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There is some difference of opinion among Muslim scholars and jurists about the criteria that differentiate Dar al-Islam from Dar al-Harb. Imam Abu Hanifah (d. 150 AH/767 CE) was of the view that the decisive factor in determining a given territory as Dar al-Islam or Dar al-Harb was the security and protection and religious freedom available to Muslims living there. Hanafi scholars and jurists maintain that a territory that has been a part of Dar al-Islam but was later conquered by non-Muslims will remain Dar al-Islam as long as its Muslim inhabitants enjoy security and protection of life and honour and religious, legal and cultural freedoms. Ibn al-Qayyim (d. 751AH/1350 CE), an eminent Hanbali scholar, says that the most important factor in ascertaining the status of a given territory is the prevalence of Islamic laws. He adds that even if a solitary rule or injunction of Shariah remains in force in a territory that has come under the control of non-Muslims, it will not become Dar al-Harb. 1 Most Muslim scholars and jurists of the later period considered two interrelated factors – Muslim sovereignty and the promulgation of Islamic Shariah – as the defining features of Dar al-Islam.
Imam Muhammad ibn Hasan al-Shaybani (d. 189 AH/804 CE), a distinguished Hanafi scholar, Imam Shafi ‘i (d. 204 AH/820 CE), al-Sarakhsi (d. 483 AH/1090 CE) and al-Mawardi (d. 450 AH/1058 CE) posit, in addition to the typology of Dar al-Islam and Dar al-Harb, a third category called Dar al-Ahd or Dar al-Sulh (Realm of Treaty or Covenant or Realm of Peace). Dar al-Ahd broadly refers to a territory, largely inhabited by non-Muslims and ruled by them, which enters into a peace treaty with a Muslim state. The terms and conditions of the covenant may vary, and may include a provision to the effect that the non-Muslim state would remain in possession of a certain area in exchange for a certain amount of money or goods to be offered to the Muslim state and the assurance that the head of the Muslim state will protect the non-Muslim state in the event of an external aggression. The category of Dar al-Ahd or Dar al-Sulh were constructed in light of certain incidents during the lifetime of the Prophet and his Companions, such as the treaty of Hudaybiyah and the covenant with the Jewish tribes of Madinah and the Jews and Christians of Najran. Imam Abu Hanifah, who recognized only the two substantive categories of Dar al-Islam and Dar al-Harb, considered Dar al-Ahd as a part of Dar al-Islam. By and large, Hanafi scholars and jurists consider the non-Muslim inhabitants of Dar al-Ahd as Ahl al-Dhimmah or Dhimmis (protected citizens of the Islamic state).
The typology of Dar al-Islam, Dar al-Harb and Dar al-Ahd does not represent just a theoretical abstraction or a hypothetical proposition. Rather, it was meant to provide pragmatic guidelines, derived essentially from the Quran, the Prophet’s Sunnah and the precedents of his Companions, to Muslim states to deal with issues such as relations with non-Muslim states, including treaties and covenants, ethics of war and peace, the protection of the rights of the Dhimmis in the Islamic state, and the response and obligation of a Muslim state towards the rights of Muslim minorities living in non-Muslim states. It is significant to note that Islamic law recognizes the existence of independent, sovereign non-Muslim states and accords legitimacy to the establishment of peaceful relations between Muslim and non-Muslim states. 2
In Islamic history, Muslim states and societies have often sought inspiration and guidance from the principles associated with the categories of Dar al-Islam, Dar al-Harb and Dar al-Ahd or Dar al-Sulh. The foreign policy of the Ottoman Empire, for example, was significantly influenced by the principles associated with Dar al-Ahd. The peace treaties concluded by the Ottoman sultans with foreign countries stipulated that they would not be attacked by the Ottoman forces. 3 In Algeria, the Maliki ulama and jurists issued an edict to the effect that, following the French conquest and colonization, Algeria had turned into Dar al-Harb. In 19th century British India, some eminent Muslim scholars, such as Shah Abdul Aziz Dehlawi and Mawlana Fazle Haq Khayrabadi, declared that India had become Dar al-Harb.
One may argue that the typology of Dar al-Islam, Dar al-Harb and Dar al-Ahd was constructed in a specific historical, political, geographical and social context in medieval times and that it lost much of its relevance in the aftermath of the demise of Muslim empires, European colonization, the political fragmentation and decline of the Muslim ummah and the emergence of nation states in the Muslim world in the 20th century, the new international order, and globalization processes. The argument has some justification. At the same time, however, it will be unwise to throw away the entire legal discourse relating to the typology. One should remember that the typology of Dar al-Islam, Dar al-Harb and Dar al-Ahd is embedded in a legal culture, which was essentially informed and guided by Islamic values and principles. Therefore, a distinction needs to be drawn between the typology of Dar al-Islam, Dar al-Harb and Dar al-Ahd, which was embedded in a specific historical, geopolitical and social context, and the overarching legal principles, that were derived from the Quran, the Prophet’s Sunnah and the precedents of his Companions, which provided the theoretical edifice of the typology. While the typology may be said to have become irrelevant or obsolete in the radically modified global scenario, the legal principles and issues underlying it continue to remain relevant and significant even today. These principles and issues include the political, diplomatic, commercial and cultural relations between Muslim and non-Muslim states and societies, the sanctity of treaties and covenants between Muslim and non-Muslim states, the ethics of war and peace, treatment of prisoners of war and refugees, protection of the social, legal and political rights of the non-Muslim citizens of the Islamic state, and the response and obligation of Muslim states towards the status and rights of Muslim minorities living in non-Muslim societies.
In pre-Islamic Arabia as well as in many ancient civilizations, prisoners of war were generally enslaved and treated like chattel. The Bible says that in the event of victory in a war, male prisoners of war are to be killed (Deuteronomy 21:10). Islam made a radical departure from earlier practices by emphasising that prisoners of war should be treated in a humane and compassionate manner and encouraging its followers to set them free. According to the Quran, war prisoners are to be liberated gratuitously or on payment of ransom (47:4). According to Islamic law, a prisoner of war qua prisoner should not be killed. However, this does not preclude his trial and punishment for crimes beyond rights of belligerency. According to Islamic law, prisoners are to be well treated and given food and clothes and the costs for their food and clothing are to be borne by the Muslim state. Among prisoners, a mother is not to be separated from her child nor any other near relatives from each other.
In Islamic law, armed combat is regulated by wide-ranging conditions and stipulations, including the distinction between combatants and non-combatants, avoidance of wanton destruction and barbarities, compliance with treaties with the enemy, and the protection of women, children and old persons as well as places of worship (of other faiths) and the flora and fauna in the war zone. The Islamic ethic of war is clearly reflected in the instructions issued by Caliph Abu Bakr to Muslim troops who were to embark on a military expedition: “O people! I charge you with these rules; learn them well. Do not commit treachery nor deviate from the right path. You must not mutilate the dead bodies of soldiers. Do not kill a child or a woman or an aged man. Do not uproot or burn palms or cut down fruit trees. Do not slaughter a sheep or a cow or a camel, except for food. You will meet people (in enemy territories) who have set themselves apart in monasteries. Leave them to accomplish the purpose for which they have done this”.
A significant component of international law deals with the status and treatment of refugees, displaced persons and asylum seekers. The United Nations Refugee Agency (UNHCR) sponsored a comparative study of Islamic influences on international refugee law in 2009. The study noted that the Islamic tradition of providing protection and generosity towards people fleeing persecution has had a far greater influence on international refugee law than any other historical source.
What is needed is to engage in a critical rethinking, reinterpretation and selective reappropriation of the Islamic legal discourse relating to the typology of Dar al-Islam, Dar al-Harb and Dar al-Ahd in the context of present times. This would entail an exercise in collective, institutionalised ijtihad (to which Imam Abu Hanifah made an original and pioneering contribution), involving close interaction and exchange of views between Muslim scholars and jurists on the one hand, and experts in international and comparative law, international relations, political science and human rights, historians and sociologists, on the other.
Mawlana Habib al-Rahman on Dar al-Islam and Dar al-Harb
The following section is based on a translation of the substantive part of a treatise of Mawlana Habib al-Rahman al-Azami, written in Urdu, called “Darul Islam awr Darul Harb.” 4 It is hoped that this brief but scholarly exposition will clear many misconceptions and misrepresentations that surround the typology of Dar al-Islam and Dar al-Harb.
The precursors of the terminology of Dar al-Islam and Dar al-Harb can be traced to the time of the Prophet Muhammad (SAAW). Bukhari has reported a Hadith to the effect that when Abu Hurayrah migrated from his hometown (which was then not under the control of Muslims) to Madinah, he recited a couplet in which he complained of the arduousness of the long journey, which nevertheless set him free from the “land of infidelity” (balad al-kufr). In a Hadith reported by Bukhari, the Prophet forbade his Companions from carrying a copy of the Quran while travelling towards the “land of enemies”. Another Hadith, reported by Muslim and Tirmidhi, says that the Prophet gave certain instructions to some of his Companions who set out on a military expedition. One of the instructions was that if the people of those territories embraced Islam, they should be persuaded to migrate towards the “land of migration” (dar al-hijra). This suggests that (during the Prophet’s time) some territories (which were under the control of non-Muslims) were described as the “Abode of the Infidel” (dar al-kuffar), and those which were under the domination of Muslims as the “Abode of Migration” (dar al-hijra).
The terms Dar al-Islam and Dar al-Harb were in use during the time of the Followers (tabiu’n). These terms can be found in some of the earliest collections of Hadith, including the Musannaf of Abd al-Razzaq, the Musannaf of Ibn Abi Shayba, the Muwatta of Imam Malik and the Al-Jami’ al-Sahih of Imam Bukhari.
It is an incontrovertible fact (of Islamic history) that, while some lands or territories came under the control of Muslims (at some point of time), some territories, such as South Africa, never became a part of the Islamic state. On the other hand, some lands came under the control of Muslims (at a given point of time), but sooner or later ceased to be a part of the Islamic state. The first category of territories may be regarded as truly representing the Abode of Islam (Dar al-Islam), while the second category may be designated as the real Abode of War (Dar al-Harb). The third category may be considered as either Dar al-Islam or Dar al-Harb by a legal decree or mandate. Imam Muhammad ibn Hasan al-Shaybani, in his Kitab al-Ziyadat, says, “In Imam Abu Hanifah’s opinion, Dar al-Islam could become Dar al-Harb only under three conditions. The first condition is the public declaration and establishment of the rule of non-Muslims and the suspension of Islamic laws and stipulations. The second condition relates to the close location of the afore-mentioned territory to Dar al-Harb, away from any city that forms part of Dar al-Islam. The third condition is the abrogation of the protection available to Muslims (on account of their faith) and to non-Muslim subjects or Dhimmis, guaranteed to them under Islamic dispensation prior to the establishment of the rule of non-Muslims”. Many other Islamic legal texts report similar views that are attributed to Imam Abu Hanifah in this matter.
The upshot of what has been stated in the foregoing is that a land or territory that has remained Dar al-Islam for a certain period of time cannot become Dar al-Harb unless all the three afore-mentioned conditions are present. Many legal commentators say that even if some parts of Islamic laws prevail in a given territory that has come under the domination and control of non-Muslims (after remaining a part of Dar al-Islam over a period of time), it will still remain Dar al-Islam. The crucial point is that the criterion for the declaration or designation of a given territory as Dar al-Islam or Dar al-Harb is not that political domination and control should rest with Muslims, but the prevalence (to whatever extent) of Islamic rules and injunctions. If, in a given territory, political domination, administration, collection of taxes and the authority to prosecute thieves and robbers (and other criminals) are no longer under the control and authority of Muslims, but if Muslims nevertheless have the freedom to offer prayers on Fridays and on the feasts of Eid al-Fitr and Eid al-Duha and to impart Islamic instruction (to their children), and if Muslim legal scholars (continue to) have the freedom and authority to issue legal edicts (fatwa) relating to family laws, and if the lives of Muslims are generally governed by the provisions of Islamic Shariah (without let or hindrance), such a territory will continue to remain Dar al-Islam. A territory (which was previously under the domination of Muslims and subsequently came under the control of non-Muslims) will remain Dar al-Islam even if just one of the Islamic injunctions continues to be in force there. It is therefore incorrect to presume that Dar al-Islam is identifiable with only an Islamic state and that a non-Muslim state is inherently and ipso facto Dar al-Harb.
An important criterion (relating to the designation of a given territory as Dar al-Islam or Dar al-Harb) is the issue of security and protection – or its absence – available to Muslim residents. If the control of a given territory passes into the hands of non-Muslims, but if Muslims continue to enjoy security and protection, without having to ask for it (as in post-independence India), it will remain Dar al-Islam.
REFERENCES
1. Ibn al-Qayyim: Ahkam ahl al-dhimmah. Damascus, 1961, Vol. 2, p. 517
2. Muhammad Hamidullah: Muslim Conduct of State. 7th ed. Lahore, 1996, p. 242
3. Rudolph Peters, ‘Dar al-Sulh’ in John L. Esposito (ed.): Oxford Encyclopaedia of the Modern Islamic World. Oxford University Press, 1995, p. 339
4. Mawlana Habib al-Rahman al-Azami: Darul Islam awr Darul Harb. Mau, 2002
(Reprinted from the IOS Minaret: http://www.iosminaret.org/vol-8/issue12/dar_al-Islam.php)
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