The Judge said: This is interpreted as hiring those upon whom Jihad is not obligatory, [such as slaves and disbelievers. As for free Muslim men (1), it is not valid to hire them for Jihad] (2); because warfare becomes an individual obligation (fard 'ayn) by one's presence for those who are among its people. Once it becomes an obligatory duty for him, it is not permissible for him to perform it on behalf of another, just as one upon whom the Hajj of Islam is obligatory [it is not permissible] (3) for him to perform Hajj on behalf of another. This is the school of al-Shafi'i. It is possible that the statement of Ahmad and al-Khiraqi be interpreted according to (4) its literal meaning, regarding the validity of being hired for warfare for those upon whom it is not an individual obligation; based on what Abu Dawood (5) narrated with his chain of transmission from Abdullah ibn Amr, that the Messenger of Allah (may Allah bless him and grant him peace) said: "The warrior has his reward, and the one who provides the reward (al-ja'il) has his reward [and the reward of the warrior] (6)." Sa'id ibn Mansur (7) narrated from Jubayr ibn Nufayr, who said: The Messenger of Allah (may Allah bless him and grant him peace) said: "The likeness of those who fight from my nation, take a wage, and strengthen themselves with it against their enemy, is like the mother of Moses, who nurses her child and takes her wage." And because it is an affair for which the performer need not necessarily be one of the people of acts of piety, so hiring for it is valid, like building mosques, [or it has not] (8) become obligatory upon him to perform Jihad, so it is valid for him to hire himself for it, like a slave. It differs from Hajj, as that is not an individual obligation, and there is a pressing need for it. Preventing the taking of a wage for it would lead to its abandonment and would prevent those from whom (9) there is benefit for the Muslims, and who are needed by them, from participating; therefore, it should be permissible, unlike Hajj. Once this is established, if we say the former, then the hiring is invalid, he returns the wage, and he is entitled to his share [of the spoils]; because his fighting was without a wage. But if we say it is valid, the apparent meaning of the statement of Ahmad and al-Khiraqi (may Allah have mercy on them both) is that he is not granted a share (10); because his fighting was for compensation, so it is as if it occurred from someone else, thus he is entitled to nothing. And he
(1) In (M): "wal-muslimun" (and the Muslims). (2) Omitted from (B). It denotes a discussion. (3) In (A) and (B): "lam yajuz" (it was not permissible). (4) In (B): "wa" (and). (5) In: The Chapter on the Concession of Taking Wages (al-ja'a'il), from the Book of Jihad. Sunan Abi Dawood 2/16. It was also narrated by Imam Ahmad in: Al-Musnad 2/174. (6) Omitted from (M). (7) In: The Chapter on What Has Come Regarding the Man Who Fights for a Wage, from the Book of Jihad, Al-Sunan 2/141. It was also narrated by al-Bayhaqi in: The Chapter on What Has Come Regarding the Dislike of Taking Wages, from the Book of Siyar. Al-Sunan al-Kubra 9/27. (8) In the original: "wa lam" (and did not). (9) In (M): "mimma" (from what). (10) In (M): "sahm" (a share).
