ENGAGING ON NATIONALITY STATUS OF NON-MUSLIMS:
A MAQASID-BASED APPROACH
SAYED SIKANDAR SHAH HANEEF∗
Abstract
The non-Muslims resident of a Muslim state was accorded a special kind of
citizenship known dhimmah in the past. Under this designation non-Muslims
enjoyed full protections under the law in spite of constant state of hostilities
between Dar al-Islam and Dar al-Harb. With the demise of Islamic Caliphate
System after the First World War and constitutional collapse of the underlying
principles behind dhimmah, its retention or redefinition became a subject of
intense polemics among the legal scholars. By and large, the discourse followed
two trends: traditional and reformist. The former regards this issue as
permanently fixed, as detailed by classical jurists, while the latter views it as
historically conditioned and thus changeable part of the Shari'ah. Practically
modern Muslim states today accord equal citizenship to both their Muslim and
non-Muslim population. At the academic level, however, this issue still seems
unsettled. Even some leading contemporary thinkers, hesitate to engage with the
issue in question beyond the traditional paradigm. Accordingly, this paper
attempts to stimulate academic discussion on the issue which may somewhat
contribute to the emergence of some kind of consensus among the jurists in future
forums.
Introduction
The subject of the position of non-Muslims in an Islamic state has emerged as one of
the most contentious issues since one century or so. Two factors have triggered this:
first, Orientalists` portrayal of typical image of nationality status of non-Muslims as
second class citizens based on the traditional fiqh framework; second, the insistence by
some Islamist political movements on reinstating the Shari`ah which , to non-Muslims1,
∗
Associate Professor, Dept. of Fiqh and Usul al-Fiqh, International Islamic University Malaysia.
1
Jacques Ellul, in 1985 expressed this fear when he said:`` Half a century ago the issue of non-Muslim
status as dhimmi was one of historical discussion of interest for the specialists… Muslims had no power,
extremely divided and many of them were subjected to European colonialism…but the failure of secular
states and the rise of Muslim revivalist with slogans, such as Islam as `alternative` or ``a solution `` …the
question is how to stop this…`` see David Maisel et al, The Dhimmi- Jews and Christians under
Islam(London & Toronto: Associated Presses,1985),pp.25-28. Feldman also expressed the same fear:
``No matter how much of ``a dead letter the concept of dhimmi has become in practice during times of
weakness in the Islamic world, this doctrine of Islamic supremacism was never reformed or rejected.``
Contemporary writings on Islam abounds as unimpeachable evidences that such notion is still not a matter
of historical interests. Furthermore although the jizya has not been collected on a formal basis in the
Islamic world since the mid-nineteenth century, jihadists hope to revive it along with the other features of
the dhimmah( refers to Friday sermon by (Sheikh Marzouq Salem Al-Ghamd in Mecca).`` John Esposito &
Noah
Feldman,
Is
There
a
Role
for
Shari'ah
in
Modern
States?,
in
http://www.jihadwatch.org/2008/10/john-esposito-noah-feldman-working-to-make-the-world-safe-forshariah.html( accessed 29/10/2009).
1
as a matter of necessity will involve the restoration of dhimmi status to Non-Muslim
subjects. Accordingly, contemporary revisiting of the issue has followed suit but the
approached has been diverse. Clinging onto the classical fiqh framework, some jurists
have detailed rights and duties of the non-Muslim subjects as tolerated and protected
communities far better than the minorities in other jurisdictions until eighteenth centuries
– reaffirming what some hawkish oreintalists had articulated. Others reformulated the
traditional concepts into the language of modern structure by emphasizing non-Muslims`
rights. Some other thinking intellectuals, however, have engaged in the rethinking of the
issue. This paper, therefore, is an attempt to present an overview of all the aforesaid
perspectives together with their critical appraisal with the prime purpose of pointing to a
maqasid-affirming viewpoint.
1- Classical model
According to most orthodox position among the classical fuqaha(jurists), dhimmi, in
principle, denotes two basic constitutional restrictions: First, Muslims are superior to
any other religious group by virtue of the verse "You are the best community that has
been raised up for mankind"2;secondly, Non-Muslims who had not accepted Islam should
be conquered, humiliated, and subjected to the payment of the tribute poll tax, the jizyah,
not payable by Muslims by virtue of the verse , "fight against those who have been given
the scripture and... follow not the religion of truth until they pay the tribute readily, being
brought down."3 Other than this they enjoy full judicial autonomy in matters of personal
law and religious practices.
To make the matter more polemical, some well-known legal scholars , introduced
additional restrictions known as Shurut `Umarriyyah relating to the treatment of the dhimmisfounded on the alleged pact of Syrian Christians with `Umar. One version of this pact as
documented by Ibn al-`Asakir provides as follows:
Abd al-Rahman Ibn Ghanam [ d. 78 AH / 697 CE ] said as follows: When
Umar Ibn al-Khattab [may God be pleased with him ] accorded a peace to the
Christians of al-Sham, we wrote to him as follows: In the name of God, the
Merciful and Compassionate. This is a letter to the servant of God Umar [ Ibn
al-Khattab ] , the Commander of the Faithful, from the Christians of such and
such a city. When you marched against us, we asked you for safe-conduct [
aman ] , for ourselves, our descendants, our property, and the people of our
community, and we undertook the following obligations toward you: We shall
not build, in our cities or in their neighbourhood, new monasteries, churches,
convents, or monk’s cells, nor shall we repair, by day or by night, such of them
as fall in ruins or are situated in the quarters of the Muslims. We shall keep our
Gates wide open for passers-by and travellers. We shall give board and lodging
to all Muslims who pass our way for three days. We shall not give shelter in
our churches or in our dwellings to any spy nor hide him from the Muslims.
We shall not teach the Qur’an to our children. We shall not manifest our
2
3
`Ali-`Imran: 110.
Al-Tawbah:29.
2
religion publicy nor convert anyone to it. We shall not prevent any of our kin
from entering Islam of they wish it. We shall show respect towards the
Muslims, and we shall rise from our Seats when they wish to sit. We shall not
seek to resemble the Muslims by imitating any of their garments, the
qalansuwa [ cap ] , the turban, footwear, or the parting of the hair. We shall not
speak as they do, nor shall we adopt their kunyas [ surnames ]. We shall not
Mount on saddles, nor shall we gird swords nor bear any kind of arms nor
Carry them on our persons. We shall not engrave Arabic inscriptions on our
seals. We shall not sell fermented drinks. We shall not clip the fronts of our
heads. We shall always dress in the same way wherever we may be, and we
shall bind the zunar [ waist belt ] round our waists. We shall not display our
crosses or our books in the roads or markets of the Muslims. We shall use
clappers in our churches only very softly. We shall not raise our voices when
following our dead. We shall not show lights on any of the roads of the
Muslims or in their markets. We shall not burry our dead near the Muslims. We
shall not take slaves who have been allotted to Muslims. We shall not build
houses overtopping the houses of the Muslims. When i brought the letter to
Umar, May God be pleased with him, he added, “We shall not strike a
Muslim”. We accept these conditions for ourselves and for the people of our
community, and in return we receive safe-conduct. If we in any way violate
these undertakings for which we ourselves stand surety, we forfeit our covenant
and we become liable to the penalties for contumacy and sedition Umar
replied: “Sign what they ask, but add two clauses and impose them in addition
to those, which they have undertaken. They are: ‘They shall not buy anyone
made prisoner by the Muslims’, ‘whoever strikes a Muslim with deliberate
intent shall forfeit the protection of this pact.4
Accordingly, majority of the classical jurists reaffirmed each and every one of these
conditions in juxtaposition with dhimmis` rights , with or without modifications, when
detailing the law on dhimmah. On the obligation side, al-Mawardi states that dhimmis may
"rebuild dilapidated old temples and churches". As in the case of building new houses of
worship, the ability of dhimmi communities to repair churches and synagogues usually
depended upon its relationship with local Muslim authorities and its ability to pay bribes(
violator if caught contended that existed before).5 To Ibn Qayyim, jizya is enacted: "...to
spare the blood (of the dhimmis), to be a symbol of humiliation of the infidels and as an insult
and punishment to them, and as the Shafi`ites indicate, the Jizyah is offered in exchange for
residing in an Islamic country. Since the entire religion belongs to God, it aims at humiliating
ungodliness and its followers, and insulting them. Imposing the Jizyah on the followers of
ungodliness and oppressing them is required by God's religion. The Qur'anic text hints at this
meaning when it says: `until they give the tribute by force with humiliation.' (Qur'an 9:29).
4
Ibn ‘Asakir. ‘Ali Ibn al-Hasan. 1995. “Tarikh Madinat Dimashq”. Lebanon: Dar al-fikr. Vol. 2, pp. 17879. Quoted in Maher Y. Abu-Munshar, The Pact of Umar, islamic-answers.com(retrieved 28/10/2009).
5
Al-Mawardi, al-Ahkam al-Sultaniyyah, p,183.
3
What contradicts this is leaving the infidels to enjoy their might and practice their religion as
they wish so that they would have power and authority."6
On the protection of dhimmis` rights, they cite the letter written by the Caliph Abu Bakr
al-Siddiq to the non-Muslims of Najran:``In the Name of God, the Beneficent, the
Merciful. This is the written statement of God's slave Abu Bakr, the successor of
Muhammad, the Prophet and Messenger of God. He affirms for you the rights of a
protected neighbor, in yourselves, your lands, your religious community, your wealth,
retainers, and servants, those of you who are present or abroad, your bishops and monks,
and monasteries, and all that you own, be it great or small. You shall not be deprived of
any of it, and shall have full control over it.``7
Contemporary thinkers also reaffirm the same position. For instance, defending the
immutable nature of the concept, Zaydan says: ``When non Muslim citizens live under
Islamic sovereignty, they enjoy a special status and are known along with other
minorities as ahl adh dhimma or dhimmis. Dhimma is an Arabic word, which means
safety, security, and contract. Hence, they are called dhimmis because they have agreed to
a contract by Allah, His Messenger, and the Islamic community, which grants them
security. This security granted to dhimmis is like the citizenship granted by a government
to an alien who abides by the constitution, thereby earning all the rights of a natural
citizen. Thus, upon the preceding basis, a dhimmi is a citizen of the Islamic state, as
described by Muslim jurists.``8
Upholding the immutability of the law as such, they refute ``the humiliating mode of
taking jizyah`` from dhimmi, as advocated by some jurists and highlighted by orientalists,
not to be the correct statement of the law on the basis of the statement by Ibn Qayyim
when he said:`` Several jurists understood that this word ``saghirun``in Qu'ran
9:29] implies that the dhimmis have to be humiliated when paying the jizyah. This is
groundless and the verse does not imply that. It is not related that the Prophet or the
companions acted like that. The correct opinion regarding this verse is that the word
"saghar" means "acceptance" by non-Muslims of the structure of the Muslim right and
their payment of jizyah.`` 9
2- The ``Other`s`` model
By the other`s model we mean Orientalists` model10 where it, by and large11, presents a
hawkish understanding of the nationality status of the dhimmis.
6
Ibn Qayyim, Ahkam Ahl al-Dhimmah, vol.1,p.121.
Abu Yusuf, Kitab al-Kharaj, p. 79.
8
'Abdul Karim Zaydan, "Ahkam Adh-Dhimmiyyin Wa Al-Musta'minin Fi Dar Al-Islam," pp. 49-51 and 6366. Other modern scholars who adopt the same approach include ; `Abbas Shawman, al-`Ilaqat alDawliyyah fi al-Shari`ah al-Isalmiyyah, pp.37-38; Subhi Mahmasani, al-Qanun wa al-`ILaqat alDawliyyah fi al-Islam,pp.101-102;Shawkat Muhammad `Ulyan, al-Nizam al-Siyasi fi al-Islam,p.163;
Muhammad al-Sadiq al-`Afifi, al-Islam wa al-`Ilaqat al-Dawliyyah, p.293.
9
Ibn Qayyim, Ahkam Ahlul Dhimma, vol. 1, p. 23-24. Compare this with al-Mawardi, al-Ahkam alSultaniyyah, p. 182.
10
One of the most well-known authorities among the oreintalists which offers such a perspective is Bat
Ye`or, in her French book,`` Le Dhimmi,`` which has been rendered into English by David Maisel et al,
under the title of ,`` The Dhimmi- Jews and Christians under Islam.`` Esposito described her as ``the great
historian of jihad and dhimmitude.`` see John Esposito & Noah Feldman, Is There a Role for Shari'ah in
7
4
Attacking even the liberal definition of a dhimmi as ``a protected person `` which
implies that dhimmi has never been prosecuted or maltreated`` except accidentally`` and
no religion or society has been as tolerant of minorities as Islam, Jacques maintains that
such assertion is dubious on many grounds including the following12:
1- Etymologically a ``protected person `` is a concept which existed in the ancient
Rome. Protected person was called a client or protégé where a stranger was
regarded as a client hovering over his head the fear of aggression that any Roman
citizen could commit against him unless became a protégé of a patron from
among the influential Roman citizens.
2- Juridically, the dhimmi status accorded to the Non-Muslim residents by virtue of a
treaty between him (his group) and Muslims by itself was a ``concessionary
charter``. As such it was both arbitrary and inequitable in its purport. Arbitrary in
the sense that only the grantor could decide what to concede in it and when to
rescind it. Inequitable as well as it supplanted ``the natural rights of NonMuslims as humans ``to those defined and timed by the charter. Accordingly,
legally speaking , the rights enjoyed by non-Muslims in a Muslim state were
``conceded rights``( in contradistinction to fundamental rights).
Claiming to analyze the issue from the dhimmi vestige point, and not as ``how his
master saw him``13 Ye`o starts her premise by coining her own operational definition of
dhimmi as `` the Non-Arab and non-Muslim nations and communities that were
subjected to the Muslim domination after the conquest of their territories by the
Arabs.``14 She went on to say that dhimmis were the victims who were vanquished by
force, after a war, and after a defeat and tolerated in their own homeland from which
they were dispossessed. The dhimma status in short represented the behavior pattern
and way of thinking that the ``conquerors`` displayed towards the ``conquered.``15But
said: ``The dhimmis defined by dhimma was elaborated long after the conquest when
the Arab economic and military colonization was gaining strength. Such a humiliating
character ``represented the institutionalization of oppression by a military
Modern States?, in http://www.jihadwatch.org/2008/10/john-esposito-noah-feldman-working-to-make-theworld-safe-for-shariah.html( accessed 29/10/2009).
11
Exceptions are scholars like Thomas Arnold, who positively viewed the jizyah when he said,``This tax
was not imposed on the Christians, as some would has us think, as a penalty for their refusal to accept
Muslim faith, but was paid by them in common with other dhimmis or non-Muslim subjects of the state
whose religion preclude them from serving in the army…. When the people of Hirah contributed the sum
agreed upon, they expressly mentioned that they paid this jizyah on condition that “ the Muslims and their
leader protects us from those who would oppress us, whether they be Muslims or others. see Thomas
Arnold, Call To Islam, pp. 79-81. No doubt there are other scholars such as Gustave Lebon, Arab
Civilisation, who also positively view the Muslim tolerance of ``others`` but they could be considered as
faint voices in the current climate of Islamiphobia and politics of war on terror. See Bassam Zawadi, The
Status
of
Non-Muslims
In
the
Islamic
State,
in
http://www.call-tomonotheism.com/the_status_of_non_muslims_in_the_islamic_state(retrieved 20/10/2009).
12
David Maisel et al, The Dhimmi- Jews and Christians under Islam(London & Toronto: Associated
Presses,1985),pp.30-31.
13
Maisel et al, The Dhimmi,p.38.
14
Ibid, p.35.
15
Ibid,pp.37-38.
5
organization.``16 Dhimma gradually lost its original character of `a binding agreement `
by becoming a formal expression of a legalized persecution.``17
On the issue of jizyah, Ye`or is of the view that Khaybar was the first territory attacked
and conquered by the Muslim state ruled by Muhammad himself. 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 of their annual produce.18
The Khaybar case served as a precedent for later Islamic scholars in their discussions on
the issue of dhimma, even though the second caliph, `Umar subsequently expelled the
Jews from oasis.19
What about the rights of dhimmis, such as right to profess and practice the religion of
their choice, self-administration of their personal law, freedom of business and education
and the recognition given to their head of community; Ye`oh regards them not to be
something original by maintaining that such privileges were copied from Roman and
Greek emperors who accorded them to the Jews but the clergy endeavored to curtail
them.20
Others like B. Lewis ,21 however, had taken some what a positive view of the concept
by criticizing the Ye`or and the like of sheer generalization, exaggeration of persecution
incidents and ignoring the highest levels of cultures that Non-Muslims achieved under the
Muslim rules.22 But they countered them by branding them as `` glamorizers`` of the past
and refute their stand as selective and failing to understand the juridical implication of
dhimmi as people with `conceded rights`. Even in terms of rights and economic rights,
dhimmis were not different from the slaves in the first century A.D, who also held
position and make personal achievements. 23
To Feldman the idea of dhimmah derives its foundation from the Shari`ah
requirement that ``the “People of the Book” – that is, Jews, Christians, and certain other
groups of non-Muslims -- must be “invited” to enter Islam and then warred against until
they either convert or pay the jizya, a special tax on non-Muslims.``24 This law is
founded upon the Muslim holy book, the Qur’an: “Fight those who believe not in Allah
nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His
16
Ibid.
Ibid.
18
Dhimmi, http://www.readingislam.com/
19
Ibid.
20
Ibid,p.49. Others consider the whole concept of dhimma as a replica of Roman and Persian legacy by
stating that:`` The dhimmi law derive its source from Byzyntine and Persian Empires law (theodosian code
of 438 and of Jutanian code of 529. Under Byzantine rule, Jews were obliged not to pray loudly; their
prayers were not to be audible in the nearby church. Building new synagogues (and repairing existing ones)
was likewise prohibited, unless the buildings threatened to collapse and a special permission was obtained.
Jews were banned from all public offices and the army; they were prohibited from criticizing Christianity,
marrying a Christian, or owning a Christian slave. Furthermore, Jews paid distinctive taxes, possibly the
precursors of jizyah.`` see Dhimmi, http://www.readingislam.com/.
21
Others who criticized Ye`or were S.D Goitein and N. Stillman. See Ibid.p.32.
22
Ibid.
23
Ibid,p.33.
24
John Esposito & Noah Feldman, Is There a Role for Shari'ah in Modern States?, in
http://www.jihadwatch.org/2008/10/john-esposito-noah-feldman-working-to-make-the-world-safe-forshariah.html( accessed 29/10/2009).
17
6
Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the
Book, until they pay the Jizya with willing submission, and feel themselves subdued.”25
To Feldman the Sunnah affirmed this:``Fight in the name of Allah and in the way of
Allah. Fight against those who disbelieve in Allah. Make a holy war; do not embezzle the
spoils; do not break your pledge; and do not mutilate (the dead) bodies; do not kill the
children. When you meet your enemies who are polytheists, invite them to three courses
of action. If they respond to any one of these you also accept it and withhold yourself
from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it
from them and desist from fighting against them…. If they refuse to accept Islam,
demand from them the Jizyah. If they agree to pay, accept it from them and hold off your
hands. If they refuse to pay the tax, seek Allah’s help and fight them.``
From these and other passages, to Esposito and Feldman , Muslim jurists formulated
a three-option law for non-Muslims, namely, conversion to Islam, submission under
Islamic rule by paying the jizyah or death.26
To them modern Islamic apologists, however, as a matter of grave anachronism
commit gross factual error when mentioning the Qur’an’s recognition of Jews and
Christians as distinct religious community in order to equate the stipulations of Islamic
law with modern-day notions of freedom of thought and tolerance. 27 Non-Muslims were
in fact decidedly second-class citizens as mentioned in Surah Tawbah, verse 29-`` to
humiliate the Non-believers`` In Shari`ah such a state of submission is known as the
dhimmah, the protection of the Muslims, and those within it are dhimmis, protected (or
guilty) people.28
To support this conclusion, they marshal the views of well-known classical
authorities on the subject. For instance, to them, Ibn Kathir (1301-1372), whose writings
are still influential today, says that the dhimmis must be “disgraced, humiliated and
belittled. Therefore, Muslims are not allowed to honor the people of dhimmah or elevate
them above Muslims, for they are miserable, disgraced and humiliated.”29 Likewise alSuyuti stated that this verse is taken as a proof by those who say that it is taken in a
humiliating way, and so the taker sits and the dhimmi stands with his head bowed and his
back bent. The jizyah is placed in the balance and the taker seizes his beard and hits his
chin.” He adds, however, that “this is rejected according to al-Nawawi who said, ‘This
manner is invalid.’” Zamakhshari, however, agreed that the jizyah should be collected
“with belittlement and humiliation.” 30Moreover, according to Ibn Kathir, the Christians
making this pact with `Umar say:We made a condition on ourselves that we will neither
erect in our areas a monastery, church, or a sanctuary for a monk, nor restore any place of
25
Al-Tawbah:29.
John Esposito & Noah Feldman, Is There a Role for Shari'ah in Modern States?, in
http://www.jihadwatch.org/2008/10/john-esposito-noah-feldman-working-to-make-the-world-safe-forshariah.html( accessed 29/10/2009).
27
Ibid.
28
Ibid.
29
Ibid.
30
Ibid.
26
7
worship that needs restoration nor use any of them for the purpose of enmity against
Muslims.31
2- Non-engagement model
By and large, this approach dubbed as ``conservative apologetic``, is adopted mostly
by non-specialists who write on human rights32 and being ignorant of the intricate
technicalities of the law on dhimmah they make absolutist claims , such Islam guarantees
equal rights to all its citizens irrespective of their creed…``
as well as some
contemporary jurists. Their main characteristic is purposeful deliberation of nonMuslims` rights without any attempt to address the hard-questions of Non-Muslim`s
obligations as detailed in the classical books of siyar(Islamic International law). For
instance, Suzanne Haneef states:``...Islam does not permit discrimination in the treatment
of other human beings on the basis of religion or any other criteria... it emphasises
neighborliness and respect for the ties of relationship with non-Muslims ...within this
human family, Jews and Christians, who share many beliefs and values with Muslims,
constitute what Islam terms Ahl al-Kitab, that is, People of the Scripture, and hence
Muslim have a special relationship to them as fellow "Scriptuaries".33
To them, the word dhimmi (plural. dimam) literally means "protection, care, custody,
covenant of protection, compact; responsibility, answerableness; financial obligation,
liability, debt; inviolability, security of life and property; safeguard, guarantee, security;
conscience" and ahl-dhimma is "the free non-Muslim subjects living in Muslim countries
who, in return for paying the capital tax, enjoyed protection and safety."
The term connotes an obligation of the state to protect the individual, including the
individual's life, property, and freedom of religion and worship, and required loyalty to
the empire, and a poll tax.This status was originally only made available to non-Muslims
who were People of the Book, (i.e. Jews and Christians but was later extended to include
Sikhs, Zoroastrians, Mandeans, and, in some areas, Hindus and Buddhists.
To them dhimmah status is more privileged than citizenship brought up by manmade
constitution. For instance, Jamal Badawi argues that dhimmah which means covenant and
dhimmi a covenanted person is more protected than a citizen whose rights could be
violated as a minority by the majority. The reason is the dhimmi has a covenant with
Allah, His messenger and the community of believers, hence his rights are stipulated by
primary sources of Islamic law, namely the Qur`an and the authentic Sunnah.34 The fact
that they have to pay jizyah does not make them second-class citizens as it in essence
commensurate with the obligation of zakah which Muslims have to pay. The reason is
that dhimmis enjoy social security provided by the state on the same footing as
31
Ibid.
By way of example see, Saeed Ismaeel Sieny, Muslims and Non-Muslim Relation,pp.28-29;Report of
Seminar held in Kuwait, December 1980, Human Rights in Islam, p.17; Muhammad Taqi Jafari, A
Comparative Study of the Two Systems of Universal Human Rights,pp.284-285; Abdulaziz Othman
Altwaijiri, Islam and intireligious Coexistence on the Threshold of the 21st Century, pp.19-25.
33
Haneef, Suzanne, What everyone should know about Islam and Muslims, (Kazi Publications, Lahore,
1979), p. 173.
34
http://www.islamonline.net/livedialogue/english/Browse.asp?hGuestID=fiKTq9.
32
8
Muslims. To Badawi, ``the term jizya literally comes from jaza’ which means something
in return for something, i.e. services, defense and social security in return for financial
contribution.``35 However, being aware of controversy over the concept of dhimma, he
acquiesces that historical instances of religious dissonances were warranted by political
hostilities which some caliphs took on the basis of al-Siyasah Ash-shar`iya (Shari`ahoriented politics). They were circumstantial decisions and cannot be regarded as part of
basic and sustained legislation.36
Joining him al-Zuhayli, maintains that jizyah that non-Muslims pay corresponds to
zakah that Muslim pays and a return for protection that state accords to them. It is wrong
to assume that dhimmis become second class citizen on this account together with some
other restrictions imposed upon them. It is natural for states to impose restrictions on
certain people if the situations warrants so. Dhimmis in fact enjoy many rights as Muslim
citizens of an Islamic state.37
Other scholars, however, maintained that Non-Muslims obligation to pay the jizyah will
be dropped in the event of Non-Muslim participation in national defense. This was what
was stipulated in the Covenant of Madinah(Wathiqat al-Madinah), predating the
injunction on jizyah, drawn up between Prophet and Jewish tribes in Madinah.38
Al-Qaradawi seems to further submit that the term jizyah could be replaced by some
other taxes as `Umar called it charity instead of jizyah in the case of dhimmis in Bani
Mustaliq39, who disliked its name. 40 He also holds that government positions other than
caliphate, army and qada are open to non-Muslims as such posts imply control of
decision making which God forbids for non-Muslims in Islamic state :
``O ye who believe! Take not into your intimacy those outside your ranks: they will not
fail to corrupt you. They only desire your ruin: rank hatred has already appeared from
their mouths: what their hearts conceal is far worse. We have made plain to you the
Signs, if ye have wisdom.`` 41
Al-Qaradawi, further submits that the term dhimma is the name given for Non-Muslim
nationals similar to the concept of political citizenship in modern time. The jizyah
imposed on dhimmis is not a symbol of humiliating them nor a penalty for nonconversion to Islam as skeptics make it to be so. Instead it is a substitute for not paying
the zakah and taking part in jihad.42
3- Engagement model
35
Ibid.
Ibid.
37
Wahabah al-Zuhayli, al-Islam wa Ghayr al-Muslimin, Pp.139-142.
38
Ibid.
39
Al-Qaradawi, Ghayr Muslimin fi al-Mujtama` al-Islami,pp.7-64, and al-Aqalliyyat al-Diniyyah wa alHall al-Islami,pp.13-33.
40
Ibid.
41
Aal `Imran 3:118.
42
Al-Qaradawi, Ghayr Muslimin fi al-Mujtama` al-Islami,pp.7-64, and al-Aqalliyyat al-Diniyyah wa alHall al-Islami,pp.13-33.
36
9
This represents those who call for rethinking of the Non-Muslims` obligation issues
though with divergent approaches(labeled as alternative view as opposed to the
traditional stand).43Some like Maududi have called for partial rethinking of the issues
when he considered the natural born citizens as a distinct category from dhimmis. He
expressed this in his answer to the question as to whether jizyah can be imposed upon the
non-Muslims of Pakistan. Mawdudi asserted that “since they(natural born ones) have
neither been conquered nor made subject as a result of a treaty, therefore, they form
different class.”44
They, among others, argued that all the textual sources detailing the legislation on
dhimmah are contextual and situational, hence representing the de facto status in the
historical past where geopolitical conditions were totally different from today, thus
tentative and provisional. But the de jure and permanent position45 of Islam as embodied
on unity of mankind, justice, equality and other egalitarian principles does not
discriminate between Muslims and non-Muslims in matter of nationality. This is lucidly
clear from many textual evidences including the following:
The Qur`an guarantee their freedom of faith : ``Let there be no compulsion in religion:
truth stands out clear from error``46 and ``Wilt thou (Muhammad) then compel mankind,
against their will, to believe!`` 47
The Prophet also declared: He who unfairly treats a non-Muslim who keeps a peace
treaty with Muslims, or undermines his rights, or burdens him beyond his capacity, or
takes something from him without his consent; then I am his opponent on the Day of
Judgment” He also has said, “He who harms a non-Muslim who keeps a peace treaty
with Muslims has harmed me, and he who harms me has harmed Allah”
He also said human life is equally sacrosanct: ``He who kills a non-Muslim who keeps
a peace treaty with the Muslims will not smell the scent of Heaven, though its scent can
be traced to as far as a march of 40 years”
Accordingly even some classical jurists like al-Qarafi noted, “He who transgresses
against them (dhimmis)—even with a mere word of injustice or backtalk— has
jeopardized the covenant with Allah and His Prophet (peace and blessings be upon him)
and the covenant of the religion of Islam.” 48
In today’s world which is different and where geographic boundaries represent the
grounds for citizenship, that distinction is less significant. To them in the present context
where all citizens are required to pay taxes, the specific name jizya is irrelevant. For
instance, `Amman`s Royal Academy for Islamic Civilization Research report
concluded:``…the dhimmi covenant should be looked upon in a different light today, for
the system that define and organize relations have changed and are now governed by
international law. Moreover, those who were once called dhimmis are nowadays an
integral and indiscriminate part of their country`s whole. They participate in defense of
43
Jorgan Nielson, ``Contemporary discussions on Religious Minorities in Muslim Countries``, in MuslimChristian Relations, 2003, vol.14, no: 3,p.294.
44
See http://islamic-world.net/islamic-state/non_muslim.htm.
45
See El-Erian, The Right to Nationality Status of Non-Muslim Citizens in a Muslim Nation, pp.11-12.
46
Al-Baqarah 2:256.
47
Yunus 10:99
48
Al-Qarafi, Al-Furuq , vol. 3, p. 14.
10
their country on equal footing with Muslims and pay the various taxes imposed under the
new systems by modern states which supersedes the jizyah.``49
Stressing the same point, Javed Ahmad Ghamidi says:````Certain directives of the
Qur’an were specific only to the Prophet 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 death punishment and for military protection
as the dhimmis of the Muslims. Therefore, after the Prophet and his companions, there is no
concept in Islam obliging Muslims to wage war for propagation or implementation of
Islam.``50
More methodological was al-`Awwa, when he stated: Basic principle of
citizenship was founded by the Prophet where he declared a collective concept of
citizenship for both Muslims and Non-Muslims in the Constitution of Medina. This
together with the general Qur`anic commands on kind treatment of people irrespective
of their religious affiliation represent the de jure position of Islamic law on this point.
Hence specific injunctions sanctioning unjust treatment were meant to cater for specific
circumstances. Modern nation state represents a new kind of Islamic sovereignty to
which much of traditional jurisprudence cannot apply. Reasoning based on ijtihad must
be used to deduce a new system. The modern Muslim state is the result of a common
struggle for independence and nation building in which the Muslim majority and the
nonMuslim minority have shared. In this way it differs sharply from the early Muslim
state that was based on conquest. Now the discourse has changed from one of contract
(‘aqd) to one of constitution (dustur) and from dhimmah to citizenship/nationlity
(muwatanah).51 He continued, by saying that the logic is that:`` The dhimma was a
contract(`aqd) and not a posited rule(wad`a). Every contract, unlike the popular belief,
is amenable to nullifications. `Aqd al-Dhimmah as such was repudiated with the demise
of the state which formulated it, namely Prophet`s and the subsequent Islamic
Caliphates. The nation states of today are not successors of the founding Islamic state
(established by the Prophet). Its continuation was disrupted by colonization. Postcolonization Muslim nations were established on the basis of joint struggle by all the
citizens, Muslims and non-Muslims alike, on the basis of social contract(al-`aqd alIjtima`i) unknown to our ancient jurists….``52
Huwaydi in juxtaposing the traditional status of protected community with the concept
of citizenship stated:``the term Dhimmah in spite of being regarded a originating from the
Prophet`s usage was part of vocabulary of pre-Islamic Arab tribes in their tribal relations.
Thus the Prophet`s use of it could not add any juridical connotation to it except that he
49
`Amman`s Royal Academy for Islamic civilization Research,Treatment of Non-Muslims in Islam,p.28.
Dhimmi, http://www.readingislam.com/.
51
Muhammad Salim al-`Awwa, Mabadi` li Nizam al-Siyasi al-Islami,Pp.255-258. see also for his account
of historical utility of `aqhd al-dhimma in protecting dhimmis` rights in countries like Jeruslem and Egypt,
Non-Muslim
Citizens
in
an
Islamic
State,
http://www.arabnews.com/?page=5&section=0&article=25871&d=8&m=5&y=2003&pix=islam.jpg&cate
gory=Islam.
50
52
Mabadi` li Nizam al-Siyasi al-Islami,Pp.255-258.
11
employed it with a great sense of trust and accountability. But it lost its sense of
responsible use in treating non-Muslims in the course of history. As such I do not see any
reason for adhering to its name in relation to non-Muslims.53
Via a series of sermons delivered in 1984 at the Burj al-Rumi mosque in Tunis, alGhanushi also joins others in regarding the dhimmah concept as historical expression of
Muslim relations with Non-Muslims which is no longer valid. He, among others, espouses
his view on the basis of a number of key Qur`anic provisions which stress justice, oneness
of mankind, non-compulsion in religion, etc. For instance Allah commands justice to all
16:90: “God commands justice, the doing of good, and liberality to kith and kin, and He
forbids
all shameful deeds and injustice and rebellion.” Quoting al-Razi, he asserts that this verse is
supreme core principle for which all the rest of the Qur’an is a commentary and
explanation. It also declares human as one single race 49:13 “O people, We created you
male and female, and made you peoples and tribes, that you might know each other”). It
also unambiguously establishes the principle of no compulsion in religion. 2:256 “There is
no
compulsion in religion: truth stands out clearly from error.``54
In the light of the above, therefore, these general laws should be taken as the de jure
position of Islam in the context of present day situation to accord equal citizenship to all.
On the issue of jizyah, he maintains that the Qur’anic ruling that it should be collected
“with submission” (9:29) is linked to one particular event( Jews in khaybar). Even if we
universalize it, its ratio legis was that it is paid in lieu of military service. Since the
modern state is one of shared citizenship, that duty could be shared by all, in which case
the requirement to pay the jizyah falls away.55
Abu al-Majd also expressed similar view by saying that no doubt the dhimmah was an
historical expression of rights and duties guaranteed by founding sources of Islamic law but
today the `` conditions originally necessary for the institution of dhimmah are no longer
present. Thus a constitution which today guarantees full civil and religious rights to all
would be fully in harmony with the Shari`ah.56
By analyzing the constitution of Madinah where the Prophet declared Muslims together
with the Jews as one Millah/Ummah,`Imarah, sheds a new insight on the issue. To him,
communities and states are founded on a shared belongings, which include creed, family,
tribe, ethnic group, locality etc. Non-Muslims can equally be a full citizen though they do
not share with Muslims in one element, namely the creed and they have their own. 57
53
Huwaydi, Muwatinun la Dhimmiyyun, pp.110-111.
Rashid al-Ghanushi, Huquq al-Muwatanah( Virginia: International Institute of Islamic
Thought,1993),pp.30-53.
55
Ibid,pp.101-102.
56
Quoted in Nielson, ``Contemporary discussions on Religious Minorities in Muslim Countries``,p.300.
57
Ibid,p.301.
54
12
Critical Appraisal
Preliminary and general evaluation of the above perspectives, would lead us to conclude
that:
1- The classical notion of dhimmah and jizyah legislatively cannot be disputed so far as
their true application is confined to the time of the Prophet and the righteous caliphs.
The reason is that dhimmah was established by the sunnah and jizyah by the Qur`an.
This is a point which no one disputes. But the questions is: Was it
immutable(situational) or mutable law thus open to ijtihad? Both the classical and
neo-classical regard it as fixed and applicable for all times. While the reform minded
do not. A maqasid –oriented position would be inclined to agree in its conclusion with
Abu al-Majd and al-`Awwa but on more methodological point, namely the law is fixed
at the level of textual proof but elastic(open to ijtihad) at the level of its application. My
reason is twofold: first according to al-Shatibi ,`` understanding the textual proof and its
application without regard to its context for application
would be
counterproductive.``58 Second, practical implementation of the law of
dhimmah(constitutional issues) predicate the existence of the type of government that
was established by the Prophet. Such a government is non-existent today.
2- One cannot agree with the detailed juridical delineation of humiliating restrictions
applicable to non-Muslims on two grounds: first, it violates egalitarian principles of
the Qur`an and the sunnah, such as human oneness, human dignity, prohibition of
harming others and committing injustice as mentioned in this paper. Second, the
unproven juristic base of such restrictions, namely the so called Shurut `Umariyyah
which we detail below.
The attribution of this pact has been questioned from many angles including: first, the
very fact that there are more than one versions of the documented pact, namely by Ibn al`Asakir, Ibn Hazm and Ibn Qayyim, each somewhat inconsistent with the other, both in
terms of content and structure, raises serious doubt as to which one is the authentic
historical piece of binding authority. Second,
even the most depended upon one 59 as
complied by Ibn al-Asakir comes in five versions , four among which are criticized as
frivolous and weak by famous authorities on the science of authenticity of the tradition ,
such as al-Baghdadi60 and al-Dhahabi61 in whose chains include ibn Zubar, Yahya and
`Uqbah.Thirdly, in all the five versions documented by Ibn al-`Asakir, no mention of the
58
Al-Shatibi, al-Muwafaqat, vol.4,p.98.
Ibn ‘Asakir. ‘Ali Ibn al-Hasan. 1995. “Tarikh Madinat Dimashq”. Lebanon: Dar al-fikr. Vol. 2, pp. 17879,It is commonly relied on the researcher. Otherwise other versions like the one by Al-Khallal namely
“Ahl al-Milah wa al-Ridah wa al-Zanadiqah wa Tarik al-Salah was al-Fara’d Min Kitab al-Jame”. Riyadh:
Maktabet al-Ma’arif lil Nasher was al-Tawzi. Vol. 2 , p. 94; is regarded to be the first compiled version.
Next famous one is the one by Ibn Qayyim. See Ibn al-Qayyim al-Jawziyya, “Akham Ahl al-Dhimma”.
Beirut: Dar al-Kutub al-‘Ilmiyyah. Vol. 2, pp. 113-15; and Ibn al-Qayyim, “Sharh al-Shurut al‘Umariyyah”. Beirut: Dar al-‘Ilm li-lmalain, pp. 1-7.
60
Al-Dhahabi, Muhammad Ibn Ahmad. 1995. “Mizan al-I’tidal Fi Naqd al-Rijal”. Beirut: Dar al-Kutub
2al-‘Ilmiyyah. Vol. 4, p. 59, quoted in Maher Y. Abu-Munshar, The Pact of Umar, islamic-answers.com.
59
61
Al-Dhahabi. Muhammad Ibn Ahmad. 1997. “al-Mughni fi al-Du’afa”.
25Beirut: Manshurat Muhammad ‘Ali Baydun. Dar al-Kutub al-‘Ilmiyyah. Vol. 2 , p. 524.,Quoted in Ibid.
13
city is made in the documents. This casts similar doubt as to its authenticity and its
attribution to `Umar. Finally, ibn al-`Askari reports the same pact but states that this was
send by Christian of Sham to Abu Ubaydah instead of Ibn Ghanam. Thus this points to the
existence of conjecture even in the mind of Ibn al-`Askari about the authenticity of this
document.62
Additionally, its another most famous one among the jurists, as compiled by Ibn Qayyim is
also criticized on the following grounds:
Firstly, in all its versions, it contains discrepancy as to the name of the city of signatory
to it(people with whom it was made), namely, `` the first shows that the people of alJazira wrote to ‘Abd al-Rahman Ibn Ghanam, who then communicated with Caliph
Umar. In the second version, ‘Abd Al-Rahman wrote directly to the Caliph when he
concluded a peace treaty with the Christians of al-Sham. The third version says that ‘Abd
al Rahman, in a letter to Caliph Umar, described the stipulations made by the Christians
of al-Sham themselves.``63
Secondly, the fact that in a normal situation, the conquered people would not come up
with discriminatory terms against themselves on their own would also cast serious
doubts on validity of this pact as held by Tritton.64
Thirdly, the fact that the text uses some vocabulary such as zunar, a greek word
meaning a waist belt, that was uncommon in Umar’s period further weakens the
attribution of this pact to 7th Century Arabian peninsula.65
Tritton, adds another dimension to this skeptic on the ground that the content of other
similar proposed pacts, such as the one proposed by some noted classical jurists like
Imam al-Shafi`i not only avoided similar discriminatory provisions but were also devoid
of any technical flaws such as non-specification of the parties signatory to the pact etc.
For instance, al-Shafi`i wrote in his al-Umm:`` If a Muslim leader wants to conclude a
peace treaty with Christians in return for their paying jizyah [ poll tax ] , he should start it
with in the name of God, the most compassionate , the most merciful. This is a pact
written by so and so the servant of God, the commander of the faithful in year so and so
to the Christian so and so who live in the city so, and the Christians of the city so, ….``66
62
Maher Y. Abu-Munshar, The Pact of Umar, islamic-answers.com(retrieved 28/10/2009).
Ibid.
64
Tritton, A.S. 2008, The Caliphs and Their Non-Muslim Subjects: A Critical Study of the Covenant of
3:Umar (Delhi:II Idarah-i-Adabiyyat-i-Delli), p.8.
65
Maher Y. Abu-Munshar, The Pact of Umar, islamic-answers.com(retrieved 28/10/2009).
66
Al-Shafi’i, Abu ‘Abd Allah Muhammad. 1993. “Kitab al-Umm”. Beirut: Dar al-Kutub al-‘Ilmiyyah.
53Vol. 4 , pp. 280-85. see Maher Y. Abu-Munshar, The Pact of Umar, islamic-answers.com(retrieved
28/10/2009).see also Tritton, The Caliphs and Their Non-Muslim Subjects: A Critical Study of the
Covenant of
3:Umar,p.12.
63
14
Joining Tritton, Ye`oh also doubts the authenticity of the so called Umar`s pact by
maintaining that though the Western Orientalists regard this as the main charter
delineating the rules that govern the relationship of Muslims with non-Muslims , we
doubt its attribution to `Umar simply because its content is inconsistent with the liberal
policies of both the Four Caliphs and Ummayyid s. Rather it may have evolved during
the early phase of `Abbasid dynasty during which intolerance view was in suppressing
heresies and local revolts. 67
Contemporary Muslim thinkers, also seem to have doubted the authenticity of this pact.
For instance, Hamidullah who has compiled all the historical documents made during the
time of the Prophet and Righteous Caliph mentions this pact by way of a passing remark
at the end by questioning it in two ways: first, by commenting that it is reported by Ibn
Kathir without any reference; second, by inserting question marks in some its most
denigrating provisions, such as `We will not teach our children the Qur’an ?`;`We will
not speak their language ? …`68
Safi seems to suggest that the version of the pact recorded by Ibn Qayyim could be
understood against the background of political hostilities of the post-eight century
mounted by Non-Muslim powers against Muslims, such as Mongols`s invasion of
Central and West Asia and their destruction of the seat of the Abbasid caliphate in
Baghdad, Crusaders` control of Palestine and the coast of Syria and the dislodge of
Muslim power in Spain. It is in this atmosphere of mistrust and suspicion that Ibn
Qayyim69 wrote his treatise on the attributed pact of Umar with Syrian Christain with
clear intention of humiliating Christian dhimmis and setting them apart in dress code
and appearance.70
Zaydan totally ignores the existence of such a pact in his detailed work on NonMuslims in Islamic State in the same vein as other contemporaries such as al-Qaraqawi,
al-Zuhayli, Huwaydi, al-Awwa , al-Ghanushi, to name a few.71
67
Maisel et al, The Dhimmi- Jews and Christians under Islam,p.48.
Hamidullah,.Muhammad..1987..“Majmu’at.al-Watha’iq.al-Siyasiyyah.li
al-`Ahd.al-Nabawi.wa.alKhilafa
57al-Rashidah”..Beirut:.Dar.al-Nafa’s,.pp..756-57. see Maher Y. Abu-Munshar, The Pact of Umar, islamicanswers.com(retrieved 28/10/2009).
69
This is clear from Ibn Qayyim`s most orthodox view of the Jizyah when he stated that Jizyah is
enacted: ``...to spare the blood (of the Zimmis), to be a symbol of humiliation of the infidels and as an
insult and punishment to them, and as the Shafi`ites indicate, the Jizya is offered in exchange for residing in
an Islamic country." Thus Ibn Qayyim adds, "Since the entire religion belongs to God, it aims at
humiliating ungodliness and its followers, and insulting them. Imposing the Jizya on the followers of
ungodliness and oppressing them is required by God's religion. The Qur'anic text hints at this meaning
when it says: `until they give the tribute by force with humiliation.' (Qur'an 9:29). What contradicts this is
leaving the infidels to enjoy their might and practice their religion as they wish so that they would have
power and authority." See Ibn Qayyim, Ahkam Ahl al-Dhimmah, vol.1,p.121.
70
Safi,.Louay.M.
.“Human.Rights.and.Islamic.Legal.Reform”.,.http://lsinsight.org/articles/1999/human3.html.
71
Abdul Karim Zaydan ,Akham al-Dhimmiyn wa al-Musta’minyn fi Dar al-Islam(Baghdad: Maktabat alQuds, 1982 ). See Ibid.
68
15
To Abu Munshar, the critics` position is further substantiated by omission of the pact
in question from the discussion of Muslim relation with non-Muslims by renowned
historians, such as al-Aladhuri, al-Waqidi, al-Ya’qubi, al-Tabari, al-Azdi, Ibn al-A’them,
Ibn al-Athir, to name a few.72
To Abu Manshur, `Umar`s practical model of state policy which was one of just and
equitable treatment of dhimmis, such as his non-compulsion of his personal servant,
Astiq, to accept Islam, his definition of miskin and faqir in the injunction pertaining to
zakah recipients to include non-Muslims, his order of exacting qisas from Muhammad,
the son of ‘Amr Ibn al-‘As - the governor of Egypt, for assaulting an Egyptian Coptic
man etc., all contradict the content of the attributed pact to him, which itself in terms of
authenticity, content and style is dubious.73
Finally, to Zawadi, `Umar`s pact with the citizens of Iliya' (Jersusalem) is a cogent proof
that `Umar could not have double standard in the scheme of his noted just administration
which, among others, provided:``This is the protection which the servant of Allah, Umar
ibn Al Khattab, the commander of the faithful extends to them (non-Muslims): 'The
safeguarding of their lives, property, churches, crosses, and of their entire community.
Their churches are not to be occupied, demolished, or damaged, nor are their crosses or
anything belonging to them to be touched. They will not be forced to abandon their
religion, nor will they be harmed. None of the Jews will live with them in Illiya'
(Jersusalem).``74
However, majority of the classical jurists, such as erudite Ibn Taymiyyah firmly
believes on the attribution of this pact to `Umar and asserts that this was revived by
succeeding caliphs, such as Umar Ibn Abd al-`Aziz, Harun al-Rashid, Ja’far alMutawakkil and others, who ordered the destruction of the church, such as those in
Egypt. Accordingly, to this there is a consensus among the jurists belonging to all
schools.75 Ibn Kathir commenting the Qur’anic verse, “…and feel themselves subdued (
saghirun ) also said that Umar enforced this in his pact with Christians of Sham.76 I
believe, the weight of evidences and argument by doubters shaken ones conviction about
the authenticity of such a pact.
3- The oreintalists` position as a matter of course cannot be objective as they themselves
confess that ``objectivity cannot be claimed in humanities.`` But one thing is sure that
they mostly construct their analysis of issues based on outdated ultra conservative
juristic views.
72
Maher Y. Abu-Munshar, The Pact of Umar, islamic-answers.com(retrieved 28/10/2009).
Ibid.
74
Al-Tabari, Tarikh At-Tabari, Vol. 3, p. 609. see Bassam Zawadi, The Status of Non-Muslims In the
Islamic
State
http://www.call-tomonotheism.com/the_status_of_non_muslims_in_the_islamic_state(retrieved 20/10/2009).
73
75
Ibn Taymiyyah, Ahmad. N.d. “Majmu fatawa Shaikh al-Islam Ahmad Ibn Taymiyyah”. Saudi Arabia:
4kal-Ri’asah.al-‘Ammah.Lishu’un.al-Haramayn.al-Sharifayn..Vol..28,.p..654. See Maher Y. Abu-Munshar,
The Pact of Umar, islamic-answers.com(retrieved 28/10/2009).
76
Ibn.Kathir,.1994..“Tafsir.al-Qur’an.al-‘Azim”..Riyadh:.Maktabat.Dar.al-Salam..Vol..2,.p..458. see Ibid.
16
4- In view of the far-reaching implications of issues ,such as this one cannot afford to be
static and apologetic. Muslims scholars have to forge ahead and traverse the unthrodden
path of ijtihad and intellectual creativity to chart new perspectives within the frame of
ijtihad istinbati side by side with ijtihad tanzili.
5- The new approach has the strength of moving a head in line with the purpose of the
Shari`ah and general libertarian principles of the Qur`an and the Sunnah at the
pragmatic side but needs to improve on its sophistication in terms of Islamic legal
theory. Citing textual provisions of general import without usuli argumentation would
hardly advance the cause of renewal in Islamic law.
Conclusion
The classical and neo-classical models emphasizing the right aspects of the status, no
matter how noble and justified from Muslim point of view may be, are nor reassuring for
non-Muslims(the other) vis a` vis standards of equality in modern constitution.
Moreover, unlike the pre-modern times where Muslim jurists perceiving the first
generation of Muslims as weak and endangered in relation to the non-Mulsim world, out
of sheer mistrust of ``others`` even went to the extent of downplaying the Prophet`s
egalitarian treatment of the Christians of Najran and Jews of Madinah via exaggerated
use of naskh (abrogation), Muslim jurists of today must revive them. Contemporary
jurist must rise above the literal and simplistic approach to that of purposive and
intellectual sophisticated method in order to construct, reconstruct and reapply Islamic
legal concepts such as the issue in question in more sound and intelligent ways in
tandem with changed circumstances.
17