INR ESSAY

Thomas Aquinas and Muhammad al-Shaybani on War, Law, and Statecraft: An Experiment of Theory and Method in Comparative Religious Ethics

Author(s): Nahed Artoul Zehr

Source: Soundings: An Interdisciplinary Journal , Vol. 98, No. 3 (2015), pp. 354-376

Published by: Penn State University Press

Stable URL: https://www.jstor.org/stable/10.5325/soundings.98.3.0354

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Soundings,

Vol. 98, No. 3, 2015

Copyright © 2015

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Thomas Aquinas and Muhammad al-Shaybani on War, Law, and Statecraft An Experiment of Theory and Method in Comparative Religious Ethics

N A H E D A RTO U L Z E H R , W E STE R N K E N TU C K Y U N I V E R S I T Y

Abstract This essay is an exploration of method through a comparative study of Thomas Aquinas and Muhammad al-Shaybani on war, law, and statecraft. Through a close read of a select num- ber of texts, it seeks to establish two points. First, that both Aquinas and al-Shaybani’s positions on war are entrenched within their respective positions on statecraft and the law. And second, to initiate the conceptual and theoretical framework that will help illume the moral wisdom (both shared and con- tested) contained in each tradition that can generate a base- line for additional research related to contemporary problems in the ethics and law of war.

Keywords: war, law, just war, comparative ethics, Islam

Introduction

This essay is an exploration of method through a com- parative study of Thomas Aquinas and Muhammad al-Shaybani on war, law, and statecraft. It is a delim- ited inquiry into a set of questions that interest both thinkers. My hope is that it will serve as a modest but

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foundational work for a future (and much larger) constructive project on Western and Islamic just war thinking and its relationship to international law. In light of this, this essay seeks to illume points of agreement and disagreement in the work of these thinkers through a close reading of select texts. Its aims are twofold: first, to demonstrate that both Aquinas and al-Shaybani’s positions on war are clearer once situated within their respective ideas on law and state- craft. As I demonstrate, both Aquinas and al-Shaybani’s ideas on the proper use of force are entrenched within their respective positions on statecraft and law. Second, this essay aims to introduce a theoretical framework that will help illume the moral wisdom—both shared and contested—contained in each tradition. The idea is not only to gain a richer understanding of each thinker’s position on war but also to determine a set of moral and ethical com- mitments that can help generate a baseline for additional research related to contemporary problems in the ethics and law of war.

Anyone familiar with these two thinkers will quickly note the challenges involved in comparing their work. To begin, Aquinas and al-Shaybani lived and wrote five decades apart. Aquinas was attempting to reconcile revelation with Aristotelian philosophy while al-Shaybani was attempting to record the work of his teacher Abu Hanifa. Al-Shaybani wrote extensively on war, while Aquinas devoted a very small part of his writing to these issues. Al-Shaybani was preoccupied with right conduct in war. Aquinas, however, wrote very little on right conduct and was almost entirely concerned with explicating a spe- cific set of circumstances that determine when the use of force is just. Yet I contend that comparing these two thinkers is an appropriate starting point.

To begin, both are considered, by and large, normative thinkers in their respective traditions, and both had significant and lasting influence on just war thinking.1 Both were concerned with determining how their respective religious traditions ought to direct war in a time when Christendom and the Islamic state were major political powers. Furthermore, scholars often contend that a primary difference between Western and Islamic just war traditions is that Western just war thinking separated itself from its theological underpin- nings and explicitly separated proper war from religion. Aquinas, however, had not yet made that step—his views on this are nuanced, as we will discuss below.

Most importantly, comparing these two thinkers—particularly in light of their different approaches—invites the type of analysis that I discuss above.

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It requires that we look not only to their respective positions on war, but also to the constellation of other issues that motivate both thinkers. Examining their positions on statecraft and law will highlight the multiple commitments within which their respective positions on war acquire meaning. As John Kelsay wrote in a recent essay on the importance of method for comparative religious ethics, “Every once in a while, we have to raise our vision from our particular cases in order to talk about what we have learned in relation to some more general problem” (569). In this spirit, let us turn to a compara- tive investigation of Aquinas and Muhammad al-Shaybani on war, law, and statecraft.

On War

Thomas Aquinas

Aquinas was interested in determining the specific circumstances in which war was permissible for Christians. He begins by arguing that taking up the sword as a soldier is a legitimate and necessary act that serves the inter- est of the wider community. On this, Aquinas relies heavily on the work of St. Augustine, who argued that soldiering was not explicitly prohibited in the New Testament. Therefore, Aquinas held that it was a permissible occupation for Christian men (ST II–II, Q. 40, Art. 1). He argued this because the act of soldiering is distinguished from the case of one who “takes up the sword” in order to harm oneself or to take the life of another. The latter is an example of a private person refusing to submit to the command of a superior authority. The use of violence by a private person, he writes, is distinguished from the act of war. In war, the soldier has been given recourse to the sword through the act of a sovereign authority who has been charged with protecting the political community from threat (ST II–II, Q. 40, Art. 1, ad. 1). Additionally, for Aquinas there are times when to take the sword is to act in the best interest of the com- mon or public good—as when it is used to resist sin or other vice that threatens the community (ST II–II, Q. 40, Art. 1, ad. 2).

This notion of authority is connected to Aquinas’s second concern— elucidating the specific circumstances within which the use of force is justi- fied, or the conditions under which a war may be considered just. The first of these, he argues, is “the authority of the sovereign by whose command the war is to be waged” (ST II–II, Q. 40, Art. 1). What he means here is that

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recourse to the sword is only available to those who are responsible for the protection of the commonweal. It falls only to those that have the appropriate vantage point from which to make reliable decisions about the proper use of force. Only those who have been granted the responsibility and authority to take care of the political community may raise the sword, as only they “have recourse to the sword of war in defending the common weal against external enemies” (ST II–II, Q. 40, Art. 1). A private person, according to Aquinas, is too enmeshed in his or her own private interests to make responsible decisions that concern the political community and the use of force. Moreover, a private person may not pick up the sword in order to “seek redress of his rights,” as he or she has the option to seek redress from the sovereign authority responsible for the well-being and protection of such individuals.

Second, according to Aquinas, a just war requires a just cause. This is required, he argues, “namely that those who are attacked, should be attacked because they deserve it on account of some fault” (ST II–II, Q. 40, Art. 1). On this he again references Augustine, who gave conditions for three kinds of just wars: (1) a war that avenges a wrong; (2) a war that punishes an offense that has not been restituted; and (3) a war that seeks to restore what has been unjustly seized (ST II–II, Q. 40, Art. 1).

Finally, a just war requires right intention—which Aquinas describes as “advancement of good, or the avoidance of evil” (ST II-II, Q. 40, Art. 1). He elaborates that “True religion looks upon as peaceful those wars that are waged not for motives of aggrandizement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good” and avoiding such things as “the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things”2 (ST II–II, Q. 40, Art. 1).

In short, Aquinas advances the idea that war, in certain times, for certain reasons, and under specific conditions, can be a legitimate tool in pursuit of the common good—and specifically in pursuit of the protection of the state that secures the common good. This is because war is, at times, necessary to secure a state of peace. It is for the end of peace, he writes, that just wars are waged. On this he states that “We do not seek peace in order to be at war, but we go to war that we may have peace” (ST II–II, Q. 40, Art. 1, ad. 3).3

Aquinas is brief when it comes to his position on war. In fact, his discus- sion on this issue only takes up three articles in his Summa Theologiae (this

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number includes his articles on “strife” and “sedition”)—a total of less than ten pages in an encyclopedic three-volume theological work. Despite his brev- ity, however, the criteria he provided serve as one of the earliest systematic elaborations of the just war and have remained foundational to the Western just war tradition (Johnson 2014).

Muhammad al-Shaybani

Al-Shaybani, on the other hand, wrote extensively on war—but focused on a different set of issues. Unlike Aquinas, al-Shaybani was primarily concerned with the details of conduct. His concerns not only regarded the conduct of soldiers in war, but also the interactions between the Islamic state and its non-Muslim neighbors. His thinking on war was a component of the Islamic siyar—a special branch of Islamic law that sought to organize the interac- tions of the Islamic state with its non-Muslim counterparts.4 Therefore, to understand his position on the nature and purpose of war, we must turn to the juristic tradition.

In Islamic legal theory generally, and the siyar specifically, the world was divided into two spheres: dar al-Islam and dar al-harb. Dar al-Islam—or the “territory/house of Islam”—referred to the geographical territory in which Muslim law and rule was sovereign. Dar al-harb—or the “territory/house of war”—constituted everything outside of dar al-harb. Within the dar al-harb, only Muslims held first class status. Members of minority religions were required to pay specific taxes, though they were afforded the protection of the Islamic state as well as the right to practice their own religions and to conduct their affairs on the basis of their religious laws (Khadduri 1966, 11–15).

Under this theory—widely accepted at the time al-Shaybani was writ- ing—it was the duty of Muslim rulers to expand the territorial boundaries of the Islamic state whenever the opportunity presented itself. Suspension of hostilities was not a permanent arrangement, but rather a temporary state of affairs that would be postponed until such time that the Islamic state was in a position to attempt to take over additional (non-Islamic) territory. War in expansion of the Islamic state—the jihad—was the mechanism that would bring the dar al-harb into the fold of the dar al-Islam. In this way, war against non-Muslims for the expansion of the Islamic state was justified—in fact, it was the only type of war that was considered legitimate (Khadurri 1966, 5).

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Non-Islamic states, under the siyar, had no legal status, and they could not interact with the Islamic state on equal terms. Importantly, however, this lack of legal standing did not preclude the Islamic state from interacting with the dar al-harb. In fact, a significant portion of the siyar—including al-Shaybani’s contribution—was dedicated to the issue of how Muslims and other members of the dar al-Islam were to deal with the members of the dar al-harb. The level of detail that al-Shaybani presents in his writings on the economic, social, and political interactions between the dar al-harb and the dar al-Islam serve to reify the point that war and other hostilities were to be conducted in a certain way and within specific parameters.

Although the jihad was a permanent duty imposed on believers, it did not require continuous war or total war. On the contrary, the juristic tradi- tion enumerated restrictions on the use of force—the necessity of legitimate authority to sanction war, prohibitions against killing women, children, and other innocents, and so on. Moreover, peace treaties between the dar al-Islam and the dar al-harb were negotiated and conducted, and provisions were intro- duced that allowed economic, social, and political interactions between the two spheres and their citizens. Yet such treaties were conducted, and hostili- ties suspended, under the assumption that they would resume as soon as the dar al-Islam was in a position to make war successfully against the dar al-harb.

Moreover, it was assumed that this state of hostilities between the two spheres would continue until such time as Islam reigned supreme. According to juristic thinking, the dar al-harb must be subsumed within the dar al-Islam, as true peace could exist only under the rule of the Islamic state, as it was the only political entity in which God’s law held sway (Khadduri 1966, 17–19). For these reasons, jihad was obligatory for Muslims until such time that all territory came under Islamic jurisdiction. Jihad was both an individual duty (imposed on every able Muslim in defense of the Islamic state) and a community obligation, insofar as the community of Muslims was to ensure that the means for conducting war—an adequate army, treasure, moral, and so forth—were available to the sovereign of the Islamic state.

For al-Shaybani, then, the legitimacy of war against the Islamic state’s non-Muslim neighbors was assumed. Therefore he focused on determining how war could be carried out appropriately, in a way that it was reflective of the

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dictates of God and the sources of authority that God had provided (primarily the Qur’an and the example of Muhammad and the earliest Muslims).

Analysis

Aquinas and al-Shaybani approach the issue of war from different perspec- tives. Aquinas, though concerned to discuss the conditions that justify the use of force, devoted only a small portion of his writing to the issue. Yet his think- ing on this was a foundational development for the Western just war tradi- tion. Al-Shaybani, however, wrote extensively on the subject of war, and his concerns were focused on the conduct of war between dar al-Islam and dar al-harb, as well as the appropriate way to organize relations with those outside of the territory of Islam.

While we note these important differences, these two thinkers share a set of foundational and normative commitments. Both Aquinas and al-Shaybani argued that war was a legitimate tool in pursuit of proper statecraft. For both thinkers, the use of force could be an appropriate and justified way to attain certain political-religious goals. Furthermore, the attainment of religious aims is an important end to which war may be put. For both Aquinas and al-Shaybani, war was intimately linked to the state and its protection; and that state, as we discuss below, had a critical role to play in ensuring that believers could appropriately carry out the dictates of God.

Second, for both Aquinas and al-Shaybani, war is a moral enterprise, con- ducted in certain ways toward specific ends. However, in order to be consid- ered a legitimate tool, it must meet certain moral standards, as legitimate war could only be conducted for specific reasons under specific conditions.

Third, both Aquinas and al-Shaybani had a positive view of the state. This is a point discussed in more detail below—however, suffice to say at this point that both figures argued that the political community had an important role to play in the lives of believers.

On Statecraft

Thomas Aquinas

Aquinas relied on and referenced Augustine on a variety of issues and questions, including that of war. However, Aquinas had a much more posi- tive view of human politics and the state than Augustine. For Augustine, the

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state was ordained and necessary, yet incapable of doing much more than restraining human sin. Aquinas, however, understood the state as a benign institution, well-suited to the natural needs of human beings and, if properly organized, an institution capable of leading human beings to the good life. In this way, the state, for Aquinas, was an important and, in many ways, a neces- sary factor to the attainment of salvation.

Human beings, he argues, are social and political animals. It is natural and necessary for them to live in community with others. This is so for two reasons: first, unlike the other animals—“furnished by nature with food, with a covering of hair, and with the means of defence”—human beings must look to themselves in order to provide for their material needs. As Aquinas writes, in place of those things given to the other animals, human beings were endowed with reason, so that they “might be able to provide all things” by the work of their own hands (Dyson 2011, 5–6). Yet while human beings, individually, can provide for some of these needs, they cannot provide for all of them. Because of this, human beings need and rely on others who can help them produce the means for their safety and sustenance (6).

Furthermore, humans are not granted the “natural awareness” of the knowledge of all things that are “useful or harmful to them” (6). While they have a general knowledge of these things, they need others to investigate them more thoroughly. Therefore, Aquinas avers, it is “necessary for man to live in a community, so that each man may devote his reason to some particular branch of learning: one to medicine, another to something else, another to something else again” (6). After all, he points out, human beings are the only animals granted the ability to speak, and thus to communicate the particular knowledge they accrue to others.

Yet, Aquinas continues, living in community does not guarantee that society will flourish, as individual interests do not always align with the com- mon good. There must be a concerted effort, he argues, to direct individual interests toward what is best for all. This is an important theological point for Aquinas. As noted, human beings need to live in community so that they may be directed toward the good and virtuous life. However, he writes, “the man who lives according to virtue is also directed toward a further end, which, as we have already said above, consists in the enjoyment of the Divine” (Dyson 1966, 40). Further, this is the appropriate end of all human creatures, such

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that “The final end of a multitude united in society, therefore, will not be to live according to virtue, but through virtuous living to attain the enjoyment of the Divine” (40–41).

For Aquinas, human salvation requires a society in which individual inter- ests are directed toward the proper end of human beings. So long as human beings live in community, it is necessary that there be some means to direct those who live in a given community in the right direction. This, he writes, necessitates a sovereign authority, one that is removed from the pursuit of individual interest and that will organize and direct society toward its proper end. There must be an authority, he argues, that is responsible for the good of the community as a whole. Otherwise the community would split and fracture into separate entities, each concerned only with providing what is necessary for its own interests (Dyson 1966, 7).

The organization and effort that is required to steer a community aright requires human government and the mechanisms provided by the state. The responsibility of the sovereign, the king, is to secure the good life for those subject to his rule. It requires ruling in a way that is conducive to the “blessedness of heaven” and prohibits the things that are not (43). “The King,” writes Aquinas, “being instructed in Divine law, must strive with special care to ensure that the community subject to him lives well” (43). In this way, the king must ensure that he establishes, preserves, and improves the life of the community for which he is responsible (43–44). The state is a repository of social goods that are necessary to keep society intact, but also to direct human beings to their proper ends. Insofar as human beings are social creatures by nature—that is, they require society to live well—the state is a foundational requirement for the good life and for the ultimate end of salvation.

It is important to note at this point, though, that Aquinas conceived of a separation between those who were charged with political authority and those who were charged with religious authority. Of course the king, in order to steer his community in the appropriate direction, must be aware of the divine law, accessible to human beings through revelation. However, the king was not charged with its adjudication. This was not his jurisdiction; rather, it was the jurisdiction of priests, of religious clerics who were responsible for human interaction with divine law. Aquinas imagined a separation between religious

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and political authority that we will not see—at least not to the same extent—in the work of al-Shaybani.

At this point, then, we can understand more clearly Aquinas’s ideas about war. For Aquinas, the state is an integral component to a healthy social order, the type necessary for humans to attain their natural ends. Indeed, it is neces- sary that the community be governed in a way that directs its members to their theological ends. When that order is threatened—and because of the critical social-theological goods that the state provides—it is necessary, at times and under specific conditions, that the use of force be used in order to maintain the social order that is imperative for the salvation of human beings. We can also see why Aquinas—noting that war can be a legitimate tool to protect the political community necessary for human flourishing—would be especially concerned to provide a way for sovereigns to determine whether the use of force was being put to appropriate ends. As he noted, war may not be waged so that human vice—greed, the lust for dominance, and so on—are satiated. Rather, it must only be waged if the order and stability of the political com- munity are threated.

Muhammad al-Shaybani

Like his ideas on war, al-Shaybani’s thinking on the political religious com- munity must also be placed within the Muslim juridical tradition. Again, this is not a point that al-Shaybani makes explicit reference to—though the prin- ciple of the necessity of the state can be surmised through his ideas on numer- ous issues.

As argued by Majjid Khadduri, Muslim intellectuals, in tandem with Aquinas’s thinking several centuries later, argued that human beings were created to live together in society (1966, 3–4). Furthermore, and again in tandem with Aquinas’s (later) thinking, society requires authority. Authority is presupposed in society—or perhaps a better way of putting this point is to say that society requires authority. Indeed, writes Khadduri, “the Islamic conception of umma presupposes the existence of a set of divine commands, endowed by a Supreme Legislator, constituting its ‘fundamental law’ or ‘constitution’” (3–4).

In this way, the state involved the individual’s submission to the divine will. This was done with the understanding that submitting to the divine

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would lead to the individual’s best interest in this life and to salvation in the next. However, while God gave the divine commands, it was the caliphs, those who took the helm of sovereignty of the Islamic state after the death of Muhammad, who executed and enforced the law (1–14). It is in this context that Khadduri states that when “the believer consummates his obedience to the law he realizes his ultimate objective in life, namely the achievement of salvation” (24).

While al-Shaybani was primarily concerned with proper conduct in war, there are several places where he demonstrates the unique nature and singular importance of the Islamic state (again, the geographical space that was ruled by Islamic law). In particular, his rulings on war demonstrate the unrivaled status of the territory of Islam, indicating both its material and symbolic impor- tance to Muslims living under its jurisdiction. For example, his determination of proper conduct indicates that the dar al-Islam is categorically different from the dar al-harb. He is quite clear that any spoil accrued as a result of martial engagement with the dar al-harb must not be divided until it has been taken to the territory of Islam and put in a “place of security”—a ruling he appeals to repeatedly. Only if the believers were in desperate need of material supplies would the imam be justified in dividing the spoils before it had crossed into the territory of Islam (97). In an important way, then, the spoil accrued from fighting does not achieve its appropriate legal status as Muslim property until it has entered the dar al-Islam.

This point is also made by al-Shaybani in other ways. For example, he writes that certain activities, interactions, and institutions have no status for Muslims if they are conducted outside of the dar al-Islam, where God’s law holds sway. Marriages, he argues, cannot legally be conducted for Muslims outside of the Islamic state, though al-Shaybani does recognize marriage con- tracts for non-Muslims that are conducted in the dar al-harb. The emancipa- tion of slaves on the part of Muslims is not recognized outside of the territory of Islam, however.

Furthermore, if a non-Muslim from the dar al-harb enters the dar al-Islam under a peace agreement, any of their activities, debts, or contracts conducted in the dar al-harb are not the concern of Muslims in the dar al-Islam. However, any debts contracted or arrangements made with Muslims and within the dar al-Islam are, in fact, of concern to the Muslims; consequently, they would be held liable for them (Khadduri 1966, 172, 181).

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I asked: If some of the inhabitants of the territory of war entered the [dar al-Islam] under an aman for trade and some of them were indebted to others, do you think that any one of them would be held liable for a debt contracted in the dar al-harb?

He replied: No. I asked: Why? He replied: because they entered [the dar al-Islam] under an

aman, and any arrangement that they may have entered into in the dar al-harb is none of our concern.

I asked: What would you think if some of them became indebted to others in the dar al-Islam, or became indebted to a Muslim, or a Muslim became indebted to them?

He replied: I should hold them liable for everything and I should hold others liable [who were indebted to them]. (171)

Even the crime of murder, if committed in the dar al-harb, is of no concern to Muslims and ought to be considered “null and void” (171).

These ideas are indicative of our point: the dar al-harb—that is, any state that was not governed by Islamic law—had no legal status in al-Shaybani’s jurisprudence, nor in that of Islamic legal theory at the time of his writing. This is a remarkable point: no other state, except that which promulgates Islamic law, was granted recognition or status.

Through these statements, al-Shaybani directs the reader to the special and critical role of the Islamic state. It was only the Islamic state that could direct Muslims to their proper ends. Only the Islamic state, as the carrier of God’s law that was necessary for peace, justice, and human flourishing, could have legitimate status. It is for this reason that al-Shaybani, recount- ing abu Hanifa, argues that war against the dar al-harb must continue so long as Muslims are able to continue to wage it and must only be interrupted if Muslims are faced with defeat or destruction. Only under these circumstances, he writes, is it permissible for Muslims to come to terms with the dar al-harb (Khadduri 1966, 155).

Analysis

Let us pause for a moment to compare Aquinas and al-Shaybani on the relationship between war, the political-religious community, and proper

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statecraft. To begin, there are important similarities brought to the surface by comparing their respective ideas on these points. For both thinkers, it is the religious-social-political community that was the carrier and protector of a set of important goods. These goods—peace, stability, guidance, and direction—were critical to human flourishing. War, then, was a legitimate tool in proper statecraft, in that it served to protect and maintain the state and all that it provides. However, for al-Shaybani, war was not only a legiti- mate tool in protection of the community and the necessary goods that it protected. It was also—contrary to the work of Aquinas on this issue—a legitimate tool in the expansion of the religion and of the boundaries of the geographical space in which Islam held sway.

Second, there is a clear difference in the relationship between reli- gious and political authority in the work of these two thinkers. Recall that Aquinas insisted on a separation between political and religious authority. Political authority was, by nature of its responsibilities, involved in reli- gious affairs: the sovereign could not direct the community appropriately without knowledge of the divine law. However, Aquinas maintained that it was the clergy who was directly responsible for dealing with the divine law. Al-Shaybani also maintained the importance of the state to directing the individual to his or her eternal end. However, the distinction between reli- gious and political authority was more tightly interwoven in al-Shaybani’s thinking. Religious matters were political matters, and vice versa. The state was directed by divine law.

Noting this, it is also important to emphasize that the adjudication of religious matters was, according to al-Shaybani, the singular task of religious clerics. Commanders, for example, were not responsible (nor appropriate figures) for adjudicating or executing Islamic law either on the battlefield or in places where Muslim forces had conquered land. However, unlike Aquinas’s thinking, al-Shaybani makes no distinction between religious and political authority, nor gives any indication that they operate in related yet distinct spheres.

Up to this point we have been suggesting, and can now begin to make explicit, that the state is important in terms of its connection to the law. The state, for both Aquinas and al-Shaybani, is the mechanism by which human

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beings not only live in ways reflective of their nature and needs, but also the mechanism which they are directed toward theological ends.

On Law

Thomas Aquinas

Law, according to Aquinas, is the rational pattern that defines the behavior and character of all creation. It exists in the mind of that force which controls the universe—God. Therefore law, as “rule and measure,” is the rational and directing pattern of all things that God has created (Dyson 1966, 13). As God is the ultimate sovereign, it is the rational pattern that exists in God’s mind that is, in the most general sense, the law—what Aquinas refers to as the “eternal law.” Creation participates in the law by behaving in accordance with it. In other words, when things in creation acts in ways that God has designated, they are “naturally” participating in the eternal law. All creation, writes Aquinas, is “ruled and measured” by the eternal law. Its patterns are “imprinted” upon all of creation, and it is from these innate patterns that all things in creation are directed toward appropriate activities and ends.

The portion of eternal law that relates specifically to human beings is called “natural law” (86). Natural law, Aquinas argues, is prescriptive—it helps human beings differentiate between right and wrong. However, human beings need more than this, primarily because natural law comes to them in terms of general principles rather than specific and detailed prohibitions or commands. In this way, Aquinas states that in order to proceed from “principles to conclusions” in the manner necessary for the type of guidance that human beings require, “human reason must necessarily proceed to drive from the precepts of the natu- ral law, as from general and indemonstrable principles, certain arrangements of a more particular kind” (88). The result of this process—of specific inferences made via practical, human reason—is what Aquinas calls “human law.”

This point is important for our comparison of Aquinas and al-Shaybani in that both thinkers understand the relationship between God’s law and human law in a similar way. There are, of course, notable and important differences. However, for both Aquinas and al-Shaybani, the exercise of interpreting God’s law remains a flawed and imperfect effort on the part of human beings to understand and fulfill God’s commands.

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Aquinas was quite clear on this. He writes that

Human reason cannot participate in the dictate of the Divine reason fully, but only in its own way and imperfectly. And so just as, in speculative reasoning, there is present in us a knowledge of certain general principles by virtue of our natural participation in the Divine wisdom, but not a specific knowledge of each single truth which the Divine wisdom contains; so too, in practical reasoning, man par- ticipates naturally in the eternal law in so far as he can drive from it certain general principles, but he does not know all the specific provisions which would apply in particular cases, even though these are in fact contained in the eternal law. And so there is a need for human reason to go further and establish laws which apply in par- ticular cases. (Dyson 1966, 88)

Aquinas makes a clear distinction between the eternal law and divine law. While divine law is part of the eternal law, it is not derived through specific inferences made through practical reasons; rather, it comes to human beings through revealed scripture. Divine law is necessary in addition to natural and human law. Natural law is concerned with justice in the political soci- ety of human beings while divine law is concerned with issues that human law cannot adjudicate. Furthermore, human law is limited in that it cannot “punish or prohibit all evil deeds” since, if it were to seek to do so, it would “as a consequence remove many good things also”(Dyson 1966, 90). In other words, Aquinas is here noting that the legislating of human affairs is com- plicated, especially in terms of competing interests. Therefore, another form of law, which is not subject to the practicalities of human government that the sovereign must reconcile, must exist above natural and human law. In other words—and this is an important point—divine law is needed because human law simply cannot legislate in a way that is perfectly reflective of the eternal law.

So, through both of these points—his insistence that human law is an imperfect derivation of natural and eternal law and the distinction he makes between eternal and natural law—Aquinas leaves a significant amount of room for human agency in the construction of law. While sovereign political rulers

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(kings) must organize social and political life in a way that is in alignment with the ultimate end of human beings, it remains the case that human virtue alone cannot lead individuals to salvation. According to Aquinas, this requires divine rule, as revealed to human beings through the divine law. It is priests, therefore, understood as vicegerents of God, who are responsible for this ulti- mate law (Dyson 1966, 41). He writes that

Spiritual and secular power are both derived from the Divine power, and so secular power is subject to spiritual power insofar as this is ordered by God: that is, in those things which pertain to the salva- tion of the soul. In such matters, then, the spiritual power is to be obeyed before the secular. But in those things which pertain to the civil good, the secular power should be obeyed before the spiritual, according to Matthew 22:21: “Render to Caesar the things that are Caesar’s.” Unless perhaps the spiritual and secular powers are con- joined, as in the pope, who holds the summit of both powers. (Dyson 1966, 278)

The administration of this kingdom, therefore, is entrusted not to earthly kings, but to priests, so that spiritual and earthly things may be kept distinct; and in particular to the Supreme Priest, the succes- sor of Peter, the Vicar of Christ, the Roman Pontiff, to whom all the kings of the Christ. . . . For those who are responsible for intermedi- ate ends should be subject to one who is responsible for the ultimate end, and be directed by his command. (Dyson 1966, 41)

Muhammad al-Shaybani

Shaybani’s work demonstrates the marked attention that the Islamic tradition gives to the shari’a, or Islamic law. More specifically, he focuses on the task of deriving the appropriate particulars of the law as they apply to appropriate conduct in war and interactions with non-Islamic nations in the dar al-harb.

Significantly, and like Aquinas, al-Shaybani leaves a significant amount of room for human agency in the determination of law. His task is to elucidate the various ways that the law may be applied to specific situations. In this task he is clear to note that others—even his own teachers—have disagreed with

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him on certain points. This indicates, like Aquinas in his discussion of natural law, that the role of human reason in interpreting law renders the human exercise of constructing law an imperfect reflection of the law as determined and communicated by God.

The law, then, has a distinct role to play in Shaybani’s writing. To begin, the law directs conduct. The faithful Muslim is required to obey God’s dic- tates, promulgated and interpreted to her through the dictates of Islamic law as determined by the clerical class. For example, Shaybani notes restrictions on mutilation, the killing of those who cannot fight—such as women, children, and the elderly—and even notes a prohibition against mutilating animals that a Muslim army seeks to destroy. Muslims, Shaybani argued, were not allowed to make peace treaties with non-Muslims on terms that contradict the values of Islam. Obedience to the law is a telling signal of Muslim piety, demonstrat- ing that the individual has submitted herself to God in the ways that are appro- priate and necessary to a believer. We see this point in the level of painstaking detail that Shaybani recounts in attempting to understand appropriate behav- ior and conduct in specific situations dealing with war. Take, for example, al-Shaybani’s response to the question of whether non-Muslim children who enter the dar al-Islam as part of the spoil of war are entitled to receive the funeral prayer, a critical ritual in the Islamic tradition and a key marker of one’s status as a Muslim. Understanding the extraordinary detail involved in this question, and many others for al-Shaybani, requires that we quote him at length. He writes,

I asked: If the [Muslim] warriors divided the spoil of war among themselves after they had brought it to the territory of Islam and one of them came into the possession (as part of his share) of a male or female child who did not attain the age of understanding Islam up to the time of its death, would the child be entitled to the funeral prayer [as a Muslim] if it died?

He replied: If the child enters [the territory of Islam] with one or both of its unbelieving parents, it would retain its religion, and it would not be entitled to [the Islamic funeral] prayer. If one or both of its parents became a Muslim [after entering the terri- tory of Islam], the child would be entitled to [the funeral] prayer.

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If the [non-Muslim] father and the son enter the territory of Islam together, but from two different directions, the child would not be entitled to [the Islamic funeral] prayer if it dies. If the father enters the territory of Islam before his child, the child would not be entitled to [the funeral] prayer [if it died], because it [would be regarded as having] entered with an unbelieving father. But if the child is brought before the father, it would be entitled to [the funeral] prayer [if it died], because it [would be regarded as hav- ing] entered with an unbelieving father. But if the child is brought before the father, it would be entitled to [the funeral] prayer. . . . If the parents remained in the territory of war and the child died in the territory of Islam before attaining the age of understand- ing Islam, it would be entitled to [the funeral] prayer. (Khadduri 1966, 134)

Here we note the lengths to which al-Shaybani would go in pursuit of precision in his thinking to faithfully apply the law. We can see, then, the clear connection in his writing between law and piety. Shaybani’s work dem- onstrates that for him one’s status as a Muslim is directly related to being ruled by, and faithfully adhering to, the law.

We see this also in his discussion of bahgi law—the portion of the siyar that was directed to Muslims who were revolting against political rule but not abdicating from Islam. The treatment of these rebels is different from non-Muslims in the dar al-harb. He goes to extensive lengths to demon- strate that treatment of rebels ought to be different. He argues that because of their commitment to Islam, and therefore to its law, these people ought to be treated with a lighter hand. For example, Muslim rebels—so long as they remain Muslims—are not held accountable at a conflict’s end for harm or damage they caused. Their property is to be returned to them and not taken as spoil. Even though they dissent against political rule, their adherence to God and God’s law requires that they be granted special treatment relative to non-Muslims who war against the Islamic state. Furthermore, if the reb- els returned to the side of the “loyalists,” their full rights and status would be returned to them (Khadduri 1966, 230–46). Again, here it is helpful to quote Shaybani at length.

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I asked: If the rebels want to enter into a peace agreement with the lawful authorities (the loyalists) for a specified number of days or for a month until they reconsider their position, would it be lawful to do so?

He replied: Yes, if this were advantageous to the loyalists. I asked: If [the loyalists] asked [the rebels] to pay a specified

amount of property [as a quid pro quo for peace], do you think that this would be lawful to accept from them?

He replied: No. I asked: Why? He replied: Because [the rebels] are Muslims; therefore, nothing

should be taken from their property. . . . I asked: If the rebels repented and joined the loyalists, do you

think that they should be held liable for whatever property or life they destroyed during the war?

He replied: No, unless something tangible remained which should be returned to its owners. . . .

I asked: What do you think concerning the wounds inflicted [on the loyalists] by the rebels and the property usurped from them?

He replied: These also would be waived, unless some [of the property] remained unconsumed, which should be returned to its owners. (Khadduri 1966, 234–35)

Al-Shaybani’s position on rebels can be contrasted with his statements on the treatment of apostates—those who had been Muslims but then renounced the faith. Apostates, he argued, lose all rights and status granted them by the law, though these can be reinstated in full if they return to Islam. Their blood, he argues, becomes just like that of those in the dar al-harb, and they ought to be treated as enemies until they return to Islam or, if they refuse, until they are killed.

I asked: If an apostate commits a tort intentionally or unintention- ally, do you think that the ‘aqila5 would have to bear the responsibility of the damages?

He replied: No. I asked: Why?

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He replied: Because his blood would be as lawful to shed as that of the inhabitants of the territory of war. . . .

I asked: If a man has apostatized from Islam and [another] man cut off his hand or destroyed—intentionally or unintentionally—his eye or committed against him any other tort, intentionally or unin- tentionally, would this [other] man be held liable for anything?

He replied: No. I asked: Why? He replied: Since his blood is lawful to shed nobody would be

liable for any tort against him, whether cutting of his hand or foot or committing a tort or an injury (wound) against him. (Khadduri 1966, 202–3)

Analysis

Law, for both Aquinas and al-Shaybani, provides guidance and direction. It leads the individual toward her natural end. For al-Shaybani, the connection between law and piety is immediate and direct. The believer is obligated to carry out the dictates of God’s law and, at the time al-Shaybani was writing, there was signifi- cant consensus among Muslim jurists that this entailed living within the bounds of the Islamic state. While Muslims could cross into the dar al-harb, what we surmise from al-Shaybani is that living in Muslim lands was the ideal.6

For Aquinas, however, the relationship between religious and political authority is different. As we noted, human law exists in a critical relation- ship to eternal law. Yet they occupy distinct spheres of responsibility. Human law directs the person toward sociability and therefore toward virtue. It helps human beings create the types of conditions that allow them to secure the good life—the life that directs one’s heart, body, and mind toward God and salvation. A law is a law properly speaking if and only if it reflects the natural end of human beings as designed by God. Human beings—granted access to the eternal law through natural law—need human law in order to adjudicate the general guidelines of natural law and apply them to the specific situa- tions of individuals and communities such that both can be well ordered. The divine law, however, occupied a distinct sphere—one that was responsible for judging matters that were not related to public or social life. So while human law could not judge matters of the heart, it was essential to providing the social condition that the heart requires to be faithful.

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In sum, the state—for both Aquinas and al-Shaybani—is a critical com- ponent in the life of the believer as it is the repository and the promulgator of the law. The law, for both, is an important element in determining and follow- ing the dictates of God—a critical component of right piety and the life that is appropriate to a believer. In other words, at the core of both Aquinas’s and al-Shaybani’s thinking on the issue of war is a commitment to the state’s theo- logical role as the carrier of a set of goods critical to a pious life. It is for this reason, both argue, that war, in the interest of the protection, maintenance, and in the case of al-Shaybani, the growth of the state, can be, at times, a legitimate tool of statecraft.

Concluding Remarks

We have now arrived at the point at which we started—hopefully with new insights gained. Our investigation into the conceptual structure of both Aquinas and al-Shaybani has provided a more robust and nuanced under- standing of their respective positions on war. Moreover, it has demonstrated the contact points as well as points of friction between these traditions on the role, importance, and purpose of war, law, and statecraft.

One of the primary (and, I think, most obvious) differences between Aquinas and al-Shaybani is their understanding of what constitutes just cause for the use of force. For al-Shaybani, expansion of the dar al-Islam was a legiti- mate use of force. Recall that for the juristic tradition, the expansion of the geographical boundaries of the dar al-Islam was understood as the expansion of the territory in which God’s law was supreme. In this way, expansion of the state was a necessary step toward attaining peace (understood in a particular way). For al-Shaybani, the connection between war, religion, law, and state- craft exists in a relatively established and comfortable relationship. Aquinas, on the other hand, seemed more reticent about the use of force. However, while he did not, like al-Shaybani, work under the assumption that war for the expansion of the state was necessary, he was not reluctant to take the position that the use of force certainly had its role to play in the enforcement of both theological and political concerns.

To my mind, however, the points where Aquinas and al-Shaybani agree are more significant—particularly in terms of thinking comparatively and con- structively. To begin, for both thinkers war is, at times, a justified activity. War

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is, they argue, a necessary activity in the service and protection of the state— the repository of a set of essential political-theological goods. That said, as a moral activity, war is subject to a set of guidelines and restrictions. For Aquinas and al-Shaybani, justified war has certain limits that ought to be observed. The most significant point of agreement is the position that both Aquinas and al-Shaybani take toward the role of human agency in the construction of law. While for both Aquinas and al-Shaybani the law is subject to theological dictates, it remains a human construct. This point allows both thinkers, and I would argue, the traditions they represent, to approach ethical thinking on the use of force in ways that can be fluid and adaptive.

These shared concerns are encouraging for those of us interested in thinking comparatively about the moral wisdom of two historical, momen- tous traditions, and applying the wisdom contained within those traditions to contemporary problems in ways that can have significant impact. Of course, moving this research forward in the ways described above would require the incorporation of additional materials. It will be required that we turn to other thinkers who, while perhaps not progenitors, are certainly significant in the development of Western and Islamic just war thinking. Moreover, it will be essential to incorporate modern and contemporary voices into this discussion to highlight developments, shifts, and changes in the way that both the Muslim and Islamic just war traditions have thought about war.

The work of both thinkers is rich in moral resources. Both thinkers are dedicated to a set of moral and ethical commitments—a concern for inno- cents, a desire to use force only when justified, and a desire to remain relevant to the changing nature of moral problems—that can continue, and ought to continue, guiding moral decisions on the just use of force.

Notes

1. For comparative scholarship on the Western and Islamic just war traditions, see Johnson 1997 and Kelsay 1993.

2. Aquinas is quoting Augustine’s thinking on this issue. 3. Here, again, Aquinas is quoting Augustine. 4. As noted by Majid Khadurri, this branch of law was developed under two assump-

tions: that the state was a necessary instrument in the achievement of a set of

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ultimate religious objectives—notably, the spread of Islam and the geographical territory under its aegis. Second, that the Islamic state would eventually take over the non-Islamic world. This would, then, render the siyar as moot—and, in many ways, the jurists, working under these assumptions, assumed that the siyar was a temporary branch of the law whose purpose and function would eventually come to an end (Khadduri 1966, 5).

5. Those responsible for paying the blood money. 6. It is important to point out that the absence of the Islamic state did not relieve

the believer from the obligation to obey the law. As noted by Majid Khadduri, “The sanction of the law is distinct from the validity of the law” as the purpose of the law is to “provide for the believer the right path (shari’a) . . . regardless of the existence of the proper authority charged with its enforcement.” Yet, he argues, Muslim jurists agreed that the Muslim community was responsible, at all times, to charge a sovereign authority—the imam—with the task of leading the Islamic state through executing and enforcing the law. Failing to do so would be consid- ered a critical failing on its part (24).

Works Cited

Aquinas, Thomas. 1981. Summa Theologica. Translated by Fathers of the English Dominican Province. 5 Volumes. Christian Classics. Notre Dame: Ave Maria.

Dyson, R. W., ed. 2007. Aquinas: Political Writings. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press.

Johnson, James Turner. 1997. The Holy War Idea in Western and Islamic Traditions. University Park: Pennsylvania State University Press.

———. 2014. Sovereignty: Moral and Historical Perspectives. Washington, DC: Georgetown University Press.

Kelsay, John. 1993. Islam and War: A Study in Comparative Ethics. Louisville: Westminster John Knox Press.

———. 2014. “Response to Bucar and Stalnaker.” Journal of Religious Ethics 42, no. 3:564–70.

Khadduri, Majid. 1966. The Islamic Law of Nations: Shaybani’s Siyar. Baltimore: Johns Hopkins University Press.

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