Prior to its usage by the Kharijites, the term “unbelief” (Kufr) was reserved for non-Muslims who lay outside the boundaries of the Muslim community.97 By pronouncing ‘Ali and the Umayyad caliphs unbelievers (takfir), the Kharijites introduced this notion into the discourse and social life of early Islam.98 In this way the Kharijites have extended the scope of use of force in rebellion to Islamic rulers on the basis of the latter’s ‘unbelief’. Therefore, it is reasonable to call the Kharijites as the expansionists of the notion of unbelief (Kufr) and declaration of such unbelievers (Takfir) in Islam. However, this expansion is not recognised in Islamic law and the Hanafi jurists have specifically prohibited takfir.99
For a group of Muslims to be legally identified as rebels, they must use actual force against the state (khurūj), according to the majority of the jurists.100 But for Abū Hanīfa, a group of Muslims could be treated as rebels once they assemble to use force against the state, because – practically speaking, Abū Hanīfa argues that – if the state waited until actual force is used then it would not be able to mount a defence.101 However, according to the practice of the Caliph Ali rebels cannot be attacked before they started attacking first.102 The interesting point here is that any non-violent opposition to the state cannot be identified as rebellion.103 Hence, Abu Hanifa’s point of view is similar to that of the expansionists in international law who are claiming the expansion of use of force beyond the stipulations of Article 51 of United Nations
97 William Montegomery Watt, The Formative Period of Islamic Thought (Oneworld Publications 1998) 19; see
also Jeffrey T. Kennedy, Muslim Rebels: Kharijites and the Politics of Extremism in Egypt (OUP 2006) 34.
98 Gerhard Bowering (ed), The Princeton Encyclopedia of Islamic Political Thought (Princeton University Press
2013) 295; see also Jeffrey T. Kennedy, Muslim Rebels: Kharijites and the Politics of Extremism in Egypt (OUP 2006) 34.
99 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 281. 100 Khaled Abou El Fadl, ‘Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam’ in James
Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in
Western and Islamic Tradition (Greenwood Press 1990) 155; see also Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 24; Sherman A. Jackson, ‘Domestic Terrorism in the
Islamic Legal Tradition’ (2001) 91 The Muslim World 302; M Cherif Bassiouni, The Shari’a and Islamic
Criminal Justice (Cambridge University Press 2014) 214.
101 Gerhard Bowering (ed), The Princeton Encyclopedia of Islamic Political Thought (Princeton University Press
2013) 14.
102 ‘Abd Allah Ibn Abi Shayba, Al-Musannaf fi al-Ahadith wa al-Athar (Beirut: Dar al-Fikr 1989) VII: 732; see
also Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 34.
103 Muḥyī al-Dīn ibn Sharaf al-Nawawī, Al-Majmū‛: Sharḥ al-Muhadhdhab, ed. Maḥmūd Maṭrajī, vol 20 (Beirut:
Dār al-Fikr 2000) 337; Abd al-Qadir ‘Udah, Al-Tashriʻal-Jina’I al-Islam (Beirut: Dar al-Kitab al-‘Arabi n.d.) 687; see also Khaled Abou El Fadl, ‘Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam’ in James Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in
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Charter.104 However, like international law, although such view has strong support it lacks a legal basis in Islamic law on the use of force.
The above discussion suggests that both the Kharijites and the scholars like Abu Hanifa have endeavoured to extend the Islamic law of rebellion by stretching the scope of use of force by and against rebels. These endeavours have resulted in the occurrences for violent use of force by both the rebels and rulers which is opposed to Islamic law. The rebels have often labelled the rulers as ‘oppressors’ when the latter used excessive force and denied the basic rights of rebels. For example – the arrests, execution and prosecution of the members of Muslim Brothers in Egypt in 1960s and following the assassination of President Anwar Sadat.105 Similarly, the rulers have often labelled the rebels as ‘terrorists’ who used violence against the rulers and even civilians and on that basis, they were denied any rights which were otherwise available to rebels. For example, The Ottoman Empire’s description of Wahhabis as the Kharijites of the modern age106, and the description of Muslim Brothers as Kharijites by consecutive Egyptian governments.107
It has also been evidenced in the history that the rebellion which eventually became the ruling power denied the rights of rebels under Islamic law despite their claim of the same right at the time of their rebellion. For example, a Muʽtazila leader al-Ma’mun denied such rights to ‘Abbasid rebels.108 As a result, the controversy that exists between the rebels and the rulers is not related to legal or theological uncertainties but a conflict of interest which is mainly based on political gain, which is to be able to gain political power and authority. Whereas political wars (which is likely to result in fitna) are prohibited in Islam, theological wars are legal and even recommended.109
Had the Islamic law of rebellion been politicised there would not have been any law of rebellion as the rulers would never have wanted to recognise the basic rights of rebels in Islamic law by giving up their political interests. Caliph Ali had given up his biased political interest and used political power to recognise the basic rights of his opponents, such as rebels, under Islamic law. Therefore, it is necessary to keep politics out of religion as long as development of legal norms are concerned. However, this separation is not always possible especially when the person
104 Expansion of use of force has been discussed in Chapter 2, see section 2.3.2.
105 Jeffrey T. Kennedy, Muslim Rebels: Kharijites and the Politics of Extremism in Egypt (OUP 2006) 141, 150. 106 H.A.R. Gibb and J.H. Kramers (eds), Shorter Encyclopedia of Islam (Leiden: E.J. Brill 1991) 618.
107 Jeffrey T. Kennedy, Muslim Rebels: Kharijites and the Politics of Extremism in Egypt (OUP 2006) 106. 108 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 90. 109 Ibid, 63.
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(rulers or rebels) and body of persons (government or group of rebels) who can contribute in the establishment or development of legal norms are unwilling to give up their purely political agenda. For example, rebels and governments are unwilling to give up their political aim to gain the governmental authority in Syria.110
From the above discussion, it can be concluded that, rebellion in Islamic law arose out of the context of the persistent rebellions in the first two centuries of Islam.111 Muslim jurists selectively treated historical and textual precedents to construct the discourse on rebellion.112 While Muslim jurists were not willing to endorse or legitimate all rebellions without limits, they also were not willing to give rulers unfettered discretion in dealing with rebels.113