ABSTRACT
The Islamic scriptural sources (Qurʾan 5:33–4) treated a specific form of terrorism that took place during the Prophet’s lifetime. This treatment was considerably developed/regulated by the classical Muslim jurists under the titles of al-ḥirāba, by the Maliki and Hanbali schools of Islamic law, or qaṭʿ al-ṭarīq (banditry, highway robbery, piracy, terrorism), by the Hanafi and Shafiʿi schools, though some Hanafi jurists also call it al-sariqa al-kubrā (the great theft). A specific form of religiously motivated violence or terrorism sparked, as most scholars believe, during the reign of the fourth caliph ʿAli b. Abi Talib (r. 656–661) and as such, since it was not treated in the scriptural sources, was not adequately developed/regulated in the classical Islamic legal literature. The perpetrators of this specific form of religious violence/terrorism are called khawarij (literally those who come out), i.e. against the ruler(s). Although both forms of ḥirāba and khawarij satisfy the main elements of the current phenomenon of terrorism, for specific methodological and historical reasons, the four Sunni schools of Islamic law have failed to provide a systematic legal treatment of the khawarij including, in particular, their punishments. A far more serious issue here is the prevalent confusion in both classical and current Islamic legal discourses between the khawarij and the bughā (armed rebels) which is used and abused to delegitimize and criminalize both armed rebellion and sometimes even peaceful opposition to the state authorities. Therefore, the main aims of this chapter are, first, to identify what constitutes terrorism and its punishments under Islamic law, and second, to demarcate the lines between terrorism and legitimate armed rebellion against the state in Islam, if there are any. The discussion focuses mainly on the classical legal literature of the four Sunni schools of Islamic law. This chapter argues that the Islamic law of terrorism developed by the Muslim jurists of the second/eighth and third/ninth Islamic centuries identifies most of the main elements of the current phenomenon of terrorism, but not treating this specific historical phenomenon of religious violence/terrorism known as the khawarij under the law of terrorism constitutes a lacuna in the Islamic legal tradition.
