Beyond Authenticity: ISIS and the Islamic Legal Tradition

The Atlantic thinks ISIS is Islamic. President Obama and countless others disagree. As the debate rages on with no shortage of interlocutors, one must stop to ask, what is the utility of making such pronouncements? Is the simple binary of whether ISIS is Islamic or not an effective way to discuss and understand the various questions at stake concerning the Islamic tradition, its authenticity, continuity and change? In response to this basic question, Muslims globally have gone on the defensive, denying any relationship between the religion and the group. Whether it be the eighteen-page open letter issued by prominent Muslim clerics globally, the statement of the twelve largest mosques in Britain, or the fatwa written and distributed by Sunni and Shi‘i  clerics in Baghdad, Muslims are keen to distance themselves from any atrocities committed in their name. However most recently, Graeme Wood’s piece in The Atlantic “What ISIS Really Wants” argues that ISIS’s actions are definitively Islamic. Since the publication of the article there has been an outpouring of critiques—some correcting factual errors, others noting that he ignores the political and social context which gave rise to ISIS, and others pointing to the absence of legitimate voices in the article who the majority of Muslims actually take as their authority.

As the war continues with growing numbers of willing Muslim recruits, and with provocative images of atavistic executions and offerings of justifications based on Islamic sources, the debate on whether ISIS is Islamic is not ending anytime soon. By situating ISIS within the Islamic tradition on the basis of their mere utilization of it, Wood’s article and others like it overlook the fundamental issue which stands at the heart of the debate—ISIS’s juridical understanding and its relationship to the classical Islamic legal tradition. Mapping ISIS onto a dichotomy of Islamic versus un-Islamic is far too simple an approach when trying to understand the phenomenon of ISIS. The parameters of the debate ignore the amorphous nature of law, that law is paradoxical in that it is both fixed and flexible and that the validity of law is dependent upon the framework and system of law issuance that is created. Indeed, if we step outside of the cyclical authenticity debate in order to understand ISIS’s methodology in relation to the Islamic juridical tradition, we will see that ISIS represents a very fundamental rejection of both its principles and its parameters of operation.

Historically, Islamic law has evolved and created an architecture that creates stability within the law while at the same time allowing for change. However, as a group that is seeking to be a legitimate manifestation of Islam, ISIS constructs its authority and the validity of its actions outside the boundaries of what has been normatively accepted both in terms of conceptualizing the law, and more specifically in the realm of warfare.

Warfare was a complex discussion within Islamic law. The discussion encompassed balancing Prophetic precedence, Quranic principles, and the need to protect and defend the Muslim community. The result was a variety of legal rulings that were connected by two principles which guided legal derivation when it came to warfare. The first was the protection of noncombatants, and the second was the limitation and restriction of war and violence. Jurists agreed that war was permissible, but to do so in a way that regulated the loss of life. Conversely, the basic operating principle of ISIS is the promotion of violence and instability which contradicts the principles of warfare the jurists constructed. Aside from this important difference in the substantive matters of law, this article will also demonstrate that ISIS conceptualizes the law broadly in a starkly different way. Classical jurists accepted and regulated between plurality of legal rulings which allowed for both jurists and rulers to engage with the law on a more intimate level. This meant that the law could evolve, and when deciding on rulings, the ruling selected would be on the basis of public interest (maslaha) which meant protecting the life, religion, property, and honor of all individuals, Muslim and non-Muslims alike. For ISIS, this plurality does not exist within the law; rather, law is implemented uniformly, not on the basis of general public interest, but in order to satisfy their overarching goal of establishing the caliphate, denigrating the enemy, and promoting chaos and violence. As such, even though ISIS may be invoking elements from within the legal tradition or historical precedence, they are doing so by contradicting its very principles and therefore cannot be understood as normative.

Violence and Brutality as ISIS’s Operating Principle

Some clarity with regards to the ideology of ISIS came in September 2014 when Jack Jenkins alerted the world’s attention to a book titled The Management of Savagery. The book was written in 2004 by Abu Bakr Naji, a pseudonym, and became very influential in Salafi-Jihadi circles globally. In 2006 it was translated by William McCants in an effort to bring more clarity to the direction various Salafi-Jihadi movements had taken. The four hundred-page text is a manual on how to establish the Caliphate through the systematic creation of pockets of instability, or “regions of savagery” which force individuals in these areas to search for some stabilizing factor. With widespread instability, individuals will willingly submit to a group which promises to bring stability. In the fourth section of the text entitled “Using Violence,” the author presents a detailed exposition on the necessity of violence, and brutality in achieving these aims.

One of the central concepts in this section is the idea of “paying the price.” Naji argues that if an enemy attacks the group, their response should be so intense that it should create a sense of hopelessness within the enemy and recognition that they have “paid the price” for their actions. Furthermore, when “paying the price” Naji argues that retaliation does not need to be directed at the enemy directly so “if the enemy undertakes a hostile action against a region in the Arabian Peninsula or in Iraq, then the response will occur in Morocco or Nigeria or Indonesia.” Speaking more directly to the general use of violence, Naji states “If we are not violent in our jihad and if softness seizes us, that will be a major factor in the loss of the element of strength.” In another context he states “the hostages should be liquidated in a terrifying manner which will send fear into the hearts of the enemy and his supporters.” For Naji, violence is not only important, but it’s random, unrestricted, and terrifying use will be of particular importance in establishing the caliphate. In this sense, violence is not simply a matter of a physical war, but it is a strategic tool which is intended to have psychological effects on both the perpetrators and the recipients.

If we move from the Management of Savagery to ISIS’s own publications, we see the same fixation on wanton violence amplified through the use of graphic images, exhortative manifestos, and vicious condemnations. ISIS has officially released numerous execution videos, a few longer propaganda videos and perhaps most importantly, seven issues of their official magazine, entitled Dabiq. In the first issue they devoted the most space to elaborating upon the necessity of the caliphate, but towards the end the magazine focuses on the use of violence. Echoing the Management of Savagery one feature article states,

To create maximum chaos, the Shaykh [Shaykh Abu Mus’ab] focused on the most effective weapons…vehicle bombs, IEDs, and istishhadiyyin (seekers of martyrdom). He would order nikayah (disruptive) operations in a dozen areas daily, targeting and killing sometimes hundreds of apostates…In addition to that he tried to force every apostate group in Iraq into an all-out war. So he targeted the Iraqi apostate forces (army, police and intelligence), the Shi‘a and the Kurdish secularists.” He then goes on to state, “These attacks will compel the apostate forces to partially withdraw from rural territories and regroup. The jama’ah [we] would then take advantage of the situation by increasing the chaos to a point of leading to the complete collapse of oppressive regimes, a situation some would refer to as ‘mayhem.’

In these statements unrestricted violence is encouraged as a means of creating chaos.

Similarly, in the fourth issue of the magazine in an article titled “Reflections on the Final Crusade,” ISIS spokesperson Abu Muhammad al-‘Adnani said,

Destroy their beds. Embitter their lives for them and busy them with themselves. If you can kill a disbelieving American or European—especially the spiteful and filthy French—or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill him in any manner or way however it may be. Do not ask for anyone’s advice and do not seek anyone’s verdict. Kill the disbeliever whether he is civilian or military, for they have the same ruling…Every Muslim should get out of his house, find a crusader, and kill him. It is important that the killing becomes attributed to patrons of the Islamic State who have obeyed its leadership. This can easily be done with anonymity. Otherwise, crusader media makes such attacks appear to be random killings.

For al-Adnani and other propagators of ISIS’ doctrine, violence is not limited to the war which is being waged within their territories. They are envisioning a constant cosmic war which requires the use of violence by every Muslim against anyone considered non-Muslim—simply put, there are no non-combatants and no method too brutal. These exhortations towards violence are matched with gruesome images of torture and killings, valorizing the very violence that they call to. From the totality of the images, articles, and statements of ISIS, their use of violence is guided by the basic principle that it is unrestricted and should be practiced with utmost brutality to not only physically defeat the enemy, but to psychologically impair it.

In contrast to ISIS, while the jurists were creating the laws of warfare in the eighth through eleventh centuries, they were doing so with the lens to regulate violence and protect the noncombatant and in accordance with the overall objectives of the law. Thus, even though ISIS may use historical precedence to justify their actions, they do so by manipulating the legal tradition and using non-majoritarian, often rejected juristic opinions of the past. For ISIS, spreading violence and expanding the Caliphate, irrespective of the loss of life, is the goal. Their legal architecture is created to fulfill this mission, regardless of what the majoritarian opinions are within the totality of Islamic juristic thought.

Interpreting What is Islamic and Un-Islamic

For the neophyte, Islamic law has never been absolute. It may strike one as odd that there can be plurality when it comes to God’s law, but the reality is that legal pluralism was the sine qua non of Islamic law. After the death of the Prophet it was understood by Sunnis that access to the Lawgiver, God, had been terminated and what remained were only the scriptural sources—the Quran and the hadith (reported sayings of the Prophet)—to guide individuals afterwards. The jurists were then tasked with the responsibility of creating a methodology which would allow for the deduction of law from the scriptural sources and also allow for the valid creation of law in the absence of any textual indicant. What was created was a jurisprudential system that could extract legal rulings from the scriptural sources, create new ones, and also adjust preexisting ones. All of this was done with the realization that the jurist was arriving at the best estimation of what God truly wants in a situation, but could not be certain that they have arrived at the correct answer given that the direct connection between humans and God was severed with the death of the Prophet.

Because no jurist could say with certainty that they have arrived at God’s law, multiple opinions could always exist on any issue. At the same time jurists were concerned with unbound plurality, so they restricted it in many ways—preventing lay individuals from engaging in jurisprudential reasoning, limiting jurisprudential reasoning even within jurists circles, and searching for overlaps whenever possible. Emerging from the plurality of rulings was an understanding that there would be a majority articulation of a ruling, alongside the acceptance that minority opinions would also exist. A comparable situation is the presence of differing opinions in the US Supreme Court on legal issues even when confronted with the same evidence.

In formulating Islamic law, jurists would start with the textual sources, namely the Quran and hadith. Of importance was the example of the life of the Prophet himself, and this was especially so with any discussion concerning warfare because the Prophet himself engaged in various military battles. When jurists began to speak about the law of warfare, they were not merely discussing the concept that we most commonly associate with Islamic warfare, namely jihad. In fact, they developed a dense legal discussion under the headings of siyar, translated today as Islamic International law. Discussions of siyar in legal texts encompassed jihad, military campaigns (maghazi), safe conduct (aman), dividing spoils, truce (hudana), and non-Muslim tax (jizya). Jurists were keen to answer three pivotal questions: when is it legitimate to fight, what is legitimate conduct during fighting, and what is to be done upon the completion of fighting. The focus of their attention was tackling the second question, namely what is legitimate conduct during war. Ahmed al-Dawoody, who has written a comprehensive book on the Islamic law of war has argued that the jurists categorized war into eight main topics.[1] They are:

1. Noncombatant immunity
2. Human Shields
3. Night Attack
4. Mutilation
5. Weapons
6. Aman (quarter and safe passage)
7. Prisoners of War
8. Treatment of Prisoners

While al-Dawoody concisely shows the sheer amount of diversity that was present within the legal discussions he also highlights that in each instance there was a majority opinion that was rooted in Prophetic practice or Quranic statements.

One of the elements of ISIS’s methodology of war noted above is their promotion of indiscriminate killing of individuals in countries all over the globe. Counter to this opinion is the juristic discussion of noncombatant immunity which was intended to restrict violence against any individual who was not actively fighting in the war, even if they ideologically agreed with the enemy. Scholars such as Sufyan al-Thawri (d. 788), al-Ghazali (d. 1111), al-Qarafi (d. 1285) and countless others safeguarded from combat women, children, the aged, the blind, the sick, the insane, the clergy, and perhaps most interestingly, any hired man (al-asif) such as a farmer, craftsman, or employee that was not directly engaged in warfare. While a few minority opinions did exist that belief alone would make individuals part of the “enemy,” the majority of jurists agreed that the aggression of the individual combatant is the decisive factor. Jurists were concerned with establishing who was considered a noncombatant to ensure that violence was restricted to those that only displayed outward aggression. Only after establishing those protected in times of war did the jurists then turn to discuss the actual conduct of war against the enemy.

Turning now to combatants, perhaps there is no issue more jarring to those following the actions of ISIS than their sheer brutality when it comes to their treatment of prisoners of wars. Brutality during war is nothing new—and this is something jurists were concerned with. They found precedent for resolving these questions within the Prophet’s Muhammad’s time. For example, during one of his military battles, the Prophet’s uncle was killed and his body mutilated. Upon finding out, the Prophet is reported to have said, “Do not betray and do not mutilate.”[2] For jurists this precedent led to the prohibition of mutilation on the basis that bodies, regardless of faith, should be treated with dignity. In another instance after the death of the Prophet, the first caliph Abu Bakr’s army leaders returned victorious with the head of his enemy. This earned the General the chastisement of Abu Bakr. In his defense he said the same thing was done to the Muslims by their enemies to which Abu Bakr responded and said, “Are we going to follow the Persians and the Romans? We have what is enough: the book and the reports (of what the Prophet did).” And in another statement Abu Bakr is reported to have said, “Beware of mutilation, it is a sin and a disgusting act."[3]

Relatedly, in the discussion of weapons, jurists discussed the specific use of fire and once again the majority agreed on its prohibition on the basis of the Prophetic statement, “Do not punish the creatures of God with the punishment of God.”[4] The discussion of fire involved both setting ablaze individuals, and also buildings and crops, but almost uniformly the jurists prohibited the use of fire as an instrument of war. Sufyan al-Thawri, al-Shaybani (d. 804), Ibn Qudama (d. 1223) and al-Shawkani (d. 1834) and countless others understood the prohibition of fire in two ways—the first is under the ruling of non-mutilation as fire would naturally mutilate the body, and the second is under the idea of restricting violence. As fire can easily spread, noncombatants could very easily be affected, undermining the earlier juristic ruling of limiting violence to active combatants.

However, Ibn Rushd (d.1198) noted that some jurists did permit the use of fire as a weapon if the enemy used it first. In this case, fire could be used to destroy fortifications which protect combatants. The use of fire becomes important because of the recent emblazing of the Jordanian pilot, Moath al Kasabeh. In issue number seven of its magazine Dabiq ISIS cites various historical cases in which they claim fire was used to kill the enemy. Important to note is that they did not cite any legal text justifying their action—rather it is constructed on the bases of unconfirmed historical instances, and the Quranic verse “And if you punish an enemy, with an equivalent of that which you were harmed” (16:126). What they fail to do is present the full message of the verse which is,

Invite to the way of your Lord with wisdom and good instruction, and argue with them in a way that is best. Indeed your Lord is most knowing of who has strayed from His way, and He is most knowing of who is rightly guided. And if you punish an enemy, with an equivalent of that which you were harmed. But if you are patient—it is better for those who are patient. And be patient (O Muhammad!), and your patience is not but through Allah. And do not grieve over them, and do not be in distress over that they conspire. (16:125-127)

ISIS argues that because Muslims were killed in fires by bombs dropped, on the basis of the verse they quoted above they can retaliate by burning army prisoners in their possession alive. However if we look at the context of the verse, and the legal rulings the jurists put forth, ISIS’s argument becomes highly problematic. And regardless of whether the historical instances quoted by ISIS are in fact true, it is mitigated by the presence of conflicting evidence.

In the classical period jurists were tasked with finding a consistent principle or law which either meant harmonizing contradictory pieces or discarding a piece of evidence that contradicted a stronger and more persuasive principle. Consequently, the majority of jurists agreed that mutilation by fire was prohibited.

The Prophetic and juristic prohibition against mutilation and use of fire against combatants is echoed in the discussion of treatment of prisoners. Once again, the jurists were faced with a paradox given the contradictions between verses: one Quranic verse says regarding prisoners of war, “Set them free either graciously or by ransom” while another Qur’anic verse in which it states, “Kill the polytheists wherever you find them.” To further complicate matters Prophetic precedence recounts him releasing, executing, exchanging and enslaving in different contexts.

The Companions of the Prophet and early jurists, in attempting to resolve the tension, framed the entire discussion around the Qur’anic verse which states, “And they give food in spite of love for it to the needy, the orphan and the captive saying, ‘We feed you only for the countenance of Allah. We wish not from you reward or gratitude.’” (76:8-9). Following forth from this, jurists argued that the victorious army could retain prisoners of war or exchange them, but as long as they were in the possession of the Muslims, they had to be treated with dignity. However, because Prophetic practice allowed for all four, later jurists between the eighth and eleventh centuries argued that all of the four options are permissible, and the decision should be on the basis of what is in the public interest (maslaha) of the Muslim people. The idea that each situation could be evaluated on the basis of public interest when there was either a plurality of rulings, or no ruling, allowed the jurists and the ruler a certain amount of flexibility—something we will return to slightly later.

Ahmad Ahmad, professor of Islamic law, in trying to understand this plurality argues that Prophetic actions were bound between two poles—one of being good irrespective of the actions of the enemy,[5] and the other protecting and defending the sanctity of the growing Muslim community.[6] Given this tension, diversity remained within Prophetic action and jurists had to somehow come to terms with this plurality and understand what the main governing principle of warfare was. Al-Dawoody argues that the

classical Muslim jurists’ discussions of the issues presented by war in their time indicate that their overarching concern was the fear of taking the life of enemy noncombatants, even as collateral damage. Their discussions of the issues of human shields, night attacks, and weapons show a striking concern not to bring about the indiscriminate killing of innocent noncombatants during military operations. Consequently, classical jurists developed a full-blown doctrine of noncombatant immunity based on specific Islamic sources which aimed at regulating their specific war contexts.

In agreeing on these two goals, namely safeguarding noncombatants and regulating warfare, the jurists agreed on what was, in their opinion, a correct reading of authoritative texts, and a correct reading of history such that they were able to agree on guiding principles of conduct. However, despite the regulation of war and violence and the protection of the noncombatant being overarching goals of the Islamic law of warfare, jurists articulated the realization of these concepts in different ways—and thus for each of the eight issues highlighted above, and others, there was always a majority ruling that most agreed upon, and then a plurality of other contenders. The question then becomes, how does one pick which ruling to apply and when?

If we refer to the four options regarding the prisoners of war, jurists in the eighth-tenth centuries eventually said either one of four options are valid but the choice should be on the basis of the public interest (maslaha) of the community. What this means more explicitly is that whoever is deciding what should be done with the prisoners of war should be cognizant of the two guiding principles of warfare, the general Prophet encouragement to treat prisoners well, and what is in the best interest of the Muslim community at the time, and then decide accordingly. The decision that is made then reflects the principles guiding warfare, the psyche of the individual making the decision and the historical moment more than it does the possible juristic rulings that were set in the eighth century. Here it is important to say something on this vague notion of public interest (maslaha).

With the plurality of legal rulings present on any given issue, how was the ruler to decide? In most cases, it was not the ruler who was issuing laws, or implementing the law during the classical Islamic period, but if and when an issue arose which affected the public sphere, such as war, the ruler played an important role. When deciding what rule to implement, what was in the public interest of the community was understood contextually and on the basis of the overall objectives of Islamic law (maqasid). Al-Ghazali provides the earliest cogent articulation of this idea and he states that there are five overall objectives of Islamic law, which are: the preservation of life, intellect, religion, property and honor, and they were understood to extend to Muslims and non-Muslims alike. Thus if we return to the case of the prisoners of war, the decision as to their outcome would be made on the basis of the overall objectives of the law and the specific objectives of the laws of warfare. Opinions that were articulated as majority opinions were understood to serve both of these objectives, but jurists also realized that rulings would necessarily be altered with a change in circumstance, so the law always had to remain fluid.

This legal plurality which was the defining feature of the classical Islamic legal system finds no place within ISIS, where the law is uniformly applied without leaving any room for negotiation. Thus ISIS is not merely historically cherry picking the law but is doing so in a way which rereads Islamic history and Islamic scriptural sources, contradicting the reading and reasoning of the jurists in the formative legal period. When examining the court culture from the eight century until the Ottoman period the norm was for the court to act as a mediating institution which either settled disputes between individuals, or mediated between the law as envisioned by the jurists, and the law as enacted by the people.

In two important books evaluating the Islamic court system, Dispensing Justice in Islam: Qadis and their Judgments and Islamic Legal Interpretation: Muftis and Their Fatwas, numerous cases are present in which individuals are contesting the judgment of the jurist and actively seeking alternative legal advice from other jurists. The plurality of the law and the ability of individuals enacting the law to be active in the process of enacting the law was essential. Law in this manner was a bottom up phenomenon in which jurists tried to reason God’s law and apply it within society and to the lives of individuals on the basis of context and circumstance. While this fluidity appears to threaten to devolve into an unwieldy utilitarian law, the jurisprudential system created by the jurists was intended to simultaneously create strict parameters for legal engagement made it such that change and ingenuity was allowed.

What we see with law in ISIS is a reversal of this bottom-up understanding and instead the law is a singular fixed one which is implemented in a top-down model and imposed upon the masses irrespective of society or custom. And while ISIS will often speak of law using the language of public interest, their public interest is viewed through the lens of creating chaos and establishing the caliphate. As such, they adopt a singular top-down model in which public interest is subservient to their larger goals and is reduced to what al-Baghdadi and his supporters envision it to be.  

If we once again return to the four options present for prisoners of war, namely releasing, executing, exchanging and enslaving, from the totality of the discussion above regarding Islamic law, and the specific principles guiding warfare, there are four ways in which jurists could argue against the brutality of ISIS. The first is simply that executing non-combatants goes directly against the very principles of the laws of warfare which are safeguarding the non-combatant, and regulating violence. Second, if ISIS is arguing that brutality is in the public interest, they have failed to demonstrate that it is actually in the public interest of the global Muslim community. If anything, the vehement rejections of ISIS’s violence by Muslims shows that the majority of Muslims do not hold their actions to be in the public interest of the community. Third, in addition to violating the principles of Islamic warfare and the public interest of the community, ISIS is furthermore undermining the objectives of Islamic law, particularly the preservation of life which was extended to both Muslims and non-Muslims alike. Finally, the way in which ISIS is imposing the law in a uniform and authoritarian manner undermines the very plurality of the law and also the ability for individuals, customs and societies to be taken into consideration.

ISIS is not a new phenomenon in Islamic history and has striking similarities with the fringe group, the Khawarij, which emerged within thirty years of the death of the Prophet. The Khawarij were absolutist, rooting their approach in a literalist understanding of the text. Their underlying principle was that judgment could only be made by God, and thus on the basis of the Qur’an, and those who disagreed, or did not follow their beliefs on what Islamic law should be, were excommunicated by virtue of being disbelievers and were targeted for execution. The most intriguing feature of the Khawarij is their own notions of legitimacy when it came to the reading of the Qur’anic text, arguing and fighting against the companions of the Prophet who were present during the revelation of the text and the issuance of the law. This is an early case of a minority in opposition to majority opinions, and while the Khawarij movement gained traction, its failure ultimately reveals the pitfalls of disconnecting with the authoritative legal community and arguing from the text alone while disregarding all governing principles. For two centuries, the Khawarij endured as rebels, but never found widespread acceptance for their legal methodology.

If ISIS is claiming to be Islamic, they will have to construct their claim for legitimacy and their law on precedence, but how they understand that precedence and how they engage with that precedence reveals more about the brutality of their ideology and methodology than it does about classical Islamic law. If ISIS is both fundamentally shifting the way the law is conceived, and also the very parameters which govern legal thinking in various arenas, then it requires that individuals reject a simple binary of Islamic and unIslamic and engage more deeply in these discussions. This is of course not to negate the fact that the existence of ISIS is emerging from the systemic and continuous military and cultural degradation of the area it now controls, but to seriously evaluate their own claim of being Islamic alongside the cacophonous sounds of either those who agree or disagree.

As Juan Cole argued, every religion has a “center of gravity” which allows it to determine what is normative and what is not. Could someone theoretically claim to be an atheist Muslim? Yes, but that would fundamentally contradict the normative theological assumptions of Islam. Similarly with ISIS, simply because they invoke scriptural sources and precedence to make their argument does not make them fall within a normative Islamic tradition. ISIS is fundamentally altering the lens of legitimate warfare in a way that completely overlooks and distorts the normative understanding. In other words, they are undoing a pluralistic understanding of law as constructed by Muslim jurists over the centuries, and by contrast adopting the modern nation-state notion of a uniformly imposed law from a central authority. This makes it impossible to relegate ISIS to the medieval world. Instead we must come to terms with the very modern elements of its existence and ideology.