Allah’s judgment, for you do not know what Allah’s judgment concerning them is. Rather, let them surrender on the basis of your judgment and that of your companions.”

For this reason, the jurists said that if the ruler besieges a fortress and its inhabitants surrender to an adjudicator’s judgment, this is permissible, provided that he is a free, upright Muslim man qualified to exercise independent judgment in matters of jihad. He may rule only in a way that serves the interests of Islam, whether by execution, enslavement, or ransom. They differed, however, over whether his ruling is binding if he orders their release without compensation and the ruler refuses: is it binding, not binding, or should a distinction be drawn between the fighting men and their dependants? There are three opinions. This disagreement arose only because those who disputed such a ruling believed that release without compensation brought no benefit to the Muslims.

The “main point” is that the choice granted to the ruler and to the adjudicator to whose judgment they surrendered is a choice governed by judgment and considerations of welfare. He seeks to determine which of the two courses is more pleasing to Allah and His Messenger, and then follows it, just as a scholar exercising independent judgment examines the evidence concerning an issue and follows whichever of the two proofs carries greater weight. What we mean by “choice,” however, is that no single course among these is invariably required at all times. Rather, one may be required on one occasion and another on a different occasion.

His words in the Quran,

“Then either release them without compensation or for ransom,”

require one of the two courses to be taken. This does not preclude varying between one course in one situation and the other in another. Similarly, He says:

“Are you awaiting anything for us except one of the two best outcomes? But we await for you that Allah should afflict you with punishment from Himself or at our hands.”

Thus, anticipating one of the two outcomes does not preclude a particular one of them from occurring. When jihad is obligatory upon us at certain times, Allah then afflicts them with punishment at our hands, as He says:

“Fight them: Allah will punish them at your hands, disgrace them, grant you victory over them, and heal the hearts of a believing people,”

“and remove the rage from their hearts.”