Azar Jalilian et al.: The Position of the Dhimmis in the Judicial System during the Seljuk Period
1
The Position of the Dhimmis in the Judicial System during the Seljuk
Period
AZAR JALILIAN , SHAHRAM YOUSEFIFAR
PHD student of Islamic History, Payem-e-noor University, Iran
Professor and faculty member at the Institute for Humanities and Cultural Studies
Abstract. In terms of bureaucracy, Seljuks were the heir of the achievements of the Samanids, the
Buwayhids, and the Ghaznavids. In addition to this heritage, they also imported tribal customs into the social
structure of Iran. Further, from the judicial point of view, the Seljuk era experienced some changes, leading to
greater prominence of customary courts as well as that of Sultan`s role as the final authority of judgment.
Using the capabilities of political & religious scholars and elites, they organized a strong and effective judicial
system. In the meantime, the Dhimmis as part of the Seljuk empire nationals lived in different areas.
Accordingly, the present study seeks to investigate the position of the Dhimmis in the judicial system during
the Seljuk period, while answering this question : How was the judicial system approach towards the
Dhimmis in this period ? It appears that the Seljuk judicial system at times would ignore the rights of the
Dhimmis, which would bring about some social, economic, and cultural constraints for them.
Keywords : The Seljuks, The Dhimmis, Rights, Judicial System .
1Introduction
Judicial system as the foundation of governance and also as an efficient factor in
maintaining people`s gathering around the king in loyalty, has been one of the main issues
among middle Islamic governments and has always received attention from the rulers
themselves. Given the fact that the Islamic jurisprudence of people living in an Islamic or
non – Islamic territory was categorized in terms of their religious – political system
citizenship as well as their duty, Islamic society was divided into several group. The first
group were Muslims. The second group consisted of the Dhimmis and those who had
accepted the citizenship of the Islamic State of that time; they were mostly named as People
of the Book ( Ahl-al-Kitab ), though there might have been non Ahl-al-Kitab among them.
In terms of the Islamic jurisprudence, non-Muslims include four groups, namely the
Dhimmis, the Mu`ahids ( non-Muslims who have an agreement with the Muslims ), the
safe-conduct holders, and the Harbis ( those at war with Muslim community ), each having
it`s own rules. Those People of the Book who lived in the land of Islam and paid tribute ( a
mandatory tax paid by non-Muslims to Muslims, now obsolete ), had judicial rights. The
present study aims at investigating the status and position of the Dhimmis in the judicial
system during the Seljuk period.
Literature Review : As to the position of the Dhimmis in the judicial system of the Seljuk, a
shared paper entitled “ The Similarities and Differences of the Judicial System &
Judgement in the Seljuk Era with Pre-Islamic Periods “ has been written by Tahereh
Azimzadeh Tehrani and Zohreh Pour Ramezan. Their paper is more based on research
resources and essentially where it tries to focus on the position of the Dhimmis in the
Seljuk jurisdiction, it fails to provide novel information and merely gives an overview on
the issue.[1] However, this is largely due to the lack of available resources and also the
silence of the existing research in this regard.
2 - The Seljuk Era
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In the year 431 AH, the Seljuks defeated Sultan Mahmoud Ghaznavi in Dandanqan battle
and formed a government. [2] The following year, their legitimacy was confirmed by the
Abbasid Caliph. In the year 442 AH, Tugrul defeated the Ziarids and then conquered
Kharazm, Hamadan, and Ray. In 442 AH, conquered Esfahan, Azerbaijan, and Baghdad
one after another. After the death of Tugrul in 456 AH, Alp Arslan came to power and
chose Ray as the capital. He appointed Khwaja Nizam al-Mulk al-Tusi to the post of
Ministry.The selection of Khwaja was the beginning of a major change in social, structural,
political, and cultural structure of the Seljuk period. After Alp Arslan and according to his
will, Malekshah came to power. In order to consolidate and centralize the power, Khwaja
tried to remove the rivals in favor of Malekshah. Seljuk rule over the political structure of
Iran caused gradual changes, beginning with their advancement into Central and then
Western parts and culminating with the conquest of Baghdad and overthrow the rule of the
Buwayhids. In order to manage the newly established political system, the Seljuks used a
wide range of urban and rural educated youth in political management. This group formed
the subsequent bureaucratic aristocracy known as Pen Owners ( Ashab-e-Ghalam ).The Pen
Owners were against the Sword Owners who were mainly Turks. The Seljuks made some
changes while retaining main parts of the structure and institutions of the Samanid,
Ghaznavid, and Buwayhid Periods. They halved the ten-fold system of the Samanid courts
( Divans ) which include the Supreme Court, The Vindication Court, Ashraf ( aristocrats )
Court, Tughra Court, and Complaint Court. The purpose of reductionism was to create
more coordination and centralization along with reducing costs. Further, some courts
continued to exist on an independent or semi-independent basis, including Endowments
Court, Special Court, the Supreme court ( Divan-e-Mazalem ), etc. [3]Moreover, the rise of
the Seljuks in Iran established a new era in religious, political, and social relations and
conflicts. Political relations and conflicts included dealing with various states in the east of
the Abbasid Caliphate, the Abbasid Caliphate itself, and Fatimid Caliphate. Their presence
fueled the religious conflict between Sunnis and Shiites on one hand, and inflamed the
religious competitions especially between the Hanafids, Shafeids, and even Hanbalids.
3 – The Judicial System in the Seljuk Period
The judicial system experienced some changes due to the presence of Turks, importing
common laws into the field of judgment, and also the widespread presence of Iranian
bureaucracy, with the main change being the reference of the highest judicial body to the
king. In this period, rulers including caliphs, sultans, kings, Emirs, and their deputies were
at the head of the judicial system. This group had some judicial responsibility called “
politics “ and was dedicated to maintain the government and the Muslim public affairs. [4]
In political thought during the traditional period in the history of Islam, all affairs belonged
to the highest Islamic authority. Due to the centralization of the power, the ruler – whether
a caliph or a sultan – was also considered a judge. It was the ruler of the Muslims who
would select other judges, and he was considered the highest judicial authority. This section
, excluding the caliph or sultan, consisted of four groups : first, those having a general
authority in all the affairs, including ministers; second, those having a general authority in
special affairs; third, those having a special authority in all the affairs, including the Chief
Justice; and fourth, those having a special authority in special affairs, including judges from
different areas of the dynasty. [5] Judicial organizations of this period encompassed two
areas of common law and Islamic law. In the area of Islamic law, there were Law Courts
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Azar Jalilian et al.: The Position of the Dhimmis in the Judicial System during the Seljuk Period
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headed by the chief Justice who had the highest position after the caliph and sultan. This
position was usually the monopoly of Hanafi jurists. [6] This position was to establish full
control of the Caliphate over the judges and also to coordinate judicial affairs. However, a
new position was formed in the 5th century AH , which was named the Chief Justice.
Muhammad Ibn Habib al-Mawardi was appointed as the Chief Justice. The Chief Justice
was a prominent judge who dealt with the duty of judgment. [7] The appointment and
dismissal of judges was under the authority of the Chief Justice. [8] During the domination
of the Seljuks over Baghdad, the Seljuk influential ministers played a role in the selection
of the Chief Justice to the extent that they would require the caliph to accept their proposed
option for the position. [9] [10] The second judicial institution in the Seljuk period was
Muhtasib whose duty was to take care of public affairs . The position of Muhtasib was part
of the special authority, since the judgment it issued were enforceable where there was no
need to judges. According to al-Mawardi, the position of Muhtasib is a position between
judicial judgments on one hand, and Mazalim jurisdiction on the other hand. [11]
The third religious institution was the Chief Police position whose duty was to monitor and
take care of crimes and offenses and execute religious limits ( punishments ). In
governments of the Islamic Middle Ages, this position was considered a religious duty and
obligation and it`s supervision scope was a little larger than judicial judgments, such that
they would give opportunities to the accused person and execute deterrent penalties prior to
the establishment of the offence. They would also issue orders on retribution and blood
money and punished and lashed those people whose actions would not lead to offence. [12]
The Abbasids made it part of the criminal judgment. No further details of this kind have
been mentioned in the Selduk period. [13]
The main customary judicial institution in this period was Court of Grievances which was
also called the Supreme Court, reached a special position as the final arbiter in the Seljuk
period , to the extent that the it`s jurisprudence tended to interfere in the rights of the law
court and push it aside gradually and replace it. [14] The Court of Grievances became a
strong and effective arm in the hands of the government and factor for establishing justice
and security in the society. The Seljuk Sultans dedicated Sundays and Wednesdays to
hearing people`s grievances in the Court of Grievances. [15]
4 – Status of the Dhimmis in the Seljuk Period
The Dhimmis status in the 5th and 6th centuries AH shows that they had religious freedom
and chose their own religious authorities, which of course had to be approved by the Sultan
( king ) and his agents. [16]This religious freedom is evident in their religious ceremonies.
For example, in Nishapur which was known for it`s religious conflicts and ruled over by
Karamids for some time, the Dhimmis - especially Christians - were not facing significant
obstacles in holding their religious ceremonies. [17] [18] [19] Therefore, the Dhimmis have
also been faced with fewer problems in the outlying areas far from the central government.
[20]
The Dhimmis status in the center of the Abbasid Caliphate was also favorable to the extent
that they were supported by the Seljuk ministers and Sultans. One of the reasons mentioned
for the dismissal of Abu Shuja` from the post of ministry and the appointment of Amid-alDawla ibn Jahir in Rabi' Al Awwal 484 AH is his mistreatment with the Dhimmis.In this
case, the Minister was backed by Moghtadi the Caliph ( 467 – 487 AH ) and by the order of
the Caliph, the Dhimmis were required to wear qiyār ( some yellow-colored cloth
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Azar Jalilian et al.: The Position of the Dhimmis in the Judicial System during the Seljuk Period
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previously worn by non-Muslims so that they could be differentiated from the Muslim
community ). As a results, many Jews left Baghdad. When the news of the incident reached
Sultan Malek Shah and Nizam al-Mulk, they send a message to the Caliph to dismiss the
Minister. [21]
The position obtained by the Dhimmis during the great Seljuk Sultans made politicians
such as Nizam al-Mulk to respond against them. Complaining about the wide usage of
Jews, Christians, Gabris, and Qarmatians in the government and courts, Nizam al-Mulk
praised Sultan Alp Arslan policies in removing them from government offices and
recommended that Malek Shah follow the same policy. [22] Sometimes the Sultans
themselves would order the governors in areas under their control in charters issued for
their appointment to force the Dhimmis to wear qiyār In order to maintain the appearance
of Sharia. As it is stated in a charter of Muhtasib of Mazandaran : “ The Dhimmis are, by
the Sultan order, required to wear qiyār among the Muslim community as a sign of
humiliation and inferiority”. [23]
5 – Distribution of the Dhimmis in the Seljuk Period
Zoroastrians : Did you mean: After the fall of the Sassanid dynasty (651 AD) and the
gradual tendency of people towards Islam, the presence of the Zoroastrians were limited to
certain areas. Fars was among those important areas where the population of the
Zoroastrians was more than that of Jews and Christians. [24] In this city, Zoroastrians had
somewhat greater freedom in carrying out their religious ceremonies, without being
tortured as in other cities. They did not wear qiyār as a sign to be distinguished from the
Muslims; Gabri customs were performed there; In unbelivers` celebrations and rituals,
markets were decorated and heavy taxes were levied on shops. [25]
Christians : They were scattered in many parts of Iran. As mentioned above, they were
present in Fars city. Christians lived in the territory of Rehab which encompassed the cities
of Tabriz, Moghan, and Khalat. Nishapur was another place where Christians were present
in. There was a Christian neighborhood in Tous. [26]There is also a report on the presence
of Christians in Khabis ( a city in Kerman ). [27] The Seljuks also conquered the areas
where Christians were the dominant community, including the cities of Abkhazia, Arjish,
and Tebilisi that were conquered by the Seljuks in Alp Arslan and Malek Shah times. [28]
Jews : The extant resources suggest that Jews had a significant population and many
synagogues in some cities. One of the major areas in which Jews had their own
neighborhood was Isfahan which was called Yahoodia.Isfahan was the center of
commercial activities. Jews and their synagogues were subjects of Ras al-Jalut in
Mesopotamia and rarely were faced with restrictions and limitations imposed by the
Caliphs and rulers. [29] Additionally, parts of Isfahan were still called by the name of Jews,
though they no longer resided there. [30] Ahwaz was another residence place of Jews. [31]
6 – The Status of the Dhimmis in the Seljuk Judicial System
The Dhimmis status in the judicial structure during the Seljuk period was a function of the
socio-political conditions. It was such conditions that would determine the degree of
freedom bestowed upon the Dhimmis by the Seljuk Sultan. In most cases, the extant
resources keep silence on how the Seljuk Sultans treated the Dhimmis. In the Islamic
Middle Ages, dealing with the Dhimmis affairs was the responsibility of Hisba Institution,
which is considered a duty of the Muhtasib by the Islamic jurists. [32] In the Seljuk period,
it was also the responsibility of the Muhtasib to deal with the affairs of the Dhimmis. A
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5
story narrated by Khwaja regarding Ray`s Muhtasib in Buwayhid state emphasizes this.
[33] In his charters, the Seljuk Sultan always ordered Muhtasib to make sure that the
Dhimmis would wear special clothing. [34] Theoretically, the basis for treatment towards
the Dhimmis was the letter of the Second Caliph - Umar ibn al-Khattab – to the
Christians*. The Islamic Jurists in the Seljuk period used to see the way the Dhimmis were
treated only from the perspective of those in power. They described the duties of the
Muhtasib in dealing with the Dhimmis and Dhimmis obligation towards Muslims. [35] [36]
………………………………………………………………….
*. The text of the letter is as follows : “ This is a letter from the city`s Christians to Omar,
the servant of Allah and Amir_al-Mu'minin(the Commander of the Faithful)…. When you
defeated us, we wanted safety for ourselves, our children, property, and coreligionists. We
strongly pledge not to build new monasteries, churches, and convents in our cities or their
surroundings, not to rebuild those being ruined in Muslim land, never to prevent Muslims
from entering our churches, to keep open the doors of our churches to the passers-by and
bystanders, and to serve Muslim guests for three days in our churches. We further pledge
not to harbor spies in our churches and homes, not to teach Quran to our children, not to
show off our religion, and not to invite people to convert to our religion. Moreover, we
hereby pledge not to prevent those around us from converting to Islam and have honor on
those Muslims who want to participate in our religious gatherings. We also promise not to
imitate Muslims in dressing, wearing turbans, hats, and shoes ( sandals ), and their hair
style. It is also pledged not to use Muslims titles, not to ride on horses while carrying our
swords, to avoid carrying and keeping arms as well as writing Arabic phrases on our rings,
not to sell wine, to trim our hair on front, to wear our own clothing to be easily recognized
from Muslims, not to display our crosses and religious books in pass-ways and markets of
Muslims, to ring church bells slowly, not to raise our voice while praying in churches in
case of the presence of Muslims there, not to openly hold Christian festivals and prayers,
not to read prayers aloud while holding burial ceremonies, not to wear our labeled dresses (
fire and candle ) before the eyes of Muslims in streets and markets, and finally not to bury
our dead in the vicinity of the Muslim dead.” When I took the letter to Umar ibn alKhattab, he added to it so : “You must pledge not to beat any of Muslims, and also you
must pledge, on behalf of yourselves and other Christians, to comply with this agreement in
exchange for safe conduct from Muslims, and if you disagree with any of the provisions of
the agreement, then there will no longer be the Dhimmi relationship and Muslims can treat
you as they treat other enemies.” ( Adopted from ibn Ikhwa, Bita Publications, p. 40-42 ).
According to this description, signing agreements with the Dhimmis was not right , except
for Imam or someone appointed by him. Moreover, signing agreements was only
permissible for the People of the Book ( Jews and Christians ) and Quasi-Book Owners (
the Magi or Zoroastrians ) . Other Dhimmis including pagans, idolaters, apostates from
Islam, and whoever with heterodoxy and heresy were not allowed to sign contracts and
agreements of any kind. [37]
It was specified that the scope of the Dhimmis affairs fell within the duties of the Muhtasib.
From the judicial point of view, the jurists of the Islamic Middle Ages can be divided into
two groups with different attitudes toward The Dhimmis : A) Those adhering to the belief
that the Dhimmis should have their own judges, especially for what is related to the affairs
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Azar Jalilian et al.: The Position of the Dhimmis in the Judicial System during the Seljuk Period
6
of their community. At the head of this group is Imam Abu Hanifa ( 84 – 150 AH ). B)
Those who believe that the Dhimmis should refer to Islamic judgment, Shafi'i and Hanbali
jurists being among this group. [38] According to Mawardi, a non-Muslim is not allowed to
be heared and judged among the Muslims and unbelievers must take the responsibility of
their hearings and judgments; Even in his opinion this Ijtihad by Imam Abu Hanifa and
such appointment, though being a common practice among agents and rulers, is merely an
appointment as a leader rather than delegating responsibility for the judgment and
proceedings. Therefore, the Imam would not need to accept the opinion of such person in
the judgment he has made among his coreligionists, so that in case they refrain from
appealing to such agent, the Imam has no right to force them to do so, and the Islamic rules
would be more enforceable on them. [39] In this regard, the Islamic jurists describe the
qualifications of a judge as follows : The judge must be male, adult, wise, free ( not a slave
), Muslim, impartial, healthy in terms of eyesight & hearing, and knowledgeable.[40]
Also, Islamic resources rarely refer to the judicial status of the Dhimmis. Abu Yala al-Fara
describes ten cases that a judge should consider in his judgment. In tenth case – under the
section “ the equality of the judgment between the strong and the weak “ – narrates a story
in which Imam Ali ( peace be upon him ) and a Jewish man appeared before Sharih-ghazi (
a well-known judge in Imam Ali time ) to be judged on an armor which was with Imam Ali
and the Jewish man claimed for it. According to Abu Y`ala this indicates that equality is
one of the most important features in judgment and issuing sentences.[41]
The existing Islamic references show that the Dhimmis at times had their own judicial
authorities. Mawardi notes that if the People of the Book get into conflict over their
religious affairs or have differences in their beliefs, they should not be opposed or inquired
in this regard. But if they have a dispute with each other over personal rights, in case they
bring the dispute before a judge of their own to be addressed, they should not be prohibited;
However, in case they bring an action before a Muslim judge, he will judge between them
by virtue of what Islam demands, and they will be lashed if they have committed an act
deserving Islamic limit. [42]
As to the issue that the Dhimmis should refer to Muslim judges for their judicial affairs,
there are two viewpoints :1- a viewpoint according to which the judgment between them is
mandatory ( for example, al-Mazani, 175-267 AH ). 2- a viewpoint according to which the
judgment between them is not mandatory, since they do not believe in Islam.
Apart from these two viewpoints, if the Dhimmis were satisfied to be judged by a Muslim
judge, the judgment must be conditional on their commitment to the issued sentence; this is
in case the parties to a dispute have the same religion. But if one of the parties is Christian
and the other Jewish, two ways are suggested : first, there is no need to make an analogy
according to the former religions. Second, according to Sheikh Abu Ali ibn Abu Huraira,
they should be judged with a single opinion, because none of the two communities (Jews
and Christians) would be satisfied in another judgment. [43]
Conclusion
Since the establishment of the Islamic state in Medina (622 AD), followers of different
religions remained in Islamic territories (dar al-Islam) without accepting Islam, and opted
to live along with Muslims rather than migrating or converting to Islam. Muslims did not
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attack the so-called the People of the Book or violate their sanctities and only charged them
with tribute taxes and gave them the rights recognized for them by Islam ( of course in case
they were not at war with Muslims).In some cases where Islamic rulers issued orders to
restrict the Dhimmis, they were not permanent. After the Seljuks came to power in 432 AH,
they treated the Dhimmis in accordance with their own religion and instead, the Dhimmis
were required to adhere to social issues. Shafi'i and Hanafi sects were the dominant sects in
the Seljuk time, and the principles employed in the jurisprudence interpretations were
adopted from the reference books of these sects. In the meantime, the treatment of Hanafi
jurisprudence with the and Abu Hanifa guidelines for the Dhimmis were more significant,
as Abu Hanifa believed that the Dhimmis must have a special judge of their own.
The position of the Dhimmis in the judicial system of the Seljuks is not that clear from the
existing references and they have been mentioned only in some writings in the area of
political jurisprudence ( fiqh ), though these writings are more concerned with the way the
Dhimmis were treated and deal with the issue of the Dhimmis unilaterally. However, it is
clear that in religious communities, the ruler usually appointed a representative to resolve
the judicial affairs of the Dhimmis. In neighborhoods with a Muslim majority, a Muhtasib
was resonsible for dealing with the Dhimmis affairs. But the Islamic scholars did not have a
favorable view on th judicial independence of the Dhimmis and tried to put over the idea
that Sharia must be the base for judgment among the People of the Book.
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Azar Jalilian et al.: The Position of the Dhimmis in the Judicial System during the Seljuk Period
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TRANSACTIONS OF THE NATURAL HISTORY SOCIETY OF NORTHUMBRIA (ISSN 0144-221X)
http://www.nsdt.org
 2015, NATURAL HISTORY SOC NORTHUMBRIA. ENGLAND