What are the conditions for the ruling of muharaba (waging war) to apply to highway robbery?
General Chapter
Al-Mughni
Book of Highway Robbers
Primary text
Three conditions must be met for the rulings of muharaba to apply. First, the act must take place in the open desert (sahra). Second, the perpetrators must be armed. If they threaten with sticks or stones, they are considered muharibin, supported by Al-Shafi'i and Abu Thawr, because such items serve the purpose of weapons that can harm life and limb, similar to iron. Third, the taking of wealth must be done openly (mujaharatan) and by force (qahran). If they take wealth secretly, they are thieves; if they snatch and flee, they are plunderers (munhtibun) and do not receive this penalty. If one or two men attack a small caravan and take something, they are not muharibin as they lack strength for defense. However, if they overpower a small group, they are considered highway robbers.
Supporting text
Regarding the location, if the act occurs within towns (qura) or cities (amsar), Imam Ahmad paused on ruling them as muharibin, a view shared by Abu Hanifa, Al-Thawri, and Ishaq, arguing that the term 'qatt' al-tariq' (cutting the road) implies the desert, and inhabitants within the city usually receive aid, diminishing the robbers' impact. Conversely, many companions of our school, Al-Awza'i, Al-Layth, Al-Shafi'i, Abu Yusuf, and Abu Thawr, hold that they are highway robbers wherever it occurs, based on the generality of the verse, and the harm is often greater in cities. Al-Qadi specified that if they raid a house where aid is reachable, they are not highway robbers, but if they besiege and conquer a quarter where aid is not usually reachable, they are considered muharibin, resembling desert robbers.