinul Haq, assisted by H. K. Ghazanfar (Karachi: Pakistan Historical Society, 1967), 2:2. See also Muåammad Ibn Isååq, The Life of Muåammad: A Translation of Isååq's Sårat rasål Allåh, trans. Alfred Guillaume (1955; Karachi: Oxford University Press, 2004), 659–60.

8.  Raids or "Ghazw had always been an important component of the Bedouin economy of survival." Mohammed A. Bamyeh, The Social Origins of Islam: Mind, Economy, Discourse (Minneapolis: University of Minnesota Press, 1999), 42. Thus, this differentiation between a raid and a battle is fashioned from indications in the sources.

9. åadåth is a narration of what the Prophet said, did, or acknowledged. See J. Robson, "åadåth," Encyclopaedia of Islam, ed. P. Bearman, Th. Bianquis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill, 2007). Brill Online. University of California UC Berkeley. 12 October 2007 http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0248 On the biographical literature, see Harald Motzki, editor, The Biography of Muåammad: The Issue of the Sources (Boston: Brill, 2000). On the historical value of one of the earliest surviving åadåth collections, see Harald Motzki, "The Muåannaf of 'Abd al-Razzåq al-åan'ånå as a Source of Authentic Aåådåth of the First Century A.H.," Journal of Near Eastern Studies 50, no. 1 (1991): 1–21.

10.  Consequently, evaluating the authenticity of sources is immaterial. Secondary literature is avoided in this historical account precisely because the objective is to sketch what Muslim jurists knew or believed about their history. Also, Wåqidå's Kitåb al-Maghåzå is not used as a main source for reasons of historical influence and reliability. For an analysis of Islamic historical sources, see Donner, Narratives of Islamic Origins.

11.  'Abd al-Razzåq ibn Hammåm al-åimyarå al-åan'ånå, Muåannaf få al-åadåth, ed. Ma.mar ibn Råshid and Ayman Naår Azharå (Beirut: Manshåråt Muåammad 'Alå Bayåån, Dår al-Kutub al-.Ilmåyah, 2000), 5:141, 144, 240.

12.  In another version, the Prophet consulted the community, which chose ransoming. See 'Abd Allåh ibn Muåammad Ibn Abå Shaybah, Muåannaf få al-aåådåth wa-al-åthår, ed. Sa'åd Laåååm, 1st ed. (Beirut: Dår al-Fikr, 1989), 7:673, 8:474–75.

13.  al-åimyarå al-åan'ånå, Muåannaf, 5:140–41, 250; Ibn Abå Shaybah, Muåannaf, 8:477.

14.  Ch. Pellat, "al-Naår b. al-åårith b. 'Alåama b. Kalada b. 'Abd Manåf b. 'Abd al-Dår b. åuåayy," Encyclopaedia of Islam. Brill Online. University of California UC Berkeley. 20 May 2007 <http://www.brillonline.nl/subscriber/entry?entry=islam_SIM-5730>

15.  Ibn Abå Shaybah, Muåannaf, 8:441. Muslim ibn Hajjåj al-Qushayrå, åaååå Muslim; Being Traditions of the Sayings and Doings of the Prophet Muhammad as Narrated by His Companions and Compiled under the Title al-Jåmi'-uå-åaååå, by Imam Muslim, trans. 'Abdul åamåd åiddåqå (Lahore: Sh. Muhammad Ashraf, 1971–75), n. 4421–22, 3:986–87.

16.  Ibn Abå Shaybah, Muåannaf, 8:441. al-Qushayrå, åaååå Muslim, no. 4424, 3:987.

17.  Ibn Isååq, The Life of Muåammad, 337.

18.  Ibid., 309.

19.  Ibid.

20.  al-åimyarå al-åan'ånå, Muåannaf, 5:240.

21.  Ibn Isååq, The Life of Muåammad, 318. (Incidentally, this poet reportedly did help Quraysh in their next battle, Uåud, against the Muslim community.)

22.  Ibn Abå Shaybah, Muåannaf, 8:475.

23.  Ibn Isååq, The Life of Muåammad, 387–89. Some sources suggest one prisoner (the poet from the battle of Badr) was executed, but this likely occurred during battle or as a result of his violating the prior agreement (not to fight against the community) with the Prophet. This discrepancy between the åadåth needs further investigation.

24.  Ibn Isååq, The Life of Muåammad, 459–60. Readers familiar with early Islamic history are asked to consider this depiction of history seriously and not reflexively presume any omission based on prior exposure to the Islamic historical tradition. Section V will explain why a prevailing historical interpretation (both academic and non-academic) concerning Banå Qurayåa constitutes a problematic special case.

25.  A few non-combatant captives were taken as booty, but no 'soldiers' were captured. Ibn Isååq, The Life of Muåammad, 511, 514–16.

26.  Ibid., 535.

27.  Ibn Isååq, The Life of Muåammad, 570, 576. Muåammad ibn Ismå'ål Bukhårå, åaååå al-Bukhårå = The Translation of the Meanings of å aåååal-Bukhårå, Arabic-English, trans. Muhammad Muhsin Khan (Medina: Dar al-Fikr, 1981), 4:235.

28.  The historical summary presented here of the Prophet's treatment of war prisoners differs from some contemporary sources in its categorization of battles and its exclusion of later historical sources. See, for example, 'Abd al-Salåm bin al-åasan Adghårå, åukm alasrá få al-Islåm wa-muqåranatuhu bå al-qånå n al-dawlå al-'åmm, 1st ed. (Rabat: Maktabat al-Ma'årif, 1985), 89–117. But see Ra'åf Shalabå, al-Jihåd få sabål Allåh: majålatuhu wawas å.iluhu wa-åhdåfuhu (Cairo: Dår al-Turåth al-'Arabå, 1974), 106–7.

29.  al-Qushayrå, å aååå Muslim, n. 4361, 3:962–63.

30.  The report narrates that "eighty persons from the inhabitants of Mecca swooped down upon the Messenger of Allah (may peace be upon him) from the mountain of Tan'åm. They were armed and wanted to attack the Holy Prophet (may peace be upon him) and his Companions unawares. He (the Holy Prophet) captured them but spared their lives. So, God, the Exalted and Glorious, revealed the verses: 'It is He Who restrained your hands from them and their hands from you in the valley of Mecca after He had given you a victory over them.'" Ibid., n. 4452, 3:1001.

31.  Muåammad ibn 'Umar Wåqidå, Kitåb al-Maghåzå, ed. Marsden Jones (Beirut: 'ålam al-Kutub, 2006), 48.

32.  For a contemporary writing echoing this, see 'Abd al-Wåååd Muåammad Får, Asrá al-harb: diråsah fiqhåyah wa-taåbåqåyah få niååq al-qånå n al-duwalå al-'åmm wa-al-sharå 'ah al-islåmåyah (Cairo: 'ålam al-Kutub, 1975), 192.

33.  Concerning prohibition of prisoner execution, Ibn Rushd mentions that: "Al-H. asan ibn Muåammad al-Tamåmå reported that there is a consensus of the Companions on this issue." Ibn Rushd (aka Averroes), Bidåyat al-mujtahid wa-nihåyat al-muqtaåid, ed. Måjid al-H. amawå, 1st ed. (Beirut: Dår Ibn H. azm, 1995), 2:738.

34.  On other groups prohibiting prisoner execution, see above, note 3.

35.  Muwaffaq al-Dån 'Abd Allåh ibn Aåmad Ibn Qudåmah, al-Mughnå, ed. 'Abd Allåh ibn 'Abd al-Muåsin Turkå and 'Abd al-FattååMuåammad H. ulw, 1st ed. (Imbåbah, Cairo: Hajr, 1986), 13:45; Ibn al-Muåahhar al-H. illå, Tadhkirat al-fuqahå., 9:156.

36.  Ibn Abå Shaybah, Muåannaf, 7:671, 673–74. Ibn Qudåmah, al-Mughnå, 13:45; Ibn al-Muåahhar al-H. illå, Tadhkirat al-fuqahå., 9:156.

37.  Muåammad Rawwås Qal'ah'jå, Mawså'at fiqh al-åasan al-Baåri, 1st ed., Få sabål mawså'ah fiqhåyah j åmi'ah, 9 (Beirut: Dår al-Nafå.is, 1989), 1:127–28. 'Abd Allåh ibn 'Abbås (d. 686–8) may have shared this opinion; see Muåammad Rawwås Qal'ah'jå, Mawså 'at fiqh 'Abd Allåh ibn 'Abbås, Få sabål mawså'ah fiqhåyah jåmi'ah; Silsilat mawså'åt fiqh al-salaf (Beirut: Dår al-Nafå.is, 1996), 121.

38.  Qur'ån 47:4, The Holy Qur-ån: English Translation of the Meanings and Commentary, trans. 'Abdullah Yåsuf 'Ali (Al-Madånah Al-Munawarah: King Fahd Holy Qur-ån Printing Complex, 1989–1990), 1560.

39.  Muåammad Rawwås Qal'ah'jå, Mawså 'at fiqh 'Umar ibn 'Abd al-'Azåz, 1st ed., Få sabål mawså'ah fiqhåyah jåmi'ah; Silsilat mawså'åt fiqh al-salaf (Kuwait: Jåmi'at al-Kuwayt, Lajnat al-Tå.låf wa-al-åaråb wa-al-Nashr, 2001), 171. Likewise, there are conflicting reports about the practice of his son. See Muåammad Rawwås Qal'ah'jå, Mawså 'at fiqh 'Abd Allåh ibn 'Umar: .aåruhu wa-åayåtuh, Få sabål mawså.ah fiqhåyah jåmi.ah, 7 (Beirut: Dår al-Nafå.is, 1986), 118.

40.  Muåammad Rawwås Qal.ah'jå, Mawså .at fiqh Ibråhåm al-Nakha'å, Få sabål mawså.ah fiqhåyah jåmi.ah, 8 (Beirut: Dår al-Nafå.is, 1986), 1:282. Muåammad Rawwås Qal.ah'jå, Mawså .at fiqh Sufyån al-Thawrå, 1st ed., Få sabål mawså.ah fiqhåyah jåmi.ah; Silsilat mawså 'åt fiqh al-salaf, 10 (Beirut: Dår al-Nafå.is, 1990), 156.

41.  "But when the forbidden months are past, then fight and slay the pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war)." Qur'ån, 497.

42.  al-H. imyarå al-åan'ånå, Muåannaf, 5:143–44; Ibn Abå Shaybah, Muåannaf, 7:672. These verses will be discussed in more detail below.

43.  Sunnå legal schools differ in many respects, but these differences are not pertinent to this study. The Ja'farå (a Shå'å legal school) opinion is a 'minority' one, prohibiting prisoner execution (see note 3).

44.  Focus will again be on primary texts (rather than secondary literature) in order to contrast the historical and legal depictions of prisoners of war.

45.  Muåammad ibn al-H. asan Shaybånå, The Islamic Law of Nations: Shaybånå's Siyar, trans. Majid Khadduri (Baltimore: Johns Hopkins Press, 1966), 100.

46.  This succinctness is also evident in a twelfth-century H. anafå legal compendium; see Abå Bakr ibn Mas'åd Kåsånå, Badå.i. al-åanå.i. få tartåb al-sharå'i', ed. Aåmad Mukhtår 'Uthmån (Cairo: Zakaråyå'Ali Yåsif, 1968), 9:4307. There is a minority H. anafå opinion prohibiting prisoner execution (see above, note 3).

47.  'Abd Allåh ibn 'Abd al-Raåmån Ibn Abå Zayd al-Qayrawånå, The Rísâla: Treatise on Mâlíkî Law of 'Abdallâh Ibn-Abî-Zayd Al-Qayrawânî (922–996): An Annotated Translation, trans. Joseph Kenny (Minna: Islamic Education Trust, 1992), 107. Al-Qayrawånå likely presumes that believing (i.e., Muslim) prisoners may not be killed. This may be a reference to bughåh, Muslims who resist government authority. See Khaled Abou El Fadl, "The Rules of Killing at War: An Inquiry into Classical Sources," The Muslim World 89, no. 2 (1999): 146.

48.  "Mais s'il arrive qu'ils soient poursuivis par l'ennemi, les cavaliers devront aller rejoindre les quarante autres restés sur place, mettre à mort ou envoyer en avant les prisonniers qu'ils auront faits, s'en aller au plus vite et gagner l'endroit bien défendu." Emperor Nicephorus II Phocas, Le Traité Sur la Guérilla de l'Empereur Nicéphore Phocas (963–969), trans. Gilbert and Haralambie Miha¢escu Dagron, Le monde Byzantin (Paris: Éditions du Centre National de la Recherche Scientifique, 1986), 74. This implies that Byzantines likely accepted or practiced prisoner execution, which could have made it seem normative or necessary to their Muslim neighbors.

49.  Yaåyá ibn Sharaf Nawawå, Rawåat al-åålibån, ed. 'ådil Aåmad 'Abd al-Mawjåd, 'Alå Muåammad Mu.awwaå, and Suyååå (1445–1505) (Beirut: Dår al-Kutub al-'Ilmåyah, 1992), 7:450–51.

50.  Aåmad ibn 'Abd al-H. alåm Ibn Taymiyah, Ibn Taimiyya on Public and Private Law in Islam; or, Public Policy in Islamic Jurisprudence, trans. Omar A. Farrukh (Beirut: Khayats, 1966), 142, citation omitted.

51.  This could be because his contemporaneous political situation—the Crusades—was a motivation for harsher treatment of prisoners.

52.  'Alå ibn Muåammad Måwardå, The Ordinances of Government, trans. Wafaa H. Wahba, Great Books of Islamic Civilization (Reading: Garnet Publishing, 1996), 54.

53.  "Therefore, when ye meet the Unbelievers (in fight), smite at their necks; At length, when ye have thoroughly subdued them, bind a bond firmly (on them): thereafter (is the time for) either generosity or ransom." Qur'ån, 1560.

54.  Måwardå, The Ordinances of Government, 54.

55.  Ibid., 54–55.

56.  "It is not fitting for a Prophet that he should have prisoners of war until he hath thoroughly subdued the land. Ye look for the temporal goods of this world; but Allah looketh to the Hereafter: And Allah is exalted in might, Wise." Qur'ån, 489.

57.  Måwardå, Ordinances, 50–51.

58.  See above, note 12; al-Qushayrå, åaåååMuslim, n. 4360, 3:962.

59.  Ibn Rushd, The Distinguished Jurist's Primer: A Translation of Bidåyat al-mujtahid wa-nihåyat al-muqtaåid, ed. Muhammad Abdul Rauf, trans. Imran Khan Nyazee, 2 vols. (Reading: Garnet Publishing, 1994), 1:456.

60.  See above, note 53.

61.  Ibn Rushd, The Distinguished Jurist's Primer, 1:456.

62.  See above, note 56.

63.  Ibn Rushd, The Distinguished Jurist's Primer, 1:456.

64.  See above, note 53.

65.  Ibn Rushd, The Distinguished Jurist's Primer, 1:457.

66.  "Those who maintained that the verse, which is specific about the matter of captives (prohibiting execution), has abrogated the acts of the Prophet, said that the captive is not to be executed. Those who maintained that the verse neither mentions captives nor is its purpose the final disposal of the question of what is to be done to the captives, and that the act of the Prophet (God's peace and blessings be upon him) is an addition to what is in the verse, when they take into account the censure of the failure to execute the captives said that the execution of the captives is permitted." Ibid.

67.  'Abd al-Karåm ibn Muåammad al-Råfi'å, al-'Azåz sharåal-Wajåz: al-ma'råf bi-al-Sharå al-kabår, ed. 'Alå Muåammad Mu.awwad. and 'ådil Aåmad 'Abd al-Mawjåd, 1st ed. (Beirut: Dår al-Kutub al-.Ilmåyah, 1997), 11:410. These cases were discussed in Section I.

68.  Donner notes that "it is reasonable to consider al-åabarå's work as a representative product of the early Islamic historiographical tradition, if not, indeed, as the culmination and crowning glory of that tradition." Fred M. Donner, Narratives of Islamic Origins, Studies in Late Antiquity and Early Islam 14 (Princeton: The Darwin Press, 1998), 128.

69.  See note 56.

70. åabarå defines the key verb (yuthkhina) as killing. åabarå, Jåmi' al-bayån 'an ta'wålåy al-Qur'ån, ed. åalåå'Abd al-FattaåKhålidå and Ibråhåm Muåammad 'Alå, 1st ed. (Damascus; Beirut: Dår al-Qalam; al-Dår al-Shåmåyah, 1997), 4:101–2. This corresponds to the interpretation of two other major exegetical scholars, Bayååwå and Zamakhsharå. See 'Abd Allåh ibn 'Umar Bayååwå, Anwår al-tanzål wa-asrår al-tå.wål, ed. H.O. Fleischer (Leipzig: Sumptibus F.C.G. Vogelii, 1846–1878), 1:374; see also Maåmåd ibn 'Umar Zamakhsharå, al-Kashshåf .an åaqå.iq al-tanzål wa-'Uyå n al-aqåwål få wujåh al-ta.wål, ed. Muåammad al-åadiq Qumårå (Cairo: al-Båbå al-H. alabå, 1966–68), 2:168. But see Muqåtil b. Sulaymån's suggestion of subdue and overcome in Muqåtil ibn Sulaymån al-Balkhå, Tafsår, ed. 'Abd Allåh Maåmåd Shiååtah (Cairo: al-Hay.ah al-Miåråyah al-'åmmah lil-Kitåb, 1979–1989), 4:44.

71. åabarå, Jåmi. al-bayån 'an ta'wålåy al-Qur'ån, 6:688.

72.  "If ye gain the mastery over them in war, disperse, with them, those who follow them, that they may remember." Qur'ån, 486.

73.  See above, note 41. See åabarå, Jåmi. al-bayån 'an ta'wålåy al-Qur'ån, 6:688–89.

74.  Ibid., 6:689.

75.  Such as Aåmad ibn Muåammad Naååås, Nåsikh wa-al-manså kh få al-Qur'ån al-karåm, ed. Muåammad ibn 'Ali Udfuwå (Egypt: al-Maktabah al-'Allåmåyah, 1938), 165–66.

76.  Sarakhså, Sharå, 3:1024.

77.  Ibid., 3:1025.

78.  Ibn Qudåmah, al-Mughnå, 13:45.

79.  For a historical depiction of these events, see åabarå, Victory of Islam, trans. Michael Fishbein, SUNY Series in Near Eastern Studies (Albany: State University of New York Press, 1997), 27–41. An example of the classification problem is that åadåth concerning the Banå Qurayåa are in the book of warfare of later åadåth collections. See al-Qushayrå, åaåååMuslim, n. 4368–4371, 3:966.

80.  The focus of what follows is not moral evaluation (since contemporary morality is not superior to this history), but how and why a historical incident is interpreted by successive generations in certain ways. This event is not entirely verifiable and its non-occurrence has been argued. However, factuality is not relevant because our focus is on what Muslim jurists believed to have happened in early Islamic history—not what actually happened. For opposing interpretations of this narrative (as fictional or factual), see W. N. Arafat, "New Light on the Story of Banå Qurayåa and the Jews of Medina," Journal of the Royal Asiatic Society of Great Britain and Ireland (1976): 100–107. M. J. Kister, "The Massacre of the Banå Qurayåa: A Re-examination of a Tradition," Jerusalem Studies in Arabic and Islam 8 (1986): 61–96. For a discussion of the problematic 'motif of Muåammad and the Jews,' see Rizwi S. Faizer, "Muhammad and the Medinan Jews: A Comparison of the Texts of Ibn Ishaq's Kitåb Sårat Rasål Allåh with Al-Waqidi's Kitåb al-Maghåzå," International Journal of Middle East Studies 28, no. 4 (1996): 463–89.

81.  See Michael Lecker, "Wåqidå's Account on the Status of the Jews of Medina: A Study of a Combined Report," Journal of Near Eastern Studies 54 (1995): 15–32.

82.  See Michael Lecker, The "Constitution of Medina": Muåammad's First Legal Document, Studies in Late Antiquity and Early Islam, 23 (Princeton: The Darwin Press, 2004), 48. The smaller, more numerous Jewish Arab tribes appear to have been party to the 'Constitution,' whereas the three largest and most powerful tribes entered into separate agreements.

83.  This ruling could have also been an application of Jewish law since there are reports that Jewish law was applied in judgment against Jewish adulterers. For the most often cited example, see Bukhårå, åaååå al-Bukhårå, bk. 82, no. 825, 8:550.

84.  On the relationship between biographical and 'campaign' literature, see Josef Horovitz, editor, The Earliest Biographies of the Prophet and Their Authors (Princeton: The Darwin Press, 2002), 4.

85.  The incident is reported as the judgment of Sa'd. al-åimyarå al-åan'ånå, Muåannaf, 5:280. See also differing attributions of the judgment to God or Sa'd in Ibn Abå Shaybah, Muåannaf, 8:503.

86.  Muåammad ibn Idrås Shåfi'å, al-Umm, ed. Ismå'ål ibn Yaåyá Muzanå (791–878 C.E.), Reprint of the ed. published in Cairo, 1321 (1903/4) Kitåb al-Sha.b (Cairo: Dår al-Sha.b, 1968), 4:107.

87.  Sarakhså, Sharå, 3:1025.

88.  Muwaffaq al-Dån 'Abd Allåh ibn Aåmad Ibn Qudåmah, al-'Umdah få al-fiqh al-åanbalå, ed. al-Hawwårå and Anwar Zahrå. (Damascus: al-Dår al-Muttaåidah lil-åi bå.ah wa-al-Nashr, 1990), 46.

89.  Donner suggests "the Believers may have adopted a distinct confessional identity as Muslims only in the second half of the first century AH." Donner, Narratives of Islamic Origins, 99, n. 1. But see Amikam Elad, "Community of Believers of 'Holy Men' and 'Saints' or Community of Muslims?: The Rise and Development of Early Muslim Historiography," Journal of Semitic Studies xlvii (2002): 241–308.

90.  See Michael Lecker, "A Note on Early Marriage Links between Qurashås and Jewish Women," Jerusalem Studies in Arabic and Islam 10 (1987): 17–39.

91.  Lecker notes, " ... fosterage was probably the social institute that facilitated the absorption of Arab children by Jewish clans." Lecker, "'Amr ibn åazm al-Anåårå and Qur'ån 2, 256: 'No compulsion is there in religion,'" Oriens 35 (1996): 63. See also Michael Lecker, "Zayd b. Thåbit, 'a Jew with Two Sidelocks': Judaism and Literacy in Pre-Islamic Medina (Yathrib)," Journal of Near Eastern Studies 56 (1997): 259–73.

92.  The Banå Qurayåa had been tax collectors for the Persians and were economic forces in Medina. The Prophet appears to have undertaken some redistribution of property that could have antagonized them. See Mahmood Ibrahim, Merchant Capital and Islam (Austin: University of Texas Press, 1990), 180.

93.  Most contemporary historians have, unfortunately, continued to disregard the complex nature of historical identity by projecting modern identity categories on this historical period. But see Fred M. Donner, "From Believers to Muslims: Confessional Self-Identity in the Early Islamic Community," al-Abhath 50–51 (2002–2003): 9–53. The prolonged existence of Jewish-Christians is a comparable historical case that further substantiates the likelihood of vague confessional identity during this period. See R. Werblowsky and Geoffrey Wigoder, "Christianity," Encyclopaedia Judaica, ed. Michael Berenbaum and Fred Skolnik, 2nd ed. (Detroit: Macmillan Reference USA, 2007), 4:673–94. Gale Virtual Reference Library. Thomson Gale. University of California/Berkeley. 20 June 2007 <http://find.galegroup.com/gvrl/infomark.do?&contentSet=EBKS&type=retrieve&tabID=T001&prodId=GVRL&docId=CX2587504287&source=gale&userGroupName=berk89308&version=1.0>.

94.  Theodor Nöldeke, Tåråkh al-Qur'ån [Geschichte des Qorans], ed. Friedrich Schwally, Gotthelf Bergstrasser, and Otto Pretzl, trans. Jårj Tåmir, 1st ed. (Beirut: Konrad Adenauer Foundation, 2004), xxxvi. For the text of these verses, see notes 56 (Qur'ån 8:67) and 53 (Qur'ån 47:4).

95.  For an example of this legal argument, see Shalabå, al-Jihåd fi sabål Allåh, 104–5.

96.  This historical interpretation is evident in some contemporary texts, which suggest that executions of war prisoners were the consequences of some prior crimes unrelated to prisoner of war status. See 'Ulyån's chapter on "Prisoners of War in Islam" in Muåyå Hilål al-Saråån et al., Asrá al-åarb få al-Islåm wa-al-qånå n al-dawlå (Baghdad: al-Jumhåråyah al-.Iråqåyah, Wizårat al-Awqåf wa-al-Shu'ån al-Dånåyah, Majallat al-Risålah al-Islåmåyah, 1986), 39–51. See also Shalabå, al-Jihåd fi sabål Allåh, 104–7.

97.  Rotman, Les esclaves et l'esclavage, 56–62, 68–75.

98.  "In short, the Qur'ånic regulations modify in certain particulars rather than supplant entirely the existing customary law." Noel J. Coulson, A History of Islamic Law (Edinburgh: University Press, 1964), 15.

99.  See references to the enslavement of prisoners of war in The Digest of Justinian, trans. Alan Watson, rev. English-language ed. (Philadelphia: University of Pennsylvania Press, 1998), 1:1.5.4.2 and 2:49.15. See also The Institutes of Justinian: Text, Translation, and Commentary, trans. J. A. C. Thomas (Amsterdam; New York: North-Holland Pub. Co.; American Elsevier Pub. Co., 1975), bk. I, title III, p. 14.

100. Tanakh = JPS Hebrew-English Tanakh: The Traditional Hebrew Text and the New JPS Translation, 2nd ed. (Philadelphia: Jewish Publication Society, 1999). This verse was generally understood as applying to an optional war.

101.  'Borrowing' is an inaccurate way of characterizing the complicated transformation of these hybrid communities. See M. E. Pregill, "The Hebrew Bible and the Quran: The Problem of the Jewish 'Influence' on Islam," Religion Compass 1 (2007): 643–59.

102.  On the acceptability of non-abrogated, pre-Islamic laws (such as some Biblical law) as a source of Islamic jurisprudence, see 'Abd al-Raåmån ibn 'Abd Allåh Darwåsh, al-Sharå'i' al-såbiqah wa-madáåujjåyatihå få al-sharå'ah al-Islåmåyah (Saudi Arabia: 'A. al-R. b. 'A. A. al-Darwåsh, 1989). On the dialectic relationship between Islamic and Jewish legal thought, see Ze'ev Maghen, After Hardship Cometh Ease: The Jews as Backdrop for Muslim Moderation (Berlin; New York: Walter De Gruyter, 2006).

103.  Indeed, the integration of Biblical ideas in the Islamic conceptualization of jihåd is a fascinating topic, but beyond the scope of this essay.

104.  For a contemporary presentation of this legal interpretation, see Shalabå, al-Jihåd fi sabål Allåh, 101–7.

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