by A Zemmali · 1988 — throughout the Islamic world: the ra’y4 school of Abu-Hanifah (699-. 767) and the Hadith school5 of Malik (713-795). Al-Awzai, who was not one of their disciples

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Imam Al-Awzai and his humanitarian ideas(707-774)*by Ameur ZemmaliMention of Abd-ar-Rahman Al-Awzai (707-774), the Imam of thepeople of Syria,1 is found in many ancient Arabic texts such as Ibnan-Nadim’s al-Fihrist and Ibn Abi Hatem ar-Razi’s al-Jorh wa atTaddil. More recent texts include the work on Al-Awzai by Dr. SobhiMahmassani on Al-Awzai (Beirut, 1978). This article gives a briefaccount of Al-Awzai’s life and several of his ideas on the relationshipbetween those who govern and those who are governed, and especially his contribution to the branch of learning of the siyar or the law ofwar.2I. Al-Awzai and his eraAccording to most biographers, Al-Awzai was born in Baalbek in707. In his quest for knowledge he was drawn to the cities of the east-Yamamah, Basra and Kufah-where he followed courses by several eminent scholars. After spending some time in Yamamah and Basra,he went on to Damascus and then settled in Beirut, where he died in774.With the second century of the Hegira came the rise of the fiqh.3* This text is the author’s adaptation of the original article in Arabic whichappeared in the International Review of the Red Cross, Arabic edition, No. 4,November-December 1988.1 imam: title reserved for Muslim scholars who attain a high level of erudition inIslamic studies. In classical doctrine this term also applies to the leader of the Islamiccommunity. In a narrower sense it denotes the person who leads the ritual prayer.2 siyar: (plural of sira; code of conduct, biography). The term was originallyused for all literature relating to the life of the Prophet and his behaviour during his expeditions. It has now taken on the connotation of studies of the law of war in Islamand of “Islamic law of nations” in general.3 fiqh: understanding, intelligence in general. In a specific sense, this termdenotes Islamic law. A Faqih (plural fuqaha) is a specialist of the fiqh, or doctor ofIslamic law. In Sunni Islam, there are four recognized schools of law or juridical rites:- the Hanafi school, which takes its name from Abu-Hanifah (699-767) and developedin Kufah (Iraq);115

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For the Islamic state it was politically a highly eventful period, themost important event being the transfer of power from the Umayyads to the Abbasids. Al-Awzai experienced these events and was in regularcontact with the provincial governors and the caliphs, meeting andcorresponding with them. There was keen competition between the doctors of law of the Islamic capitals, for each had its own imams andpioneers. Two canonical schools of law came into being in Iraq andthe Hejaz (Arabia) respectively and their influence subsequently spreadthroughout the Islamic world: the ra’y4 school of Abu-Hanifah (699-767) and the Hadith school5 of Malik (713-795).Al-Awzai, who was not one of their disciples but who had his own”rite”,6 was one of the great doctors of law of his time. His rite lastedmore than two hundred years in Syria and extended west as far asAndalusia until the reign of Al-Hakam Ibn Hicham, third Umayyadcaliph there (771-822). After two centuries, however, the Shafi’i ritegained ascendency in Syria and the Maliki rite in Andalusia, althoughthat of Al-Awzai was still observed there for another forty years or so.There are several reasons for the impermanence of Al-Awzai’s rite,one of the main ones being that little of his writings has been handeddown to us and is at most recorded in the works of other authors. Hisdisciples, unlike those of other schools, did not spread their mentor’sfiqh throughout the Islamic world, particularly since the successivegovernments of the various states preferred to follow other rites.Despite the offers he received from governors and caliphs, Al-Awzai never held any official post such as magistrate or minister. Butthis did not prevent him from showing interest in the duties of gover- nors and the rights of the governed.II. Al-Awzai and the relationship between the governorsand the governedA great Hadith narrator, Al-Awzai closely followed the tradition ofthe Prophet in all that he said and did. Two terms recur frequently in- the Maliki school founded by Imam Malik Ibn Anas of Medina (713-795);- the Shafi’i school named after Imam Shafi’i (born in Gaza in 767, died in Egypt in819);- the Hanbali school founded by Imam Ahmad Ibn Hanbal (780-855) in Bagdad.4 ra’y in Bagdad: independent opinion, doctrinal effort (to determine the law)based on independent opinion.5 Hadith: sayings, comments. In Islamic terminology the name given to thetraditional narrative record of the Prophet’s sayings, acts or precepts.6 See note 3 supra.116

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his writings: shepherd and flock. These two words are used in afamous Hadith: “Each of you is a shepherd and each shepherd isresponsible for his flock”.It is enlightening to examine a number of letters sent by Al-Awzaito governors and quoted by Ibn Hatem ar-Razi. Al-Awzai consideredthat scholars were entitled to express their opinion to the Prince about the situation of the people and to write to him about public affairs. Hethus addressed a letter to the caliph asking him to increase publicassistance to the inhabitants of the Lebanese coast, reminding him that they are “the flock of the commander of the believers, and he is responsible for them”. In this letter he referred to the rising prices and the resultant danger of indebtedness for the families, commenting thatthe state was therefore duty bound to intervene for the sake of thepopulation.In a message to Governor Abi Balaj, Al-Awzai defended the”People of the Book”7 and urged him to treat them with justice, basinghis request on the Hadith: “He who harms a dhimmi or a protected person or burdens him beyond his means, I shall be his adversary on theDay of Judgment”. He pleaded the cause of the Christians of Mount Lebanon when Governor Salah Ibn Ali al-Abbasi of Syria, uncle of the two caliphs As-Saffah and Al-Mansur, decided to impose heavy taxa- tion on them and crushed their revolt. In this case Al-Awzai opposedthe assertion that “the mass is answerable for offences committed by individuals”, contending that the people expelled from their homes “arenot slaves, but free People of the Book”. We have found no trace in Al- Awzai’s letters of a request for personal advantage, such as a particularpost or favour. Thus although he could have held the highest publicoffice, he was convinced that his duty lay in working for the good of thepeople as a whole. When Prince Abdallah al-Abbasi offered him the post of magistrate, he refused politely by saying: “Your predecessorsdid not discomfit me in this connection and I would that you grant methe same kindnesses as they did”. He was all for social justice andpublic welfare, values which he felt could but consolidate the founda-tions of the state and strengthen its power.At his time the Islamic world extended east to the Punjab and westas far as Andalusia. Within its borders occasional uprisings of varyingimportance broke out from time to time. As we have said, theAbbasids conquered power by the force of arms, but internal distur-7 People of the Book, (ahl al-Kitab): those who possess the Holy Scripts, i.e. theJews and Christians who dwell among the Muslims and enjoy the protection (dhimma)of the Islamic community. The term dhimmi means a person protected by the dhimma.117

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bances nonetheless persisted. Relations with the outside world weremarked by the continuing war with the Byzantines. This was one of the reasons for the interest of the fuqaha in rules relating to peaceand war and their ramifications. For the rules of war in general theyused the term siyar, which is equivalent to the “law of war” in ourcontemporary terminology. Al-Awzai played an important part in this branch of learning.III. Al-Awzai and the siyarThe Book of the Siyar is the most famous of Al-Awzai’s writingsand gave rise to a major debate between the different canonical schools of law. There is no original text in existence, but its contentscan be found in the Reply to the Siyar of Al-Awzai by the Cadi Abu-Yusuf (731-798),9 a disciple of Abu-Hanifah, which is published inVolume VII of the Kitab al-Umm by Shafi’i.In reality the Hanafi school was the first to codify the rules of warin the writings of Shaybani (748-804),10 the author of the Small Siyar.When he heard of its contents, Al-Awzai asked: “Whose is this book?”(i.e. who is its author?) “Mohammed al-Iraqi’s (Shaybani’s)”, was thereply. He then said: “Is it the task of the Iraqis to write on thissubject? They do not know the siyar. At that time the conquests of theMessenger of God, may God grant him prayers and salvation, and his companions were of Syria and the Hejaz, and not of Iraq, a country which was conquered later” (according to Ibn-Kathir).This argumentation shows that in any aspect of Islamic law, Al-Awzai adhered to the Hadith and tradition. In his work he refers to the first Islamic period and the initial foundations of the Islamic state atthe time of the Prophet and his companions. The extension of the Islamic empire, as we have seen, only took place later.Although the Hanafi school preceded the other schools of Islamiclaw in beginning to formulate the siyar, thanks in particular to Shay-bani, Al-Awzai, a contemporary of Abu-Hanifah, Malik and other doctors of law, was largely instrumental in its expansion. His opinions in relation to those of the other doctors of law were the subject of debates and comparative studies. In his Reply to the Siyar of Al-Awzai,fuqaha: see note 3 supra.9 Abu-Yusuf (731-798), a disciple of Abu-Hanifah and one of the founders of theschool that bears his mentor’s name.10 Shaybani (748-804), another great disciple of Abu-Hanifah and founder of hisschool.118

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Abu-Yusuf shows the points on which his mentor Abu-Hanifah andAl-Awzai diverge; he supports Abu-Hanifah’s point of view beforeexpressing his own opinion, which is not far from that of his mentor.In his book al-Umm, Shafi’i has preserved the entire text of Al-Awzai’s siyar. He sets forth the ideas of Abu-Hanifah, Abu-Yusuf andAl-Awzai and then gives his opinion on the various questionspresented. He is often of the same view as Al-Awzai.The position adopted by Shafi’i (767-819), the founder of the thirdgreat Sunni rite, was midway between the two Hanafi and Maliki schools, but like Al-Awzai he drew considerably on the Hadith. It isalso of interest to note that in his Ikhtilaf al-Fuqaha (divergence of thefuqaha)n Tabari presents the opinions of the doctors of law as regardsthe rules of war, showing the points on which they converge anddiverge. They include the opinions of Al-Awzai, who emerges as oneof the most important scholars.In Al-Awzai’s thinking the practical aspects predominate, whateverthe subject under consideration. In his siyar he enlarges on an importantaspect of the law of war, namely the treatment of enemy persons andenemy property. In view of the fact that the present law of armedconflict largely gravitates around this pole, it is evident how elevated Al-Awzai was in his views and convictions that in war, although peopleserve as instruments they remain first and foremost human beings. Thebearing of his short treatise is limited, but this is because it is devoted tothe new problems arising from the Islamic conquest and does not givean overall concept of the Islamic state’s external relations. Thus he deals with the spoils of war and the rules relating to them, with captivity of the enemy’s women and children, the consequences of the enemy’sconversion to Islam, the position of renegades, protected persons, pris-oners of war and spies, etc. On examining the rules set forth by Al-Awzai for the treatment of enemy persons and property, it is striking tosee the extent to which he advocates respect for the human being andupholds the most tolerant of precepts.1. Enemy personsa) According to Al-Awzai, enemy women and children may not bekilled as long as they are not taking part in the fighting. If they arecaptured, they may not be put to death.Published by J. Schacht, Leyden, 1933.119

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b) In conformity with the commands of the first caliph Abu-Bakr(632-634)12 to the military leaders, Al-Awzai is opposed to labourers,peasants, shepherds, hermits or old people being put to death. Thesame applies for the mentally deranged and for people suffering froman incurable disease (for instance blindness). This point of view isshared by Abu-Hanifah and his disciples.c) The situation of spies varies according to whether they are Muslim,People of the Book, or enemies.When asked about the penalty applicable to a Muslim spy, Al-Awzai replies that he must repent or is otherwise liable to imprison-ment. This is, generally speaking, the opinion of Abu-Hanifah andShafi’i. Like Al-Awzai, they ban executions of Muslim spies.If a spy belongs to the People of the Book and is providing theenemy with information about the Muslims or sheltering enemy spies,he is violating his pact and the Prince can order his execution. If he isbound by a sulh (peace) pact to the Muslims, their protection will not be granted to him and his pact will be openly denounced, in confor-mity with the teaching of the Koran’s Sura VIII (Spoils of War).13Conversely, according to Abu-Hanifah and Shafi’i the deathpenalty will not be applicable to him but he will be liable to severepunishment. His pact will not be broken.The enemy who enters the territory of Islam (Dar-al-Islam) withoutaman,lA in order to engage in espionage, is liable to capital punis-hment. If he converts to Islam this penalty, according to Abu-Hanifah,will not be applicable; if he enters the territory of Islam without amanfor a purpose other than trade and is proved to have engaged in espio-nage, the Prince orders his expulsion to a safe place in enemy terri-tory, whereas if he enters with a aman for trade and is proved to be aspy, he will be punished then sent back to enemy territory. It can beseen from these early opinions of the fiqh, compared with the severerules of modern penal legislation on wartime and peacetime espionage, that moderation and tolerance played a decisive part in the solutions defined by the first fuqaha, who advocated extreme solutions only fora limited number of cases.12 Abu-Bakr: first caliph of Islam (632-634).13 “If thou fearest treachery from any group, throw back (their Covenant) to them,(so as to be) on equal terms; for God loveth not the treacherous”, Surah VIII (Spoils ofWar), Verse 58, the Koran.14 aman: security, protection, safe-conduct, promise of protection.120

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loveth not corruption.” This applies to enemy property such as cattle,trees, inhabited dwellings and places of worship. The Islamic army isnot entitled to go beyond military necessity. Furthermore, spoils ofwar do not mean that looting and vandalism are allowed; such spoilsare on the contrary subject to rules that determine who shall possessthem and how they shall be distributed. The rule generally applied isto divide spoils of war into five parts: one for the state and four for the combatants.The theft of part of any war booty is unanimously prohibited bythe fuqaha, in accordance with the Koranic rule. “If any person is sofalse (to this trust), he shall, on the Day of Judgement, restore what he misappropriated” (Sura III, verse 161). Before the spoils of war are shared out, the combatants may take nothing other than what theyneed to feed themselves or their livestock. According to Al-Awzai, anobject without value may be taken, whereas he who steals from thespoils of war is denied his share and his equipment is burnt; he mustreturn what he has stolen or its equivalent. Al-Awzai is firm on this point, to avoid anarchy within the troops because of war booty.The doctors of law laid down rales governing the theft of warbooty which differed from those applicable for ordinary theft. Theywere not unanimous, however, as to the penalty incurred by a person who steals booty. Unlike Al-Awzai, Abu-Hanifah, Malik and Shafi’i were opposed to that person’s equipment being burned.According to the fuqaha, if Muslims retrieve part of the propertytaken from them as spoils of war by the enemy and if the initial owneridentifies his property before the booty is shared out, he is entitled to reclaim it. If the sharing out has already taken place, he must pay the equivalent. The doctors of law gave long consideration to the questionof spoils of war and studied the rules applicable to the movable and immovable property of the enemy. Al-Awzai, drawing on the Koranand the Sunna, was one of the first to give his opinion on these and all other related questions.In conclusion, we can say that Imam Al-Awzai was one of thegreat fuqaha of the second century of the Hegira (eighth centuryA.D.). From the time the Islamic state came into being, he observedthe various phases of its development and his attitude was that of a15 The Sunna, or tradition of the Prophet, is the second source of the Islamic legalorder.122

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neutral scholar, declining the official duties offered to him under theUmayyads and Abbasids, even the most important among them, the magistracy. In every case he was guided by the words and deeds ofthe Prophet and his companions. He defended the rights of the state’ssubjects and did not hesitate to uphold just causes.Although Al-Awzai’s fetwa*6 were compendious, according tohistorians, no collections of writings have preserved them for us. Butthe known part of his fiqh is evidence of great erudition and conside-rable conviction. The essence of his legacy to us is doubtlesscontained in his small but extremely useful book on the siyar. He was one of the precursors of this branch of Islamic law which studies therules of law, the conduct of combatants and the protection of non-combatants.Al-Awzai’s opinions and those of the other fuqaha should beviewed in their own context and historical circumstances. We couldspeak of another faqih or Islamic military leader renowned for hishumanitarian views, but the choice of Al-Awzai was prompted bymore than one consideration. Al-Awzai belonged to the first generationof fuqaha and showed great interest in the laws of war while simul-taneously expressing deep humanitarian feeling, even though the Hana-fites preceded him slightly in research on the siyar and produced a wealth of literature which has been handed down to us. In Lebanon inparticular, Al-Awzai’s attitude of defending and helping the oppressedin all circumstances was well known. To this day, his last dwellingplace in Beirut has remained a place of pilgrimage. Perhaps more thananyone else, the Lebanese today need men like him!Ameur ZemmaliAmeur Zemmali, of Tunisian nationality, was born in 1955. A law graduate(1980), he qualified as a barrister (1982) at the Faculty of Law in Tunis andobtained the Diploma of Advanced Law Studies at the Faculty of Law, GenevaUniversity (1987). He taught Arabic at the Islamic Cultural Foundation ofGeneva (1984-1988) and is currently a translator at the Egyptian Press andInformation Office in Berne. Mr. Zemmali has lectured at several seminars onhumanitarian and refugee law and is preparing a doctoral thesis on Islam andHumanitarian Law.16 fetwa: legal opinion formulated by a faqih on a specific subject. The mufti isthe authority who issues such an opinion.123

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