"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 … - Burhan al-Din al-Murghinani
"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.
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About Burhan al-Din al-Murghinani
Burhān al-Dīn Abu’l-Ḥasan ‘Alī bin Abī Bakr bin ‘Abd al-Jalīl al-Farghānī al-Marghīnānī (Arabic: برهان الدين المرغيناني) was an Islamic scholar of the school of jurisprudence. He was born in Marghinan near Farghana in 530/1135 (in present day ) He died in 593/1197.
Also Known As
Alternative Names:
Ali ibn Abu Bakr al- Marghinani
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Burhān al-Dīn Abu’l-Ḥasan ‘Alī bin Abī Bakr bin ‘Abd al-Jalīl al-Farghānī al-Marghīnānī[
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ʻAlī ibn Abī Bakr al-Marghīnānī
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Abul Hasan Ali bin Abu Bakr bin Abdul Jalil Farghani Marghinani Rashtani
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Additional quotes by Burhan al-Din al-Murghinani
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’.
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.
"It is not lawful to make war upon any people who have never before been called to the faith, without previously requiring them to embrace it, because the Prophet so instructed his commanders, directing them to call the infidels to the faith, and also because the people will hence perceive that they are attacked for the sake of religion, and not for the sake of taking their property, or making slaves of their children, and on this consideration it is possible that they may be induced to agree to the call, in order to save themselves from the troubles of war.
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