by HA Hamoudi · 2015 · Cited by 4 — tolerated by classical jurists of the medieval era interpreting Islam’s sacred Islam, where the Muslims live, and the other, the House of War, that the Muslims sought to conquer— or the Dar al-Sulh, to use the Arabic.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM DRAFT ERRORS AND OMISSIONS POSSIBLE. TO BE PUBLISHED IN VOLUME 11 OF THE FLORIDA INTERNATIONAL UNIVERSITY LAW REVIEW. Jihad : On the Contingencies of Violent Islamic Extremism Haider Ala Hamoudi I. I NTRODUCTION It is nearly impossible to describe Muslim expansionism in the centuries following the death of the Prophet Muhammad broadly undertaken in service of the Islamic doctrine of jihad as being somehow compatible with modern norms of international relations, in cluding self – determination and the noninterference in the affairs of other states. 1 At first glance, this might seem to suggest a certain tension in modern Muslim thought that jihadist movements, and in particular the current bête noire of the United Stat es, the Islamic State, 2 have been able to exploit. Modern Muslim intellectuals, that is, are forced to somehow reconcile an expansionist past, which was not only texts, but ind eed exhorted by them as a duty of the Muslim community, with Associate Professor of Law, University of Pittsburgh School of Law. The author would like to thank Mohammad Fadel, Andrew March, Karima Bennoune, Beverly Moran, Rahimjon Abdugafurov and all of the participants and organize rs at the October 23, 2015 , Religion and the Law Symposium at the Florida International University College of Law for their generous comments, suggestions , and support. Any errors are the responsibility of the author. 1 This is the subject of Part II of this paper. 2 The Islamic State owes its origins to the Al Qaeda affiliate in Iraq, led by Abu Mus ab al – Zarqawi until his death. Will M cCants, State of Confusion: ISIS Strategy and How to Counter It, F OREIGN A FFAIRS ( Sept. 10, 2014 ) , https: / / / articles / iraq / 2014 – 09 – 10 / state – confusion. A few years later, his successor and the Islamic State s current leader, Abu Bakr al – Baghdadi, declared himself Caliph and the organization began to call itself the Islamic State, claiming that it was the resumption of the historic Sunni Caliphate. Graeme Wood, What ISIS s Leader Really Wants: The Longer He L ives, The More Powerful He Becomes, N EW R EPUBLIC ( Sept. 1, 2014 ) , http: / / / article / 119259 / isis – history – islamic – states – new – caliphate – syria – and – iraq. After the Islamic State managed to overrun the Iraqi city of Mosul and began to threaten the Kurdish city of Erbil, the United States initiated a series of air strikes against it. Isabel Coles, Iraqi Kurds Liberate Hundreds Trapped by ISIS on Sinjar Mountain, R EUTERS ( Dec. 18, 2014 ) , http: / / / article / 2014 / 12 / 18 / us – mideast – crisis – sinjar – idUSKBN0JW22G20141218. Shortly thereafter, the Islamic State reacted by killing American hostage James Foley, leading President Obama to denounce it in extremely strong terms. President Barack Obama, Statement on the Murde r of James Foley (Aug. 20, 2014), – and – video/video/2014/08/20/president – obama – delivers – statement – murder – james – foley (describing the Islamic State as terroriz[ing] their neighbors and offer[ing] them nothing, but an endless slavery to their empty vision, and the collapse of any definition of civilized behavior ) .

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 102 FIU Law Review [Vol. 11 :NNN modern realities, where the jihad as it was historically understood has become something of an embarrassment. 3 In so doing, the argument runs, defenders of the Islamic State, 4 who can, and do, call up such classical juristic sources at will to demonstrate the true Islamicity of their actions 5 relative to modernists, who can only rely on abstract principles, optimistic co ntextualizations, and vague apologies that sound suspiciously Western. The purpose of this paper is to explore the fallacy of this conclusion. jihadism , and in particular the jihadism of the Islamic Stat e. The complex question of how Muslim polities are supposed to organize themselves in the context of a multipolar international system governed by norms of respect for territorial integrity that could scarcely have been imagined in the premodern era can h ardly be approached in such a textualist fashion. Rather, jihadism must be seen as a modern Islamic response, one among many, to the modern circumstances in which Muslims find themselves. The point is not that the normative system developed by jihadist or ganizations is somehow an entirely implausible reading of the tradition, for it is not. Yet it is no more plausible, than those (far more popular) readings that have found resources in the deep Islamic tradition from which to develop a conception of tolerance and mutual respect for non – Muslim polities. Reference to jihadism with the concomitant implication that the practices of modern Muslim nation confer a legitimacy on extremist movements that they hardly deserve. This short paper expounds on these themes through the examination of one of the most dangerous forms of terrorism in our times The paper will show that while broadly accepted as a type of obligatory jihad much including the Islamic State, the practice suffers from its own tensions 3 One of the most salient attempts at such reconciliation app ears in Sherman Jackson, Jihad and the Modern World , 7 J. I SLAMIC L. & C ULTURE 1 (2002), discussed in Part IV of this paper. Jackson s core argument is that the historical classical division of the world into two houses one, the House of Islam, where th e Muslims live, and the other, the House of War, that the Muslims sought to conquer was more a description of historical reality than a prescriptive Islamic demand to create such a world, or recreate it, as the case may be. Id. at 15 – 18. 4 The repeated references to the most extreme manifestations of Islamism as being either strict or literalist is a problem I have also discussed in the context of family law. Haider Ala Hamoudi, The Political Codification of Islamic Law : A Closer Look at the Draft Shi i Personal Status Code of Iraq , 32 A RIZ . J. I NT L & C OMP . L. 2, 4 – 5 (2015). 5 Cole Bunzel & William McCants, Experts Weigh In (Part 1): How Does ISIS Approach Islamic Scripture?, B ROOKINGS (March 24, 2015, 9:05 AM), http: / / / blogs / markaz / posts / 2015 / 03 / 24 – isis – approach – to – islamic – scripture – part – one – bunzel.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 201 5 ] Jihad 103 with the classical tradition. Thus, a mode rn Muslim intellectual seeking to normalize the modern international system on its own terms must contend with a tradition that assumes perduring hostility between a House of Islam and a House of War. However, an advocate of modern jihadism must similarly explain how the fundamentally conservative doctrine of classical jihad, designed to preserve the internal political order of the universal Muslim state and ensure its continuous expansion in a systematic and orderly fashion, could possibly justify the ty pe of randomized and atomized form of individual violence that lone wolf terrorism represents. Explanations may be available, but they are likely to strike the modern Muslim more enamored of the current global order as artificial concoctions haphazardly p atched together to justify on religious grounds violence that is fundamentally the product of psychopathy rather than religious argument. This is in fact not terribly dissimilar to accusations on the part of jihadists to the Muslim mainstream that any sor t of Islamic justification of the existing global order is some sort of capitulation to colonialist Western interests. In the end, in other words, the issue does not center around which of the competing Islamic visions one broadly compatible with internati onal norms as reflected in the United Nations Charter and the other dedicated to the perpetration of violence of nearly any sort against non – Muslim polities and their inhabitants around which happens to be more plausible. The debate is almost entirely a normative and political one, concerning preferences for different worldviews. The classical doctrine is merely the mask beneath which this ideological contestation takes place. Following this Introduc tion, Part II of this paper offers a brief and necessarily reductive review of the classical doctrine of jihad. It will show that the earliest treatment of classical jihad presumes a Manichean universe, with the entire non – to be conquered. At the same time, and less remarked upon, is the fact that the doctrine is also deeply and fundamentally conservative and meant very much to preserve an internal Islamic status quo within the other polity, the initiated and organized in a systematic and thorough fashion under the leadership of the caliph. Pa rt I also describes the manner in which classical thought evolved over time from this early vision in two different directions. First, the tradition began to include conceptions of defense, in particular following the Crusades in the West and the Mongol i nvasions in the East, as Muslim empires began to suffer significant setbacks after centuries of unbridled expansion. These conceptions involved violence directed at an enemy on a more localized scale, not necessarily approved, directed or managed by the c aliph. Second, the recognition of non – Muslim polities on a

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 104 FIU Law Review [Vol. 11 :NNN more permanent basis developed more salience as it became obvious that they were not likely to fall subject to Islamic rule within any reasonable period of time. Part III will show the manner in w hich Muslim states used the second of these trends in order to evolve in a manner that permitted them to participate broadly in the rise of an international order that is currently based not upon subjugation and conquest, but rather (at least in theory) up on territorial integrity and the right of self – determination. 6 It will demonstrate specifically the Islamic justifications that underlie this significant shift in In Part IV, I turn to the jihadist critique of this approach as effectively This Part lays out the manner in which jihadism has developed its own rules of orchestrated violence on a far more individ ualized scale, drawing on the first of the evolutionary trends described in Part II. Part IV also demonstrates, however, that even if the jihadists have managed to reassert the early classical Manicheism, they have done it in a manner that glorifies a for m of individualized and self – directed violence lone wolf terrorism that stands in stark tension with the classical tradition. For that tradition called for the expansion of the House of Islam in an organized and systematic fashion, not the killing of enem ies wherever and however they could be found, irrespective of the manner and the cost. 7 The point, as Part IV makes clear, jihad in the modern world. The doctrine developed in a place and time very different from our own, and as such any effort to apply it would involve some level of license to render it sensible and responsive to modern contingencies. As to whether that license should be deployed to harmonize Islamic law with the mod ern law of nations, or whether it should be used to reject and resist that order in the most violent manner imaginable is of course an important 6 After the U.S. invasion of Iraq in 2003, the idea that global powers generally, and the United States in particular, respect territorial integrity or national self – determination in the manner demanded by international l aw has been subject to criticism and scrutiny. See, e.g., Sean D. Murphy, Assessing the Legality of Invading Iraq , 92 G EO . L.J. 173, 180 – 236 (2004) (indicating that the invasion of Iraq proceeded on legal bases that were dubious at best). Indeed, the rea son for the popularity of jihadism may be due to such actions, which are perceived by many in the Muslim world as a form of colonialism that must be resisted. See Haider Ala Hamoudi, The Muezzin s Call and the Dow Jones Bell: On the Necessity of Realism in the Study of Islamic Law, 56 A M . J. C OMP . L . 423, 463 – 67 (2008) (describing resistance to foreign aggression, occupation and colonialism as the raison d etre of many Islamist movements). It i s important to note that this criticism is orthogonal to the themes of this paper, which is attempting to contrast a classical theory of international relations with a modern one, in order to show that no modern international practice could in fact sensibl y resurrect the classical theory because of its irrelevance to modern conditions. On the question of whether or not international practice in fact follows the modern norms and principles espoused in the U.N. Charter, this paper is entirely agnostic. 7 See infra notes 30 – 31 and accompanying text.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 201 5 ] Jihad 105 question. However, it is at heart a political one more than a doctrinal one. As is often the case, the law me rely supplies the rhetoric for the underlying political argument. II. U NDERSTANDING THE C LASSICAL J IHAD A. Early Conceptions It would be a severe categorical error to treat classical Islamic law as some sort of monolithic whole that admits no variation i n approach. In fact, it is structurally pluralistic, 8 paraphrase one of the premier Islamic law scholars of the twentieth century. 9 Classical Sunni Islamic law is an oft – conflicting and largely overlapping cor pus of material developed by a variety of different jurists over the course of centuries working within four primary schools of thought, deriving their various rules from the broadly accepted foundational sources of Islamic law, e Revealed Book of God, and the Sunna, or the statements and actions of the Prophet Muhammad. 10 In light of this structural pluralism, it would be impossible to describe in an absolutely precise fashion what classical Islamic law had to say about anything a t all, very much including the highly charged subject of jihad . Nevertheless, certain broad themes are identifiable from the works of the more influential jurists writing on the subject. These are described below. One of the most historically influential juristic compendia on the subject of international relations is authored by Muhammad ibn Hasan al – Shaybani, an immediate disciple to one of the eponyms of one of the four Sunni schools, the renowned Abu Hanifa. 11 has been commonly referred to as the Hugo Grotius 12 of Islamic law. 13 While the claim is at the very least reductive, 14 there is little doubt that his work deeply influenced, and continues to influence, generations of jurists long after him. I therefore be 8 Hamoudi, supra note 6 , at 434 – 35. 9 J OSEPH S CHACHT , A N I NTRODUCTION TO I SLAMIC L AW 5 (1982). 10 Hamoudi, supra note 6 , at 434 – 35. 11 M AJID K HADDURI , T HE I SLAMIC L AW OF N ATIONS : S HAYBANI S S IYAR 29 – 30 (1966). 12 Hugo Grotius was a seventeenth century Dutch scholar and diplomat most commonly credited with founding modern international law. M ARY E LLEN O C ONNELL , T H E P OWER AND P URPOSE OF I NTERNATIONAL L AW : I NSIGHTS FROM THE T HEORY AND P RACTICE OF E NFORCEMENT 3 (2008). 13 Philip C. Jessup, Foreword to M AJID K HADDURI , T HE I SLAMIC L AW OF N ATIONS : S HAYBANI S S IYAR , at ix – x (1966). 14 See id. at x (quoting Khadduri to the effect that to identify the names of Shaybani and Grotius . . . will not add laurels necessarily to a classical author whose place in the history of jurisprudence is assured. ).

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 106 FIU Law Review [Vol. 11 :NNN international relations generally before proceeding to describe the subsequent evolution of thought during the classical era, and after it ended. By way of introduction, early classical jurists, very much including Shaybani, envisioned the world as largely divided in a rather Manichean fashion between a single, unified Muslim polity on the one hand, the House of Islam, and the entire mass of humanity on the other, located in the House of War. 15 The ult imate aim of the House of Islam was to bring the entire world within the House of Islam. 16 War, or the jihad, is no more and no less call and it is military advantageous to launch an attack . 17 Pursuant to this, Shaybani lays out elaborate rules for the jihad, both in terms of the manner in which it is to be initiated what would in the modern discourse of international law be described a s jus ad bellum as well as the manner it was to be conducted once it had been initiated, referred to in modern international law as jus in bello. 18 These details have been recounted at length by various academic commentators and hardly require comprehensive elaboration here. 19 in many ways help to contextualize his conception of international relations in Islam. The first is that Shaybani lived during the Abbasid caliphate. 20 Up to that time, Islam as a polity had only known expansion. 21 It seemed too obvious to Muslims at the time, and indeed to many of their enemies, that it of the Will of God, that the House of Islam would continue to so expand until it spanned the globe. 22 which Muslim armies conduct themselves in attacks on enemy territory. 23 jihad er classical jurists, 24 15 See K HADDURI , supra note 11 at 11. Shaybani himself uses this distinction ext ensively in his work. See, e.g. , K HADDURI , supra note 11 at 130 – 33 (discussing trade between House of War and House of Islam). 16 See id. at 12. 17 J OHN K ELSAY , A RGUING THE J UST W AR IN I SLAM 100 – 01 (2007); K HADDURI , supra note 11 at 95. 18 See K HADDURI , supra note 11 , at 95 – 102; K ELSAY , supra note 17 , at 100 – 10. 19 See K HADDURI , supra note 11 , at 95 – 102; K ELSAY , supra note 17 , at 100 – 10. 20 See K HADDURI , supra note 11 , at 28. 21 See A MIRA K. B ENNISON , G REAT C ALIPHS : T HE G OLDEN A GE OF THE A BBASID E MPIRE 4 – 5 (2009). 22 Id. at 4. 23 See K ELSAY , supra note 17 , at 114. 24 See notes 35 – 42 infra and accompanying text.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 108 FIU Law Review [Vol. 11 :NNN to pay their debts were not supposed to participate either, 34 suggests that the community recognized values of a commerci al and familial nature alongside the jihad. B. The Rise of Defensive Jihad plausible. In particular, the Crusades i n the Muslim West and the Mongol invasions from the East caused at least some jurists to think more deeply about the concept of defensive jihad. 35 It might very well make sense to leave the coordination of an expansionist campaign to the discretion of a po litical leader, and to limit those who are participating in it so as to realize other societal values. However the same was almost surely not true in the case of non – Muslim forces invading Muslim lands. In such instances, there seemed to be greater urgen anticipated. Much of this reached its apotheosis with a prominent early fourteenth century Hanbali scholar, Ibn Taymiyya, who has proved to be something of an inspiration to contemporary jihadist movements. 36 Part of the reason for this arises out of his seeming obsession with directing violence at Muslims who were insufficiently pure, with his particular contemporaneous example being the Mongols. 37 rail ing against the Mongols for their alleged impurities respecting the faith could prove as inspiration to any number of jihadist groups in the Muslim world attacking states, institutions and people who are overwhelmingly Muslim. 38 More importantly for the pur poses of this paper, Ibn Taymiyya also played a critical role in developing the idea, soundly rejected by earlier scholars from Shaybani through to Ibn Rushd, that jihad could in certain circumstances be an individual duty. Specifically, Ibn Taymiyya indi cated, 34 See I BN R USHD , supra note 27 , at 9; K HADDURI , supra note 26 , at 85 – 86. 35 See, e.g., K ELSAY , supra note 17 , at 115 – 22. 36 See J OHN L. E SPOSITO , U NHOLY W AR : T ERROR IN THE N AME OF I SLAM 45 (2002). 37 See id. at 46. 38 One of the starkest examples of this stridency of extremist Islamists against fellow Muslims lies in the case of Al Qaeda. While it may be best known in the West as the perpetrator of the 9 / 11 attacks in New York and Washington, the 7 / 7 attacks on the London subway, and the Madrid train bombings, the fact is that between 2006 and 2008, non – Westerners in overwhelmingly Muslim states were 38 times more likely to be killed by Al Qaeda than W esterners. See Yassin Musharbash, Surprising Study on Terrorism: Al – Qaida Kills Eight Times More Muslims Than Non – Muslims, S PIEGEL O NLINE I NTERNATIONAL ( Dec. 3, 2009), http: / / / international / world / surprising – study – on – terrorism – al – qa ida – kills – eight – times – more – muslims – than – non – muslims – a – 660619.html.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 201 5 ] Jihad 109 when Muslims are attacked, the individual obligation is triggered, not only by those directly affected by the attack, but rather by each individual Muslim, whether or not a professional soldier . 39 While this will be discussed in more detail in Part I V, it might be noted that there is still considerable distance between this vision and that of the lone wolf terrorist attack. The principle of individual duty, being expounded in the context of Mongol invasion and Crusade alike, does not seem to implicat e atomized and disorganized violence, because it is difficult to see how that would in fact drive out either invading force. Rather, the matter seemed to derive as response to the urgency of supplying necessary numbers of fighters to an organized army to repel an attack. Hence, Ibn Taymiyya relies upon the fabled Islamic example of the Battle of the Trench, where each individual in the entire community was obligated by the Prophet Muhammad to participate in the defense of Medina from an enemy siege, but w as under no obligation to pursue the enemy once the siege was broken. 40 At that point, the fighting became voluntary again, and presumably only those with sufficient knowledge of warfare would continue to participate. 41 In fact, one might find some congruit of the individual duty of jihad jihad as a collective one. After all, even Ibn Rushd indicated that if there was nobody left to carry out the jihad, then an individual had to participate. 42 Ibn Rushd may have imagined a circumstance where an attack was called, and yet there were insufficient numbers of fighters in a given area to carry it out. However, his exception to the principle of collective duty, limited as he might have imagined it, could easily be extended to circumstances, like the Mongol sack of Baghdad, where as many fighters as possible were needed to protect territories within the House of Islam that were under direct threat. C. Recognition of Non – Muslim Polities The previous s ection seems to describe a Muslim community that grew continuously more suspicious of non – Muslim polities over the course of centuries and developed doctrines to reflect that hostility. This, however, is incorrect, for even as the ideas of individual jiha d were being refined, so too were there broad trends in favor of increasing recognition of non – Muslim states that might not be in some sort of permanent state of war with Islam. work. They are, first, the possibility of treaties with non – Muslim states, and 39 See K ELSAY , supra note 17 , at 117. 40 See id. 41 See id. 42 See I BN R USHD , supra note 27 , at 9.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 110 FIU Law Review [Vol. 11 :NNN second, the principle of a covenant of safe passage, or aman, on the part of a non – Muslim in the House of Islam, and vice versa. As Shaybani envisioned these concepts, they wer e circumscribed, and in a manner that would make it nearly impossible to presume any sort of permanent peace or amicable relations between the House of Islam and the House of War. Shaybani classifies treaties into different types. First, there were the tr eaties that were imposed upon those monotheistic communities 43 According to Shaybani, this sort of treaty effectively involved the requirement of that community to pay a tax and then to live under the protection of the House of Islam. 44 A treaty with communities in the unsubjugated House of War was also possible, but only and has found that the inhabitants of the territory of war are too strong for the Muslims to prevail against them and it would be better for the Muslims to 45 Early classical jurists generally limited the time period for such treaties to no more than ten years. 46 One imagines an arrangement of this sort to resembl e a cease fire in modernity more than any sort of permanent recognition of the non – Muslim state. The other concept discussed by Shaybani and developed by later jurists was known as the aman . Those individuals from the House of War who have been granted an aman, known as the mustaminun, were free to enter the House of Islam and reside and travel freely within it until so long as the covenant lasted. 47 Similarly, Muslims granted an aman by the House of War were free to travel within it as well. 48 In either c ase, there was a strict obligation on the part of the to neither engage in any sort of fraud, cheating, or dishonesty, nor to violate any of the terms of the aman. 49 Early classical jurists tended to limit the duration of the aman to a year. 50 In other words, the residence of a Muslim in non – Muslim lands was generally viewed as temporary. One prominent jurist of the Hanafi school went so far as to insist that a person should not even have marital sex in the House of War because this might lea d to the conception of a child, which could lead the 43 K HADDURI , supra note 11 , at 142. 44 See id. 45 Id. at 154. 46 See Shaheen Sardar Ali & Javaid Rehman, The Conce pt of Jihad in Islamic International Law, 2005 J. C ONFLICT & S EC . L . 1, 14 (2005). 47 See K HADDURI , supra note 11 , at 158 – 62; see also Majid Khadduri, War and Peace IN THE L AW OF I SLAM 164 – 65 (1955). 48 See A NDREW M ARCH , I SLAM AND L IBERAL C ITIZENSHIP : T HE S EARCH FOR AN O VERLAPPING C ONSENSUS 186 (2009). 49 See id. at 186. As March indicates, contemporary jurists use these principles to obligate Muslims living in non – Muslim states to obey all relevant laws. 50 See K HADDURI , supra note 26 , at 168.

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SSRN (D O N OT D ELETE ) 11/16/2015 2:17 PM 201 5 ] Jihad 111 believer to want to settle there, a presumed serious sin. 51 It does not take a great deal of imagination to expand these concepts into ones that involve more robust recognition of non – Muslim states, and n on – Muslim inhabitants of those states. In particular, the notion of treaties lasting no more than ten years came under increasingly significant pressure in light of the fact that there was no explicit Prophetic prohibition against longer term treaties. 52 The reasoning in favor of a ten year limit, that the Prophet Muhammad had not concluded a longer term treaty, might have appeared sensible to early jurists who had every reason to believe that ultimately the entire world would be subsumed within the House of Islam. 53 It started to appear a rather flimsy basis not to permit longer treaties in subsequent eras, when it was obvious that conquest of the entire non – Muslim world was not possible, and relationships of a more lasting nature needed to be established. 54 From this , it is rather easy to add a third part of the world in addition to the House of War and the House of Islam that of the House of Reconciliation, or the Dar al – Sulh, to use the Arabic. This referred to that part of the world that did not accept the authority of the House of Islam, and was not in any sort of war with it. 55 Rather, relations were amicable. 56 Similarly, the concept of the aman can readily be developed in a fashion that permits considerable interaction and coexistence as between Musli ms and non – Muslims. Hence, for example, what began as a plainly recognized, but temporary, right to travel to the House of War to trade and engage in other similar activities developed into a more robust juristic recognition of permanent residence in non – Muslim states. 57 Similarly, but in reverse, as early as the sixteenth century the Ottoman empire widely granted revocable security. 58 The seeds of a new, more interdependent world were al ready sown 51 See M ARCH , supra note 48 , at 106. 52 See Ali & Rahman, supra note 46 , at 14. 53 See id. 54 See id. at 14 – 15. 55 See M. Cherif Bassiouni et al., A Survey of Islamic International Law, 76. A M . S OC . I NT . L. P ROC . 56, 57 (1982). 56 See id. 57 See M ARCH , supra note 48 , at 184 – 86. 58 Feroz Ahmad, Ottoman Perceptions of the Capitulations 1800 – 1914, 11 J. Isl. Stud. 1, 2 (2000); Arnulf Becker Lorca, Universal International Law: Nineteenth – Century Histories of Imposition and Appropriation , 51 H ARV . I NT L L.J. 475, 552 (2010). Later, as the Ottomans gr ew weaker and Europe stronger, these started to take on the form of capitulations that bred no small amount of resentment. See Ahmad, supra at 1 – 3. The point for these purposes, however, is that the precedent in favor of the idea of a Muslim ruler granti ng protection, and even rights of residence, to non – Muslims from non – Muslim states pursuant to the concept of the aman had already been established well before such capitulations were imposed on a reluctant Ottoman empire.

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