Ahkam al-Bughat

The controversy represented in Tabari's story reminds one of a number of similar scenarios, including the post-9/11 discussion of the status of people captured by NATO forces in Afghanistan. As “illegal combatants,” such people have rights under the Geneva Conventions, and especially under the additional protocols adopted in the 1970s. But many also argue that these combatants do not enjoy equal standing with regular fighters. The ongoing attempts to sort out this issue represent a contemporary analogy to the arguments about Yahya.

Of course, Tabari's story has a particularly Muslim cast. By the time he wrote, the learned class represented by al-Shaybani and al-Bakhtari had begun to develop a set of arguments subsequently classified as ahkam al-khawarij wa al-bughat, or “judgments pertaining to secessionists and rebels.” As we consider Muslim discourse about rebellion, it is worth summarizing some of the salient features of this tradition.

First, the judgments pertaining to rebels constitute a subset of the larger category of “judgments pertaining to armed struggle” (ahkam al-jihad). Indeed, one might refer to the latter as the overarching name for a Muslim war convention, which would then include judgments pertaining to military actions intended to: (a) extend or enhance the territory in which Islam provides governance or serves as the established religion of state; (b) defend the Islamic territory against invaders; and (c) regulate the relations between various groups within the territory of Islam, including (i) ahl al-dhimma, the “protected” class of non-Muslims (Christians, Jews, and others), (ii) apostates (Muslims who stand accused of abandoning Islam), (iii) highwaymen and other renegades, and (iv) secessionists and rebels (ahl al-khawarij wa al-bughat).Footnote ⁶

Second, in each case, the books that we have present the discourse of the learned. This means that the “judgments” collected into various categories should be seen in connection with the practice of Sharia reasoning—an attempt undertaken by recognized scholars to respond to questions about Muslim practice, in effect by crafting a “fit” between established precedents and current circumstances. So, in Tabari's story, one should understand the Caliph as playing the role of a seeker: What are the obligations of a believer, given the circumstances of this case? Al-Shaybani and al-Bakhtari are members of the learned class, with credentials that make them the kind of people qualified to respond. As they provide their responses or opinions (al-fatawa), they do so on the basis of a knowledge of textual precedents from the Qur'an and reports of the exemplary practice (sunna) of the Prophet, as well as from judgments by earlier scholars whom they respect. Their judgments are offered to the Caliph, who as a believer may choose which he finds most suitable. The fact that the two scholars in this story disagree is not to be understood as particularly problematic, until and unless one has reason to believe that one or the other distorted the evidence. “Disagreement in my community is a source of blessing,” said the Prophet Muhammad; and whether he actually spoke those words or not, the idea is part and parcel of historic Sharia reasoning, in which a range of reasonable disagreement is supposed to be acceptable.

Third, normally speaking, discourse about rebels begins with a set of references to reports of the practice of ‘Ali ibn Abi Talib. This means that Sharia reasoning tended to put Abbasid (and, by extension, any other) discourse about rebellion in relation to early episodes in the history of Islam, wherein the fourth Caliph after Muhammad faced a series of challenges to his leadership. The selection of these reports suggests that ‘Ali's behavior is exemplary for any Muslim ruler; one might also say he functions as a paradigm of the kind of policy envisioned by Qur'an 49: 9–10:

And thus, we read of ‘Ali:

There is a story, or really a complex set of stories, surrounding each of these reports. One need not go into detail, however, in order to get a sense of the approach ‘Ali exemplifies. These are policies that stress forbearance, even at some risk to oneself. The goal is to prevent a lasting break in the fabric of the Muslim community. Rebellion is rarely a good thing; but the reason that this is so is signified by the term fitna, a word that may, depending on context, indicate a “test” or a “trial,” “discord,” “civil strife,” or even “corruption.” The unity of Muslims is a precious thing, a gift from God. The task of the leader is to preserve it, avoiding fighting if possible; and if fighting must occur, then the leader must adopt tactics that keep the hope of reconciliation alive. So one does not respond to mere threats. The rebel force must take military action. Until that time, one may engage them by means of reasoning; the stipulations ‘Ali gives about freedom to come to the mosque are intended to suggest that the rebels are still members of the community. And in the event of actual fighting, the “regular forces” must restrict the damage they inflict more than would be the case in fighting with non-Muslims, apostates, or others who are not classified as bughat.Footnote ¹⁰

Now, two obvious questions: what are the criteria for this classification, and who determines when those criteria have been met? With respect to the first issue, three items function as criteria for the determination of al-bughat: al-khuruj, al-ta'wil, and al-shauka.Footnote ¹¹ The first, literally suggesting “the exiting,” might be construed as an act of secession. As in the reports concerning ‘Ali, it is important where the lines are drawn. One can threaten a leader, make a public vow against him, engage in verbal challenges to authority—none of these acts bring about a formal state of rebellion. For that, one must violate established laws or policies, say, by withholding taxes or (even more seriously) by killing officials of the government.

Speech is not enough—that is, it is not sufficient to the concept of bughat. The criterion of al-ta'wil suggests that a certain sort of speech is nevertheless a necessary consideration. Here, the point is to distinguish rebellion from several other types of conflict. As in the case of the Kharijites who draw a response from ‘Ali, rebels also cite Islamic sources. Ta'wil or “interpretation” in the sense of justifications drawn from the Qur'an or sound reports of Muhammad's example distinguish Muslim rebels from others who challenge the authority of an established regime. Were the ahl al-dhimma to secede, say by refusing to pay required taxes, one would expect them to say they are doing so because they wish to be independent of the Muslim state, or because they believe the government is not meeting its obligations to protect them. Or in the case of apostates, the reasons given for secession suggest a turning away from one's contract with God, say by declaring that prayer is no longer to be observed. In a famous instance, Abu Bakr (the first Caliph after the Prophet) made war on Arab tribes who declared that once Muhammad was dead their allegiance belonged only to God. They joined this declaration with a withholding of zakat, the payments to the community treasury normally considered to be an obligation for believers. Abu Bakr construed this as an act of ridda or “turning” (apostasy), rather than of rebellion, perhaps because of the idea that zakat is different from other types of taxes. In any case, the distinction is important to the conception of rebellion.

Finally, al-shauka or “strength” indicates that bughat requires a certain kind of organization. One person does not constitute a rebellion; in the usual formulations, even groups of ten will not do. The point seems to be that in order to qualify, a given group must reach a certain size and have an identifiable leadership and structure. They are not engaged in a riot, if that means a kind of spontaneous uprising. Rather, there must be evidence of a purposeful and planned campaign.

All this suggests that the category “rebellion” is a technical term by which a certain legitimacy is conferred upon a group engaged in active opposition to the established Muslim regime. And ‘Ali's precedent is taken to indicate limits on the official response to such a group.

There is more to be said about the substance pertaining to al-bughat. For example, it is interesting that the discourse of the learned does not refer much to limits on the rebels themselves. In a detailed discussion of the law of rebellion, Khaled Abou El Fadl writes that “the bughat are not responsible for any destruction of property or life if such destruction occurs in the course of the rebellion.”Footnote ¹² It is hard to understand why this should be so, since the danger posed here is fitna. One might suppose that there would be a point at which rebel wrongdoings might become so excessive as to cross the line, so that dissension and civil strife become sources of “corruption.” Perhaps this is the reason why, as Abou El Fadl indicates, some historic authorities suggested that the Kharijite example indicates some limits: when a group engages in indiscriminate killing—that is, as a matter of policy—it may so contradict its claim to represent Muslim interests legitimately as to forfeit any claim to the category of bughat. That indeed makes sense, given the strong stipulations against direct killing of innocents in reports of the prophetic sunna.

As to the second question—who decides when the concept of bughat applies—the most important thing is clear. This is an establishment or order-preserving discourse. The Muslim war convention coalesced in the context of a complex social-political order, in which the primary players were the Caliph and his advisors at court, military leaders, and members of the learned class. The last group, in particular, played a kind of liminal role in which they could function either to support or to criticize official policy. Even when critical, however, the substance of their fatawa indicates the value placed on stability. The authority to determine which of the groups opposing the regime qualified as bughat resided with this group of political players. And, as indicated above, the point of the classification was to organize state policy in ways intended to bring opponents back into the fold.

Modern Developments

As Abou El Fadl's massive survey of the law of rebellion shows, the order-preserving character of the judgments pertaining to rebels remains relatively constant into the eighteenth and nineteenth centuries.Footnote ¹³ In one sense, such consistency seems a matter of mimesis. Thus, Abou El Fadl refers to the discussion of rebellion as a “jurists’ discourse,” in which the learned repeat the major precedents and themes of a historical conversation. When they do innovate, the tendency is to downplay or even elide the fact of change. This is so, one might add, even though the practice of Sharia reasoning clearly involves responding to new conditions, and thus invites a notion of “reconstruing” tradition.

My own view is that one ought to add a second explanation for the consistency of the jurists' discourse. The complex social-political order within which the judgments pertaining to rebellion developed actually held sway in one form or another into the early modern period. Thus, while one might track rivalries between Muslim states (for example, between the Abbasids and Fatimids), changing dynasties (from the Abbasids, to the Seljuq Turks, to the Mamluks, and so on), or the development of multiple centers of power (as during the period when Ottoman, Moghul, and Safavid rulers dominated particular portions of Muslim territory), the pattern previously mentioned held sway. Even if one compares Sunni and Shia states, where there are clearly differences in judgments regarding the legitimacy of particular rulers, the pattern of political practice is strikingly similar.

The point is that the kind of discourse represented in the judgments pertaining to rebellion makes sense in the context of a settled understanding of order. In that setting, the notion of a ruler taking counsel from recognized military and religious figures, and then crafting policies aimed at bringing rebels back into the fold, has resonance. One need not suppose that the kind of consultation envisioned here always took place, or that it always worked to serve the cause of reconciliation. All one needs to say is that in this case, as elsewhere, a particular form of normative discourse remained consistent because it made sense to those involved.

However (to repeat a point made in many surveys of Islam), the political landscape of the territory of Islam began to change in the eighteenth century. The imperial model became less functional, and by the 1920s was gone completely. This was partly a matter of European expansion. It was also partly a matter of changing conditions within historically Muslim territories. Indeed, the “foreign” and “domestic” challenges to the old forms fed off one another for much of the period. So the Wahhabi challenge to Ottoman hegemony in the eighteenth century eventually linked with British policy in the region, and led to the development of the Saudi state. The Tanzimat reforms undertaken by the Ottomans in the nineteenth century were partly an attempt to make the old system functional in a world dominated by European states, but they also laid the groundwork for domestic challenges to the sultan. Combine such political changes with shifts in demographics, an increase in literacy and of printed books, the greater availability of weapons, and the rise of a professional—and especially technical—class, and one has the makings of a very different sensibility about the way things work. In this context, old ways of talking may either be adapted or they may fall into disuse.

In the case of Muslim discourse about rebellion, the latter seems to be the case, with one or two important exceptions. So far as one can tell, the only people who continue to talk about ahkam al-bughat are scholars whose interests exemplify Abou El Fadl's claims about “jurists' discourse.”Footnote ¹⁴ These keep the notion alive as a matter of mimesis. More generally, people began to utilize other terms when they wanted to describe a movement directed at opposing an existing regime, such as al-intifada (“awakening”), al-inqilab (“overthrow,” “reversal”), al-thawra (“revolution”), or simply al-jihad (“armed struggle”). In many cases, such terms were (and are) invoked in connection with a popular uprising, and thus in connection with groups whose status is “irregular.” Their opposition to an existing regime is then justified through a mix of appeals: to human rights, to nationalist motifs, or—most interestingly in terms of a linkage to historic Muslim discourse—to the notion that in certain circumstances, jihad may become an “individual duty.”

While a full account of this matter is beyond the scope of this essay,Footnote ¹⁵ historically, scholars commenting on the judgments pertaining to armed struggle opined that in most cases jihad is fard kifaya, a “collective duty,” in the sense that if the number of people answering the call to bear arms in the service of the Muslim state is sufficient to the task (say, in fighting to secure or extend the borders of Islamic territory at the expense of the Byzantine Empire), then others could stay home, paying taxes or providing other kinds of support to the war effort. In a case where an enemy invades Muslim territory, however, things are different. Then jihad is, or at least can become, fard ‘ayn, an “individual duty.” In this case, everyone is obligated to answer the call to bear arms.

Now, it is important to note that scholars working in the context of the great imperial states tended to work this out along the following lines. Assume that an enemy's incursions render the Muslims in a particular region unable to resist. Perhaps their numbers are insufficient, or the territorial ruler has not made adequate preparations to defend against attack. In either case, the idea is that the governor of a neighboring Muslim territory should come to the rescue. An established authority thus issues a call to arms and organizes the resistance. In so doing, that authority may call on people who ordinarily would not fight, such as merchants, civil servants, women, and even (in an extreme case) those who have not yet attained the age of majority.

By contrast, the most publicized examples of contemporary appeals to jihad as an individual duty cast the notion as a kind of uprising led by a vanguard who see a need and take action. The Neglected Duty (known as the “creed of Sadat's assassins”), the Hamas Charter, and the Declaration on Armed Struggle against Jews and Crusaders (signed by Osama bin Laden and others) all argue along these lines.Footnote ¹⁶ A line from the last document will serve to illustrate this point: for the authors of the Declaration, fighting is obligatory for any Muslim able to undertake it, in any context where it is possible. Rather obviously, this is an important adaptation of the historic notion. Indeed, while the call is orchestrated by a “vanguard,” it ultimately leaves the judgment about where and when to strike to individual Muslims.

The anarchic potential of such an argument is clear. And, as one might expect, many Muslims have responded, either with an appeal to precedents that tie authority for war to established rulers, or with arguments that resistance, however well-intentioned, is likely to do more harm than good, or both. For many, the fact that the Declaration in particular ties the call to fight to an expansive notion of legitimate targets (the aforementioned summons to anyone able, in any context where it is possible, is coupled with the judgment that one should aim at Americans and their allies, soldiers and civilians) is the most disturbing feature of such contemporary claims about jihad, lending support to the judgment that those claiming the mantle of this important symbol do not in fact deserve to wear it. Bin Laden and others have their responses, however. If established rulers would do their job and defend Muslim territory, they argue, ordinary Muslims would not need to rise up; the evil done by a failure to resist such non-Islamic notions as democracy and capitalism—not to mention Zionism—changes the calculation of costs and benefits; and so long as U.S. and allied forces kill Muslim civilians, justice requires a response in kind. That the jihadis (as they are often called) actually kill more Muslims than Americans or Europeans only makes the argument more complex.

In this connection, one rarely finds invocations of bughat. The reasons seem clear enough. People like bin Laden do not understand themselves as rebels. They are mujahiddin, “strugglers” in God's way. In this, they are probably more like Yahya ibn Abdallah, who thought of himself as opposing an unjust regime. For people engaged in an attempt to use military force in order to change the status quo, the judgments pertaining to rebels are not very useful, not least because they seem to grant some legitimacy to an existing government. Then, too, for governments attempting to deal with people like bin Laden (as with Yahya, judging from al-Rashid's response), the historic discourse places too many limits on what they may do. Of course a wise ruler wants to convince opponents to lay down their arms and return to the fold. But suppose they do not. Suppose the opposition is intransigent, and thus poses a serious threat to stability. At what point does the unrest caused by an uprising become so serious that it should actually be classified as a criminal activity, akin to the behaviors historically classified as “apostasy” or “brigandage”? Remembering that ahkam al-bughat is an order-preserving discourse, one understands why few people want to invoke it in the current setting. We are in a moment in which Muslim argument about armed force is dominated by those who want to change the status quo, so that the preference for jihad is connected with its order-transforming possibilities. One does find, however, an interesting attempt to preserve something of the old language of ahkam al-bughat in the Ayatollah Khomeini's 1970 lectures on Islamic government.Footnote ¹⁷ True enough, he said, the historic discourse referred to those fighting against an established regime, and was crafted with a view toward urging rulers to aim at reconciliation. Nevertheless, everyone should understand that there are times when a ruler behaves in such a way that the category “rebel” actually applies in a reverse fashion. A ruler who uses arms against his or her subjects is no longer worthy of the title “leader.” Instead, that ruler is a baghi (rebel), and ordinary people may rise up, using the necessary means to alter the ruler's behavior, or in the extreme case, to remove him or her.

The key, said Khumayni, is to discern when this change in the ruler's status has occurred, and also to know how to organize an effective resistance. Armed force may be the appropriate response, but nonlethal means may work as well. Such judgments do not belong to individuals. Rather, they are the province of the learned class, that is, of religious scholars who serve as the guardians of the people. These scholars will tell the people when to rise up, and by what means. As it turned out, Khumayni's lectures described important features of the Iranian revolution of 1978–1979.