Dhimmi

The Dhimma contract and Sharia law

The dhimma contract is an integral part of traditional Islamic law. From the 9th century AD, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulama). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community.^[39] Through succeeding centuries and empires, the balance between the ulema and the rulers shifted and reformed, but the balance of power was never decisively changed.^[40] At the beginning of the 19th century, the Industrial Revolution and the French Revolution introduced an era of European world hegemony that included the domination of most of the Muslim lands.^[41][42] At the end of the Second World War, the European powers found themselves too weakened to maintain their empires.^[43] The wide variety in forms of government, systems of law, attitudes toward modernity and interpretations of sharia are a result of the ensuing drives for independence and modernity in the Muslim world.^[44][45]

Muslim states, sects, schools of thought and individuals differ as to exactly what sharia law entails.^[46] In addition, Muslim states today utilize a spectrum of legal systems. Most states have a mixed system that implements certain aspects of sharia while acknowledging the supremacy of a constitution. A few, such as Turkey, have declared themselves secular.^[47] Local and customary laws may take precedence in certain matters, as well.^[48] Islamic law is therefore polynormative,^[49] and despite several cases of regression in recent years, the trend is towards liberalization.^[50] Questions of human rights and the status of minorities cannot be generalized with regards to the Muslim world. They must instead be examined on a case-by-case basis, within specific political and cultural contexts, using perspectives drawn from the historical framework.^[51]

The end of the Dhimma contract

The status of the dhimmi "was for long accepted with resignation by the Christians and with gratitude by the Jews" but the rising power of Christendom and the radical ideas of the French Revolution caused a wave of discontent among Christian dhimmis.^[52] The continuing and growing pressure from the European powers combined with pressure from Muslim reformers gradually relaxed the inequalities between Muslims and non-Muslims.^[53]

On 18 February 1856, the Ottoman Reform Edict of 1856 (Ottoman Turkish: خط همايونى, romanized: Hatt-i Humayan) was issued, building upon the 1839 edict. It came about partly as a result of pressure from and the efforts of the ambassadors of France, Austria and the United Kingdom, whose respective countries were needed as allies in the Crimean War. It again proclaimed the principle of equality between Muslims and non-Muslims, and produced many specific reforms to this end. For example, the jizya tax was abolished and non-Muslims were allowed to join the army.^[54][55]

According to some scholars, discrimination against dhimmis did not end with the Edict of 1856, and they remained second-class citizens at least until the end of World War I.^[56] H.E.W. Young, the British Council in Mosul, wrote in 1909, "The attitude of the Muslims toward the Christians and the Jews is that of a master towards slaves, whom he treats with a certain lordly tolerance so long as they keep their place. Any sign of pretension to equality is promptly repressed."^[57]

Views of modern Islamic scholars on the status of non-Muslims in an Islamic society

• The Iranian Shi'a Muslim Ayatollah Ruhollah Khomeini indicates in his book Islamic Government: Governance of the Jurist that non-Muslims should be required to pay the poll tax, in return for which they would profit from the protection and services of the state; they would, however, be excluded from all participation in the political process.^{[58][failed verification]} Bernard Lewis remarks about Khomeini that one of his main grievances against the Shah, Mohammad Reza Pahlavi, was that his legislation allowed the theoretical possibility of non-Muslims exercising political or judicial authority over Muslims.^[59]
• The Egyptian theologian Yusuf al-Qaradawi, chairman of the International Union of Muslim Scholars,^[60] has stated in his Al Jazeera program Sharia and Life, which has an estimated audience of 35 to 60 million viewers:^[61] "When we say dhimmis (ahl al-dhimma) it means that [...] they are under the covenant of God and His Messenger and the Muslim community and their responsibility (ḍamān), and it is everyone's duty to protect them, and this is what is intended by the word. At present many of our brethren are offended by the word dhimmis, and I have stated in what I wrote in my books that I don't see anything to prevent contemporary Islamic ijtihad from discarding this word dhimmis and calling them non-Muslim citizens."^[62]
• Another Egyptian Islamist, Mohammad Salim al-Awa argued the concept of dhimmi must be re-interpreted in the context of Egyptian nationalism. Al-Awa and other Muslim scholars based this on the idea that while the previous dhimma condition result from the Islamic conquest, the modern Egyptian state results from a joint Muslim-Christian campaign to end the British occupation of Egypt. In modern-day Egypt, he argues, the constitution replaces the dhimma contract.^[63]
• Muhammad Husayn Tabataba'i, a 20th-century Shia scholar writes that dhimmis should be treated "in a good and decent manner". He addresses the argument that good treatment of dhimmis was abrogated by Quranic verse 9:29^[64] by stating that, in the literal sense, this verse is not in conflict with good treatment of dhimmis.^[65]
• Javed Ahmad Ghamidi, a Pakistani theologian, writes in Mizan that certain directives of the Quran were specific only to Muhammad against peoples of his times, besides other directives, the campaign involved asking the polytheists of Arabia for submission to Islam as a condition for exoneration and the others for jizya and submission to the political authority of the Muslims for exemption from capital punishment and for military protection as the dhimmis of the Muslims. Therefore, after Muhammad and his companions, there is no concept in Islam obliging Muslims to wage war for propagation or implementation of Islam.^[66][67]
• The Iranian Shia jurist Grand Ayatollah Naser Makarem Shirazi states in Selection of the Tafsir Nemooneh that the main philosophy of jizya is that it is only a financial aid to those Muslims who are in the charge of safeguarding the security of the state and dhimmis' lives and properties on their behalf.^[68]
• Prominent Islamic thinkers like Fahmi Huwaidi and Tarek El-Bishry have based their justification for full citizenship of non-Muslims in an Islamic states on the precedent set by Muhammad in the Constitution of Medina. They argue that in this charter the People of Book, have the status of citizens (muwatinun) rather than dhimmis, sharing equal rights and duties with Muslims.^[69]
• Legal scholar L. Ali Khan also points to the Constitution of Medina as a way forward for Islamic states in his 2006 paper titled The Medina Constitution. He suggests this ancient document, which governed the status of religions and races in the first Islamic state, in which Jewish tribes are "placed on an equal footing with [...] Muslims" and granted "the freedom of religion," can serve as a basis for the protection of minority rights, equality, and religious freedom in the modern Islamic state.^[70][71]
• Tariq Ramadan, Professor of Islamic Studies at the University of Oxford, advocates the inclusion of academic disciplines and Islamic society, along with traditional Islamic scholars, in an effort to reform Islamic law and address modern conditions. He speaks of remaining faithful to the higher objectives of sharia law. He posits universal rights of dignity, welfare, freedom, equality and justice in a religiously and culturally pluralistic Islamic (or other) society, and proposes a dialogue regarding the modern term "citizenship," although it has no clear precedent in classical fiqh. He further includes the terms "non-citizen", "foreigner", "resident" and "immigrant" in this dialogue, and challenges not only Islam, but modern civilization as a whole, to come to terms with these concepts in a meaningful way with regards to problems of racism, discrimination and oppression.^[72]

Christians

According to historians Lewis and Stillman, local Christians in Syria, Iraq, and Egypt were non-Chalcedonians and many may have felt better off under early Muslim rule than under that of the Byzantine Orthodox of Constantinople.^[89] In 1095, Pope Urban II urged western European Christians to come to the aid of the Christians of Palestine. The subsequent Crusades brought Roman Catholic Christians into contact with Orthodox Christians whose beliefs they discovered to differ from their own perhaps more than they had realized, and whose position under the rule of the Muslim Fatimid Caliphate was less uncomfortable than had been supposed. Consequently, the Eastern Christians provided perhaps less support to the Crusaders than had been expected.^[90] When the Arab East came under Ottoman rule in the 16th century, Christian populations and fortunes rebounded significantly. The Ottomans had long experience dealing with Christian and Jewish minorities, and were more tolerant towards religious minorities than the former Muslim rulers, the Mamluks of Egypt.^[91]

However, Christians living under Islamic rule have suffered certain legal disadvantages and at times persecution. In the Ottoman Empire, in accordance with the dhimmi system implemented in Muslim countries, they, like all other Christians and also Jews, were accorded certain freedoms. The dhimmi system in the Ottoman Empire was largely based upon the Pact of Umar. The client status established the rights of the non-Muslims to property, livelihood and freedom of worship but they were in essence treated as second-class citizens in the empire and referred to in Turkish as gavours, a pejorative word meaning "infidel" or "unbeliever". The clause of the Pact of Umar which prohibited non-Muslims from building new places of worship was historically imposed on some communities of the Ottoman Empire and ignored in other cases, at discretion of the local authorities. Although there were no laws mandating religious ghettos, this led to non-Muslim communities being clustered around existing houses of worship.^[92][93]

In addition to other legal limitations, dhimmis, including the Christians among them, were not considered equals to Muslims and several prohibitions were placed on them. Their testimony against Muslims was inadmissible in courts of law wherein a Muslim could be punished; this meant that their testimony could only be considered in commercial cases. They were forbidden to carry weapons or ride atop horses and camels. Their houses could not overlook those of Muslims; and their religious practices were severely circumscribed (e.g., the ringing of church bells was strictly forbidden).^[92][94]

Jews

Because the early Islamic conquests initially preserved much of the existing administrative machinery and culture, in many territories they amounted to little more than a change of rulers for the subject populations, which "brought peace to peoples demoralized and disaffected by the casualties and heavy taxation that resulted from the years of Byzantine-Persian warfare".^[80]

María Rosa Menocal, argues that the Jewish dhimmis living under the caliphate, while allowed fewer rights than Muslims, were still better off than in the Christian parts of Europe. Jews from other parts of Europe made their way to al-Andalus, where in parallel to Christian sects regarded as heretical by Catholic Europe, they were not just tolerated, but where opportunities to practice faith and trade were open without restriction save for the prohibitions on proselytization.^[95]

Bernard Lewis states:

Generally, the Jewish people were allowed to practice their religion and live according to the laws and scriptures of their community. Furthermore, the restrictions to which they were subject were social and symbolic rather than tangible and practical in character. That is to say, these regulations served to define the relationship between the two communities, and not to oppress the Jewish population.^[96]

Professor of Jewish medieval history at Hebrew University of Jerusalem, Hayim Hillel Ben-Sasson, notes:

The legal and security situation of the Jews in the Muslim world was generally better than in Christendom, because in the former, Jews were not the sole "infidels", because in comparison to the Christians, Jews were less dangerous and more loyal to the Muslim regime, and because the rapidity and the territorial scope of the Muslim conquests imposed upon them a reduction in persecution and a granting of better possibility for the survival of members of other faiths in their lands.^[97]

According to the French historian Claude Cahen, Islam has "shown more toleration than Europe towards the Jews who remained in Muslim lands."^[98]

Comparing the treatment of Jews in the medieval Islamic world and medieval Christian Europe, Mark R. Cohen notes that, in contrast to Jews in Christian Europe, the "Jews in Islam were well integrated into the economic life of the larger society",^[99] and that they were allowed to practice their religion more freely than they could do in Christian Europe.^[99]

According to the scholar Mordechai Zaken, tribal chieftains (also known as aghas) in tribal Muslim societies such as the Kurdish society in Kurdistan would tax their Jewish subjects. The Jews were in fact civilians protected by their chieftains in and around their communities; in return they paid part of their harvest as dues, and contributed their skills and services to their patron chieftain.^[100]

Hindus and Buddhists

By the 10th century, the Turks of Central Asia had invaded the Indic plains, and spread Islam in Northwestern parts of India.^[101] At the end of the 12th century, the Muslims advanced quickly into the Ganges Plain.^[102] In one decade, a Muslim army led by Turkic slaves consolidated resistance around Lahore and brought northern India, as far as Bengal, under Muslim rule.^[103] From these Turkic slaves would come sultans, including the founder of the sultanate of Delhi. By the 15th century, major parts of Northern India was ruled by Muslim rulers, mostly descended from invaders. In the 16th century, India came under the influence of the Mughals. Babur, the first ruler of the Mughal empire, established a foothold in the north which paved the way for further expansion by his successors.^[104] Although the Mughal emperor Akbar has been described as a universalist, most Mughal emperors were oppressive of native Hindu, Buddhist and later Sikh populations.^[105] Aurangzeb specifically was inclined towards a highly fundamentalist approach.^[106]

Jizya tax

Payment of the jizya obligated Muslim authorities to protect dhimmis in civil and military matters. Sura 9 (At-Tawba), verse 29 stipulates that jizya be exacted from non-Muslims as a condition required for jihad to cease. Islamic jurists required adult, free, healthy males among the dhimma community to pay the jizya, while exempting women, children, the elderly, slaves, those affected by mental or physical handicaps, and travelers who did not settle in Muslim lands.^[115][116] According to Abu Yusuf dhimmi should be imprisoned until they pay the jizya in full.^[117] Other jurists specified that dhimmis who don't pay jizya should have their heads shaved and made to wear a dress distinctive from those dhimmis who paid the jizya and Muslims.^[118]

Lewis states there are varying opinions among scholars as to how much of a burden jizya was.^[117] According to Norman Stillman: "jizya and kharaj were a "crushing burden for the non-Muslim peasantry who eked out a bare living in a subsistence economy."^[119] Both agree that ultimately, the additional taxation on non-Muslims was a critical factor that drove many dhimmis to leave their religion and accept Islam.^[120] However, in some regions the jizya on populations was significantly lower than the zakat, meaning dhimmi populations maintained an economic advantage.^[121] According to Cohen, taxation, from the perspective of dhimmis who came under Muslim rule, was "a concrete continuation of the taxes paid to earlier regimes".^{[75][page needed]} Lewis observes that the change from Byzantine to Arab rule was welcomed by many among the dhimmis who found the new yoke far lighter than the old, both in taxation and in other matters, and that some, even among the Christians of Syria and Egypt, preferred the rule of Islam to that of Byzantines.^[77] Montgomery Watt states, "the Christians were probably better off as dhimmis under Muslim-Arab rulers than they had been under the Byzantine Greeks."^[122] In some places, for example Egypt, the jizya was a tax incentive for Christians to convert to Islam.^[17]

Some scholars have tried compute the relative taxation on Muslims vs non-Muslims in the early Abbasid period. According to one estimate, Muslims had an average tax rate of 17–20 dirhams per person, which rose to 30 dirhams per person when in kind levies are included.^[123] Non-Muslims paid either 12, 24 or 48 dirhams per person, depending on their taxation category, though most probably paid 12.^[123]

The importance of dhimmis as a source of revenue for the Rashidun Caliphate is illustrated in a letter ascribed to Umar I and cited by Abu Yusuf: "if we take dhimmis and share them out, what will be left for the Muslims who come after us? By God, Muslims would not find a man to talk to and profit from his labors."^[124]

The early Islamic scholars took a relatively humane and practical attitude towards the collection of jizya, compared to the 11th century commentators writing when Islam was under threat both at home and abroad.^[125]

The jurist Abu Yusuf, the chief judge of the caliph Harun al-Rashid, rules as follows regarding the manner of collecting the jizya^[125]

No one of the people of the dhimma should be beaten in order to exact payment of the jizya, nor made to stand in the hot sun, nor should hateful things be inflicted upon their bodies, or anything of that sort. Rather they should be treated with leniency.

In the border provinces, dhimmis were sometimes recruited for military operations. In such cases, they were exempted from jizya for the year of service.^[126]

Administration of law

Religious pluralism existed in medieval Islamic law and ethics. The religious laws and courts of other religions, including Christianity, Judaism and Hinduism, were usually accommodated within the Islamic legal framework, as exemplified in the Caliphate, Al-Andalus, Ottoman Empire and Indian subcontinent.^[127][128] In medieval Islamic societies, the qadi (Islamic judge) usually could not interfere in the matters of non-Muslims unless the parties voluntarily chose to be judged according to Islamic law. The dhimmi communities living in Islamic states usually had their own laws independent from the Sharia law, such as the Jews who had their own Halakha courts.^[129]

Dhimmis were allowed to operate their own courts following their own legal systems. However, dhimmis frequently attended the Muslim courts in order to record property and business transactions within their own communities. Cases were taken out against Muslims, against other dhimmis and even against members of the dhimmi's own family. Dhimmis often took cases relating to marriage, divorce or inheritance to the Muslim courts so these cases would be decided under sharia law. Oaths sworn by dhimmis in the Muslim courts were sometimes the same as the oaths taken by Muslims, sometimes tailored to the dhimmis' beliefs.^[130]

Muslim men could generally marry dhimmi women who are considered People of the Book, however Islamic jurists rejected the possibility any non-Muslim man might marry a Muslim woman.^[131] Bernard Lewis notes that "similar position existed under the laws of Byzantine Empire, according to which a Christian could marry a Jewish woman, but a Jew could not marry a Christian woman under pain of death".^[79]

Quranic verses as a basis for Islamic policies toward dhimmis

Lewis states

• Al-Baqara 256 "Let there be no compulsion in religion: ...",^{[ 2:256]} means non-Muslims should not be forced to adopt Islam^[132]
• The phrase "Unto you your religion, and unto me my religion.", from Surah Al-Kafirun 109:6 has been used as a "proof-text for pluralism and coexistence".^[132]
• Surah Al-Baqara 2:62 has served to justify the tolerated position accorded to the followers of Christianity, Judaism, and Sabianism under Muslim rule.^[132]

Hadith

A hadith by Muhammad, "Whoever killed a muʿāhid (a person who is granted the pledge of protection by the Muslims) shall not smell the fragrance of Paradise though its fragrance can be smelt at a distance of forty years (of traveling).",^[133][134] is cited as a foundation for the right of non-Muslim citizens to live peacefully and undisturbed in an Islamic state.^[135] Anwar Shah Kashmiri writes in his commentary on Sahih al-Bukhari Fayd al-Bari on this hadith: "You know the gravity of sin for killing a Muslim, for its odiousness has reached the point of disbelief, and it necessitates that [the killer abides in Hell] forever. As for killing a non-Muslim citizen [muʿāhid], it is similarly no small matter, for the one who does it will not smell the fragrance of Paradise."^[135]

A similar hadith in regard to the status of the dhimmis: "Whoever wrongs one with whom a compact (treaty) has been made [i.e., a dhimmi] and lays on him a burden beyond his strength, I will be his accuser."^[136][137]

Constitution of Medina

The Constitution of Medina, a formal agreement between Muhammad and all the significant tribes and families of Medina (including Muslims, Jews and pagans), declared that non-Muslims in the Ummah had the following rights:^[138]

1. The security (dhimma) of God is equal for all groups,^[139]
2. Non-Muslim members have equal political and cultural rights as Muslims. They will have autonomy and freedom of religion.^[140]
3. Non-Muslims will take up arms against the enemy of the Ummah and share the cost of war. There is to be no treachery between the two.^[141]
4. Non-Muslims will not be obliged to take part in religious wars of the Muslims.^[142]

Khaybar agreement

A precedent for the dhimma contract was established with the agreement between Muhammad and the Jews after the Battle of Khaybar, an oasis near Medina. Khaybar was the first territory attacked and conquered by Muslims. When the Jews of Khaybar surrendered to Muhammad after a siege, Muhammad allowed them to remain in Khaybar in return for handing over to the Muslims one half their annual produce.^[143]

Pact of Umar

The Pact of Umar, traditionally believed to be between caliph Umar and the conquered Jerusalem Christians in the seventh century, was another source of regulations pertaining to dhimmis. However, Western orientalists doubt the authenticity of the pact, arguing it is usually the victors and not the vanquished who impose rather than propose, the terms of peace, and that it is highly unlikely that the people who spoke no Arabic and knew nothing of Islam could draft such a document. Academic historians believe the Pact of Umar in the form it is known today was a product of later jurists who attributed it to Umar in order to lend greater authority to their own opinions. The similarities between the Pact of Umar and the Theodosian and Justinian Codes of the Eastern Roman Empire suggest that perhaps much of the Pact of Umar was borrowed from these earlier codes by later Islamic jurists. At least some of the clauses of the pact mirror the measures first introduced by the Umayyad caliph Umar II or by the early Abbasid caliphs.^[144]