The presence of a ruler is not a condition for the validity of Jihaad, neither for “Offensive Jihaad” nor for “Defensive type of Jihaad”. Thus absence of the ruler cannot be an excuse to refrain from Jihaad.
We don’t know any scholar from Salaf who said that it’s a condition in the sense that the absence makes Jihaad invalid. Rather they said that it’s from maslahat, which means that Jihaad should be waged under a commander and a banner. But absence does not invalidate Jihaad. What is more dangerous than this saying, is the major form of disbelief that it entails behind such saying, due to its rejection of the truthfulness of Rasoolullaah saAllaahu alayhi wa salam when he spoke about a group or party that will never cease to exist, fighting in the Cause of Allaah until the Day of Judgment.
But we know that some scholars deemed it haraam to initiate combat without the rulers permission. We will discuss here the specific case, when the ruler is absent…
FIRSTLY, we need to explain the issue of individual decision about going to Jihaad. Like if some Muslim decides to fight for the sake of Allaah and he does not seek permission from the authority! What do the scholars say about it?
Imaam al-Qurtubi said:
“A group of scholars allowed to fight a duel with enemy and they did not stipulate it weather with the permission of Imaam or without his permission. It’s opinion of Malik. Malik was asked about a man who stood between two troops (i.e. between Muslims and enemies) and asked (the enemy): “Who wants to fight?” Malik said: “it depends on his intention, if he intends with it to please Allaah, then I hope there is nothing wrong! People did it before” Shafi’ said: “There is nothing wrong with fighting a duel.” Ibn al-Mundhir said: “Fighting a duel with permission of Imaam is good, but there is no sin upon one who does it without his permission! It’s not makruh, because I do not know any narration forbidding it!” [“Jami li Ahkam al-Qur’aan”, 4/249 Muassasa ar-Risala]
And Imaam Abdur Rahman al-Hattab al-Maliki said:
“Abdullaah bin Wahb was asked about a group which attacks the enemy, is it permissible to fight a duel without permission of Imaam?
He said: “If Imaam is present there, it’s not allowed for him to fight a duel, but with his permission and if he is not rightful (i.e. fasiq), let him fight a duel and they all may fight against the enemy without his permission.”
I (Zuwnan Abdul Malik bin Hasan) said to him: “Mubarazah (fighting a duel) and qital (fighting) has the same ruling according to you?” he said: “Yes!” Ibn Rush said: it’s as he said: If Imaam is not rightful, then neither for dueling, nor fighting his permission is not necessary for them, because he would have forbidden them to attack and it should be examined in his case because he is not rightful in his affairs. But he should be obeyed in any way. Because there is difference between “being rightful” and “being unfair” when it concerns “permission”. There is not such difference in obedience when he orders such or forbids such, because obedience to Imaam is from the obligations of battle and it’s wajib upon people to obey Imaam in everything that he likes or dislikes and even if he is not rightful he should be obeyed in matters which is not disobedience to Allaah…” [“Mawahib al-Jalil“, 3/34]
Is presence of Imaam a condition for Jihaad?
Scholars of Shafi madhhab say that it’s makruh without Imaams permission and it’s about the aggressive type of Jihaad, not when muslims are attacked.
Imaam Nawawi said:
“Fighting without permission from Imaam and his deputy is makruh!” [“Minhaj at-Talibin“, Kitab as-Siyar, pg: 519]
And great scholar of Shafi madhhab Khatib al-Shirbini in his commentary on Imaam Nawawi’s “Minhaj at-Talibin” said about these words:
“Fighting without permission from Imaam and his deputy is makruh!”
Because his status should be respected and because he is more knowledgeable than others in matters of Jihaad. But it’s not haraam (to fight without his permission), because there is nothing more than exposing yourself to danger and it’s permissable in Jihaad.
It should be – as al-Adhrai’ said – limited only for volunteers. As for a professional army (those who are payed for their service) it’s not allowed for them, because they are allocated in the strategic places around the country to defend Islaam and Imaam is in charge of them and they are like hired workers.
NOTICE: al-Balqini exempted following cases from “karaha”:
First: If seeking permission would delay it so that the benefit of fighting would be lost.
Second: If the Imaam neglects Jihaad and he and his soldiers are attached to this world. As we observe it happening today.
Third: If they have well-grounded suspicion that if the permission is sought it would not be granted.” [“Mughni al-Muhtaj“, 4/220]
Imaam Jalal ud-Din al-Mahalli said in his book “Kanz ar-Raghibin Sharh Minhaj at-Talibin” (a commentary on “Minhaj at-Talibin“):
“Fighting without permission from Imaam and his deputy is makruh” because the ruler knows more about what is beneficial.”
Imaam Shihab ud-Din al-Qalyubi and Imaam Shihab ud-Din Ahmad al-Birlisi (‘Umeyra) write in their commentaries on “Kanz ar-Raghibin“:
His word: “it’s makruh”, i.e for volunteers, but it’s haram for professionals without permission, yes, if there is benefit in fighting. But if Imaam and his troops forsook Jihaad for their love to this world or he insists on denial for permission or when seeking permission would delay it so that the benefit of fighting would be lost, in these cases it’s not makruh to fight without his permission.”
“His word: “in what is beneficial”; It’s said: It’s not about fighters other than professional soldiers. Otherwise it is forbidden for them, because they guard the religions sanctity when it’s under attack and they may not fight without Imaams permission.” [“Hashiyatan Qalyubi wa ‘Umeyra“, 4/217]
Another shafi’i scholar Imaam Ahmad bin Ibrahim bin Muhammad Abu Zakariyya ad-Dimashqi, known as Ibn Nuhhas said in his famous book on this subject:
“Jihaad without permission from Imaam or his deputy is makruh, but not haraam.” [“Mashari al-Ashwaq ila Masari al-Ushaq“, 315]
Scholars of Maliki madhhab said,
Imaam Abdur Rahman al-Hattab al-Maliki said:
“Then Ibn Habib said: “I heard the scholars saying: If the ruler forbids fighting for a certain benefit, then it’s haram to oppose him, but it’s not haram when the enemy attacks them suddenly.” Ashhab heard that Malik was asked about people who went out to the Roman territory with an army and they need forage for their horses and a group of them goes to a village and another goup to another village in order to feed the horses without Imaams permission. May be the enemy trapped them into it. If the enemy sees them they attack suddenly, fight and kill them or take them prisoners or may be they escape but if we leave our horses they die. He said: I think they should seek Imaams permission and I dont think that they may fight the enemy when they are not so many and ill-equipped. Malik was asked that “if the enemy takes over a shore which belongs to Muslims, should then fight against the enemy without an order from the ruler?” He said: “In my opinion if the ruler is not away from them, they should ask permission before fighting them. And if the ruler is far away from them, then they should not leave the enemy, and should attack them.” They mentioned that the ruler is away from them. Malik said: “So how should they act? Should they wait until the ruler orders them to attack?! In my opinion they should fight them. Ibn Rush said: All this is as he said: It’s not allowed to them to fight on their own in order to feed the horses, what is good for them is that they seek Imaams permission if they can. It should be done if the ruler is rightful according to the saying of Ibn Wahb via Zuwnans narration and he is Abdul Malik bin Hasan and that fighting enemy without Imaams permission is not permissible, except if they ara suddenly attacked and they are not able to ask Imaam for permission. End of the quote from Zuwnans narration…In the narration if Asbagh: I heard Ibn al-Qasim: he was asked about a group that is in the border with enemy and if it is permissible for that group to use advantage to attack the enemy suddenly without Imaams permission and Imaam is several days away from them? He said: If they are sure that this attack can be victorious and if they are not afraid to endanger themselves, then I dont see any problem in that. And if they are afraid that they are not able to cope with it, then I dislike it for them. Ibn Rushd said:It’s allowed for them to attack without Imaams permission if they are sure to win because Imaam is many days away from them. If Imaam is with them and if Imaam is rightful, then it’s not allowed to fight without his permission.” [“Mawahib al-Jalil“, 3/349]
Imaam Muhammad bin Ahmad bin Muhammad ‘Illish al-Maliki said in his fatawas:
“from Ibn al-Qasim: If muslims want to use the advantage against the enemy and they are afraid that Imaam would forbid it if he had known their plans, then they may go out against the enemy, but in my opinion it’s better to ask for permission.” Ibn Habib said: “I heard the scholars saying that if Imaam forbids fighting for some certain benefits, then it’s haraam to oppose him, except if the enemy threaten them. Ibn Rush said: It’s wajib to obey Imaam even if he is unjust in matter where he doesn’t order to disobey Allah and from disobediences is forbidding muslims from fard al-‘ayn Jihaad.” [“Fath Aliyyil-Malik fi al-Fatwa ala Madhhabil Imaam Malik“, 1/390]
Imaam Muhammad bin Ja’far al-Kattani said:
“Fuqaha and ulama said: If enemy attacks a Muslim country or gathers it’s army to the border in order to enter into a muslim country, then Jihaad becomes fardul-ayn upon its inhabitants and leader. It’s obligatory upon every old and young, every free man and slave and even upon women it they have strenght to combat. And fighting against the enemy should not be stop for consultation with Imaam or for a permission from Imaam, especially if Imaam is far away from them.” [an-Nasiha, p: 77]
Imaam Abu Abdullah Muhammad al-‘Arabi al-Fasi al-Maliki said:
“Amongst what is clearly known is that the reason of attribution of Jihaad to the authority is that in most cases the perfection of Jihaad can only be achieved with the help of Imaam, but if it’s possible to achieve it without him, there is no need to wait for an Imaam.” [“al-Mi’yar al-Jadid“, 3/7]
The Hanbali scholars said,
Imaam Ibn Muflih said:
“It’s haraam (To battle enemy) without Imaams permission, except when there is a need for that. It was narrated from Ahmad. And in “al-Mughni” (is related from Imaam Ahmad that) if there is risk of giving away an opportunity (then they may battle without Imaams permission) and in “ar-Rawdah” narrations differ from Ahmad about this issue, it’s narrated from him that it’s not allowed, also narrated that he gave permission in any case, openly or secretly, individually or in groups, with a big army or a small batallion.” [“al-Furu fi fiqh al-Hanbali“, 4/127]
Imaam Ibn Qudamah al-Hanbali said:
“If enemy attacks then Jihaad becomes fard al-ayn and it’s obligatory upon everyone and it’s not allowed to anyone to abandon it. If it’s clear, then they may not go out to Jihaad, but with a permission of a ruler, because the art of war is his specialty, he knows better about how big or small is enemy army, and their places and tactics. They should turn to his opinion. Because he is better for protection of Muslims, except if it’s not possible to ask his permission because a surprise attack from the enemy side, then it was not obligatory for them to ask his permission. because in this case the benefit is in fighting and attacking the enemy. Thats why when disbelievers attacked camels of the prophet – sallallahu aleihi wa sallam – “Salmah bin Akwah” chased them outside the Madinah city and killed them without a permission from the prophet, and the prophet -sallallahu aleihi wa sallam – praised him and said: “Our best fighter, Salmah bin akwah!” and gave him bow and arrow” [“al-Mughni“, 9/174]
and Imaam Ibn Qudamah stated again:
“Absence of Imaam can not delay Jihaad, because the benefit of Jihaad is lost if it’s delayed. It they gather booty, they should divide it according to Sharia rulings.” [“al-Mughni“; 8/353]
and again Imaam Ibn Muflih said:
“al-Qadi was asked: “Is it allowed to fight “bughat” (people of mischief, rioters) when there is no Imaam?” He said: “Yes, because if it’s allowed to Imaam to fight in order to prevent mischief and oppression, then these things (i.e. mischief, oppression) exist even when there is no Imaam” [“al-Furu’“, 6/154]
So if it’s allowed to fight without a permission from the ruler against Muslims who spread mischief in Muslims lands, then it’s utter necessary to fight against kafir invaders,even if Muslims do not have institution of Islaamic governance.
Imaam Ahmad that he said:
“It they are afraid for themselves and their children, there is nothing wrong for them to fight before asking permission from the ruler. But they should not fight if they are not afraid, except with a permission from Imaam.” [“Masail Imaam Ahmad“, narration of his son Abdullah, (286)]
Imaam ibn Taymia said:
“As for fighting to protect the sanctity of the religion, then it’s obligatory with a consensus of scholars. There is nothing more important after Iman than to fight back the enemy that destroys the religion and the worldly life and no condition is mentioned for it. They should defend as long as they can.” [“Fatawa al-Misriyya”, 4/508]
Imaam Ibn Hazm al-Andalusi said:
“Allahu Ta’ala said:
“O ye who believe! fight the unbelievers who gird you about, and let them find firmness in you: and know that Allaah is with those who fear Him.”
And Allah did not make it specific to the order from Imaam or without his order and if Imaam forbids fighting against the enemy, it necessitates disobedience to Allah, people should not listen to him and should not obey him, because he orders disobedience
And Allahu Ta’ala said:
“Then fight in Allaah’s cause – Thou art held responsible only for thyself!”
This statement addresses every single muslim and every single soul is ordered with Jihaad, even if he had to fight alone! [“al-Muhalla bil-Asar“, 7/351 (issue: 964) Idara at-Tiba’a al-Muniriyya, Kairo 1352 (1933) Tahqiq: Ahmad Muhammad Shakir]
Imaam al-Mawardi al-Shafi’i, who had written many beneficial works about Islaamic governance, the author of “Ahkam as-Sultaniyya” said:
“Jihaad that is fard al-kifaya should be (i.e obligatory) lead by an Imaam, but not if Jihaad becomes fard al-‘ayn” [“al-Iqna’ “, p: 175]
Imaam Siddiq Hasan Khan said:
“This obligation is one of the many obligations of religion that Allaah imposed on His muslim servants without binding it to certain time or place or persons or justice or oppression (i.e it’s allowed every time, in every place, with leaders or withour them or with just leaders or with unjust leaders, no such conditioned was mentioned)” [“Rawda an-Nadiyya” 333]
Imaam Abdur Rahman bin Hasan said in his refutation of Ibn Nabhan :
“As for your saying that “You have no right to use this verse against us as an evidence,because this ayah concerning Jihaad is about Jihaad with a Imaam who should be followed and he is Allahs Messenger – sallallahu aleyhi wa sallam – and if we had such Imaam we would know it and may be we would obey him.”
I say: Your statement in your words “the ayah concerning Jihaad…” show us that this is speaking about Allah and His book without knowledge. Allahu Ta’ala said: “Say: the things that my Lord hath indeed forbidden are: shameful deeds, whether open or secret; sins and trespasses against truth or reason; assigning of partners to Allah, for which He hath given no authority; and saying things about Allaah of which ye have no knowledge.”
And we say: Which book or which proof says that Jihaad is not wajib except with a legitime Imaam? This is ascribing falsehoo to the religion and deviating from the path of the believers. The evidences prooving the invalidity of this saying are too famous to be mentioned. Amongst them is the generality of the order to fight and encouragement to it and threat against those who abandon it. Allahu Ta’ala said: “And did not Allah Check one set of people by means of another, the earth would indeed be full of mischief.” And in the surah al-Hajj: ” Did not Allah check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of Allah is commemorated in abundant measure.”
Every person who makes Jihaad for Allaah’s sake has obeyed Allah and performed what was obliged by Allaah. And an Imaam becomes Imaam only with Jihaad, not that there can not be Jihaad without an Imaam. O Man! The truth is the opposite of what you mentioned. Allahu Ta’ala said: Say: “I do admonish you on one point: that ye do stand up before Allaah in pairs, or singly,” and He said: “And if any strive they do so for their own souls:”
And in a hadith: “There will allways be a group…” and praise be to Allaah, there is a group upon the truth and they fight for Allaahs sake and they are not afraid of reproaches of those who blame people. Allaah Ta’ala said: “O ye who believe! if any from among you turn back from his Faith, soon will Allaah produce a people whom He will love as they will love Him,- lowly with the believers, mighty against the rejecters, fighting in the way of Allaah, and never afraid of the reproaches of such as find fault. That is the grace of Allaah, which He will bestow on whom He pleaseth. And Allaah encompasseth all, and He knoweth all things.” i.e. abundant in grace and offering, He knows those who are competent for Jihaad.
The quotes and evidences prooving the invalidity of what you have written are abundant in the Quran, Sunnah, Siyar, narrations and the words of people of knowledge based on evidences and narrations. It would be clear even for the mentally defective people, if they read Abu Basirs story: “When he came as a refugee, Quraish demanded from Allaahs Messenger – sallallahu aleyhi wa sallam – to return him to them according to the terms of Hudaybiyya agreement. He killed those mushriks who came after him and fled to the coastal area and when Allaahs Messenger heard what happened he said: “Wayl Ummihi! provocateur of war! I wish he had others with him!” He attacked caravans of Quraish that come from Sham, took from them and killed them and he fought them on his own without the prophet – sallallahu aleihi wa sallam – because pagans had peace treaty with theprophet…(and this stroy is long)” and did Allaah’s Messenger said to them: “You made mistake fighting Quraish, because you are not with Imaam”?!?!?! Subhanallah! Is there something more harmful than ignorance?! I seek refuge in Allah from opposing the truth with ignorance and falsehood. Allahu Ta’ala said: “The same religion has He established for you as that which He enjoined on Noah – the which We have sent by inspiration to thee…”
“ad-Durar as-Saniyyah fi Ajwibatin-Najdiyya”, 8/199-201
sixth edition, 1417 (1996)