Burhan al-Din al-Murghinani Quotes

If the Imám should not bestow in gratuity the Sillib (or personal property) of one who is slain, upon the slayer, it becomes a part of the general plunder, in which the slayer and other have all an equal share. Shafei maintains that the personal effects of the person slain belong to the slayer, provided the latter be one of those who are entitled to share in the plunder, and that he killed the slain in open fight, because the prophet has said, "Whoever slays an INFIDEL is "entitled to his personal property."
OBJECTION.—It is possible that the prophet may have mentioned this merely in a gratious sense, and not as the award of the LAW.
REPLY.—It is evident, from the situation of the prophet, that he spoke this as an award of the LAW; since he was sent to enforce the awards of the LAW. A person, moreover, who kills another prepared to oppose him in open fight exposes himself in a superior degree, and hence the personal property of the slain goes to him, for the purpose of making a distinction between him and others.

"If a Muslim attack infidels without previously calling them to the faith, he is an offender, because this is forbidden; but yet if he do attack them before thus inviting them and slay them, and take their property, neither fine, expiation, nor atonement are due, because that which protects (namely, Islam) does not exist in them, nor are they under protection by place (namely the Daru ‘l-Islam, or Muslim territory), and the mere prohibition of the act is not sufficient to sanction the exaction either of fine or of atonement for property; in the same manner as the slaying of the women or infant children of infidels is forbidden, but if, notwithstanding, a person were to slay such, he is not liable to a fine. It is laudable to call to the faith a people to whom a call has already come, in order that they may have the more full and ample warning; but yet this is not incumbent, as it appears in the Traditions that the Prophet plundered and despoiled the tribe of al-Mustaliq by surprise, and he also agreed with Asamah to make a predatory attack upon Qubna at an early hour, and to set it on fire, and such attacks are not preceded by a call. (Qubna is a place in Syria: some assert it is the name of a tribe).

If the Imam make peace with the aliens in return for property, there is no scruple; because since peace may be lawfully made without any such gratification it is also lawful in return for a gratification. This, however, is only where the Muslims stand in need of the property thus to be acquired; for if they be not in necessity, making peace for property is not lawful, since peace is a desertion of war both in appearance and in effect. It is to be observed that if the Imam receive this property by sending a messenger and making peace without the Muslim troops entering the enemy's territory, the object of disbursement of it is the same as that of jizyah or capitation-tax; that is, it is to be expended upon the warriors and not upon the poor. If, however, the property be taken after the Muslims have invaded the enemy in this case it is as plunder, one-fifth going to the Imam and the remainder to be divided among the troops, as the property has in fact been taken by force in this instance. It is incumbent on the Imam to keep peace with apostates, and not to make war upon them, in order that they may have time to consider their situation, since it is to be hoped that they may again return to the faith. It is, therefore, lawful to delay fighting with them in a hope that they may again embrace Islam; but it is not lawful to take property from them. If, however, the Imam should take property from them, it is not incumbent upon him to return it, as such property is not in protection. If infidels harass the Muslims, and offer them peace in return for property, the Imam must not accede thereto as this would be a degradation of the Muslim honour, and disgrace would be attached to all the parties concerned in it; this, therefore, is not lawful except where destruction is to be apprehended, in which case the purchasing a peace with property is lawful, because it is a duty to repel destruction in every possible mode.

CAPITATION-TAX is not imposed upon slaves, Mokátibs, Modabbirs, or Am-Walids, because capitation-tax is a substitute for destruction, with respect to them, and; with respect to us, it is substitute for aid [in the wars of the faith;] now in conformity with the first of these, it would, it would follo that capitation-taxt is due; a doubt therefore arises with respec to its being due; and as this is the case, it is determined not to be incumbent upon them: neither is it incumbent upon their owner to pay capitation-taxt for them, because he himself by their means pays an increased capitation-tax, as he through them becomes rich, or obtains a mediocrity of circumstances; and in either case he pays capitation-tax in a degree superior to the labouring poor.

The construction of churches or synagogues in the Mussulman territory is unlawful, this being forbidden in the traditions:—but if places of worship originally belonging to Jews or Christians be destroyed, or fall to decay, they are at liberty to repair them,—because buildings cannot endure for ever, and as the Imán has left these people to the exercise of their own religion, it is a necessary inference that he has engaged not to prevent them from rebuilding or repairing their church and synagogues. If, however, they attempt to remove these, and to build them in a place different from their former situation, the Imán must prevent them, since this is and actual construction: and the places which they use as bermitages are held in the same light as their churches, wherefore the construction of those also is unlawful. It is otherwise with respect to such places of prayer as are within their dwellings, which they are not prohibited from constructing, because these are an appearance to the habitation. What is here said is the rule with respect to the cities; but not with respect to villages or hamlets; because as the tokens of Islám (such as public prayer, festivals, and so forth) appear in cities, Zimmees should not be permitted to celebrate the tokens of infidelity there, in the face of them; but as tokens of Islám do not appear in villages or hamlets, there is no occasion to prevent the construction of synagogues, not only in cities, but also in villages and hamlets; because in the villages of our country various tokens of Islám appear; and what is recorded from Haneefa, (that the prohibition against building churches and synagogues is confined to cities, and does not extend to villages and hamlets) relates solely to the villages of Koofa, because the greater part of the inhabitants of the villages are Zimmes, there being few Mussulmans among them, wherefore the tokens of Islám do not there appear: moreover, in the territory of Arabia, Zimmees are prohibited from constructing churches or synagogues either in cities or villages, because the prophet has said "Two religions cannot be professed together in the peninsula of Arabia."

It is the duty of every free Muslim arrived at the age of maturity to offer a sacrifice, on the ‘Idu’l-Azha’, or ‘Festival of the Sacrifice’, provided he be then possessed of a Nisab (i.e., sufficient property), and be not a traveller. This is the opinion of Abu Hanifah, Muhammad, Zufar, and Hasan, and likewise of Abu Yusuf, according to one tradition. According to ash-Shafi’i, sacrifice is not an indispensable duty, but only laudable. At-Tahawi reports that, in the opinion of Abu Hanifah, it is indispensable, whilst the disciples hold it to be in a strong degree laudable. The offering of a sacrifice is incumbent on a man on account of himself, and on account of his infant child. This is the opinion of Abu Hanifah in one tradition. In another he has said that it is not incumbent on a man to offer a sacrifice for his child...

If the infidels, upon receiving the call, neither consent to it nor agree to pay capitation tax, 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. And having so done, the Muslims must then with God's assistance attack the infidels with all manner of warlike engines (as the Prophet did by the people of Ta'if), and must also set fire to their habitations (in the same manner as the Prophet fired Baweera), and must inundate them with water and tear up their plantations and tread down their grain because by these means they will become weakened, and their resolution will fail and their force be broken; these means are, therefore, all sanctified by the law.

Whoredom and bastardy are defects with regard to a female slave, but not with regard to a male ; because the object in the purchase of female slave, is cohabitation and the generation of children...

CAPITATION-TAX is to be imposed upon Kitabees, because this is mentioned in the Koran: and it is in the same manner to be imposed upon Majoosees, as the prophet imposed capitation-tax upon Majoosees.—Capitation-tax is also imposed upon the idolaters of Ajim, [Persia.] This is contrary to the opinion of Shafei, for he argues that destruction is incurred by all infidels; but the legality of abstaining from it, in consideration of a capitation-tax, with respect to Kitabees. is known from the word of KORAN, and with respect to Majoosees, from the traditions; any others, therefore, than those, (namely, idolaters,) remain subject to the original penalty, which is destruction. The argument of our doctors is that it is lawful to make slaves of the Idolaters of Ajim, it follows that it is also lawful to impose capitation-tax upon them because, in the same manner as, by reducing them to slavery, they are deprived of power over their own persons, so also, they are deprived of power over their own persons by the imposition of capitation-tax, since they must in this case work, and pay the Mussalmans the produce of their labour, and their subsistence is furnished from their labour. If a Mussulman army subdue an infidel territory before any capitation-tax be established, the inhabitants, together with their wives and children, are all plunder, and the property of the state, as it is lawful to reduce to slavery all infidels, whether they be Kitcbees, Majoofees, or idolaters.

If a Mussulman woman become an apostate, she is not put to death, but imprisoned, until the return to the faith. Shafei maintains that she is to be put to death; because of the tradition before cited;—and also because, as men are put to death for apostacy solely for this reason, that it is a crime of great magnitude and therefore requires that its punishment be proportionably severe, (namely, death,) so the apostacy of a woman being likewise (like that of man) a crime of great magnitude, it follows that her punishment should be the same as the of a man. The arguments of our doctors upon this point are twofold.—FIRST, the prophet has forbidden the slaying of women, without making any distinction between those who are apostates, and those who are original infidels, SECONDLY, the original principle in the retribution of offences is to delay to a future state, (in other words, not to inflict punishment here, but to refer it to hereafter,) since it retribution were executed in this world, it would render defective in the state of trial. as men would avoid committing sin from apprehension of punishment, and therefore would be in the state of persons acting under compulsion, and not of free agents: but in the case of apostacy of men the punishment is not deferred to a future state, because it is indispensably requisite to repel their present wickedness, (namely, their becoming enemies to the faith,) wicch wickedness cannot be conceived of women, who are, by natural weakness of frame, in incapable thereof: contrary to men.—A female apostate, therefore, is the fame as an original female infidel; as the killing of the one is forbidden, so the killing of the other also. She is however to be imprisoned, until return to the faith; because, as she refuses the right of GOD after having acknowledged it, she must be compelled, by means of imprisonment, to render GOD his right, in the same manner as she would be imprisoned on account of the right of the individual. It is written in the Jama Sagbeer,—"A female apostate is to be compelled to return to the faith, whether she be free', or a slave.—The slave is to be compelled by her master:—she is to be compelled, for the reasons already recited; and this is compulsion is to be executed by her master, because in this regard is had to the right both of GOD and of the master. It is elsewhere mentioned that a female apostate must be daily beaten with severity until she return to the faith.

"If the Imam make peace with aliens, or with any particular tribe or body of them, and perceive it to be eligible for the Muslims, there need be no hesitation, because it is said in the Qur’an: ‘If the infidels be inclined to peace do ye likewise consent thereto,’ and also because the Prophet in the year of the punishment of Eubea, made a peace between the Muslims and the people of Mecca for the space of ten years; peace, moreover is war in effect where the interest of the Muslims requires it, since the design of war is the removal of evil, and this is obtained by means of peace: contrary to where peace is not to the interest of the Muslims, for it is not in that case lawful, as this would be abandoning war both apparently and in effect. It is here, however, proper to observe that it is not absolutely necessary to restrict a peace to the term above recorded (namely, ten years), because the end for which peace is made may be sometimes more effectually obtained by extending it to a longer term. If the Imam make peace with the aliens for a single term (namely, ten years), and afterwards perceive that it is most advantageous for the Muslim’s interest to break it, he may in that case lawfully renew the war after giving them due notice, because, upon a change of the circumstances which rendered peace advisable, the breach of peace is war, and the observance of it a desertion of war, both in appearance and also in effect, and war is an ordinance of God, and the forsaking of it is not becoming (to Muslims). It is to be observed that giving due notice to the enemy is in this case indispensably requisite in such a manner that treachery may not be induced, since this is forbidden. It is also requisite that such a delay be made in renewing the war with them, as may allow intelligence of the peace being broken off to be universally received among them, and for this such a time suffices as may admit of the king or chief of the enemy communicating the same to the different parts of their dominion, since by such a delay the charge of treachery is avoided.".."If the infidels act with perfidy in a peace, it is in such case lawful for the Imam to attack them without any previous notice, since the breach of treaty in this instance originates with them, whence there is no occasion to commence the war on the part of the Muslims by giving them notice. It would be otherwise, however, if only a small party of them were to violate the treaty by entering the Muslim territory and there committing robberies upon the Muslims, since this does not amount to a breach of treaty. If, moreover, this party be in force so as to be capable of opposition, and openly fight with the Muslims, this is a breach of treaty with respect to that party only, but not with respect to the rest of their nation or tribe, because, as this party have violated the treaty without any permission from their prince, the rest are not answerable for their act; whereas if they made their attack by permission of their prince, the breach of treaty would be regarded as by the whole, all being virtually implicated in it.

JIZYAT, or capitation-tax, is or two kinds. The first species is that which is established voluntarily, and by composition,—the rate of which si such as may be agreed upon by both parties,—because the prophet entered into a composition with the tribe of Bimmey Birán, for twelve hundred pieces of cloth, and not more,—and also, because the fixing of tribute in this mode is mutual act of both parties, and therefore is not lawful to swerve from what has been so mutually agreed upon. The second species is that which the Imán himself imposes, where he conquers infidels, and then confirms them in their possessions, the common rate of which is fixed by his imposing upon every avowedly rich person a tax of forty-eight dirms per annum, or four dirms per month;—and upon every person in middling circumstances, twenty-four dirms per annum, or two dirms per month;—and upon the labouring poor twelve dirms per annum, or one dirm per month. This is according to our doctors. Shafei maintains that he should exact from each sane and adult person, one deenar, or something to that amount;—and the poor and wealthy are on an equal footing in this point; because the prophet said to Máaz, "Take from every male and female adult one DEENAR, or cloth to that value, —from wich it appears that there is no manner of difference between the rich and the poor, as the prophet spoke generally, without making any distinction: moreover, capitation-tax is due only in lieu of destruction, (whence is that it is not due from persons the destruction of whom on account of infidelity is illegal, namely women and children,) and in this sense it applies equally to the rich and the poor.—The arguments of our doctors upon this head are twofold.—FIRST, their doctrine is adopted from Omar, Othman, and Ali, with whom all the companions agreed upon this point: SECONDLY, capitation-tax serves as an aid to the troops, and therefore differs in its rate, according to the difference of men's circumstances, in the same manner as tribute upon land. The ground of this is the capitation-tax is due in lieu of assistance, with person and property; but as property is different with respect to being more or less, so in the same manner that is different, which is a substitute for it.—With respect to the tradition adduced by Shafei, we are only to understand from it that the taking of deenars, and so forth, from the tribe to whom he alluded was in the way of a composition, in which there is no difference between the poor and the rich, as is further proved by the term female adults, im the saying referred to, since capitation-tax is not incumbent upon women. It is to be observed that in the exaction of capitation-tax from the labouring poor, it is a condition that the person upon whom it is levied be in state or health for greater part of the year. ... Whence it is that it cannot be accepted of the infidel if he send it by the hands of a messenger, but must be exacted in a mortifying and humiliating manner, by the collector sitting and receiving it from him in a standing posture; (according to one tradition), the collector is to seize him by the throat, and shake him saying ‘Pay your tax, Zimmee’.

Zimmies may testify concerning each other--THE testimony of Zimmiees with respect to each other is admissible, notwithstanding they be of different religion.--Malik and Shafei have said that their evidence is absolutely inadmissible, because, as infidels are unjust, it is requisite to be slow in believing any thing they may advance, GOD having said (in the Koran). WHEN AN UNJUST PERSON TELLS YOU ANY THING: BE SLOW IN BELIEVING HIM;"--whence it is that the evidence of an infidel is not admitted concerning a Mussulman; and consequently, that an infidels stands (in this particular) in the same predicament with an apostate.--The arguments of our doctors upon this point are twofold--FIRST, it is related of the Prophet, that he permitted and held lawful the testimony some Christians concerning other of their sect.--SECONDLY, and infidel having power over himself, and his minor children is on that account qualified to be a witness with regard to his own sect; and the depravity which proceeds from his faith is not destructive of this qualification, because he is supposed to abstain from everything prohibited in his own religion, and falsehood is prohibited in every religion. It is otherwise with respect to an apostate, as he possesses no power, either over his own person, or over that of another; and it is also otherwise with respect to a Zimme in relation to a Mussulman because a Zimme has no power over the person of a Mussulman--Besides, a Zimme may be suspected of inventing falsehoods against a Mussulman from the hatred he bears to him on account of the superiority of the Mussulmans over him.
OJECTION.--In the same manner as there subsists an enmity between Musulmans and Zimmees, so also is there an enmity between the followers of other religions, sects as the Jews, the Christians, and the Magians: it would follow, therefore, that amongst these testimony of those of one religion cannot be admitted with relation to other of a different religion; whereas it hath been declared admissible.
REPLY.--Although the religions of these be different, yet none of them being under subjection to another, so as to engender reciprocal hatred; there is no cause to suspect that they will invent falsehoods against each other.

A man may gratify his passion with his female slave in whatever way he pleases—It is lawful for a man to perform the act of Azil with his female slave without her consent, whereas he cannot lawfully do so by his wife unless with her permission. –The reason of this is that the Prophet has forbidden the act of Azil with a free woman without her consent but has permitted it to a master in the case of his female slave. Besides, carnal connexion is the right of a free woman for the gratifying of her passion, and the propagation of children (whence it is that a wife is at liberty to reject a husband who is an eunuch or impotent); whereas a slave possesses no such right.—A man, therefore, is not at liberty to injure the right of his wife, whereas a master is absolute with respect to his slave. If, also, a man should marry the female slave of another, he must not perform the act of Azil with her without the consent of her master.

It is no objection to shooting arrows or other missiles against the infidels that there may chance to be among them a Muslim in the way either of bondage or of traffic, because the shooting of arrows and so forth among the infidels remedies a general evil in the repulsion thereof from the whole body of Muslims, whereas the slaying of a Muslim slave or a trader is only a particular evil, and to repel a general evil a particular evil must be adopted, and also because it seldom happens that the strongholds of the infidels are destitute of Muslims, since it is most probable that there are Muslims residing in them, either in the way of bondage or of traffic, and hence, if the use of missile weapons were prohibited on account of these Muslims, war would be obstructed. If the infidels in time of battle should make shields of Muslim children, or of Muslims, who are prisoners in their hands, yet there is no need on that account to refrain from the use of missile weapons, for the reason already mentioned. It is requisite, however, that the Muslims in using such weapons aim at the infidels, and not at the children or the Muslim captives, because, as it is impossible in shooting to distinguish precisely between them and the infidels, the person who discharges the weapon must make this distinction in his intention and design by aiming at the infidels, and not at the others, since this much is practicable, and the distinction must be made as far as is practicable.