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The Party of Jurisprudence vs. The Party of Action: Sayyed Imam, Ayman Al-Zawahiri, and the Split in the Jihad Movement

By: Daniel Lav

May 29, 2008 - No. 444


Following is the text of a presentation delivered by Daniel Lav, Director of MEMRI's Middle East and North Africa Reform Project, at the inaugural conference of the Association for the Study of the Middle East and Africa (ASMEA) in Washington, D.C. on April 25, 2008. The presentation explains the meaning and the significance of the polemic between the prominent jihadist scholar Sayyed Imam, who has called for a stop to the jihad against Muslim regimes, and Ayman Al-Zawahiri; in addition, it clarifies the important differences between Sayyed Imam's initiative and that of the Egyptian Al-Gama'a Al-Islamiyya group, which has made a clearer break with jihadism.

The full paper will be available shortly on the ASMEA website (www.asmeascholars.org ). MEMRI will also be publishing a version of the paper in a forthcoming collection of studies in jihadist ideology.

Previous MEMRI reports relating to the polemic between Sayyed Imam and Al-Zawahiri include:

Excerpts from Sayyed Imam's interview with Al-Hayat:
http://www.memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP178507 ;
http://www.memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP182608 ;

Ayman Al-Zawahiri's book responding to Sayyed Imam:
http://www.memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP185908 ;

and "Open Meeting with Ayman Al-Zawahiri":
(http://www.memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP188708 ).

In 1997, Al-Gama'a Al-Islamiyya, one of the two major jihadist groups active in Egypt, declared a unilateral ceasefire with the regime. In the following years, and after 9/11 in particular, the group undertook a dramatic and thoroughgoing revision of its beliefs, attacked Al-Qaeda in a series of pamphlets, and essentially abandoned jihadism as such, adopting mainstream conservative Islamic positions.

In late 2007 the Jihad group, the second major jihadist group in Egypt, also declared a cessation of hostilities with the ruling regime in Egypt. In this case, there were few practical implications to the cease-fire, as the group had long since been neutralized. What was most significant was that the author of the initiative, which took the form of a book titled The Document of Right Guidance for Jihad Activity in Egypt and the World, was none other than Sayyed Imam, one of the founding ideologues and scholars of the modern jihadist movement, a former head of the Egyptian Jihad group, and a man often described as Ayman Al-Zawahiri's mentor. In subsequent statements to the press, Sayyed Imam has, in addition to the legal arguments presented in his book, also launched a fierce and explicit polemic against Al-Qaeda and its current generation of jihadists.

Today I will be giving an overview of this revisionist literature, as it is often termed. In order to do so, I will first need to explain some key concepts in the classic jihadist literature on jurisprudence, and in particular the doctrine of takfir of the rulers (declaring the rulers to be apostates). I will then go on to explain where Al-Gama'a Al-Islamiyya and Sayyed Imam have departed from these concepts and where they have not. We will come to see that, despite surface similarities and a common hostility to Al-Qaeda, these two cases in fact represent two completely different phenomena.

First, we need to undertake the necessary preliminary of addressing the doctrine of takfir of the ruler in the classic jihadist literature on jurisprudence. The fact that there exists a distinct genre of jihadist jurisprudence is not as well known as it should be. This literature is an elite discourse, and thus has probably not had the wide popular impact of, for instance, the writings of Sayyed Qutb or bin Laden's motivational discourses. On the other hand, it enjoys great prestige, and the very existence of a literature that expounds jihadist doctrine in the normative language of jurisprudence is important for groups that, on the one hand, raise the banner of implementation of the shari'a, but, on the other hand, are made up of laymen and suffer from a knowledge deficit in traditional Islamic studies. This is precisely the reason why, in the 1980s, Ayman Al-Zawahiri asked Sayyed Imam to head the Jihad group, and why Al-Gama'a Al-Islamiyya sought out the moral and intellectual leadership of their Emir, the blind Sheikh 'Umar 'Abd Al-Rahman, who is now serving a prison sentence in the United States. Another jihadist scholar worthy of mention is Abu Muhammad Al-Maqdisi, who was Abu Mus'ab Al-Zarqawi's mentor before publicly repudiating him shortly before the latter's death.

While there is much that could be said of this literature, the principle issue separating jihadist jurisprudence from that of conservative scholars is takfir of the ruler. This issue was treated at length in the jihadist works on jurisprudence written in the 1980s and 90s by the aforementioned authors and other lesser figures. It should be emphasized that the jihadist scholars, far from claiming to represent a new or unique school of thought, saw themselves as standard-bearers of the classical Islamic mainstream of political thought and jurisprudence. When they address the thorny question of why they declare rulers apostates far more frequently than classical scholars did, they claim that it is not because of a change in approach to the shari'a on their part, but rather because the political reality on which they are passing judgment is radically different than that of the classical period.

The classical jurisprudence of government, ever since its inception as a discrete genre, assumed the existence of a Muslim polity headed by a legitimate ruler. The dominant quietist tradition, while continuing to promote an abstract and reformative ideal of just rule, acknowledged the legitimacy of sinful rulers so long as they did not cross the line into pronounced heresy or apostasy. The prospect of a ruler doing so was in fact addressed, but the laws governing such a situation were not greatly elaborated. The fact that this specter did in fact haunt the minds of the jurisprudents was evident primarily from the progressive loosening of the requirements for legitimate rule: Mawardi, who wrote in the mid-11th century, still required that the imam be from the Quraysh tribe, whereas Ibn Taymiyya, writing a century and a half later, accepted more or less anyone who maintained the public order.

The jihadist jurisprudents hold that the body of law governing Muslim polities headed by legitimate rulers does not apply to present conditions. Today's rulers, who have replaced the shari'a with Western-style positive law, are considered apostates. In essence, the jihadist jurisprudents feel that they have been flung headlong into the very dystopia that the classical jurisprudents so wanted to avert.

The primary basis for the determination that present-day Muslim rulers are in fact apostates is Quran 5:44, "those who do not rule by what Allah revealed, they are the unbelievers." Sayyed Imam, in his pre-revisions writings, explains that no Muslim ruler had ever failed to rule by what Allah revealed up to the Mongol invasion, and thus the issue had not received much attention in jurisprudence. There had been sinful rulers and judges, who had been rightly tolerated, but not apostates. The Mongols presented a new case: they had converted to Islam, and ruled their subjects by shari'a law, but among themselves they continued to employ the Mongol yasak code. Ibn Taymiyya and the famous exegete Ibn Kathir ruled that this fact made the Mongols apostates whom one must fight and depose. Sayyed Imam writes that Ibn Taymiyya and Ibn Kathir thus established a legally binding consensus (ijma') on the issue of not ruling by what Allah revealed, and he goes on to argue that the case of the Mongols was actually less grave than that of today's rulers, since the former employed the yasak only among themselves, whereas today's rulers govern all of society by Western-based positive law.

This determination that the rulers are apostates has two critical consequences, above and beyond the obligation to depose them. The first consequence is that, in the absence of a legitimate Muslim ruler, his duties and prerogatives - including declaring and waging jihad - devolve onto the Muslim community as a whole. This is what gives the jihad groups license to take matters into their own hands and, notably, stage operations in non-Muslim lands.

The second consequence of declaring the ruler apostate is what I call the domino effect of takfir. Since agreeing to another's apostasy is in itself considered apostasy, anyone who supports or participates in the political system in any way is at risk of being considered an apostate. This can include soldiers, policemen, politicians, voters, and even other Islamists who refrain from declaring apostasy against these categories of people. All of the jihadist jurisprudents uphold this domino effect, though to varying degrees; it was Sayyed Imam who put forward the most extreme version. It is this domino effect of takfir that provides the principle shari'a justification for going beyond limited guerilla warfare and engaging in full-scale terror.

Before moving on to the Egyptian "revisions" movement, we need to focus our attention on one final issue regarding takfir of the ruler. There is an opinion in jurisprudence that one does not become an apostate until one's act of apostasy is accompanied either by a clear rejection of a positive injunction, known as jahd, or by a declaration of something forbidden to be permitted, known as istihlal. The jihadist jurisprudents strenuously reject this position, and call it by the derogatory term of "the modern-day murji'a," in reference to an early Muslim school of theology that held that acts are not determinative of faith. Sayyed Imam, in his pre-revisions writings, devoted hundreds of pages to arguing against this position, and Abu Muhammad Al-Maqdisi has written an entire book countering the modern-day murji'a. The reason for this emphasis is clear: While few if any governments of Muslim countries rule exclusively by the shari'a, even fewer explicitly repudiate it. Thus the jihadist jurisprudents see the issue of jahd and istihlal as a dangerous loophole by which apostates are allowed to remain in power.

Let us now move on to Al-Gama'a Al-Islamiyya's ideological revisions. The group, which had conducted attacks since the 1970s, first announced a unilateral cease-fire with the Egyptian regime on July 5, 1997. However, it was only after 9/11 that the group's Shura Council began, with the newly won encouragement of the Egyptian regime, to issue the series of writings called the "Concepts Corrections" (tashih al-mafahim) that represented a truly radical departure from the group's previous worldview. These new views made waves in Egypt and beyond. The head of the group's Shura Council, Karam Zuhdi, went so far as to say that Anwar Al-Sadat, far from being an apostate, was in fact a shahid, or martyr. These revisions eventually led to the release of all Al-Gama'a Al-Islamiyya members from the Egyptian prisons, and the group's leadership now maintains a website in which they have removed the sword from their emblem, leaving just a rising sun over an open Quran.

The most important substantive change in Al-Gama'a Al-Islamiyya's thought has been the reversal of their takfir of the government. In a collective prison interview with the Egyptian al-Musawwar weekly magazine in 2002, Shura Council member Mamduh Yusuf said: "Regarding the ruler, we revised our position, and said that the Quranic verse that stipulates 'those who do not rule by what Allah revealed, they are the unbelievers' - the intention of this verse is not that it applies to all rulers. It is only applied to the ruler who says that Allah's rule is not good." He went on to say that Mubarak does not fall into this category, and added: "The ruler who does not reject Allah's rule and does not say that Allah's rule is not good - he is a Muslim ruler, and it is forbidden to fight him."

The position expressed here is precisely that rejected by the jihadist jurisprudents and derided as the modern-day murji'a. The Al-Gama'a leadership adduces a number of proofs in support of this position that non-application of the shari'a is not in and of itself cause for apostasy - for instance, that the caliph 'Umar Ibn Al-Khattab refrained from cutting off the hands of thieves in a year of harsh drought when hunger drove many to steal, or the fact that the King of Abyssinia, who had converted to Islam, did not rule by Islamic law, and nonetheless the Prophet ordered the Muslims to pray for him after he died. It is interesting to note that these proofs had already been addressed and rejected in the classic jihadist literature of jurisprudence. It appears that the members of the Shura Council, who are not themselves Islamic scholars, were simply not well versed in the debate over the conditions for takfir. When they did encounter this debate, they found the Azharite positions more convincing than the jihadist ones.

Once the Egyptian government has been found to be legitimate Muslim rule, other jihadist positions fall away of their own. The rulers are held to have a legitimate margin of discretion: As 'Ali Al-Sharif, accused no. 6 in the Sadat assassination trial, now put it, "the state has its prerogatives, and we are forbidden to meddle in them." Fighting against the regime is no longer a religiously obligatory imperative; it is religiously prohibited fitna. In addition, the state's monopoly on violence is recognized, and this precludes vigilante activities, which the group had previously undertaken in the belief that they were carrying out the obligation of commanding right and forbidding wrong (al-amr bil-ma'ruf w'al-nahy 'an al-munkar). In short, once the rulers are held to be legitimate, nothing is left of jihadist doctrine. One of the group's Shura Council members, Najih Ibrahim, succinctly expressed the group's break with jihadism when explaining why they had refused to join al-Qaeda, saying: Their goal is jihad, whereas our goal is Islam.

The initiative of the Egyptian Jihad group, in the form of Sayyed Imam's Document of Right Guidance for Jihad Activity, bears little resemblance to Al-Gama'a's dramatic change in ideology I have just described. In fact, it is difficult to call this work an ideological revision, since Sayyed Imam insists that it is entirely in keeping with his previous, radical works. This tract is in many ways a perplexing document, but it should probably be characterized as being first and foremost a rearguard action of the scholarly wing of the jihadist movement, or what we could call "the party of jurisprudence," against the ascendance of antinomian tendencies among those we could call "the party of action," that is, the political leadership and the jihadist rank-and-file.

In contrast with Al-Gama'a Al-Islamiyya, the Document of Right Guidance for Jihad Activity does not contain a clear statement that the rulers are not apostates. Instead, Sayyed Imam employs ambiguous formulas like the following: "whether abandoning shari'a rule is apostasy, lesser apostasy [i.e. grave sin], or sin, I don't believe that clashing with the rulers in Muslim countries in the name of jihad is the appropriate option for trying to implement the shari'a." In addition, Imam states his view that today there is no Abode of Islam (dar al-islam) - a clear indication that he does not consider present-day rulers of Muslim lands to be Muslims. Passages such as these, taken together with Sayyed Imam's insistence that he has not changed his views in any way, lead one to the conclusion that he does in fact still consider the Egyptian regime and other putatively Muslim regimes to be apostate rule.

Why then does Sayyed Imam forbid jihad against these regimes? The main argument of the Document of Right Guidance for Jihad Activity is that the jihad groups today are in a state of weakness that precludes the waging of jihad. A number of Quranic verses and hadith are adduced to prove that inability allows or requires one to defer an obligation; for instance, Quran 2:286: "Allah only imposes obligation on someone according to his ability." This principle applies to all positive commandments, but it is noteworthy that in the Document of Right Guidance Sayyed Imam sets an even higher threshold for "ability" with regard to jihad. He writes that jihad "is like other matters in religion; ability to perform it is one of the conditions of its being incumbent. However, ability in jihad is not limited to the Muslim's person - such as his physical or financial ability - but rather it goes beyond this and [includes] the reality of the circumstances surrounding him…"

The concept that inability, or 'ajz, is a legitimate exemption from jihad is not an innovation in Sayyed Imam's thought. The theoretical principle was already mentioned in Imam's first book, The Essentials of Making Ready for Jihad, which was written in 1987 as a shari'a guide for jihad to be used in the training camps for mujahideen in Afghanistan. In 1992 he had already decided that this concept applied to the situation in Egypt, and Imam, as Emir of the reconstituted Jihad group in Pakistan, tried to forbid it from pursuing armed activities in its home country. The difference between the treatment of this issue in the Document of Right Guidance and in Imam's previous writings is thus more one of emphasis than of substance.

Thus, while Al-Gama'a Al-Islamiyya undermined the very legitimacy of jihad against the regime, Sayyed Imam and the Jihad group continue to maintain that it is a theoretical obligation, whose implementation they merely defer.

The crucial question, and one for which there is not yet a decisive answer, is that of how long they wish to defer the jihad. Sayyed Imam's jihadist critics have accused him of setting the threshold of ability so high as to be unattainable, in essence making of the jihad a legal fiction. One such critic is Ayman Al-Zawahiri, who wrote a nearly 200-page refutation of the Document of Right Guidance titled A Treatise Exonerating the Nation of the Pen and the Sword from the Blemish of the Accusation of Weakness and Fatigue. He writes there: "The strange thing is that the author [i.e. Sayyed Imam] is trying to impose his own inability and his own weakness on the mujahideen, who don't feel themselves to be either unable or weak." In the view of Al-Zawahiri, who may be considered the standard-bearer of the jihadist movement's "party of action," it is the mujahideen themselves, or scholars of their own choosing, who should judge whether a state of inability exists or not.

The issue of "inability" is the key bone of contention between Sayyed Imam and Al-Qaeda, which is why the title of Al-Zawahiri's treatise makes reference to it. But in fact most of Sayyed Imam's book deals, in one way or another, with this struggle between the party of jurisprudence and the party of action. Sayyed Imam warns the jihadists that it is only permitted to act on the authority of a fatwa issued by a competent authority, especially in military matters, and he admonishes them to be particularly careful with regard to writings found on the internet. In addition, he warns against a widespread phenomenon he terms "the jurisprudence of justification," where people do what seems right to them, often in violation of the shari'a, and only then search for an Islamic legal justification for it ex post facto. In the book he does not name the target of this criticism, but in a subsequent interview he made it clear that it is directed primarily at Al-Qaeda.

Thus we have seen that the revisions movement in Egypt actually comprises two quite distinct phenomena. One of these is the case of Al-Gama'a Al-Islamiyya, who have repudiated jihadism entirely. Once they became convinced that they were wrong to declare the rulers apostates, the entire fabric of jihadism came unraveled, and they adopted more or less Azharite positions. This openness of mind on the part of the group's leadership was made possible precisely because they came from the jihadist "party of action," and, not being heavily invested in particular positions in jurisprudence, they could come around to more moderate positions that undercut their previous views, which were based more on political ideology than on jurisprudence. The second phenomenon is the exacerbation of an already existing tension between the jihadist "party of jurisprudence" and its "party of action," with Sayyed Imam representing the former and Ayman Al-Zawahiri representing the latter. The jurisprudent's investment in his views makes it unlikely that he will make an about-face like Al-Gama'a Al-Islamiyya did. He can, however, insist on suspending the jihad if that is what he believes the shari'a demands. He remains a radical in essence, but may at times be a force for moderation in practice, as is the case now with Sayyed Imam. The central issue in this struggle is not, however, one of radicalism versus moderation, but rather jurisprudence versus a more political or ideological understanding of Islam.

* D. Lav is Director of the Middle East and North Africa Reform Project at MEMRI.

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