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THE EFFECT OF MILITARY CONQUEST ON PRIVATE OWNERSHIP IN JEWISH AND ISLAMIC LAW
Published online by Cambridge University Press: 05 October 2016
Abstract
This article presents the legal outlooks of two fundamental religious judicial systems—the halakha of Judaism and the shari'a of Islam—on the effect of war on private ownership. Specifically, we address the situation in which the conquered inhabitants are Jews or Muslims and halakha or shari'a are the legal systems of their religions, respectively, but the conqueror is a nonbeliever or secular sovereign. Such situations evoke the following questions: To what extent the transfer of ownership by the conquering sovereign is recognized by the religious laws of the conquered population? May a member of the conquered religion acquire property that was seized by the nonbeliever sovereign from a member of the conquered religion? Is transfer of ownership by virtue of conquest permanent or reversible, so once the conquest ends, ownership reverts to the pre-conquest owner? Various approaches to those questions within each of two religious legal systems are presented. Some of the similarities and the differences between halakha and shari'a are pointed out.
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References
1 With regard to the biblical approach, see Gerhard von Rad, Holy War in Ancient Israel (Marva J. Dawn trans., 1991); John A. Wood, Perspectives on Wars in the Bible, chapter 6 (Mercer University Press, 1998). For the Jewish approach, see Bleich, J. David, Preemptive War in Jewish Law , 21 Tradition 3 (1983)Google Scholar; Michael Walzer, War and Peace in the Jewish Tradition, in The Ethics of War and Peace: Religious and Secular Perspectives 95–114 (Terry Nardin ed., Princeton University Press, 1993). For Reuven Firestone's unique approach, see Holy War in Modern Judaism? “Mitzva War” and the Problem of the “Three Vows,” 74 Journal of the American Academy of Religion 954 (2006)CrossRefGoogle Scholar; idem., Holy War in Judaism: The Fall and Rise of a Controversial Idea 17–139 (Oxford University Press, 2012) [hereinafter Firestone, Judaism]. For the contemporary context of the State of Israel, see Firestone, Judaism, 202–318; Edrei, Arye, Law, Interpretation, and Ideology: The Renewal of the Jewish Laws of War in the State of Israel , 28 Cardozo Law Review 187 (2006)Google Scholar; Broyde, Michael J., Military Ethics in Jewish Law , 16 Jewish Law Association Studies 1 (2007)Google Scholar. All dates reference the common era (CE) unless otherwise indicated. Unless otherwise indicated translations are those of the authors.
2 For the Christian approach, see Frederick H. Russel, The Just War in the Middle Ages 16–39 (Cambridge University Press, 1975); John Finnis, The Ethics of War and Peace in the Catholic Natural Law, in The Ethics of War and Peace, supra note 1, at 16–39; Langan, John, The Elements of St. Augustine's Just War Theory , 32 Journal of Religious Ethics 1, 19 (2004)Google Scholar; James Brundage, Holy War and the Medieval Lawyers, in The Holy War, 99–140 (Thomas Patrick Murphy ed., Ohio State University Press, 1974).
3 For the Islamic approach, see Majid Khadduri, War and Peace in the Law of Islam 52 (1955); Rassam Tibi, War and Peace in Islam, The Ethics of War and Peace, supra note 1, 128–45; W. Montgomery Watt, Islamic Conceptions of the Holy War, in The Holy War, supra note 2, at 141–56; Heck, Paul L., Jihad Revisited , 32 Journal of Religious Ethics 1, 95 (2004)CrossRefGoogle Scholar. For a unique approach, see Reuven Firestone, Jihad: The Origin of Holy War in Islam (Oxford University Press, 1999) [hereinafter Firestone, Jihad]. According to Firestone, jihad and “jihad of the sword” are not equivalent to the common Western understanding of holy war, “while qital in the path of God (fi sabil Allah) is virtually synonymous with jihad when it is understood as warring in the path of God.” Id. at 13–18.
4 On the relations between a “commanded war” and the fear of idolatry, see Deuteronomy 7:1–7, 16; 12:1–5. An analysis of Maimonides's position on the subject can be found in Gerald Blidstein, Political Concepts in Maimonidean Halakha 253–63 (Ramat–Gan: Bar-Ilan University, 2nd ed., 2001); Firestone, Judaism, supra note 1, at 108–26.
5 Malcolm N. Shaw, International Law 956–1009 (Cambridge University Press, 6th ed., 2008). On the historic approaches to state succession, see Hugo Grotius, On the Acquisition of Territory and Property by Right of Conquest, in De Jure Belli ac Pacis (The Rights of War and Peace), book 3, chapter 6 (A.C. Campbell trans., The Online Library of Liberty 1901); Emanuelli, C., State Succession, Then and Now, with Special Reference to the Louisiana Purchase (1803) , 63 Louisiana Law Review 1277 (2004)Google Scholar.
6 Certain Questions Relating to Settlers of German Origin in the Territory Ceded by Germany to Poland, PCIJ Series B6 (1923); PCIJ Series A7 (1926); 1 D.P. O'Connell, International Law 365–91 (London, Stevens & Sons, 2nd ed., 1970); Shaw, supra note 5, at 1001–03.
7 For the legal meaning of “private ownership” of property and its rights and duties, especially the power to transfer it, see Joseph W. Singer, Introduction to Property 2–8 (Aspen Law & Business, 2001). For the historical background of “ownership” of lands in the feudal system, see 2 William Blackstone, Commentaries on the Laws of England 1765–69, chapter 4.
8 For the historical background of the legal approach in the Middle Ages, see M.H. Keen, The Laws of War in the Late Middle Ages 137–55 (Routledge & Kegan Paul 1965); Benvenisty, Eyal, The Origins of the Concept of Belligerent Occupation , 26 Law & History Review 621 (2008)CrossRefGoogle Scholar (describing the history of this distinction).
9 Jean-Jacques Rousseau, 1 The Social Contract 6 (G.D.H. Cole trans., Dover 2003) (1762). In the seventeenth century, the rights of conquest and the limits to those rights were the principal issues over which Protestant and Catholic loyalists contended. We note that premodern armies also had an interest in protecting private property in order to show they were just in their dealings.
10 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287.
11 For another type of “ownership” in halakha see Gilat, Israel Z., “Conquest by War”: Influences on Personal Status , in 20 Jewish Law Association Studies: The Manchester Conference 83–95 (2008)Google Scholar.
12 For the traditional orthodox Jewish approach, see 1 Menachem Elon, Jewish Law: History, Sources, Principles 1–45 (Bernard Auerbach and Melvin J. Sykes trans., Jewish Publication Society of America 1994). On the differentiations between approaches of Judaism, Christianity, and Islam, see Joseph Schacht, Islamic Religious Law, in The Legacy of Islam 392–403 (Joseph Schacht and C.E. Bosworth eds., Clarendon Press, 2nd ed., 1974); Bernard Lewis, Islam: Politics and War 156–209 (Oxford University Press, 1987). See also Quraishi, Asifa, Interpreting the Qur'an and the Constitution: Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence , 28 Cardozo Law Review 67–128 (2006)Google Scholar.
13 In the modern era, after the concept of the state developed with its distinction between the state and the individual, there are Jewish and Muslim legal authorities who maintain that this perception should be changed and war should be regarded as an act between states, not between nations. Consequently, according to these authorities, one must distinguish between the state level and the private level. See Walzer, supra note 1; Firestone, Judaism, supra note 1; Tibi, supra note 3. For the historical approaches, see Hugo Grotius, supra note 5; C. Emanuelli, supra note 5.
14 See Gideon Libson, Jewish and Islamic Law: A Comparative Study of Custom During the Geonic Period 10–11 (Harvard University Press, 2003).
15 District Rabbinic Court (Jerusalem) 517\5754 (1954), Landesman v. Mount Zion Committee 1 PDR 169.
16 Numbers 21:26.
17 BT Hullin 60b. BT stands for the Babylonian Talmud.
18 Deuteronomy 2:5–7, 9, 19. To the influence of this prohibition on Western thought, see Grotius, supra note 5.
19 Deuteronomy 2:5–7, 9, 19.
20 See Judges 11:13–22.
21 Genesis 21:23, 31.
22 BT Hullin 60b. The paragraph suggests an argument different from that made at notes 8–10 as to why modern international law and premodern religious law differ: The earlier texts suggest that God is the real owner of the land, and conquest is a sign that he has decided to transfer ownership. Consequently, appropriating enemy property becomes a divine commandment. At the same time, according to the sages, God, too, must obey his laws. The Sanhedrin do not tell David that this is God's will, and so he was allowed to conquer the Philistines, but rather that the original covenant sealed between the Philistines and Abimelech does not apply to them, since they are Caphtorim.
23 BT Sanhedrin 94b.
24 In 1 Samuel 8:11, Samuel detailed the Israelite king's prerogatives: “And he said, This will be the manner of the king that shall reign over you … . And he will take your fields, and your vineyards, and your olive yards, even the best of them, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep: and ye shall be his servants. And ye shall cry out in that day because of your king which ye shall have chosen yourselves.” However, the Talmudic sage (Sanhedrin 20b) Rabbi Judah said: “That section was stated only to inspire them with awe” (that is, by indicating the extent of his authority, but not implying that he is permitted to abuse his power). See Yair Lorberbaum, Subordinate King: Kingship in Classical Jewish Literature 67–74 (Hebrew) (Ramat-Gan: Bar-Ilan University, 2008). But see Blidstein, supra note 4, at 160–68, who considers the Jewish king's authority as a source for recognizing the gentile king's authority.
25 Tosefta Gittin 38a.
26 See supra note 16.
27 See infra note 35.
28 Mishnah Gittin 5:8.
29 Tosefta Gittin 3:10.
30 Id.
31 Supra note 28.
32 We use the terms despair, resignation, abandonment, relinquishing, and giving up right to ownership interchangeably to describe the halakhic concept of ye'ush.
33 8 Tosefta Ki-fshutah, Order Nashim 842 (Jewish Theological Seminary 1973).
34 Id.
35 Hidushei Ha-Rashba, BT Gittin 37b, 363–64 (Sekler edition) (dealing with slaves); Maimonides Responsa, 209, 2:370–71 (Blau edition, 1986) (dealing with sacred books and other objects); Tashbetz 2:136–37 (regarding Jewish holy books); Radbaz Responsa 3:523 (regarding a moneylending business).
36 A thirteenth-century Spanish Talmudic scholar. He studied in Barcelona, then moved to Marseilles and Perpignan, where he wrote Talmudic novellae.
37 Hidushei R. Karaskas on Gittin 38b (Lichtenstein edition, at 331).
38 Beith Habekhira, BT Gittin 59a, s.v. “ge'onei Ma'rav” 244 (Shlesinger edition) (our emphasis). A Talmudic scholar from Provence who served as a rabbi in Perpignan for most of his life, he composed this comprehensive commentary on the Talmud. He died in 1315.
39 A medieval Talmudic scholar, born in Barcelona, where he served as a rabbi until his death in 1310, he was considered the religious leader of Spanish Jewry in his day, but his responsa were disseminated throughout the Diaspora—in Germany, France, Bohemia, Sicily, Herakleion, Morrocco, Algiers, Israel, and of course the entire Iberian peninsula. He also wrote novellae for many Talmudic tractates, and several halachic monographs.
40 Hidushei Ha-Rashba, BT Gittin 37b, 363–64 (Sekler edition).
41 In traditional Jewish sources, rabbis are often referred to by acronyms, and we use these when applicable. The name Rid stands for Rabbi Yishayahu of Tirani. This Italian rabbinic sage was born in Tirani and later lived in Venice and Verona in Italy and Lyons in Provence, and died in 1250. He left behind extensive novellae on many Talmudic tractates, called Tosafot Harid. He is called “the elder” to distinguish him from his grandson, Rabbi Yishayahu Mitrani (known as Riaz).
42 Tosafot Rid, BT Gittin 38a, 104 (Lis edition).
43 After the death of his father, this Spanish scholar was appointed rabbi of Toledo and even given the title Nasi (president). He headed a large yeshiva and corresponded with other sages of his generation, including Nachmanides. He died in 1244. His novellae are extant today only for several tractates.
44 Yad Ramah, BT Sanhedrin 94b, s.v. “akhar ha-devarim.”
45 Born in Constantine, in Algiers, he studied in the Kairouan yeshiva, then settled in Fes and taught Torah for many years. After a false denunciation he was compelled to escape to Spain and settled in Aliciana, where he headed a yeshiva. Died 1103. Besides his responsa, which appeared in the writings of his students and their students, he was known for his Hilkhot (“Book of Halacha”), which was considered a foundational learning text by all medieval scholars. Rif responsum in Sefer Ha-Itur, Part 40: Moda'ah 41a (Rabbi Meir Yona ed.).
46 The greatest Jewish sage in the medieval period. Born in Cordoba, he escaped Almohad persecutions together with his family and settled first in Fes, then traveled to Israel, and finally settled in Egypt. In Egypt he settled in Postat, near Cairo. He made his living as a doctor, serving also in the royal court. He died in 1204. He wrote on diverse subjects, covering the Talmud, rabbinic halakha, and philosophy. Besides his codex, he also wrote hundreds of responsa. Maimonides Responsa, supra note 35.
47 Rashba Responsa 1:637.
48 Born in Seville, studied in Aliciana under Rabbi Isaac Alfasi, who considered him his spiritual heir and appointed him to succeed him as head of the yeshiva. He remained at this post until his death in 1141. His responsa exist as quotations in other rabbis’ writing. See Shitta Me-kubezet BT Baba Metzi'ah 24b, s.v. “ve-Rabi Yosef Ha-levi Ibn Migash.”
49 Ge'onim Responsum in Sefer Ha-Itur, supra note 45, at 41a.
50 One of the last Tosafists, he was born in Worms and studied in French yeshivot under various Tosafist sages. Later he returned to serve in the rabbinate in several German communities, and especially Rottenburg, where he founded a yeshiva and was considered the chief rabbi of all German communities. Persecuted in Germany, he escaped to Lombardy and planned to immigrate to Israel. He was denounced for attempting to escape and imprisoned by Emperor Rudolf for seven years, until his death in 1293. The emperor was willing to release him for a handsome ransom, but Maharam forbade the community to ransom him. See Maharam of Rothenburg, Responsa number 1009, She'elot u-teshuvot (Moses Bloch ed., 1895) (1608).
51 Born in Majorca, where he learned Torah, he later moved to Spain. He was driven from Spain by the religious persecutions of 1391 and settled in Duran in Algiers, where he served as the community's rabbi and leader. His extensive and numerous responsa have been collected into three volumes. He died in 1444. Tashbetz 2:136–37.
52 Born in Spain in 1480, he settled after the exile from Spain in Israel, living in Safed and Jerusalem. Later he moved to Egypt, first to Alexandria and then to Cairo, where he was recognized by the authorities as the chief rabbi of Egypt. He founded a large yeshiva in Egypt. He spent the final two decades of his life in Israel again, where he died at a ripe old age in 1573. He wrote thousands of responsa, which fill several volumes. Radbaz Responsa 3:523.
53 Chief Rabbi of Kovno, Lithuania, before the Holocaust. He died in 1943. Dvar Avraham Responsa volume I, chapter 1:6–12, chapters 10–11; volume II, chapter 6:3–4 (Warsaw, 1906).
54 The responsa, supra note 15, was written by Rabbi Elyashiv, considered the most charismatic rabbinical figure in the entire Orthodox Jewish world for the last fifty years of his life.
55 Born in Galicia, he served as rabbi in a few of its towns. In 1936, he was appointed rabbi at Czernowitz, until it was taken over by the Nazis. After immigrating to Israel, he served for a certain period of time as a member of the Grand Rabbinical Court and as a member of the central rabbinate's committee, but finally resigned. Kol Mevasser Responsa 1:57.
56 Born in Galicia and educated in Munkacs, after his marriage, he served as head of the Jewish Court of Grosswardein, Transylvania. He survived the Nazi actions, moved to Manchester, England, in 1948, where he was appointed head of the Jewish court and head of a yeshiva. In 1970, he moved to Israel, and since then has been considered the spiritual leader of the Eida Charedit, which rejects the existence of the State of Israel. Minkhat Yitzkhak Responsa 4:76; 8:69.
57 Born in Ungvar, he just barely survived the war and made it to the United States. He founded a yeshiva there, and was considered the greatest halachic decisor in the United States and later in Israel, where he lived in his final years. He wrote thousands of responsa on contemporary issues. Mishneh Halakhot Responsa 17:150.
58 Born in Russia and educated in Lithuanian yeshivot, he later studied at universities in Giessen and Berlin, and he headed the Berlin Rabbinical Seminary. During World War II, he spent time, among other places, in the Slobodka ghetto in Kovno and in the Warsaw ghetto and was considered a rabbinical leader there. After the war, former students helped him move to Switzerland, where he headed the Montreux yeshiva. His responsa include many answers to questions dating from the war years and their aftermath. Seridei Esh 1:147.
59 Maimonides Responsa, supra note 35.
60 In Shita Mekubezet, supra note 48.
61 Tosafists BT Baba Kama 114b, s.v. “hamakir.”
62 Tashbetz, 2:136–37.
63 Supra note 15.
64 Supra note 55.
65 Id.
66 The ruling in Shulhan Arukh, Hoshen Mishpat, chapter 259.
67 See Rabbi Yosha Falk Katz, Sefer Meirat Enayim commentary on Shulhan Arukh Hoshen Mishpat 259:16. A sixteenth-century Polish sage, he wrote one of the most important commentaries on the Shulhan Arukh.
68 Rabbi Moses Isserlish (Rema), Mapa on Shulhan Arukh, Hoshen Mishpat 259. Rema, who died in 1572, was one of the greatest Polish Torah sages. His life's work involved comments on Rabbi Yosef Karo's works, which belonged to the Sfardi halakhic tradition, by bringing to bear on them the Ashkenazi halakhic tradition and ruling accordingly. He interwove his editorial comments into Rabbi Karo's text. Metaphorically, his work was described as follows: if Rabbi Yosef Karo created the “set table” (the Hebrew meaning of Shulhan Arukh), then Rabbi Moses Isserlish spread the tablecloth (Mapa).
69 Shulkan Arukh, Hoshen Mishpat 356:7. Rema's decree is based on Rabbi Yisrael Isserline Trumat Ha'Deshen Responsa §309.
70 Rabbi Ovadiah Hadiah disagrees with Rabbi Rath's assumption regarding an owner who has given up hope of retrieving his property because the Nazis may be compared to a lion or bear and maybe even worse, as nobody is capable of defending their property against them. In his responsa he writes, “With all due respect, nobody would deny that they are worse than a lion or bear, but everybody knows that their major concern was to murder … and that the financial aspect was incidental. And I have even heard that many of the victims' relatives who returned after the war found their possessions intact, but in some cases the neighbors had plundered the house … And I would not compare the situation to that of the lion and bear … even if they did take property, since they were fighting a war and could be defeated, as was the case. Therefore I do not think that the owner relinquished his rights.” Yaskil Avdi, 6:20.
Similarly, Rabbi Yaakov Yehiel Weinberg, himself a Holocaust survivor, is not of the opinion that the owner definitely gave up all hope of recovering property from the Nazis. In his responsa, he was asked whether rescuing books from the library of the Rabbinic Seminar in Berlin during the Second World War could be compared to rescuing jetsam from the sea and the rescuer thus becomes the owner of the books? He answers, “I have my doubts about the comparison, since we know that evil men took all the books from the libraries and preserved them in a safe place … and we did not give up hope that the evil would disperse like smoke and the reign of evil would disappear . . . . Thus, the owners never gave up hope.” Seride Esh, 1:147.
However, Rabbi Menashe Klein, also a Holocaust survivor, maintains that the owner had resigned himself to his loss. In his responsum, he documents his personal experiences as a refugee, describing what he thought and felt at each stage until he reached the United States. He rules:
It is therefore evident when the Jews left their houses and property together with everything they owned, without any protection, that they gave up hope immediately because they knew what would happen to their property … and certainly when they reached the ghetto and from the ghetto moved on to the concentration camp, who would not give up hope? They not only relinquished their possessions but also were resigned to giving up their lives and indeed they were proven right. Only one from a town and two from a family survived, and the survivors after the war did not think about their possessions. Most of them did not even try to go back to their houses, since they knew that there would be nothing to find.
Mishane Halakhot, 17:140.
71 Supra note 15, at 171.
72 BT Baba Metzi'ah 24a.
73 Radbaz Responsa 3:523.
74 Supra note 15, at 171–72.
75 See Isaac Herzog, Psakim U'Ketavim (1990), III, §36–37.
76 In order to obtain insights into the gentile king's prerogative and its implications with respect to the ownership rights of his Jewish subjects, some post-Talmudic authorities have put forward an interpretation that the prerogative of the gentile king is derived from the Jewish king's royal prerogative. The Jewish royal prerogative relies on “the king's custom,” which was declared by Samuel the prophet. But some others differentiate between a Jewish king and a non-Jewish king: “The principle of King's Law (dina de-malkhuta dina) pertains in particular to a non-Jewish king, as he can say ‘If you do not obey my laws, I will expel you,’ as the land belongs to him. But this principle does not apply to a Jewish king. A Jewish king cannot take anything from them that is theirs, as the Land of Israel belongs to all Jews, and he has no greater share in it than anyone else” (Rabbi Eliezer of Metz's view, cited in Hidushei Ha-Rashba, BT Nedarim 28b). Even though there are other rabbinic authorities that contended that the principle of king's law applied also to a Jewish king, his prerogative to confiscate and tax his subjects’ property is not by virtue of the fact that he is the “lord of the land,” but because of the crucial need to provide for the upkeep of his kingdom, for his officials, especially his courtyard. Anyway, the medieval halakhic authorities maintain that even according to Samuel, the scope of the royal prerogative is not so wide ranging as to allow a king to expropriate his subjects’ property and distribute it among his servants permanently as he sees fit. Thus, Rabbenu Tam distinguishes between a king's license to take from his subjects and give to his soldiers on the one hand, and to take for himself to increase his own fortune on the other hand, which is forbidden. In his Code (Mishneh Torah) Maimonides, however, determines that “He may seize fields, oliveyards, and vineyards and give them to his servants when they go forth to war and are encamped around those places and have no other supply of food, and he pays for what he seizes, as it is said: ‘And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants’ (I Sam. 8:14).” This refers only to wartime and only in return for payment. Moses Maimonides, Kings and Their Wars, chapter 4, paragraph 6, at 216, in The Code of Maimonides, Book 14, The Book of Judges (Abraham M. Hershman trans., Yale Judaica Series 3, 1949).
77 Rabbi Kamai is cited in Dvar Avraham, supra note 53.
78 It should be noted that the most influential jurist, who laid the foundation of Islamic law of war, was Muḥammad Ibn Al-Ḥasan Al-Shaybānī (محمد بن الحسن الشيباني ; AH 749/50–805). He has detailed discussions of the effects of war on property rights, especially in his treatise Al-Siyar Al-Kabir, which was also the subject of an important commentary by Al-Sarakhasi in his work Sharh Al-Siyar Al-Kabir. We refer to the commentary made by Al-Sarakhasi as he wrote at length about the issue discussed in this article.
79 The Qur’ān comprises 114 chapters and 6235 verses (each chapter consists of an unequal number of verses).
80 Bassiounni, M. Cherif & Badr, Gamal M., The Sharia'h: Sources, Interpretation and Rule-Making , 1 UCLA Journal of Islamic & Near Eastern Law 135 (2002)Google Scholar. It should be noted that whenever the two primary sources do not cover a certain situation, Islamic jurists developed secondary sources of law, namely consensus (ijmāʻ), analogy (qiyas), custom (ʻurf), and common good (maslaha). All Muslims jurists agree that no rules derived from the secondary sources may abrogate a rule contained in the two primary sources. Since the subject discussed in this article is covered by the primary sources, the secondary sources are beyond the scope of this article.
81 Islamic tradition records eleven battles waged by the Prophet Muhammad. See Muhammad Ibn Ishāq, The Life of Muhammad: A Translation of Ishāq's sīrat rasūl Allah, 659–60 (Alfred Guillaume trans., Oxford University Press 1955) (2004); Muhammad Hamidullah, The Battlefields of the Prophet (Woking 1953).
82 All schools of thought agree on the general rule that spoils of war obtained by Muslims from non-Muslims in war belong to the Muslims, and should be divided between the warriors. In this section we will focus only on situations where a non-Muslim seized private property owned by a Muslim.
83 In the present article, classical Islamic jurists are considered those who lived between the eighth and fifteenth centuries. Thus, besides the works of the real classical jurists, the works of jurists who are normally classified as postclassical by many experts of Islamic law are exceptionally referred to here as classical. See, for example, the classification of Chafik Chehata, Ētudes de droit musulman 20–27 (Paris, 1971).
84 It should be mentioned that Islamic law establishes certain methods of acquiring private ownership which apply also to non-Muslims, but an act of war is not considered to be one of such methods. See Muhammad Abu Zuhra, Al-Mulkiyya wa-Nazariyyat Al-‘Aqd fi Al-Shari'a al-Islamiyya (Dar Al-Fikr Al-‘Arabi 1976).
85 In this context we should make two notes, limiting the discussion: first, this article focuses only on the question of the non-Muslim conqueror's ability to acquire conquered Muslim property. This question is very different from that of whether a non-Muslim ruler can usurp ownership of property belonging to a Muslim resident of that country. A second note is that the present article deals with a non-Muslim conqueror's power to acquire Muslim property, rather than the opposite situation, where the conqueror is himself Muslim. Hence, the Ahl Al-Dhimma issue is not relevant to the present discussion.
86 Among Shī‘ī schools this view is prevalent among Twelver Shī‘a and one jurist of Zaydiya. See 1 Jaʻfar Ibn Al-Hasan, Sharāῑʻ al Islam 226 (1978).
87 4 Muhammad ibn Idrīs Al- Shāfiʽī, Kitab Al-Umm 284 (Dar al-Fikr 1983). Muhammad ibn Idrīs al-Shāfi‘ī (Arabic: ابو عبد
محمد بن إدريس الشافعيّ ) was a Muslim jurist who died in 820. He was active in juridical matters and his teaching eventually led to the Shāfiʽī school of fiqh (or Madh'hab) named after him. Hence, he is often called Imam Al-Shāfiʽī. Al-Umm is the earliest extant juristic Islamic text discussing the matter addressed in this article.
88 3 Sunan Abī Dāwūd, Kitab Al-Jihad, at 64, hādith number 2986.
89 Majid Khadduri, The Law of War and Peace in Islam: A Study in Muslim International Law 116 (1940).
90 See ibn Idrīs Al- Shāfiʽī, supra note 87, at 286.
91 2 Sahih Muslim, Kitab Al-Nudhur, at 18; 4 Musnad al-Imam Ahmad, at 432.
92 The concept “non-Muslim” includes two categories. One is fellow monotheists, that is, Christians and Jews. Islam refers to the latter as Ahl al-Kitāb (People of the Book), or Al-Dhimma (اهل الذمة). The other is non-monotheists, or pagans. These are referred to as infidels (كفار). Regarding the question broached by the present article—the power of non-Muslims to acquire Muslim possessions through acts of war—an analysis of the Muslim sources shows there is no difference between the two categories of non-Muslims. Hence, we do not distinguish between the two categories, but rather consider them a single, non-Muslim group. It should be emphasized that in other aspects of war Muslim law does recognize differences between the two groups. See Firestone, Jihad, supra note 3, at 127–34.
93 See ibn Idrīs Al- Shāfiʽī, supra note 87, at 287.
94 Abu Zakaria Mohiuddin Yahya Ibn Sharaf Al-Nawawi (d. 1278) (Arabic: أبو زكريا يحيى بن شرف النووي ), popularly known as Al-Nawawi, an-Nawawi or Imam Nawawi, was a Sunni Muslim author on fiqh and hādith. His position on legal matters is considered the authoritative one in the Shāfiʽī Madhhab. In his book, 5 Rawdhat Al-Talibeen 327 (Dar Al-Kotob, 1981), he summarized the views of the Shāfiʽī jurists on the matter.
95 Al-Māwardī, Al-Ahkam Al-Sultaniyya (The Ordinances of Government), 136 (Dar al-Kotob, 1982). Abu Al-Hasan Ali Ibn Muhammad Ibn Habib Al-Māwardī (أبو الحسن علي بن محمد بن حبيب البصري الماوردي ), known in Latin as Alboacen (972–1058), was an Arab Muslim jurist of the Shāfiʽī school most remembered for his works on religion, government, the caliphate, and public and constitutional law during a time of political turmoil. Appointed as the chief judge over several Khorasani districts near Nishapur, and Baghdad itself, Al-Māwardī also served as a diplomat for the Abbasid caliphs Al-Qa'im and Al-Qadir in negotiations with the Buyid emirs. A symbol of his contributions here, he is well remembered for his treatise “The Ordinances of Government.” The Ordinances, Al-Ahkam Al-Sultaniyya, provide a detailed definition of the functions of caliphate government that appeared to be rather indefinite and ambiguous.
96 In Arabic: { قوله تعالى : { ولن يجعل
للكافرين على المؤمنين سبيلا
97 In Arabic: { قوله تعالى : { وأورثكم أرضهم وديارهم وأموالهم وأرضا لم تطؤوها
98 14 Al-Mawardi, Kitab Al-Dahaya min Al-Hawi Al-kabir 217.
99 Id.
100 Abū Muḥammad ʿAlī ibn Aḥmad ibn Saʿīd ibn Ḥazm (d. 1064) was an Andalusian philosopher, litterateur, psychologist, historian, jurist, and theologian born in Córdoba, present-day Spain. He produced a reported 400 works of which only 40 still survive, covering a range of topics such as Islamic jurisprudence, logic, history, ethics, comparative religion, and theology. In his book Al Kitab Al-Muhallā bi'l Athār there is an extensive discourse regarding different aspects of the law of war including some issues that our article deals with. In his jurisprudence he chose to account on the apparent meanings and purport of Qur’ānic verses and the hādith.
101 7 Ibn Hazm, Al Kitab Al-Muhallā bi'l Athār 200.
102 Id. at 207.
103 Of all Shī’ī schools, this view is prevalent among the Zaydiya school. See Fakhrāddīn Abū Muhammad ibn al Qasim Ibn Miftah, Sharh Elazhār (Dar al-Fikr Publishers 1988). Ibn Miftah is a Zaydi scholar who died in 1455.
104 Leading Hanbalī scholars who addressed the matter are Imam Mawaffaq ad-Din Abdullah Ibn Ahmad Ibn Qudama Al-Maqdisi (d. 1223), 9 Al-Mughīi fi Fiqh Al-Imam Ahmad ibn Hanbal al-Shaybaniy 261 (Dar al-Fikr Publishers 1985); Mansour Albahoti (d. 1519), Kashaf Alqina ‘an Matn Aliqna (Eastern Press, 1999). Leading Mālikī scholars who addressed the matter are Al-Bājī Abū l-Walīd Sulaymān ibn Khalaf ibn Sa‘d Al-Tujībī l-Bājī l-Qurṭubī l-Dhahabī (d. 1081), 3 Al-Muntaqa Sharh Al-Muwatta 185 (Dar al Kitab Al Arabi 1982); Al-Maghribiy, Abu-‘Abdullah Muhammad ibn ‘Abd Al-Rahman (d.1547), 2 Mawahib al-Jalil Li-Sharh Mukhtasar Khalil 275 (Dar Al-Fikr Publishers, 2nd ed. 1977).
105 Al-Sarakhasi was from Transoxiana. He died sometime around 1096. It is said that Al-Sarakhasi was imprisoned for his opinion on a juristic matter concerning a ruler: he criticized the king by questioning the validity of his marriage to a slave woman. During the fifteen or so years he was imprisoned, he wrote the Mabsut and some of his other most important works. Al-Sarakhasi's opinions on law, inter alia, the matter we discuss in this article, have been widely cited, and he has been thought of as a distinctive writer. His main works are the Usul Al-Fiqh, the Kitab Al-Mabsut, and the Sharh Al-Siyar Al-Kabir.
106 10 Shams al-Din Al-Sarakhsi, Kitab Al-Mabsūt 54 (Happiness Publishers 1906).
107 In Arabic: للفقراء المهاجرين الذين اخرجوا من ديارهم وأموالهم يبتغون فضلا من
ورضوانا وينصرون
ورسولهׂ}
{أولئك هم الصادقون
108 4 Ahmad b. Mahmud Al-Nasafi, Tafsir Al-Nasafi, at 141.
109 Al-Sarakhsi, supra note 106 at 55.
110 7 Musannaf Ibn Abi Shayba, Kitab Al-Jihad, 686, hādith number 14.
111 Al-Sarakhsi, supra note 106, at 55.
112 The Arabic term is aṣ-Ṣaḥāba (Arabic: الصحابة). The most widespread definition of a Companion is someone who saw the Prophet Muhammad, believed in him, and died a Muslim. Anyone who died after rejecting Islam and becoming an apostate is not considered a Companion. According to other definition, Companions are only those individuals who had substantial contact with the Prophet, lived with him, and took part in his campaigns and efforts at proselytizing. See Wilferd Madelung, The Succession of Muhammed (Cambridge University Press 1997).
113 5 Sahih Al-Bukhari, Kitab Al-Jihad, 443.
114 14 Al-Mawardi, supra note 95, at 217. It should be noted that Abu Talib remained an infidel until his death, and, according to the laws of inheritance, the heir cannot inherit the deceased if they are of different religions. Therefore, ‘Ali Ben Abu-Taleb could not inherit from his father, and the only remaining heir was ʻUqayl.
115 Al-Sarakhsi, supra note 106, at 53.
116 Id.
117 Ibn Qudama (d. 1223), Hanbalī classic jurist, made the same argument in his book. Ibn Qudama, supra note 104, at 261.
118 Wahba Al-Zuhayli (born 1932 in Syria) is one of the world's leading experts on Islamic international law. His works have been quoted in such Western scholarly works as Sohail Hashimi & Steven Lee, Ethics and Weapons of Mass Destruction: Religious and Secular Perspectives (Cambridge University Press 2004), and Firestone, Reuven, Disparity and Resolution in the Qurʾānic Teachings on War: A Reevaluation of a Traditional Problem , 56 Journal of Near Eastern Studies 1 (1997)CrossRefGoogle Scholar. Since 1963 he has taught at Damascus University, where he has been professor since 1975.
119 See Wahba Al-Zuhayli, Athār Al-Harb fi Al-Fiqh Al-Islmai, 613–20 (Dar Al-fikr Al-Arabi 1991).
120 Id. at 619.
121 Id. at 620.
122 Roberts, Adam, The Equal Application of the Laws of War: A Principle under Pressure , International Review of the Red Cross 872 (2008)Google Scholar.
123 See Wahba Al-Zuhayli, supra note 119, at 621.
124 ‘Ali Al-Abyani, Spoils of War in Islamic Law 87–124 (2003).
125 Id. at 98.
126 Id. at 87–96.
127 See Khadduri, supra note 89, at 117.
128 In Arabic: {قوله تعالى : {ولن يجعل 
للكافرين على المؤمنين سبيلا
129 ‘Ali Al-Abyani, supra note 124, at 98.
130 Rudolph Peters, Jihad in Classical and Modern Islam: A Reader (Markus Weiner Publishers 1996).
131 Al-Zuhayli, Wahba, Islam and International Law , International Review of the Red Cross 858 (2005)Google Scholar.
132 Id. at 274.
133 For further discussion regarding the two approaches, see Mohammad Fadel, International Law, Regional Developments: Islam (Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 2010).
134 9 Sunan Abī Dāwūd, at 377, hādith number 3041. This hādith is an Islamic expression of the Roman principle nemo dat quod non habet.
135 See ‘Ali Al-Abyani, supra note 124, at 120.
136 See Al-Kāsānῑ (d. 1191), Badāʽ Al-Sanāiʽ` fi Tartib Al-Sharāiʽ 128 (Dar Al-Kitab Al-ʽArabiy, 2nd ed. 1984). The price for redemption is the price paid by the purchaser from the plunderer.
137 See ‘Ali Al-Abyani, supra note 124, at 122.
138 Shāfiʽī jurists did not address this matter.
139 See ‘Ali Al-Abyani, supra note 124, at 124.
140 Al-Sarakhsi, supra note 106, at 276; Ibn Qudama, supra note 104, at 262.
141 See ‘Ali Al-Abyani, supra note 124, at 124.
142 We must emphasize again that the present article deals with the non-Muslim conqueror's power to acquire Muslim property during a war. This question is different from that of whether a non-Muslim ruler may expropriate the possessions of Muslim subjects in his realm. That question, as mentioned before, lies beyond the scope of the present article.
143 As mentioned above, in the text next to note 122, Al-Zuhayli holds a different view, calling for taking the mode of behavior into account when dealing with justice issues that remain when booty is considered.
144 Lewis, supra note 12.
145 See R. Avrahm Yeshahu Karelitz, Hazon Ish, Comments on Bava Kama, 10:3 (Bnei-Brak 1991), who explained the interpretative difference between Maimonides's and Nachmanides's approaches to the concept of gentile law. He explains that gentiles are not obligated to obey Jewish law, but rather other juridical systems that prevail where they live. When a gentile and Jew have a legal dispute between them, the Torah sage must rule in accordance with non-Jewish law, and has no right to use Torah law against the will of the gentile. However, the differentiation between the Talmudic concept of gentile law and Jewish laws is not unanimously accepted, and there have been many scholarly disputes on the subject. For a comprehensive survey, see N. Rakover, The Rule of Law in Israel 34–40 (Hebrew) (Jewish Law Library 1989).
146 Blidstein, supra note 4, at 253–61. On the difference between the Jewish and Muslim approaches, see id. For a different theoretical approach regarding shari'a's perspective on imposing religion on non-Muslims, see Firestone, Jihad, supra note 3, at 127–34.
147 On this point, compare the position of Talmudic law scholar Shalom Albeck, Law and History in Halakhic Research, in Modern Research in Jewish Law 1–20 (Bernard S. Jackson ed. 1980). See also the debate spawned by his article: Itzhak Englard, Research in Jewish Law, in Modern Research in Jewish Law 21; Bernard S. Jackson, Modern Research in Jewish Law: Some Theoretical Issues, in Modern Research in Jewish Law 136–57.
148 We note that Grotius relies heavily on Jewish law, quoting Biblical stories, Talmudic statements, and Maimonides's rulings.
149 Schacht, supra note 12.