Muharaba
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Muḥāraba (Arabic: المحاربة) lit. fight or waging war, is to draw weapons with the aim of creating fear in people. The jurists consider the person who openly steals people’s property or takes them captive to be a muharib [“one who fights/wages war”], and referring to the Quran 5:33, they consider the punishment for him to be execution, crucifixion (tying to something similar to a cross), cross-amputation (cutting off one hand and one foot of his from opposite sides), or exile.
Al-Shaykh al-Saduq, al-Shaykh al-Mufid, and some other jurists believe that the judge can decide any of the mentioned punishments for a muharib; but another group, including al-Shaykh al-Tusi and Muhammad Hasan al-Najafi (the author of Jawahir al-kalam), say that depending on the type of crime a muharib commits, one or some of the four punishments can be administered.
In explaining the concept of muharaba, its differences with other concepts such as ifsad fi l-ard [“corruption on the earth”], baghy [insurgence] and civil disorder are explained; among them, is that a muharib fights with people, but a baghi [insurgent] seeks to fight with the ruler. Shiite jurists are of the opinion that if a muharib repents before being arrested, the punishment of muharaba will not be administered to him, but if he owes to pay some rights of people, they are still binding and must be paid. Repentance after arrest will not prevent the administration of punishment.
Position and Importance
Muharaba in jurisprudence means drawing weapons on people with the intention of frightening them.[1] According to the fatwas of jurists, anyone who openly and forcefully takes another person’s property or takes people captive is a muharib.[2] The weapon here is any tool used in fights between people; such as swords, bows and modern weapons.[3]
The punishment of muharaba, like the punishments of apostasy, adultery, and Wine Drinking, is one of the prescribed punishments; that is, in religious law, a specific punishment considered for it.[4] However, the punishment for muharaba is different from other prescribed punishments, since four punishments are determined for it, and one or some of them will be administered.[5]
What is Muharaba?
In the books of jurisprudence, there are detailed discussions about the conditions for realization of muharaba.[6] Shiite and Sunni jurists believe that muharaba cannot be realized without drawing a weapon.[7] Most Shiite jurists consider the intention to frighten the people as one of the conditions for the realization of muharaba.[8] Sayyid 'Abd al-Karim Musawi Ardabili, a marja' of 15th/21th century, only quoted from al-Shahid al-Thani and said that he did not accept the mentioned condition.[9] However, according to Ardabili, also al-Shahid al-Thani, like other jurists, considered the intention to frighten people as a condition in his other book.[10]
The fact that the person who has drawn a weapon is a mischief-maker (i.e., he has a criminal record) and frightening the people are other conditions for the realization of muharaba.[11] Regarding the latter condition, the argument is that in order for a case to be realized as an act of muharaba, whether it is necessary for people to be frightened or it is enough that the perpetrator intends to frighten people, even though his action does not create fear in people.[12] In this regard, al-Shahid al-Awwal, al-Shahid al-Thani and Sayyid 'Ali al-Tabataba'i (the author of Riyad al-masa'il) believe that having the intention to frighten people is enough.[13] On the other hand, al-Muhaqqiq al-Ardabili, Fadil al-Isfahani and Imam Khomeini are of the opinion that if a person uses a weapon to frighten people but people do not get frightened, he is not considered a muharib.[14]
Also, if someone draws a weapon on a person or people just because of enmity with them, he is not considered a muharib.[15] The penal code of the Islamic Republic of Iran also states that the crime of muharaba is realized when these actions are carried out in public and the person has the ability to threaten public security.[16]
Examples
Muslim jurists have put forward different views about the examples of muharib in the verse of muharaba.[17] Some have said that muharib refers to the People of Dhimma, if they break the treaty and wage war against Muslims. Some, considering the occasion of revelation of the verse, considered it to mean apostate people, and some have considered bandits as the example muharib in the verse of muharaba.[18] According to al-Shaykh al-Tusi, the opinion of Shiite jurists is that whoever uses a weapon to frighten people is a muharib.[19]
The Difference between a Muharib and a Mufsid fi l-ard [“corrupter on the earth”]
Some jurists, referring to the verse of muharaba, considered a mufsid fi l-ard to be different from a muharib, and another group considered the two titles matching. Imam Khomeini (d. 1409/1989) considered a mufsid fi l-ard the same as a muharib, who exposes and equips his weapon to frighten people and cause corruption on earth.[20] According to Muhammad Mu'min (d. 1441/2019), one of the Shiite jurists, corruption on earth is fundamental in the verse, and muharaba is considered one of the examples of corruption on earth.[21] According to Muhammad Fadil Lankarani (d. 1428/2007), the relation between a mufsid fi l-ard and a muharib, is a hypernymy; meaning that, every muharib is a mufsid fi l-ard, but not every mufsid fi l-ard is a muharib.[22] According to Nasir Makarim Shirazi, mufsid fi l-ard and muharib are two separate concepts.[23]
The Difference between Muharaba and Baghy [insurgence]
In jurisprudence, muharaba and baghy are two separate issues and have different definitions, rulings and discussions.[24] A muharib fights with people, but a baghy draws weapon to fight the ruler;[25] just as the jurists have discussed the rulings about baghy in the chapter of jihad, but discussed the rulings of muharaba in the chapter of hudud [prescribed punishments].[26] The references of each of these two rulings are also different, and of course fearing of people, corruption and insecurity are not required as conditions in baghy.[27]
The Difference between Muhariaba and Civil Disorder
Sayyid Jawad Wara'i, a researcher of political jurisprudence, believes that civil disobedience and disorder is carried out with the aim of altering a law, a policy or an administrator and the like, and their goal is not to overthrow the political system or create terror among the people. Therefore, a civil disobedient cannot be considered a muharib or baghi, just as one should not defend a muharib with the title of civil disobedience.[28]
Punishment of a Muharib
According to the verse of Muharaba, jurists unanimously consider the punishment for muharaba to be one of four punishments: execution, crucifixion (tying the hands and feet of the criminal to something similar to a cross),[29] cross-amputation (cutting off the hands and feet of opposite sides), and exile,[30] but they have different opinions on how to implement the punishment.[31] According to Sayyid 'Abd al-Karim Musawi Ardabili, there is a similar disagreement among Sunni jurists as well.[32]
Theory of Freedom of Choice
Al-Shaykh al-Saduq, al-Shaykh al-Mufid, al-Muhaqqiq al-Hilli, al-'Allama al-Hilli, al-Shahid al-Awwal, al-Shahid al-Thani and Imam Khomeini believed that any of the four punishments mentioned in the verse of muharaba can be administered to a muharib.[33]
Theory of Order
The fatwa of another group of jurists including al-Shaykh al-Tusi, Ibn Zuhra, Ibn Barraj, Abu Salah al-Halabi, Sayyid 'Ali al-Tabataba'i (author of Riyad al-masa'il), Muhammad Hasan al-Najafi (author of Jawahir al-kalam) and Sayyid Abu l-Qasim al-Khoei observe order; i.e., depending on the type of the crime, one or more punishments from the punishments mentioned in the verse should be applied.[34] Khoei has explained the punishment of muharaba based on order as follows: one who only draws weapons and frightens people, shall be exiled; a person who, in addition to drawing weapon, also causes injury, shall first be retaliated and then exiled, and a person who draws a weapon and steals people’s property shall have his hand and foot amputated; a person who draws a weapon and kills a person or persons, but does not steal their property, shall be killed; a person who, in addition to killing people, also steals their property, shall first have his right hand cut off, and then be handed over to the victim’s family, so that they can take their property and kill him. If the victim’s family forgives him, the ruler himself must kill him.[35]
Repentance of a Muharib
According to the fatwa of the Shia jurists, if a muharib repents before he is arrested, the prescribed punishment for him will be canceled, but he still owes to pay the rights of people; i.e., if he has killed or hurt someone, or stolen money, he should be retaliated, pay diya [the blood money] and pay for the damages if the owners of the rights do not forgive him; but, if he repents after being arrested, his punishment will not be lifted.[36] Shiite jurists agree on this issue.[37] This view is deduced from the verse after the verse of Muharaba, in which an exception is made by the phrase "excepting those who repent before you capture them",[38] and those who repent before being arrested have been are excluded from punishment.[39] There are also hadiths narrated in support of this view; among them, there is a hadith of Imam al-Sadiq (a), in which it is stated, “if a muharib repents before being arrested by the ruler, he shall not be punished.”[40]
Verse of Muharaba
The main reference of the jurists for the ruling of muharaba is verse 33 of Qur'an 5.[41] It is stated in this verse:
| “ | Indeed the requital of those who wage war against Allah and His Apostle, and try to cause corruption on the earth, is that they shall be slain or crucified, or shall have their hands and feet cut off from opposite sides, or be banished from the land.
|
” |
| — Qur'an 5:33 | ||
According to what is mentioned in Tafsir-i Nimuna, the occasion of the revelation of this verse was the conversion of a group of polytheists to Islam, who, because the climate of Medina was not suitable for them, moved to an area with good climate by the order of the Prophet (s). That area was a grazing place for camels. One day, they cut off the hands and feet of Muslim shepherds, stole their camels and renounced Islam. The above verse was then revealed about them and explained their punishment.[42]
In books of jurisprudence, this verse is mentioned both regarding the type of punishment of a muharib and its examples.[43]
Notes
- ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 167
- ↑ Mishkinī, Muṣṭalaḥāt al-fiqh, p. 475.
- ↑ Mishkinī, Muṣṭalaḥāt al-fiqh, p. 475: Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 515.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 1, p. 4.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 1, p. 4.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 511-524.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 511-516.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 31, p. 516 and 517.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 517.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 518.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 517-518.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 518.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 519.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 519.
- ↑ Mishkinī, Muṣṭalaḥāt al-fiqh, p. 475.
- ↑ Iran: Islamic Penal Code 2013, Article 279.
- ↑ Ṭūsī, al-Mabsūṭ, vol. 8, p. 47.
- ↑ Ṭūsī, al-Mabsūṭ, vol. 8, p. 47.
- ↑ Ṭūsī, al-Mabsūṭ, vol. 8, p. 47.
- ↑ Khomeini, Taḥrīr al-wasīla, vol. 2, p. 492.
- ↑ Muʾmin Qummī, Kalimāt-i sadīda, p. 409.
- ↑ Fāḍil Lankarāni, Tafṣīl al-sharīʿa, p. 428.
- ↑ The difference between "ifsad fi l-ard" and "Muḥāraba" (Persian).
- ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 1, p. 307-310: Khoeī, Minhāj al-ṣāliḥīn, vol. 1, p. 389- 390.
- ↑ Mishkinī, Muṣṭalaḥāt al-fiqh, p. 476.
- ↑ Waraʿī, Barrasī-yi mafhūmī-yi baghy, muḥāraba wa nāfarmānī-yi madanī, p. 143.
- ↑ Waraʿī, Barrasī-yi mafhūmī-yi baghy, muḥāraba wa nāfarmānī-yi madanī, p. 143.
- ↑ Waraʿī, Barrasī-yi mafhūmī-yi baghy, muḥāraba wa nāfarmānī-yi madanī, p. 148.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 609.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 558.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 557.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 558.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 558 and 559.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 562.
- ↑ Khoeī, Takmilat al-minhāj, p. 51.
- ↑ Ḥillī, Sharāʾiʿ al-Islām, vol. 4, p. 168.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 590.
- ↑ Qurʾān 5:34.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 590.
- ↑ Ḥurr al-ʿĀmilī, wasāʾil al-Shīʿa, vol. 28, p. 313.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 493.
- ↑ Makārim Shīrāzī, Tafsīr-i nimūna, vol. 4, p. 358-359.
- ↑ Mūsawī Ardabīlī, Fiqh al-ḥudūd wa l-taʿzīrāt, vol. 3, p. 593.
References
- The Holy Qur'ān. Translated to Farsi by Muḥammad Mahdī Fūlādwand.
- Fāḍil Lankarāni, Muḥammad. Tafṣīl al-sharīʿa fī sharḥ Taḥrīr al-waṣīla. Qom: Markaz-i Fiqh-i al-aʾimma al-Aṭhār, 1422 AH.
- Ḥillī, Jaʿfar b. al-Ḥasan al-. Sharāʾiʿ al-Islām fī masāʾil al-ḥalāl wa l-ḥarām. Edited by Muḥammad ʿAlī Baqqāl. Second edition. Qom: Muʾassisa-yi Ismāʿīlīyān, 1408 AH.
- Ḥurr al-ʿĀmilī, Muḥammad b. al-Ḥasan al-. Tafṣīl wasāʾil al-Shīʿa ilā taḥṣīl masā'il al-sharī'a. 1st Edition. Qom: Muʾassisat Āl al-Bayt, 1409 AH.
- Iran: Islamic Penal Code 2013.
- Khoeī, Abū l-Qāsim. Takmilat al-minhāj. Qom: Madīnat al-ʿilm, Twenty-eighth edition, 1410 AH.
- Khoeī, Sayyid Abū l-Qāsim al-. Minhāj al-ṣāliḥīn. Qom: Madīnat al-ʿilm, Twenty-eighth edition, 1410 AH.
- Khomeini, Sayyid Rūḥ Allāh. Taḥrīr al-wasīla. Najaf: Dār al-Kutub al-ʿIlmiyya, 1390 AH.
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- Mishkinī, ʿAlī. Muṣṭalaḥāt al-fiqh wa ʾiṣṭilāḥāt al-ʾuṣūl. Beirut: Manshūrāt al-Riḍā, First edition, 1431 AH.
- Mūsawī Ardabīlī, Sayyid ʿAbd al-Karīm. Fiqh al-ḥudūd wa l-taʿzīrāt. second edition. Qom: Muʾassisat al-Nashr li jāmiʿat al-Mufīd raḥimah Allah. 1427 AH.
- Muʾmin Qummī, Muḥammad. Kalimāt-i sadīda. Qom: Muʾassisat al-Nashr al-Islāmī, 1415 AH.
- Shāhrūdī, Sayyid Maḥmūd. Farhang-i fiqh muṭābiq bā madhhab-i Ahl al-Bayt. Qom: Muʾassisat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, 1382 Sh.
- The difference between "ifsad fi l-ard" and "Muḥāraba" (Persian). Accessed: 2021/11/23.
- The punishment for extortion with a cold weapon is the same as the punishment of muharaba.(Persian). Accessed: 2018/03/11.
- Ṭūsī, Muḥammad b. al-Ḥasan al-. Al-Mabsūṭ fī fiqh al-imāmīyya. Tehran: al-Maktaba al-Murtaḍawīyya li Iḥyāʾ al-Āthār al-Jaʿfarīyya, 1387 AH.
- Waraʿī, Sayyid Jawād. Barrasī-yi mafhūmī-yi baghy, muḥāraba wa nāfarmānī-yi madanī. In Faṣlnāma-yi sīyasat-i mutaʿālīya. No 9, 1394 SH.