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Our statement that a prohibition preceding a command is an indication that the command conveys permission is not a matter of consensus. Some have held that this does not indicate permission. If we adopt this view, the evidence that what is intended is a choice between execution and taking captives is that “the Messenger of Allah (peace and blessings be upon him) had two of the captives of Badr, ‘Uqbah ibn Abī Mu‘ayt and al-Nadr ibn al-Hārith, executed while in captivity.”
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The choice concerning captives does not mean deciding their fate according to personal whims. Rather, it calls for the exercise of judgment in the Muslims’ interests, like the choice concerning the prescribed punishment for a brigand. If the captive is known for courage, horsemanship, and inflicting harm on the Muslims, the ruler executes him rather than sparing his life. If he is not of this description, there is no fear of harm from him, and he has a market value, the ruler enslaves him for the Muslims and accepts a ransom for him if more than his value is offered. If no payment is offered for him and he has no capacity to pay the jizyah, the ruler sets him free. This applies, for example, to the infirm and chronically disabled who neither fight nor have counsel or strategy to offer.
Among the infirm and chronically disabled, those with impaired intellect, the insane, and those paralysed on one side are, by agreement, not to be killed. Opinions differ concerning the blind and those unable to walk. This disagreement reflects the disagreement over whether they are entitled to an allotted share of the spoils and whether they may receive money from funds designated for Allah’s cause. If the captive has no market value but has the capacity to pay the jizyah, the ruler grants him a covenant of protection and imposes the jizyah upon him.
Mālik’s statements differ concerning a captive whose circumstances are unknown. On one occasion he said that he is not to be killed unless he is known for courage and horsemanship; on another, he said that he is to be killed. The latter was the position adopted by ‘Umar ibn al-Khattāb—may Allah Most High be pleased with him—in his letter to his governors, instructing them to kill those who had reached shaving age and not to enslave any of their non-Arab men.
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If, in the exercise of his judgment, the ruler considers it appropriate to depart from the courses of action we have described, he may do so—as, for example, when a horseman known for his courage and horsemanship offers a very substantial sum as his own ransom