Burhan al-Din al-Murghinani Quotes

"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).

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...

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.

If a person becomes a Mussulman, who is indebted for any arrear of capitation-tax, such arrear is remitted: and in the same manner, the arrear of capitation-tax due from Zimmee is remitted upon his dying in a state of infidelity. Shafei holds that the tax is not remitted in either case; because it was due either in return for protection to the person, or in return for permission to reside in the mussulman territory; and the Zimmee or convert has continued under protection, and resided in the Mussulman territory: the return from him, therefore, is not to be remitted in consequence of the supervenient circumstance of death, or convention of the faith; in the same manner, as in case of hire, or of composition for blood;—in other words, if capitation tax be a return for residence, it comes under the construction hire, and is not remitted in consequence of death, or conversion to the faith, in the same manner as if a Zimme were to hire a house and reside therein for the period agreed upon, and then die, or embrace the faith, in which case the rent of the house does not cease; and so likewise with respect to capitation-tax:—or, if capitation-tax be a return for protection to the person, it comes under the construction of a composition for blood, and is not remitted in consequence of death or conversion to the faith, in the same manner as if a Zimme were wilfully to kill a person, and afterwards enter into composition for the murder with the friends of the deceased, for a certain consideration, and them become a Mussulman, or die, in which case the consideration is not remitted from him;—and so likewise capitation-tax, (which is the consideration for protection to his person,) is not remitted. The arguments of our doctors upon this point are threefold.—First, the prophet has declared that "capitation-tax is not incumbent upon Mussulmans:"—Secondly, capitation-tax is a species of punishment, inflicted upon infidels on account of their infidelity, whence it is termed Yizyat, which is derived from Yizya, meaning retribution; now the temporal punishment of infidelity is remitted in consequence of conversion to the faith; and after death it cannot be inflicted, because temporal punishments are instituted solely for the purpose of removing evil, which is removed by either death or Islám:—THIRDLY, capitation-tax is a substitute for aid to the Mussulmans, and as the infidel in question, upon embracing the faith, becomes enabled to aid them in his own person, capitation-tax consequently drops upon his Islám.—With respect to the a to the argument adduced by Shafei, we reply that capitation-tax is neither consideration for protection to person, nor residence, because protection to the person is established in virtue of humanity, and a Zimme resides, in the mussulman territory, within his own dwelling; wherefore the case does not admit that a consideration, for protection to his person, or for residence, should be exacted from him.

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.

People take pride on the basis of wealth and are looked down on the basis of poverty.

"It is not incumbent upon infants to make war, as they are objects of compassion; neither is it incumbent upon slaves or women, as the rights of the master, or of the husband, have precedence; nor is it so upon the blind, the maimed, or the decrepid, as such are incapable. If, however, the infidels make an attack upon a city or territory, in this case the repulsion of them is incumbent upon all Muslims, insomuch that a wife may go forth without consent of her husband, and a slave without the leave of his master, because war then becomes a positive injunction; and possession, either by bondage or by marriage, cannot come in competition with a positive injunction, as in prayer (for instance) or fasting. This is supposing a general summons; for without that it is not lawful for a woman or slave to go forth to make war without the consent of the husband or master, as there is in this case no necessity for their assistance, since others suffice, and hence no reason exists for destroying the right of the husband or master on that account. If there be any fund in the public treasury, so long as the fund lasts any extraordinary exaction for the support of the warriors is abominable, because such exaction resembles a hire for that which is a service of God as much as prayer or fasting, and, hire being forbidden in these instances, so is it in that which resembles them. In this case, moreover, there is no occasion for any extraordinary exactions, since the funds of the public treasury are prepared to answer all emergencies of the Muslims, such as war, and so forth. If, however, there be no funds in the public treasury, in this case the Imam need not hesitate to levy contributions for the better support of the warriors, because in levying a contribution the greater evil (namely, the destruction of the person) is repelled, and the contribution is the smaller evil, and the imposition of a smaller evil to remedy a greater is of no consequence. A confirmation of this is found in what is related of the Prophet, that he took various articles of armour, and so forth, from Safwan and ‘Umar; in the same manner also he took property from married men, and bestowed it upon the unmarried, in order to encourage them and enable them to go forth to fight with cheerfulness; and he also used to take the horses from those who remained at home, and bestowed them upon those who went forth to fight on foot. When the Muslims enter the enemy’s country and besiege the cities or strongholds of the infidels, it is necessary to invite them to embrace the faith, because Ibn ‘Abbas relates of the Prophet that he never destroyed any without previously inviting them to embrace the faith. If, therefore, they embrace the faith, it is unnecessary to war with them, because that which was the design of the war is then obtained without war. The Prophet, moreover, has said we are directed to make war upon men only until such time as they shall confess, ‘There is no God but one God.’ But when they repeat this creed, their persons and properties are in protection (aman). If they do accept the call to the faith, they must then be called upon to pay jizyah, or capitation tax, because the Prophet directed the commanders of his armies so to do, and also because by submitting to this tax war is forbidden and terminated upon the authority of the Qur’an. (This call to pay capitation tax, however, respects only those from whom the capitation tax is acceptable, or, as to apostates and the idolaters of Arabia, to call upon them to pay the tax is useless, since nothing is accepted from them but embracing the faith, as it is thus commanded in the Qur’an). If those who are called upon to pay capitation tax consent to do so, they then become entitled to the same protection and subject to the same rules as Muslims because ‘Ali had declared infidels agree to a capitation tax only in order to render their blood the same as Muslims’ blood, and their property the same as Muslims’ property.

WHEN a 'Mussulman apostizes from the faith, and exposition thereof is to be laid before him, in such manner that if his apostacy should have arisen from any religious doubts or scruples, those may be removed. The reason for laying an exposition of the faith before him is that it is possible some doubt or errors may have arisen in his mind, which may be removed by such exposition; and as there are only two modes of repelling the sin of apostacy, namely, destruction or Islám, and Islám is preferable to destruction, the evil is rather to be removed by means of an exposition of the faith;—but yet this exposition of the faith is not incumbent, (according to what the learned have remarked upon this head,) since a call to the faith has already reached the apostate. AN apostate is to be imprisoned for three days, within which time if he return to the faith, it is well: but if not, he must be slain.—It is recorded in the Jama Sagbeer that "an exposition of the faith is to be laid before an apostate, and if he refuse the faith, he must be slain:"—and with respect to what is above stated, that "he is to be imprisoned for three days," it only implies that if he require a delay, three days may be granted him, as such is the term generally admitted and allowed for the purpose of consideration. It is recorded from Haneefa and Aboo Yoosaf that the granting of a delay of three days is laudable, whether the apostate require it or not: and it is recorded from Shafei that it is incumbent on the Iman to delay for three days, and that it is not lawful for him to put the apostate to death before the lapse of that time; since it is most probable that a Mussulman will not apostatise but from some doubt or error arising in his mind; wherefore some time is necessary for consideration; and this is fixed at three days. THe arguments of our doctors upon this point are twofold.—FIRST, GOD says, in the Korán, "SLAY THE UNBELIEVERS," without any reserve of a delay of three days being granted to them; and the prophet has also said "Slay the man who changes his religion," without mentioning any thing concerning a delay: SECONDLY, an apostate is an infidel enemy, who has received a call to the faith, wherefore he may be slain upon the instant, without delay. An apostate is termed on this occasion and infidel enemy, because he is undoubtedly such; and he is not protected, since he has not requered a protection, neither is he a Zimmee, because capitation-tax has not been accepted from him; hence is proved that he is an infidel enemy. It is to be observed that, in these rules, there is no difference made between an apostate who is a freeman, and one who is a slave, as the arguments upon which they are established apply equally to both descriptions.

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.

"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.

The following is the teaching of the Hanafi school of Sunnis on the subject of Jihad, as given in the Hidayah...:--
"The sacred injunction concerning war is sufficiently observed when it is carried on by any one party or tribe of Muslims, and it is then no longer of any force with respect to the rest. It is established as a divine ordinance, by the word of God, who said in the Qur’an, ‘Slay the infidels,’ and also by a saying of the Prophet, ‘War is permanently established until the Day of Judgment’ (meaning the ordinance respecting war). The observance, however, in the degree above mentioned, suffices, because war is not a positive injunction, as it is in its nature murderous and destructive, and is enjoined only for the purpose of advancing the true faith or repelling evil from the servants of God; and when this end is answered by any single tribe or party of Muslims making war, the obligation is no longer binding upon the rest, in the same manner as in the prayers for the dead-(if, however, no one Muslim were to make war, the whole of the Muslim, would incur the criminality of neglecting it) – and also because if the injunction were positive, the whole of the Muslims must consequently engage in war, in which case the materials for war (such as horses, armour, and so forth) could not be procured. Thus it appears that the observance of war as aforesaid suffices, except where there is a general summons (that is, where the infidels invade a Muslim territory, and the Imam for the time being issues a general proclamation requiring all persons to go forth to fight), for in this case war becomes a positive injunction with respect to the whole of the inhabitants, whether men or women, and whether the Imam be a just or an unjust person; and if the people of that territory be unable to repulse the infidels, then war becomes a positive injunction with respect to all in that neighbourhood; and if these also do not suffice it, then comes a positive injunction with respect to the next neighbours; and in same manner with respect to all the Muslims from east to west. The destruction of the sword is incurred by infidels, although they be not the first aggressors, as appears from various passages in the traditions which are generally received to this effect.

WHOREDOM and bastardy are defect with regard to a female slave, but not with regard to a male. because the object, in purchase of a female slave, is cohabitation and the generation of children, which must be affected by either of the above circumstances; whereas, the object in the purchase of a male slave is the use of his services, the value of which is not depreciated by his committing to whoredom.—IF, however, a male slave be much addicted to whoredom, our lawyers are of opinion that it is a defect, because in the pursuit of women he neglects the service of his master.

Definition of the term.—Nifka, in the language of the law, signifies all those things which are necessary to the support of life, such as food, clothes, and lodging: many confine it solely to food and the latter poor; and as the Prophet in his decision left this to the judgment of the parties themselves, the proportion is not specifically determined by the law.— Shafei has so determined it, saying that the Nifka or maintenance incumbent upon a husband in behalf of his wife, if he be opulent, is two Mids, or about one thousand Dirms annually,— if he be poor, one Mid: and if in middling circumstances, one and a half: this, however, is not admitted, because a thing declared to be incumbent "so far as may suffice" cannot be legally fixed at any specific rate, as the proportion must neces- sarily vary according to circumstances. And this, although she withhold herself on account of her dower. — If a woman refuse to surrender herself to her husband, on account of her dower (that is, on account of its not having been paid to her), her maintenance does not drop, but is incumbent upon the husband, although she be not yet within his custody, since her refusal is only in pursuance of her right, and consequently the object; on to the matrimonial custody originates with the husband. But not if she be refractory. — If a wife be disobedient or refractory, and go abroad without her husband's consent, she is not entitled to any support from him, until she return and make submission, because the rejection of the matrimonial restraint in this instance originates with her; but when she returns home, she is then subject to it, for which reason she again becomes entitled to her support as before. It is otherwise where a woman, residing in the house of her husband, refuses to admit him to the conjugal embrace, as she is entitled to maintenance, notwithstanding her opposition, because being then in his power, he may, if he please, enjoy her by force. But not if she be refractory.—If a wife be disobedient or refractory and go abroad without her husband’s consent, she is not entitled to any support from him, until she return and make submission, because the rejection of the matrimonial restraint in this instance originates with her; but when she returns home, she is then subject to it, for which reason she again becomes entitled to her support as before. It is otherwise where a woman, residing in the house of her husband, refuses to admit him to the conjugal embrace, as she is entitled to maintenance, notwithstanding her opposition, because being then in his power, he may, if he please, enjoy her by force.

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.

CAPITATION-TAX is not imposed upon Ráhibs, (that is, Christian or Pagan monks and hermits, who do not mix with the rest of mankind:)—the same is mentioned by Kadooree: Mohammed, in the Jama-Sagbeer, reports from Haneefa that capitation-tax may be imposed upon those, where they are capable of labour, (and such is the opinion of Aboo Yoofaf;) because where, being capable of labour, they refrain from it, they waste their ability; capitation-taxt, therefore, is due from the,m. in the same manner as tribute from the landholder, where he (being able) suffers his land to remain unfilled.—The reason for what is related by Kadoore is that a monk is not to be destroyed where he does does not mix with mankind; and capitation-tax, with respect to them, would be for the purpose of warding off destruction.