Jurisdiction over Jihad: Islamic Law and the Duty to Fight

Abstract

A serious deficiency in the current discourse on jihād involves the failure to adequately evaluate competing jurisdictional claims over lawful violence, specifically warfare. While limitations and guidelines in armed conflict are frequently discussed, there is rarely any mention of who can legitimately regulate Islamic law’s duty to fight. This duty emerged shortly after Islam’s founding in the 7th century A.D. and was a collective one (farḍ kifāya), meant to support the state’s war efforts in the absence of standing armies. The duty was regulated by the state and responsibility for it was shared across society: if at least some people performed, then the obligation was satisfied for everyone else. However, colonial rule and the advent of weak post-colonial states contributed to circumstances that transformed the duty into an individual obligation (farḍ 'ayn); required of every person with legal capacity and not subject to state oversight.

This Article makes a number of contributions. First, it utilizes pre- modern historical sources to construct a detailed understanding of how the duty to fight functioned in classical Islamic law. Second, it reveals how a variety of factors caused jihād to shift from a collective to individual duty and the impact this has on state jurisdiction over violence. Third, it provides a new reading of colonial resistance, suggesting a predilection for statist frameworks among actors engaged in anti-colonial jihād. Finally, the Article analyzes a pivotal 20th-century fatwā (advisory legal opinion) that reframed the classical jihād- duty, making it a perpetual obligation required of all Muslims. The Article contends that this reframing led to the state losing oversight over jihād and lawful violence, contributed to the militancy of non-state actors and created distorting effects in Islamic law’s interpretation and application, with consequences that continue to manifest.

Keywords: Islamic Law, Laws of War, Jihad, Violence, Legal History, Legal Duties, State, Collective Duty, Fard Kifaya, Colonialism, Jurisprudence