Muhammad Sa`id Ashmawi (d. 1932) may have given one of the clearest legal attacks against al-Qa`ida’s interpretation of violent “jihad.” (He served on the Egyptian Court of Appeals and State Commission for Legislation and became the Chief Justice of the Criminal Court and Islamic and Comparative Law professor at Cairo University in the first decades of the twentieth century.) Although some of his rulings—such as a dubious decision that alcohol may be permissible—were popularly considered without sufficient moral boundaries by theologians and jurists through the 1980s, he may hold some sway today.
His basic understanding of Islamic law arguably gave al-Qa`ida ideological forefather Sayyid Qutb his foundational premise—that the Shari`a is a state of mind first and foremost. The “spirit” of Islamic law permeates all citizens, livelihoods, and legal decisions. And while the pure notion of Islamic law is inherently a perfect product of God, its application is necessarily fallible. Humans are imperfect, and thus reason and application of laws are also susceptible to mistakes. The fact that Sayyid Qutb shared Ashmawi’s baseline opinion could play well with those susceptible to radicalisation and conservative Salafists who do not share al-Qa`ida’s violent ideology.
Ashmawi then goes on to postulate that one must appreciate the anthropological aspects of law in the times when Islamic law came into existence. The law—as written—must take into context its application and normalisation during the earliest period of Islam, so the reasoning goes. Edicts were connected to specific events making literal application today impossible. Both the Quran and the sayings and practices of the Prophet sprung from societal events and even the social, political, economic, and moral environment prior to Islam.
With this understanding of connecting laws to events, Ashmawi concludes that defensive and offensive “jihad” is precisely tied to the world of early Islam. Specifically rules of warfare—as they are written and still read today—applied only to the Prophet when the Prophet himself was fighting “non-believers.” “Jihad” is only permissible when the Prophet is attacked. Therefore, says Ashmawi, there is no legal basis to conduct violent extremism in the name of Islam. Ashmawi does admit there could be an extreme reason for purely defensive “jihad,” but the Quran overwhelmingly promotes peace.
His writings, especially because they share the same foundational notions of al-Qa`ida, could serve today as counter narratives against violent extremist ideology. Even if his ideas may be too peaceful in light of mainstream Islam which accepts certain types of physical “jihad”, then at the very least his ideas can incite discussion by pro-violence, neutral, and counter-violence ideologues. Perhaps it is time to dust off Ashmawi’s ideas and see if they tread water amidst the war of words between al-Qa`ida leaders and recent popular recanters such as Dr. Fadl, the Libyan Islamic Fighting Group, Gama’a Islamiyya, and Nasir Abas.