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The Shariah, Non-Muslim Rights and the Pundits

By Khalid Baig

Islam’s treatment of non-Muslims in its midst has been a favorite topic of discussion for the Orientalists and other pundits who make careers out of denigrating Islam. They have been singing essentially the same song for centuries now, but over time their tunes have changed. It is instructive to take a brief look at this change.

Towards the end of the 19th century the Reverend Malcolm MacColl wrote at length on this pet topic of his. His 1896 book “The Sultan and the Powers” was an urgent call for the Western powers to take action against the Ottoman khalifah to save the Christians in the Muslim world. Its chapter “Islam as a Ruling System” is a searing indictment of not the Sultan but Islam itself. Realizing that his extreme views and recommendations would betray his fanaticism against Islam, he claimed that he was an advocate of religious freedom. However “My toleration ceases when the religious doctrines of one man invade the aboriginal rights of another, as they do, and have ever done, in every State, without exception, where Islam ruled supreme.” He claimed that under the Shariah a non-Muslim’s evidence could not be received in a court of law against a Muslim; non-Muslim places of worship were in danger; their women were at the mercy of Muslim males; and they were taxed so heavily with jizya and kharaj that more than 67% of the produce of their soil was taken in special taxes, not to mention other taxes. He combined these fabrications and distortions with a crude and extremely derogatory language for Prophet Muhammad, Sall-Allahu alayhi wa sallam. And in his self-righteous rage this worthy blatantly advocated the use of force by European powers to remedy the situation.

A similar article by him in the Times of London published in January 1895 so excited the Christian missionaries in India that they distributed an Urdu translation with a challenge for anyone to answer the charges. They were confident that the stunning evidence in the article would silence the Muslims for good. (A fitting response was given by Allama Shibli Nomani in two historic papers.)

No Inquisitions

A century later the language has changed. In a widely quoted article among the Western academicians, P. R. Kumaraswamy begins by admitting: “Systematic persecution of minorities was unheard of in Islamic history. There are no Islamic parallels to the Inquisition or the Holocaust. Even contemporary anti-Semitism in various Islamic countries in the region and elsewhere was primarily a contribution of the Christian missionaries who were active in the Islamic Middle East.”(1)

Nice words. But they do not go very far. He then goes on to assert that, nonetheless, the Islamic treatment of non-Muslims was bad. Because dhimmis were not equal to Muslims in law or practice.

After castigating the past he moves on to declare his total dissatisfaction with the present where constitutions of Muslim countries declare that all subjects, Muslim and non-Muslim, are equal under the law. This is so because these constitutions declare Islam as the official religion and Islamic Shariah as the source of law. He complains: “Most of the Arab and Islamic states have declared Islam to be the official Religion… Furthermore, a number of countries have recognized sharia (Islamic religious law) as a major source of jurisprudence.” He recognizes that Muslims want Shariah and to oppose it “would be authoritarian and dictatorial.” Yet that is precisely what he wants to do because implementation of Shariah “evokes apprehension among non-Muslims of legalized discrimination.”

So is Islam the problem after all? No. He says: “For a dhimmi or a non-Muslim, the problem has never been what Islamic scriptures say but how they are practiced by rulers who were the followers of Islam.” In his words the problem is not theology but history and not theory but practice. Yet the solution lies in disbanding the theology and overriding the Shariah.

How far one will have to go to appease him? Very far. His utopia will not be achieved until he is given the charge of deciding who is a Muslim. He demands: “It is imperative that the Alawis, Ahmadiyas, and others are recognized as Muslims. Only then could they secure any meaningful role for themselves.”

Unlike MacColl, Kumaraswamy does not use any derogatory words for the Prophet, Sall-Allahu alayhi wa sallam, and has even inserted a few words of praise for Islam. But what this smooth talking academic is asking for today is much more than the fanatic reverend had asked for a century ago. The language has been refined, but the goal posts have been moved much further while the blinders to Islamic Shariah and history remain constant.

Kumaraswamy admits: “Unlike Europe, the Islamic Middle East never resorted to systematic persecution of its minority population.” The crucial question is why. What made the Muslims behave differently than the other powers before and after in their dealing with the other in their midst? That investigation is central to the discussion but he does not probe it at all.

What Made the Muslim Rule Different?

To get an answer we can visit the court of Harun al-Rasheed (d. 809) who was a contemporary of Charlemagne (d. 814), the father of Europe. Charlemagne had forcibly converted the Saxons to Roman Catholicism. There was no forced conversion in the powerful empire of Harun al-Rasheed, in which Christians enjoyed full freedom and even high positions in the court.

Not that there was never a temptation to do otherwise. When Byzantine emperor Nicephorous insulted Harun al-Rasheed and repeatedly defied him, he did get irritated. As a result he felt like taking it out on his Christian subjects. So what did he do? He asked his Chief Justice, the great Imam Abu Yusuf, as to why the Churches had been left intact in lands conquered by Muslims and why Christians were allowed to take out crosses in their processions on their holidays. The query and its response have been recorded in the marvelous Kitab al-Kharaj of Imam Abu Yusuf. He wrote that Muslims had reached a treaty with the dhimmis which spelled out these protections and the treaty could not be violated. The treaty of Hira signed by Khalid ibn Waleed included these stipulations: “Churches will not be demolished. They will not be stopped from blowing their trumpets or bringing out crosses on their religious holidays.” None of the Rashidun Khalifahs had objected to it so it represented ijma (consensus), a major source of Islamic Law or Shariah.

As the firm and unequivocal answer by the great scholar made it clear, the non-Muslim subjects were under the protection of the Shariah, which was not subject to change with the moods or calculations of the ruler (or of the manipulated masses as in modern democracies). It was this protection that made the Muslim rule different from all others --- before or since.

The Treaty of Najran

The concern for justice, which distinguishes Islamic rule from all others, can be seen in the preface to Kitab al-Kharaj where Abu Yusuf reminds the khalifah to make sure the officers he appointed displayed “justice for the dhimmis, fairness for the victim, sternness against the oppressor, and kindness for the people.”

It was a result of the teachings of Prophet Muhammad, Salla-Allahu alayhi wa sallam, who warned his followers, “Whoever wronged a mustamin (a non-Muslim under protection of a treaty) or burdened him beyond his capacity or took anything from him without the latter’s will, I will be his accuser on the Day of Judgment.”

Similarly the Treaty of Najran, which the Prophet, Sall-Alalhu alayhi wa sallam, concluded with the Christians of Najran in 8 AH was the prototype for all subsequent treaties. It included the following terms:

  1. They will be defended against enemy attack.
  2. They will not be intimidated to convert to Islam.
  3. They will not have to go to the tax collector to pay their jizya; he will come to them.
  4. Their lives, properties, businesses, and lands will be protected.
  5. Their priests and clerics will not be removed from office.
  6. Their crosses and statues will not be destroyed.

Such guarantees for personal and religious freedom were unthinkable in the tribal pre-Islamic Jahiliya society. Once introduced by Islam, they were so internalized by its followers that they determined Islamic treatment of non-Muslims throughout its history as the following glimpses will show.

 The Islamic Record

Equality

It is one thing to make pious pronouncements about equality. It is another to really consider everyone’s life to be of equal worth and take the difficult decisions that may be dictated by this principle. It is in the latter test where Islamic record rises above that of others. During the time of Sayyidna Umar ibn Khattab, Radi-Allahu unhu, when a Muslim from the Bakr tribe killed a Christian of Hira, his verdict was that the killer be handed over to the heir of the deceased who could either accept blood money or kill him. The heir decided to take his revenge and the Muslim was killed. Obviously because of the deterrence such incidents were rare. However when a similar incident happened in the time of Umar ibn Abdul Aziz, the fate of the killer was the same.  The unequivocal legal Islamic verdict was that the life of a dhimmi was equal to the life of a Muslim and so was his blood money. Sayyidna Ali spelled out this principle: “Whoever has accepted our protection (dhimma) his blood is like our blood and his blood money is like our blood money.” This was not a sound byte meant for the media. It was the law of the land.

The same is true about equality in the court of law, MacColl’s claims notwithstanding. A Jew or a Christian could bring out a law suit against any Muslim, even the highest office in the land and his testimony was as admissible as that of anyone else. When a Jew filed a claim for the coat of mail of Sayyidna Ali, radi-Allahu unhu, who was the khalifa at that time, Sayyidna Ali, radi-Allahu unhu, appeared before the qadi as an ordinary defendant. Similarly, when a Christian filed a property claim against Hisham ibn Abdul Malik (who later became a khalifah) in the court of Umar ibn Abdul Aziz, the latter ordered Hisham to appear personally in the court. Based on the evidence the case was decided against Hisham.

Property Rights

It was the same with land and property rights, which were always respected. When Abu Jafar Abdullah al-Mansur (d. 775) decided to build the new capital city of Baghdad, he did not just appropriate the land. He purchased it from the dhimmis who owned it.

Not only land, but Muslim even paid for the debris taken from non-Muslim properties. It happened during the construction of the Masjid in Kufa in the time of Umar ibn Khattab. The Masjid used debris from the long ago abandoned palaces and mansions of Hira. There was no legal heir to these palaces. Yet a compensation was credited to the account of the Christians living there.

Again the verdict of the Shariah was clear. Imam Abu Yusuf wrote: “The khalifah has no authority to appropriate the land of the dhimmis. It belongs to them. They will continue to transfer it through inheritance and sale.”

 Religious Rights

The guarantees for religious freedom were written in the treaties Muslims signed with the non-Muslims. Obviously this included rights to their places of worship. This was enforced like anything else in the Shariah. We see this in the presence of a large number of churches from old times in the Muslim world, whether Iraq or Syria or Egypt. We also see this in the restoration of the right when occasionally someone violated it. In one incident, some churches in Egypt were destroyed by khalifah al-Hadi. They were rebuilt at government expense by Musa ibn Isa, the governor of Harun al-Rasheed, following a fatwa of Laith ibn Sa’d, the leading scholar of his time.

The story of the Church of John in Damascus, next to the famous Jami Masjid is quite instructive. Successive khalifahs wanted to purchase the church to expand the Masjid. Amir Muawiya tried but the church leaders refused and he kept quiet. When Abdul Malik ibn Marwan pressured them to sell the church, the priests threatened him that anyone who destroyed the church would be afflicted with dementia or leprosy. Aggravated by that Abdul Malik did accept the challenge and the church was annexed to the Masjid. While their dire predictions did not materialize, it was nonetheless a violation of their rights as provided by the Shariah. So when Umar ibn Abdul Aziz became khalifah the Christians petitioned him and he decreed that the annexed part must be returned to them. Muslims ended up offering many properties to the Christians to win a deal that would leave the Masjid intact.

The extreme care to ensure the protection of their places of worship can be seen in the actions of Sayyidna Umar ibn Khattab. It is well known that during his trip to Jerusalem, the asr prayer time came when he was visiting a church. But he refused to pray inside the church despite the offer of the patriarch. Instead he prayed on the stairs. He was concerned that if he prayed inside it might lead some later Muslims to try to take the church. To further preempt any possibility of a future misappropriation, he on his own accord, gave the church authorities a written proclamation that Muslims could not offer prayer in congregation even on the stairs. Nor could they call the adhan from it.

Rights and Security

An important issue in discussion of rights is how they are to be balanced against security concerns. What happened in Cyprus during the Umayyad and Abbasid periods shows us the Islamic outlook on this perennial question. After Cyprus was conquered in 29/650, the treaty called for the neutrality of its people in the wars between Muslims and the Romans. But three years later they violated the treaty and openly helped the Romans in their war on Muslims. Amir Muawiya conquered the city again and left them on renewal of the previous agreement. The pattern of signing a treaty and violating it happened a couple of times. Finally under suspicion of yet another breach of treaty, Walid ibn Yazeed expelled a group of suspects. But it was only a suspicion; there was no hard evidence. So the scholars gave a verdict that it was not permissible under Shariah to expel them and they were allowed to come back.

Things did not stop here. Their attitude of defiance and helping the enemy continued even during the Abbasid period. Ultimately governor Abdul Malik ibn Salih turned to the leading scholars of his time including Imam Malik, Laith ibn Sa’d, Sufyan ibn ‘Uyaynah, and others to get guidance from the Shariah in dealing with them. The answers ranged from no action, to a one year notice for them to change their behavior, to expulsion after paying double the value of their possessions. Of course, in a modern Western democracy the solution would have been much easier; the people could have been vilified and tried in the media and then punished by some executive order, not to mention tortured to get intelligence to protect the homeland against the real Roman threat.

Employment

Another indication of Muslim attitude about the others is seen in the makeup of their courts. Right from the beginning non-Muslims were welcome there. In the Umayyad period tax and accounting departments were headed by Christians and Zoroastrians. The katib (Chief Secretary) of Abdul Malik ibn Marwan was ibn Sarjan, the Christian. This pattern has been there throughout history. Even the much maligned Aurangzeb Alamgir had many Hindus holding leading positions in his court.

What about Jizya?

Much has been made of the jizya, a tax payable by the able-bodied men between the ages of 20 and 50 as a token of their submission to the Muslim rule and as a compensation for the military services that the Muslims provided for their protection and from which they were exempt. (That women were exempt from jizya was certainly another act of “discrimination against women” that the modern world probably would not tolerate).

The word itself is an Arabicized form of the Persian gizya which was a similar tax imposed by the pre-Islamic Persian king Nosherwan for the purpose of supporting the army. It was not a Muslim invention; both Persian and Byzantine empires were used to collecting it. But like anything else Muslims brought their extreme concern for justice in its administration and use.

Its purpose and nature is clear from the words of the treaty between Khalid ibn Waleed and the Christian Salooba ibn Nastoora. “I reached a treaty with you and your people on the basis of payment of jizya and provision of security. It is your responsibility to pay the jizya as long as we are protecting you and not if we do not.”

The last part of the above sentence was not meant for decoration. What it really meant was brought to life when in 15/635 Muslims faced the second battle at Ajnadeen in a last ditch effort by Heraclius (d. 641 CE) to remove the Muslims from Syria. He had gathered a very large army and in order to face it Muslims had to mobilize all their forces from Hims and Damascus. This meant that they would no longer be able to provide the protection they had promised to these areas. While facing the new threat was on their minds, the Muslim commander Sayyidna Abu Ubaydah did not forget the treaty with the Christians of the area. He ordered all of the jizya that had been taken from these areas to be returned to the people, which was done before the army left. Understandably the grateful Christians noted that had it been the Romans, then instead of returning any money, they would have taken whatever they could before leaving.

That jizya was a payment for military services is further shown by the fact that when the people provided military services, jizya was waived.  There are reports of such waivers during the time of Sayyidna Umar ibn Khattab (Armenia and Bab in Iran) and Sayyidna Uthman ibn Affan (Jarjimah).

The exorbitant amount of jizya is another myth that the Orientalists have created. As detailed in Kitab al-Kharaj, there were three rates of jizya based on a person’s financial condition. These were 12, 24, or 48 dirhams or silver coins per year.  To put these numbers in perspective, it should be noted that anyone having less than 200 dirhams was considered to be below the poverty line and was exempted from payment.

Kharaj or tax on agricultural produce was also levied on them. It was a substitute for the ushr (a 10% levy) that the Muslims had to pay and from which the non-Muslims were exempt.

Role of Shariah

What has been presented above are just some of the glimpses from the Muslim record in treating the other during their period of power. It is a record of justice, fairness, and religious freedom that is unmatched by anything before or since. That is why Dr. Muhammad Hamidullah who lived a life of exile in Paris (after his native Hyderabad had been taken over militarily by India) and knew first hand Europe’s treatment of Muslims, said: “If Muslim residents in non-Muslim countries receive the same treatment as dhimmis did in the Islamic system, they would be more than satisfied; they would be grateful.”

And contrary to the common perceptions created by a dedicated propaganda campaign that has gone on for a very long period, the real reason for this unprecedented treatment was the Shariah.

The Shariah assured the rule of law. It could not be changed or ignored. And whenever some one showed any lapses--- and indeed there were--- it was there to provide the needed correction. When the Companion Saeed ibn Zaid saw some non-Muslims made to stand in the sun for failure to pay jizya, he immediately went to the governor of the area to admonish him against this action. He said, “I heard the Prophet of Allah say, Allah will punish those who torture the people in this world.’”

Their torture was nothing compared to the tortures being meted out today in torture chambers around the world. But there is no one today who can remind the torturers of this warning. This warning comes, not from the universal declarations of the UN that have no sacred value for the signatories, but from the Shariah that controlled a Muslim’s thoughts and actions. It was the reason that “Unlike Europe, the Islamic Middle East never resorted to systematic persecution of its minority population.”

“Not Good Enough”

The position taken by many Orientalists today is that Shariah was good for the past. We can appreciate its achievements in the dark ages. Not any more. This medicine came with an expiration date and it is no longer safe or effective. The gold standard for all human endeavors has been set by modernity and everyone must follow it. The proof: the very concept of a dhimmi is anathema to the modern mind which does not accept any division of us versus them, while it was the hallmark of the Islamic system.

It sounds great --- until you start to think about it. Have we truly achieved a common homogenized mass where there is no division on any basis between people? Religions do certainly divide people between believers and non-believers. But so does secularism. It does not look kindly at those who question it.

The differences being there, the real question is how you handle them. There is a fundamental difference between Islamic and Western approaches to this issue. The Western solution is just to eliminate the other through a rigorous project of assimilation. When that is not possible then the Western solution has been to create apartheid states as in South Africa and Israel, or create reservations as done for the Indians in the US. Minorities in the West are constantly reminded, often by their own leaders, that unless they assimilate they will end up on reservations.

To eliminate the problem of multiple categories by removing the offending categories is one approach. That is how the West “solved” the problem of the inequities between men and women; it forced the women to enter the men’s world to be treated as equal. Islam, on the other hand, gave women rights without denying their femininity. It emphasized their essential humanity and considered them equally responsible in their spheres of action. But it never forced or enticed a woman to leave her home and compete with the men to get her rights. It did not give her one right while taking back another; the right to be a woman. For that it is constantly rebuked.

In dealing with the other in the society, the same pattern has been repeated. Islam certainly did not call for assimilation of the non-Muslims; rather it assured the unique identity of each and gave them rights while maintaining that identity. It recognized their essential humanity and the equality of their life in ways that cannot be imagined in the Western societies. Here again it did not give the non-Muslim one right while taking back another; the right to be a practicing Jew or Christian or whatever, with full religious freedom even for practices that were anathema to Islam. For that also it is being rebuked.

Do Muslims Have a Right to Live by Islam

What it all boils down to is this simple question. Do Muslims have a right to live by Islam? The answer we are hearing from the pundits is no. Not in France, not in Algeria. Not in Europe, not in the Muslim world. Muslim women have no right to wear hijab in France and no right to be governed by the Shariah in Algeria. In the former they must respect the majority because it becomes uncomfortable with the sight of hijab. In the latter they must respect the minority, because it becomes uncomfortable with the talk of Shariah.

Despite the great achievements the West has undeniably made in recognizing universal human rights, it still has a long way to go. While Muslims always gave the right to non-Muslims to be governed by their personal law (like marriage, divorce, family issues, inheritance, and so on), it is enthusiastically denied to Muslims in the West. While they let the church bells ring, the adhan or Muslim call to prayer does not enjoy that freedom here. While they decided that no action against minorities could be taken based on suspicions, the Western achievement has been in passing anti-terrorism laws and Patriot Acts.

And pundits are glad to inform us that it is the Islamic Shariah that needs to be reformed. Sure.

1. P. R. Kumaraswamy, “Islam and Minorities: Need for a Liberal Framework”, Mediterranean Quarterly 18:3 summer 2007, 94-109, 97.

 

 


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