Just War and Infidel Dominium

[Vouthon]

In the medieval period, the religions of Christianity and Islam dominated much of Europe and Asia. Warning: this is long.

This post consists, firstly, of a discussion by me of some of the overarching similarities between these two faiths and one crucial difference (among many others) that has proved consequential till this day. The doctrine of infidel dominium. think its an important distinguishing feature that often gets overlooked.

There were broad similarities between these two creeds: both were, of course, monotheistic and Abrahamic in origin; sharing doctrines like belief in divine revelation, sacred scriptures, an afterlife, the resurrection of the dead, a code of defined ethics etc.

Both religious systems also developed highly sophisticated doctrines of international relations and transnational legal norms. They both possessed supreme arbiters of these theopolitical global orders (Christendom and the Ummamate) in the form of the Pope in Catholic Christianity, the Byzantine Emperor in Orthodox Christianity, the Caliph in Sunni Islam and the Imams in Shia Islam.

There was some consensus on the nature of just war in Catholic Christianity and jihad from all four schools of medieval Sunni Islamic jurisprudence (i.e., Maliki, Hanbali, Hanafi, and Shafi'i) to the effect that non-combatants who did not participate in fighting should not be killed in the prosecution of war.

On the Catholic side, the doctrinal consensus was first established by St. Augustine of Hippo in the fifth century A.D., developed further by St. Thomas Aquinas in his Summa Theologica in the 13th century and then by the Thomists of the Spanish School of Salamanca in the 16th century:


https://www.tandfonline.com/doi/ful...dAccess=true&instName=University+of+Edinburgh

St. Augustine, in a letter to Boniface, stated that ‘[p]eace is not sought in order to provoke war, but war is waged in order to attain peace’ (Letter 189, cited in Fortin & Kries 1994Fortin , E. L. and Kries , D. 1994 Augustine, Political Writings, (Letter 189) Indianapolis : Hackett [Google Scholar]: 20). While the PNCI is not delineated in St. Augustine's writings, Augustine emphasized that the manner in which a war is fought determines whether peace can be achieved. With this ideology, St. Augustine laid the foundation for non-combatant immunity as a divinely supported (Christian) moral imperative, and a courageous action to be undertaken by the civilized.​

The PNCI continued to evolve in Western political thought long before it was codified in international law. St. Thomas Aquinas (Aquinas , T. 1916 The Summa Theologia of St. Thomas Aquinas , trans. the Fathers of the English Dominican Province London : Burns Oates & Washbourne [Google Scholar]) in qu. 40 of the Summa Theologiae, II-II, provides three conditions for a just war: proper authority, just cause, and right intention (Aquinas 1916), and all three are still used today in the discussion of jus ad bellum. Aquinas (cited in Johnson 2000Johnson, J. T. 2000. Maintaining the Protection of Non-Combatants. Journal of Peace Research, 37(4): 421–448.[Crossref], [Web of Science ®], [Google Scholar]: 428) states that there can be no just use of force against the innocent, a moral judgement which takes a critical step towards codified non-combatant protection.
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Just war theory - Wikipedia

The School of Salamanca expanded on Thomistic understanding of natural law and just war. It stated that war is one of the worst evils suffered by mankind. The School's adherents reasoned that war should be a last resort, and only then, when necessary to prevent an even greater evil. Diplomatic resolution is always preferable, even for the more powerful party, before a war is started. Examples of "just war" are:

• In self-defense, as long as there is a reasonable possibility of success.
• Preventive war against a tyrant who is about to attack.
• War to punish a guilty enemy.

A war is not legitimate or illegitimate simply based on its original motivation: it must comply with a series of additional requirements:

• It is necessary that the response be commensurate with the evil; use of more violence than is strictly necessary would constitute an unjust war.
• Governing authorities declare war, but their decision is not sufficient cause to begin a war. If the people oppose a war, then it is illegitimate. The people have a right to depose a government that is waging, or is about to wage, an unjust war.
• Once war has begun, there remain moral limits to action. For example, one may not attack innocents or kill hostages.
• It is obligatory to take advantage of all options for dialogue and negotiations before undertaking a war; war is only legitimate as a last resort.

Under this doctrine expansionist wars, wars of pillage, wars to convert infidels or pagans, and wars for glory are all inherently unjust.​

Abu Bakr al-Siddiq, the first Sunni Caliph, established the general code of conduct in the following address to his Islamic armies:

“I instruct you in ten matters: Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. You are likely to pass by people who have devoted their lives to monastic services; leave them alone..."

(Source: Imam Malik’s compilation of the Hadith “Kitab al-Jihad.”)​

I could quote many others who reiterate the same broad doctrinal interpretation.

Consider this scholarly assessment of the laws of war from Shaikh Burhanuddin Ali of Marghinan (d. 1196), a famous medieval Hanafi jurist:

"...It does not become Muslims to break treaties or to act unfairly with respect to plunder or to disfigure people (by cutting off their ears and noses, and so forth). In the same manner it does not become Muslims to slay women or children, or men aged, bedridden, or blind, because opposition and fighting are the only occasions which make slaughter allowable (according to our doctors), and such persons are incapable of these. For the same reason also the paralytic are not to be slain, nor those who are dismembered.

Whence it is evident that mere infidelity (unbelief in Islam) is not a justifiable occasion of slaughter. The Prophet, moreover, forbade the slaying of infants or single persons, and once, when the Prophet saw a woman who was slain, he said, ‘Alas! This woman did not fight, why, therefore, was she slain?’..."

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See:

Oxford Public International Law: International Law, Regional Developments: Islam

In the event of international hostilities, Muslim jurists placed certain limitations on the manner in which the war could be conducted (ius in bello). The most important restrictions included the prohibition against the intentional killing of non-combatants and the wanton and intentional destruction of property. Women and children were presumptively non-combatants, but they could lose that status if they engaged in hostilities. Conversely, able-bodied men were presumptively combatants, unless they had withdrawn from public life by, for example, becoming a monk, living in a monastery, and devoting themselves exclusively to religious pursuits

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All good...but there were likewise areas of real divergence. In some cases, the Islamic world had the moral upper-hand over Christendom. For instance, the Islamic world founded the first hospitals (Bimaristans) with the specific function of diagnosing, treating and caring for the mentally ill rather than just the physically sick (as in Christian Europe and Byzantium). The Christians were hampered, to this end, by a superstitious belief in demonic possession absent from Islamic theology.

However, in many of not most areas where the two religions diverged, I'd opine that Christendom tended to have the moral high ground - as, for instance, in terms of separation of church and state in Western Europe; the doctrine of natural rights and other notables such the ethic of love for one's enemies.

One of the most striking concerns the presence of a doctrine of infidel dominium in Christian thought and its complete absence in classical Islam.

(Continued.....)

 

[Vouthon]

While classical Sunni Islam did not advocate acts of terror against civilians (actually, it proscribed this) it did permit and at times even obligate offensive jihad against unbelieving countries in the Dar-al-harb (House of War), in a permanent state of war. A harbi lacked both rights and duties (‘isma) under Islamic law, similar to Roman law’s doctrine that the ius civile applied only to Roman citizens.

See:

Jihad and Martyrdom in Islamic Thought and History - Oxford Research Encyclopedia of Religion

A survey of legal literature furthermore reveals that the categorical and unambiguous Qurʾanic principle of nonaggression in verse 2:190 underwent considerable modification and transformation at the hands of jurists in the context of international law (siyar).

A diachronic survey of commentaries on the Qurʾan reveals that early exegetes like Ibn ʿAbbas, ʿAtaʾ b. Abi Rabah, Mujahid b. Jabr, and Muqatil b. Sulayman had firmly maintained that Qurʾan 2:190 unambiguously forbade the initiation of military hostilities. Scholars and jurists from the 9th century onward like al-Tabari, al-Shafiʿi (d. 202/820), al-Mawardi (d. 450/1058), and others, however, went on to endorse the principle of offensive jihad by either one or both of the following strategies: by declaring Qurʾan 2:190, which forbade such a concept, to be abrogated and/or by transferring the application of Qurʾan 2:190 from the realm of jus ad bellum to that of jus in bello, that is to say from the realm of “just cause for initiating war” to “just conduct during warfare,” thereby making irrelevant adherence to a strict principle of nonaggression.

This critical reinterpretation became reflected in the laws of war and peace formulated by the classical jurists, who typically came to understand the nonaggression clause in this verse as primarily setting up a prohibition against fighting noncombatants, and not as a categorical prohibition against initiating fighting under any circumstance, as was clearly the view of several early exegetes. Such a hermeneutic maneuver effectively allowed for a theory of offensive jihad to emerge in the legal realm which allowed Muslim rulers to launch preemptive wars against non-Muslim polities.

The jurist Muhammad b. Idris al-Shafiʿ i (d. 204/820) is said to have been the first to permit jihad to be launched against non-Muslims as offensive warfare

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Modern Sunni extremists draw upon this "offensive jihad" strain in classical Islam and the heretical Kharijites - filtered through Salafism - to justify indiscriminate slaughter of unbelieving civilians (known in Sunni jurisprudence as harbis), which classical Islam did not support (as demonstrated above).

In medieval Catholicism, the consensus approach to this issue was very different:


Freedom Is the Birthright of All Humanity

A key document in the history of the legal recognition of universal rights was a Decretal, or legal pronouncement, issued by the lawyer Pope Innocent IV, about the year 1250. It concerned the rights of non-Christians.

I maintain … that lordship, possession and jurisdiction can belong to infidels licitly and without sin, for these things were made not only for the faithful but for every rational creature as has been said. For he makes his sun to rise on the just and the wicked and he feeds the birds of the air, Matthew c.5, c.6. Accordingly we say that it is not licit for the pope or the faithful to take away from infidels their belongings or their lordships or jurisdictions because they possess them without sin.[15]

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This doctrine of infidel dominium meant that the idea of offensive holy war against unbelieving societies never became orthodox or widespread in medieval or early modern Christian theology.

It is on this score that I find the speech delivered by Pope St. John Paul II to the UN in New York City in 1995 especially noteworthy:

In reality the problem of the full recognition of the rights of peoples and nations has presented itself repeatedly to the conscience of humanity, and has also given rise to considerable ethical and juridical reflection. I am reminded of the debate which took place at the Council of Constance in the fifteenth century, when the representatives of the Academy of Krakow, headed by Pawel Wlodkowic, courageously defended the right of certain European peoples to existence and independence. Still better known is the discussion which went on in that same period at the University of Salamanca with regard to the peoples of the New World.​

It was articulated at the Council of Constance (1414):


Council of Constance

During the council there were also political topics discussed, such as the accusation by the Teutonic Knights that Poland was defending pagans. Paweł Włodkowic, rector of the Jagiellonian University in Kraków, Poland, presented there the theory that all nations, including pagan ones, have the right to self-government and to live in peace and possess their land, which is one of the earliest ideas of international law:

• Communities have the right to determine to which nation they belong;
• Peoples have the right to decide on their own future and to defend their nation;
• Rulers are bound to respect the individual religious convictions of their subjects who cannot be denied their natural rights because of their belief;
• Conversion through the use of force and coercion is invalid, sinful and deplorable;
• Conversion can never be used as a pretext for war;
• Maintenance of peace required an International Tribunal to judge contesting claims. No ruler, not even the Emperor or the Pope, should be able to declare war without submission to due process;
• The principles of just war are always applicable and binding, regardless as to whether the state, nation or people against whom war is being declared is Christian or not;
• Non-Christian and non-Catholic nations living at peace with their neighbors have the right to have their sovereignty and the integrity of their territories safeguarded;
• Neither the Emperor nor the Pope could authorize anything that contradicts the principles of natural law;
• Poland was bound to the Emperor only when he acted as Defender of the Faith;
• The right of might erodes international relations like a cancer;
• Exercising its right to self-defense, a Catholic state can also engage non-Christians or non-Catholics among its forces.

And by the Spanish scholastic theologians of the School of Salamanca:


The School of Salamanca: Intellectual Roots of International Law

The beginnings of international rights and law are rooted in the work of sixteenth century University of Salamanca professor Francisco de Vitoria and is a testament to the rich intellectual history that the university boasts.

A Dominican theologian who assumed the role of chair of Theology at the university in 1526, Francisco de Vitoria was an immensely popular professor whose opinion was so well respected that it was sought out by Charles V, the Holy Roman Emperor and king of Spain...

In public lectures to students and university and city officials, Francisco de Vitoria labeled each reason that Spanish nobles and public opinion had generated to justify their violence against them as immoral and illegitimate and denounced Spanish evangelization efforts as hypocritical in their forceful, brutal nature, emphasizing that faith must be an act of free will, not coercion.

Given the intensely religious underpinnings of Spanish society and culture at the time, these proclamations were especially bold and marked Francisco de Vitoria as a radical thinker very much ahead of his time. Indeed, in an article entitled “Dispossessing the Barbarism,” European medieval historian Anthony Pagden wrote that Vitoria’s was the “most detailed and far reaching discussion of the subject” and “the first to claim that ‘the affair of the Indies,’ as it had come to be called… was a question of the laws of nature.”

In that appeal to the “laws of nature,” he asserted his firm conviction in the intrinsic dignity of all people as a defining, inalienable characteristic of the human condition. Francisco de Vitoria and those who followed his school of thought and formed what is now known as the School of Salamanca advanced the right to life and the right to freedom of thought for all people—principles that seem so fundamental to current Western political thought but that in the sixteenth century were very novel in their application to indigenous people.​

 

[metis]

Even though I would much rather agree with Gandhi's non-violence approach, I reluctantly have to agree that the Just-War Theory is the one that is both moral and realistic as far as I'm concerned.

 

[YmirGF]

Even though I would much rather agree with Gandhi's non-violence approach, I reluctantly have to agree that the Just-War Theory is the one that is both moral and realistic as far as I'm concerned.

Agreed. There are simply times when one has to say, "No more!"

 

[metis]

Agreed. There are simply times when one has to say, "No more!"

Ya, but even of that didn't drive me in that direction my temper would.

 

[YmirGF]

Ya, but even of that didn't drive me in that direction my temper would.

Fortunately, once again, I agree. I would wait for a time of more sober thought then review my options.

 

[metis]

I would wait for a time of more sober thought then review my options.

"Sober"? What's that?

 

[YmirGF]

"Sober"? What's that?

Ssshhh. We're gonna upset @Vouthon .... (You know what he is like when he gets all huffy.)

 

[Estro Felino]

In my opinion war is never "just"...it's an oxymoron, because it's absurd to think that the breech of the peace is justifiable as an extrema ratio ...
thinking of how productive and good diplomacy is instead.

 

[LuisDantas]

I am as per @Estro Felino on this matter.