In Islam, freedom in its general sense is a well-established fact.

At a time when

people were enslaved intellectually, politically, socially, religiously, and economically,

Islam came to establish the freedom of belief, freedom of thought, freedom of speech,

and freedom to criticize. Islam strictly forbids that people be forced to adopt a certain

creed or to believe in a particular religion. Allah Almighty says: [If it had been thy

Lord's Will, they would all have believed, all who are on earth; wilt thou then

compel mankind, against their will, to believe?] (Yunus 10: 99) This was in the

Makkan era. In the Madinan period, Allah also revealed: [Let there be no compulsion in

religion: truth stands out clear from error.] (Al-Baqarah 2: 256)

In brief, Islam believes in freedom of choice. Faith itself is a choice in Islam. The

Qur’an states: [No compulsion in religion…] (Al-Baqarah 2: 256). All have the freedom

to practice their own faith without harassment or any kind of threat.

The history of Islam proves this very well when Muslims, Christians, and Jews

lived together in dominant Islamic societies. We can contrast this to the Muslims who

lived in Christian Spain when they were persecuted and prejudiced against on account of

their faith.

As for minority rights, the Shari`ah protects the rights of non-Muslims living in an

Islamic society. The Islamic state has to guarantee protection for their life, property, and

the places of worship. The hadith states: “Whoever harms a non-Muslim (Dhimmi )

will not enter Paradise.” (Reported by Muslim)

 Islam seeks to establish such a society where all citizens of the state enjoy equal

rights and religion does not become the basis for any discrimination. Islamic law holds

both Muslims and non-Muslims equal and no superiority or privilege is given to the

Muslims on any ground. The history of Islam is replete with such examples. Once, a

Muslim, who was accused of killing a non-Muslim, was presented in the court of Hazrat

Ali (ra). The evidence supported the accusation. When Hazrat Ali ordered the Muslim to

be killed by way of qisas, the relatives of the murderer made the brother of the killed

forgive by paying him the compensation money. When the Caliph came to know of it, he

asked, "Perhaps these people may have coerced you into saying so." To this, he replied in

the negative, saying that the killing would not bring his brother back. Since they were

paying him blood money, it would help the family financially to some extent. The Caliph

agreed to the deal but added that the principle underlying the functioning of his

government was "the blood of those of our non-Muslim subjects is equal to our blood and

his blood money is like our blood money." (Abu Yusuf, Kitab-ul-Khiraj, p. 187)

Secondly, every member of an Islamic society is entitled to privacy and personal

life. No one can be allowed to enter his house or interfere in his matters without his

consent. The minorities enjoy similar rights in an Islamic state as the Muslims do. It is the

fundamental principle of Islamic law that it enjoins the similar rights and duties on both

Muslim and non-Muslim citizens without any discrimination.

Thirdly, Islam ordains people to worship Allah Almighty but it does not coerce

followers of other religions to accept Islam and change their creed. Invitation to truth and

use of coercion are mutually exclusive realities. The Holy Quran has communicated the
Islamic message of truth in these words: "(O Glorious Messenger!) Invite towards the

path of your Lord with strategic wisdom and refined exhortation and (also) argue with

them in a most decent manner. Surely your Lord knows him well who strayed away from

His path and He also knows well the rightly guided." (16:125)

Islam has strictly disallowed the adoption of such method of invitation, which

affects the religious independence of the other party. Allah Almighty says at another

place: "There is no coercion in religion. Verily, guidance has manifestly been

distinguished from error." (2:256)

Fourthly, the non-Muslim minorities are free to undertake any business enterprise

or profession in an Islamic state like their Muslim counterparts and no restriction can be

imposed upon them in this regard. However, those businesses, which are collectively

injurious for the society, would be completely prohibited both for the Muslims as well as

the non-Muslims. The minorities are also free to adopt any profession they like. They

would also be subject to same trade-related taxation as the Muslims.

Fifthly, as it is the responsibility of the Islamic state to provide for the disabled or

the poor or the destitute or the old, in the same way, it is also under obligation to pay for

the maintenance of a member of the minority community in case of his disability, old age

or poverty. Minorities enjoy equal rights in terms of collective maintenance in an Islamic

state. According to a tradition reported by Abu 'Ubaid in Kitab-ul-Amwal, "The Holy

Prophet (PBUH) gave a donation to a Jewish family and it continued to be delivered even

after (the Holy Prophet's departure from this world)."

 Sixthly, Islamic state is responsible for the protection and security of minorities. If

it has entered into an agreement with another nation, the protection and security of the

latter also falls under its domain of responsibility.

One of the conditions that defined the agreements between Muslims and the

conquered non-Muslim minorities was that the Islamic government would be responsible

for provision of basic necessities and security of lives of the minorities. The Peace

Agreement, which was struck with the residents of the Heera had the following written in

it: "A non-Muslim who grows old and cannot work or becomes disabled due to a natural

calamity or he was previously rich but has become poor due to some untoward

happening, the government would not charge any tax from such calamity-stricken people.

Rather these people and their families would be provided with the maintenance allowance

out of official treasury." (Ibn Rushd, Badiyat-ul-Mujtahid, vol. 2, p. 310)

The minorities cannot be compelled to render defence services. Rather, it is the

responsibility of the Islamic state to defend them. Since the Islamic state is responsible

for the protection of lives, honour and property of the minorities and they do not have any

other obligation with regard to defence, they are liable to contribute financially to the

Islamic state in the form of a tax called Jizya. Even then, Islam has taught about justice

and good manners when it comes to the imposition of Jizya on the minorities.

Concept of "Islamic State"

"An Islamic state is essentially an ideological state, and is thus radically

different from a national state." This statement made by Mawdudi lays the basic
foundation for the political, economical, social, and religious system of all Islamic

countries which impose the Islamic law. This ideological system intentionally

discriminates between people according to their religious affiliations. Mawdudi, a

prominent Pakistani Muslim scholar, summarizes the basic differences between Islamic

and secular states as follows:

1) An Islamic state is ideological. People who reside in it are divided into Muslims,

who believe in its ideology and non-Muslims who do not believe.

2) Responsibility for policy and administration of such a state "should rest

primarily with those who believe in the Islamic ideology." Non-Muslims, therefore,

cannot be asked to undertake or be entrusted with the responsibility of policymaking.

3) An Islamic state is bound to distinguish (i.e. discriminates) between Muslims and

non-Muslims. However the Islamic law "Shari`a" guarantees to non-Muslims "certain

specifically stated rights beyond which they are not permitted to meddle in the

affairs of the state because they do not subscribe to its ideology." Once they embrace

the Islamic faith, they "become equal participants in all matters concerning the state

and the government."

The above view is the representative of the Hanifites, one of the four Islamic

schools of jurisprudence. The other three schools are the Malikites, the Hanbilites (the

strictest and the most fundamentalist of all), and the Shafi`ites. All four schools agree

dogmatically on the basic creeds of Islam but differ in their interpretations of Islamic law

which is derived from four sources:

a) Qur'an (read or recite): The sacred book of Muslim community containing direct

quotes from Allah as allegedly dictated by Gabriel.

b) Hadith (narrative): The collections of Islamic traditions including sayings and

deeds of Muhammad as heard by his contemporaries, first, second, and third hand.

c) Al-Qiyas (analogy or comparison): The legal decision drawn by Islamic Jurists

based on precedent cases.

d) Ijma' (consensus): The interpretations of Islamic laws handed down by the

consensus of reputed Muslim scholars in a certain country.

Textual laws prescribed in the Qur'an are few. The door is left wide open for

prominent scholars versed in the Qur'an, the Hadith, and other Islamic discipline to

present their Fatwa (legal opinion) as we shall see later.

Classification of Non-Muslims:

In his article, "The Ordinances of the People of the Covenant and the Minorities

in an Islamic State," Sheikh Najih Ibrahim Ibn Abdullah remarks that legists classify non-

Muslims or infidels into two categories: Dar-ul-Harb or the household of War, which

refers to non-Muslims who are not bound by a peace treaty, or covenant, and whose

blood and property are not protected by the law of vendetta or retaliation; and Dar-us-

Salam or the household of Peace, which refers to those who fall into three classifications:

1) Zimmis (those in custody) are non-Muslim subjects who live in Muslim countries

and agree to pay the Jizya (tribute) in exchange for protection and safety, and to be

subject to Islamic law. These enjoy a permanent covenant.

2) People of the Hudna (truce) are those who sign a peace treaty with Muslims after

being defeated in war. They agree to reside in their own land, yet to be subject to the

legal jurisprudence of Islam like Zimmis, provided they do not wage war against

Muslims.

3) Musta'min (protected one) are persons who come to an Islamic country as

messengers, merchants, visitors, or student wanting to learn about Islam. A Musta'min

should not wage war against Muslims and he is not obliged to pay Jizya, but he would be

urged to embrace Islam. If a Musta'min does not accept Islam, he is allowed to return

safely to his own country. Muslims are forbidden to hurt him in any way. When he is

back in his own homeland, he is treated as one who belongs to the Household of War.

Muslims take pride, and rightly so, in their treatment of non-Muslims in their

societies better than their contemporaries in the past. In Europe the status of religious

minorities came to be recognized in sixteenth centuries and rights were constitutionally

guarantied only in nineteenth century. Most modern scholars like Thomas Arnold, Adam

Metz, E.A. Mayer and E.I.J. Rosenthal, while critical of present state of affairs,

acknowledge the fact that Islam has treated Jews and Christians very well indeed. In fact

Muslims took the rights of their non-Muslim subjects quite seriously when the idea of

this right was not conceivable.

The present status of the rights of minorities in the world, Muslim or ethnic has

raised some serious questions. Their status, especially from the perspective of Human

Rights, is indeed a complex problem. It requires serious appraisal, not only as a problem

of difference between theory and practice on which most critics focus, but also from the
perspective of jurisprudence that defines it. This new perspective is often misunderstood

and sometimes exploited by some countries to their advantage.

I shall try to explain the changing juristic perspectives about the right of

minorities to argue that a new interpretation of Islamic jurisprudence is not only required

but also possible in the modern context.

Before going any further, let me explain that the term minority is not acceptable

to Islamic jurisprudence because the Muslim jurists never used this term or the concept.

The term came into use with the advent of nationalism and nation-states, in which the

people were classified on the basis of ethnicity, namely language, race and culture, and

the smaller groups were given the status of minority. Even religion was included in this

classification. Islamic jurisprudence had a different criterion about which we shall speak

shortly.

Essentially, "minority" is a relative term, linguistically denoting smaller number

or an opposite of "majority". This mentioned semantic vagueness pervades the legal

usage in international law, using the term in almost the meaning of nation.

In UN documents the emphasis on 'nation' was replaced by focus on 'human

rights'. A sub-commission on Prevention of Discrimination and Protection of Minorities

was founded, yet the Commission has not clearly defined the term 'minority'. In the

various UN documents and instruments the term implies the following elements: a

distinct group on the basis of religion/ language/race (all three or one or more), smaller

size, national status, and the will of the group to perpetuate that identity. The concept of
minority in the conceptual framework of 'nation' has serious political implications for the

concept of a nation-state as such a concept of 'minority', by implication, defines it as a

'sub-nation' of the majority nation that forms the state. This concept of minority has given

rise to most of the present misconceptions.

In Islamic history and jurisprudence the term Dhimmah has been used instead. Let

us briefly look at three documents of the early Islamic period from this perspective.

The Medina Pact, signed by the Prophet Muhammad with the various tribes in and

outside Medina, consists of 47 articles. The first 23 articles deal with the rights and duties

of the Muslims in Medina, while the remaining 24 articles deal with those of the Jews.

The article 16 obliged to help and support the Jews who joined them. Article 24

obliges Jews to share the war expenditure with Muslims as long as the war continues. The

articles 25 to 31 define the position of all the Jewish tribe as constituting one Ummah

together with Muslims. Both were free to practice their religion, having equal rights

regarding their persons and their clients. The article 37 states that the Jews are

responsible for their own expenses and the Muslims for their own.

The article further obliges the signatories to support each other against that

external attack. The article 42 stipulates that in case of dispute between the parties they

must refer it to Allah and His Prophet Muhammad. The remaining four articles state that

the parties will not ally with the Quraysh, or with their supporters. In case of attack on

Medina they will support each other. Both will stand by the pact, without altering its

terms, or violating them. Allah is ally (jar) of those who abide by the pact.
 The Pact of Najran , signed by Prophet Muhammad with the Christian community

of Najran in 631, consists of four paragraphs. The first paragraph spells the terms of

financial obligation for the Christians of Najran, the second defines their religious and

social rights, and the third explains the economic matters and the fourth states the abiding

clause of the pact.

The first paragraph states that the people of Najran were sovereign in their

produce and property. It lays down further details about the taxes ( kharaj ) in terms of

cloth, silver, hospitality of the messengers, and loan of arms and horses in case of war.

The second paragraph states that the people of Najran and adjacent areas are allies

of Allah (fi jawar Allah) and the Prophet Muhammad with reference to their property,

person, community, present or absent, families, places of worship and every thing they

own howsoever small or big.

Regarding the economic rights, the pact lays down that no tithe would be levied

on their produce, nor Muslim armies tread their lands. Probably referring to share

cropping the pact stipulates the rate of one half as a right of the parties. It also mentions

the prohibition of usury transactions.

The Pact of Jerusalem, signed by Caliph Umar I with the people of Jerusalem

after the conquest of the city in 638, consists of only three small paragraphs. The first

paragraph defines the religious rights and the second states their social and economic

obligations to the Muslim State, the third paragraph mentions the abiding clause of the

pact.
 The first paragraph grants security of life and property to the people of Jerusalem,

in addition to the protection of their churches and crosses. No Muslim would take

residence in their churches, nor would they be demolished. They would not be forced to

change their religion nor would they be harmed in any way.

The second paragraph states that like the people of Madina they were obliged to

pay Jizyah if they decided to stay in Jerusalem. If they wanted to migrate to Rome or

other places they will be allowed to do so with complete security of their person and

property until they reach their place of refuge. If they wanted to come back, they would

not be charged any taxes except the taxes on their produce when the crops are reaped.

Dhimmah

We may observe that there is no concept of minority or sub-nation in these pacts.

The Jews are defined in the Medina pact as a part of Ummah, federating community.

It is important to note that the term Dhimmah is not used in a negative sense in

these pacts, as it came to be understood later. The word is used as a synonym of J awar

(neighbour). Jawar refers to the pre-Islamic Arab institution of tribal alliance in war and

peace. The Prophet transformed this pre-Islamic tribal institution into a religious

obligation by calling it dhimmat Allah, God's pledge. According to Article 15 (Pact of

Medina) the dhimmat Allah is one for all and all the Muslims are each other's allies

(mawali) excluding the others.

 In this Najran pact again, the terms dhimmah and jawar acquire the meaning of

protection, associated with contractual freedom. The Najran pact assures that there would

be no interference in their religious authorities.

The pact of Najran uses the term fi jawar Allah to indicate a pledge of security

with reference to their property, person, and community, present or absent, families,

places of worship and every thing they own howsoever small or big. The pact extends the

responsibility of pledge to the Prophet, the caliphs and Muslims in general.

The pact of Jerusalem’s use of the term Ahd with reference to Allah in place of

jawar and dhimmah also shows that they are synonyms. The word dhimmah is used with

reference to not only the Prophet, but also with the Caliph and the Mu'mins. It means that

the pact not only lays down these terms as religious but also as political and social

obligations.

The Islamic Jurisprudence

Classification of non-Muslims

The classical Muslim jurists divide non-Muslims into ahl al-Kitab (Jews and

Christians) and mushriks (pagan, idol worshippers). Non-Muslims living in Muslim

territories were divided into dhimmi, mu`ahid and musta ' min. Musta ' min were non-

muslim visitors with temporary permission to stay . The mu`ahid were the who joined the

Muslims under some pact voluntarily. The dhimmis were those whose territory was

conquered in a war. They were to pay jizya to enjoy the status of a dhimmi. The Muslim

jurists differed about who among the non-Muslims was entitled to enjoy this status.
 The Shafi ' is and ibn Hazm allowed this status only to ahl al-Kitab and magus,

not to the non – Arab mushriks. They must accept Islam to stay in Muslim territory. The

Hanafi, Maliki and Zaydi jurists allowed the status of dhimmis to mushriks as well.

Jizyah was not however to be paid by Arab non-mushriks. All non-Arab non-Muslims,

ahl al-Kitab or not, must pay Jizyah to stay in a Muslim land.

Islamic Law and Zimmis

Muslim Muftis (legal authorities) agree that the contract of the Zimmis should be

offered primarily to the People of the Book that is, Christians and Jews, then to the Magis

or Zoroastrians. However, they disagree on whether any contract should be signed with

other groups such as communists or atheists. The Hanbalites and the Shafi`ites believe

that no contract should be made with the ungodly or those who do not believe in the

supreme God. Hanifites and Malikites affirm that the Jizya may be accepted from all

infidels regardless of their beliefs and faith in God. Abu Hanifa, however, did not want

pagan Arabs to have this option because they are the people of the Prophet. They. must

be given only two options: accept Islam or be killed.

The Jizya (tribute)

Jizya literally means penalty. It is a protection tax levied on non-Muslims living

under Islamic regimes, confirming their legal status. Mawdudi states that "the

acceptance of the Jizya establishes the sanctity of their lives and property, and

thereafter neither the Islamic state, nor the Muslim public have any right to violate

their property, honor or liberty." Paying the Jizya is a symbol of humiliation and
submission because Zimmis are not regarded as citizens of the Islamic state although they

are, in most cases, natives to the country.

Such an attitude alienates the Zimmis from being an essential part of the

community. How can a Zimmi feel at home in his own land, among his own people, and

with his own government, when he knows that the Jizya, which he pays, is a symbol of

humiliation and submission In his book The Islamic Law Pertaining to non-Muslims,

Sheikh `Abdulla Mustafa Al-Muraghi indicates that the. Jizya can only be exempted from

the Zimmi who becomes a Muslim or dies. The Shafi`i reiterates that the Jizya is not

automatically put aside when the Zimmi embraces Islam. Exemption from the Jizya has

become an incentive to encourage Zimmis to relinquish their faith and embrace Islam.

Sheik Najih Ibrahim Ibn Abdulla summarizes the purpose of the Jizya. He says,

quoting Ibn Qayyim al-Jawziyya, that the Jizya 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."
Zimmis and Religious Practices

Muslims believe that the Zimmis are Mushrikun (polytheists) for they see the

belief in the Trinity as belief in three gods. Islam is the only true religion, they claim.

Therefore, to protect Muslims from corruption, especially against the unforgivable sin of

shirk (polytheism), its practice is forbidden among Muslims, because it is considered the

greatest abomination. When Christians practice it publicly, it becomes an enticement and

exhortation to apostasy. It is significant here to notice that according to Muraghi, Zimmis

and infidels are polytheists and therefore, must have the same treatment.

According to Muslim jurists, the following legal ordinances must be enforced on

Zimmis (Christians and Jews alike) who reside among Muslims:

1) Zimmis are not allowed to build new churches, temples, or synagogues. They are

allowed to renovate old churches or houses of worship provided they do not allow adding

any new construction. "Old churches" are those which existed prior to Islamic conquests

and are included in a peace accord by Muslims. Construction of any church, temple, or

synagogue in the Arab Peninsula (Saudi Arabia) is prohibited. It is the land of the Prophet

and only Islam should prevail there. Yet, Muslims, if they wish, are permitted to

demolish all non-Muslim houses of worship in any land they conquer.

2) Zimmis are not allowed to pray or read their sacred books out loud at home or in

churches, lest Muslims hear their prayers.

3) Zimmis are not allowed to print their religious books or sell them in public places

and markets. They are allowed to publish and sell them among their own people, in their

churches and temples.

4) Zimmis are not allowed to install the cross on their houses or churches since it is a

symbol of infidelity.

5) Zimmis are not permitted to broadcast or display their ceremonial religious rituals

on radio or television or to use the media or to publish any picture of their religious

ceremonies in newspaper and magazines.

6) Zimmis are not allowed to congregate in the streets during their religious festivals;

rather, each must quietly make his way to his church or temple.

7) Zimmis are not allowed to join the army unless there is indispensable need for

them in which case they are not allowed to assume leadership positions but are

considered mercenaries.

Mawdudi, who is a Hanifite, expresses a more generous opinion toward

Christians. He said:

"In their own towns and cities they are allowed to do so (practice their

religion) with the fullest freedom. In purely Muslim areas, however, an Islamic

government has full discretion to put such restrictions on their practices as it deems

necessary."

Apostasy in Islam

Apostasy means rejection of the religion of Islam either by action or the word of

the mouth. "The act of apostasy, thus, put an end to one's adherence to Islam." when

one rejects the fundamental creeds of Islam, he rejects the faith, and this is an act of

apostasy such an act is a grave sin in Islam. The Qur'an indicates,

 "How shall Allah guide those who reject faith after they accepted it and bore

witness that the Apostle was true and the clear sign had come unto them. But Allah

guides not the people of unjust of such the reward is that on them rests the curse of

Allah, of His angels and of all mankind in that will they dwell; nor will their penalty be

lightened, nor respite be their lot, except for those that repent after that and make

amends; for verily Allah is Oft-forging, Most Merciful (Qur'an 3:86-89).

Officially, Islamic law requires Muslims not to force Zimmis to embrace Islam. It

is the duty of every Muslim, they hold, to manifest the virtues of Islam so that those who

are non-Muslims will convert willingly after discovering its greatness and truth. Once a

person becomes a Muslim, he cannot recant. If he does, he will be warned first, then he

will be given three days to reconsider and repent. If he persists in his apostasy, his wife is

required to divorce him, his property is confiscated, and his children are taken away from

him. He is not allowed to remarry. Instead, he should be taken to court and sentenced to

death. If he repents, he may return to his wife and children or remarry. According to the

Hanifites an apostate female is not allowed to get married. She must spend time in

meditation in order to return to Islam. If she does not repent or recant, she will not be

sentenced to death, but she is to be persecuted, beaten and jailed until she dies. Other

schools of Shari`a demand her death. The above punishment is prescribed in a Hadith

recorded by the Bukhari: "It is reported by `Abaas ... that the messenger of Allah ...

said, `Whosoever changes his religion (from Islam to any other faith), kill him."
 In his book Shari`ah: The Islamic Law, Doi remarks, "The punishment by death

in the case of Apostasy has been unanimously agreed upon by all the four schools of

Islamic jurisprudence."

A non-Muslim wishing to become a Muslim is encouraged to do so and anyone,

even a father or a mother, who attempts to stop him, may be punished. However, anyone

who makes an effort to proselytize a Muslim to any other faith may face punishment.

Civic Laws

Zimmis and Muslims are subject to the same civic laws. They are to be treated

alike in matters of honor, theft, adultery, murder, and damaging property. They have to

be punished in accordance with the Islamic law regardless of their religious affiliation.

Zimmis and Muslims alike are subject to Islamic laws in matters of civic business,

financial transactions such as sales, leases, firms, establishment of companies, farms,

securities, mortgages, and contracts. For instance, theft is punishable by cutting off the

thief's hand whether he is a Muslim or a Christian. But when it comes to privileges, the

Zimmis do not enjoy the same treatment. For instance, Zimmis are not issued licenses to

carry weapons.

Marriage and Children

A Muslim male can marry a Zimmi girl, but a Zimmi man is not allowed to marry

a Muslim girl. If a woman embraces Islam and wants to get married, her non-Muslim

father does not have the authority to give her away to her bridegroom. She must be given

away by a Muslim guardian.

 If one parent is a Muslim, children must be raised as Muslims. If the father is a

Zimmi and his wife converts to Islam, she must get a divorce; then she will have the right

of custody of her child. Some fundamentalist schools indicate that a Muslim husband has

the right to confine his Zimmi wife to her home and restrain her from going to her own

house of worship.

Capital Punishment

The Hanifites believe that both Zimmis and Muslims must suffer the same Penalty

for similar crimes. If a Muslim kills a Zimmi intentionally, he must be killed in return.

The same applies to a Christian who kills a Muslim. But other schools of Law have

different interpretations of Islamic law. The Shafi`ites declare that a Muslim who

assassinates a Zimmi must not be killed, because it is not reasonable to equate a Muslim

with a polytheist (Mushrik). In such a case, blood price must be paid. The penalty

depends on the school of law adopted by the particular Islamic country where the crime

or offense is committed. This illustrates the implication of different interpretations of the

Islamic law based on the Hadith.

Each school attempts to document its legal opinion by referring to the Hadith or

to an incident experienced by the Prophet or the "rightly guided" Caliphs.

The Witness of Zimmis

Zimmis cannot testify against Muslims. They can only testify against other

Zimmis or Musta'min. Their oaths are not considered valid in an Islamic court. According

to the Shari`a, a Zimmi is not even qualified to be under oath. Muraghi states bluntly,
"The testimony of a Zimmi is not accepted because Allah - may He be exalted - said:

`God will not let the infidels (kafir) have an upper hand over the believers'." A Zimmi,

regarded as an infidel, cannot testify against any Muslim regardless of his moral

credibility. If a Zimmi has falsely accused another Zimmi and was once punished, his

credibility and integrity is tarnished and his testimony is no longer acceptable. One

serious implication of this is that if one Muslim has committed a serious offense against

another, witnessed by Zimmis only, the court will have difficulty deciding the case since

the testimonies of Zimmis are not acceptable. Yet, this same Zimmi whose integrity is

blemished, if he converts to Islam, will have his testimony accepted against the Zimmis

and Muslims alike, because according to the Shari`a, "By embracing Islam he has

gained a new credibility which would enable him to witness..." All he has to do is to

utter the Islamic confession of faith before witnesses, and that will elevate him from

being an outcast to being a respected Muslim enjoying all the privileges of a devout

Muslim.

Personal Law

On personal matters of marriages, divorces, and inheritance, Zimmis are allowed

to appeal to their own religious courts. Each Christian denomination has the right and

authority to determine the outcome of each case. Zimmis are free to practice their own

social and religious rites at home and in church without interference from the state, even

in such matters as drinking wine, rearing pigs, and eating pork, as long as they do not sell

them to Muslims. Zimmis are generally denied the right to appeal to an Islamic court in
family matters, marriage, divorce, and inheritance. However, in the event a Muslim judge

agrees to take such a case, the court must apply Islamic law.

Political Rights and Duties

The Islamic state is an ideological state, thus the head of the state inevitably must

be a Muslim, because he is bound by the Shari`a to conduct and administer the state in

accordance with the Qur'an and the Sunna. The function of his advisory council is to

assist him in implementing the Islamic principles and adhering to them. Anyone who

does not embrace Islamic ideology cannot be the head of state or a member of the

council.

Mawdudi, aware of the requirements of modern society, seems to be more tolerant

toward Zimmis. He says,

"In regard to a parliament or a legislature of the modern type which is

considerably different from the advisory council in its traditional sense, this rule

could be relaxed to allow non-Muslims to be members provided that it has been

fully ensured in the constitution that no law which is repugnant to the Qur'an and

the Sunna should be enacted, that the Qur'an and the Sunna should be the chief

source of public law, and that the head of the state should necessarily be a Muslim."

Under these circumstances, the sphere of influence of non-Muslim minorities

would be limited to matters relating to general problems of the country or to the interest

of the minorities. Their participation should not damage the fundamental requirement of

Islam. Mawdudi adds,

 "It is possible to form a separate representative assembly for all non-Muslim

groups in tbe capacity of a central agency. The membership and the voting rights of

such an assembly will be confined to non-Muslims and they would be given the

fullest freedom within its frame-work."

These views do not receive the approval of most other schools of the Shari`a

which hold that non-Muslims are not allowed to assume any position which might bestow

on them any authority over any Muslim. A position of sovereignty demands the

implementation of Islamic ideology. It is alleged that a non-Muslim (regardless of his

ability, sincerity, and loyalty to his country) cannot and would not work faithfully to

achieve the ideological and political goals of Islam.

Business World

The political arena and the official public sectors are not the only area in which

non-Muslims are not allowed to assume a position of authority. A Muslim employee who

works in a company inquires in a letter "if it is permissible for a Muslim owner (of a

company) to confer authority on a Christian over other Muslims (Al-Muslim

Weekly; Vol. 8; issue No. 418; Friday 2, 5, 1993).

In response to this inquiry three eminent Muslim scholars issued their legal

opinions:

Sheikh Manna` K. Al-Qubtan, professor of Higher studies at the School of Islamic

Law in Riyadh, indicates that:

 Basically, the command of non-Muslims over Muslims in not admissible,

because God Almighty said: 'Allah will not give access to the infidels (i.e. Christians)

to have authority over believers (Muslims) {Qur'an 4:141}. For God - Glory be to

Him - has elevated Muslims to the highest rank (over all men) and foreordained to

them the might, by virtue of the Qurtanic text in which God the Almighty said:

'Might and strength be to Allah, the Prophet (Muhammad) and the believers

(Muslims) {Qur'an 63:8}.

Thus, the authority of non-Muslim over a Muslim is incompatible with these

two verses, since the Muslim has to submit to and obey whoever is in charge over

him. The Muslim, therefore becomes inferior to him, and this should not be the case

with the Muslim.

Dr. Salih Al-Sadlan, professor of Shari`a at the School of Islamic Law, Riyadh,

cites the same verses and asserts that it is not permissible for a infidel (in this case is a

Christian) to be in charge over Muslims whether in the private or public sector. Such an

act:

"entails the humiliaton of the Muslim and the exaltation of the infidel

(Christian). This infidel may exploit his position to humiliate and insult the Muslims

who work under his administration. It is advisable to the company owner to fear

God Almighty and to authorize only a Muslim over the Muslims. Also, the

injunctions issued by the ruler, provides that an infidel should not be in charge

when there is a Muslim available to assume the command. Our advice to the

company owner is to remove this infidel and to replace him with a Muslim."
 In his response Dr. Fahd Al-`Usaymi, professor of Islamic studies at the Teachers'

College in Riyadh, remarks that the Muslim owner of the company should seek a Muslim

employee who is better than the Christian (manager), or equal to him or even less

qualified but has the ability to be trained to obtain the same skill enjoyed by the

Christian. It is not permissible for a Christian to be in charge of Muslims by the virtue of

the general evidences which denote the superiority of the Muslim over others. Then he

quotes (Qur'an 63:8) and also cites verse 22 of Chapter 58:

Thou wilt not find any people who believe in Allah and the Last Day, loving

those who resist Allah and His Apostle, even though they were their fathers or their

sons, or their brothers, or their kindred.

`Usaymi claims that being under the authority of a Christian may force Muslims

to flatter him and humiliate themselves to this infidel on the hope to obtain some of what

he has. This is against the confirmed evidences. Then he alludes to the story of Umar Ibn

Al-Khattab the second Caliph, who was displeased with one of his governors who

appointed a Zimmi as a treasurer, and remarked: "Have the wombs of women become

sterile that they gave birth only to this man?" Then `Usaymi adds:

Muslims should fear God in their Muslim brothers and train them... for

honesty and fear of God are, originally, in the Muslim, contrary to the infidel (the

Christian) who, originally, is dishonest and does not fear God.

Does this mean that a Christian who owns a business cannot employ a Muslim to

work for him? Even worse, does this mean that a Zimmi, regardless of his unequal
qualification, cannot be appointed to the right position where he would serve his country

the best? This question demands an answer.

Freedom of Expression

Mawdudi, who is more lenient than most Muslim scholars, presents a

revolutionary opinion when he emphasizes that in an Islamic state:

"all non-Muslims will have the freedom of conscience, opinion, expression,

and association as the one enjoyed by Muslims themselves, subject to the same

limitations as are imposed by law on Muslims."

Mawdudi's views are not accepted by most Islamic schools of law, especially in

regard to freedom of expression like criticism of Islam and the government. Even in a

country like Pakistan, the homeland of Mawdudi, it is illegal to criticize the government

or the head of state. Many political prisoners are confined to jails in Pakistan and most

other Islamic countries. Through the course of history. except in rare cases, not even

Muslims have been given freedom to criticize Islam without being persecuted or

sentenced to death. It is far less likely for a Zimmi to get away with criticizing Islam.

In Mawdudi's statement, the term "limitations" is vaguely defined. If it were

explicitly defined, you would find, in the final analysis, that it curbs any type of criticism

against the Islamic faith and government.

Moreover, how can the Zimmis express the positive aspects of their religion when

they are not allowed to use the media or advertise them on radio or TV Perhaps
Mawdudi meant by his proposals to allow such freedom to Zimmis only among

themselves. Otherwise, they would be subject to penalty. Yet, Muslims are allowed,

according to the Shari`a (law) to propagate their faith among all religious sects without

any limitations.

Muslims and Zimmis

Relationships between Muslims and Zimmis are classified in two categories: what

is forbidden and what is allowable.

I. The Forbidden:

A Muslim is not allowed to:

1. emulate the Zimmis in their dress or behavior.

2. attend Zimmi festivals or support them in any way which may give them any

power over Muslims.

3. lease his house or sell his land for the construction of a church, temple, liquor

store, or anything that may benefit the Zimmi's faith.

4. work for Zimmis in any job that might promote their faith such as constructing a

church.

5. make any endowment to churches or temples.

6. carry any vessel that contains wine, work in wine production, or transport pigs.

7. address Zimmis with any title such as: "my master" or "my lord."

II. The Allowable

 A Muslim is allowed to:

1. financially assist the Zimmis, provided the money is not used in violation of

Islamic law like buying wine or pork.

2. give the right of pre-emption (priority in buying property) to his Zimmi neighbor.

The Hanbilites disapprove of this.

3. eat food prepared by the People of the Book.

4. console the Zimmis in an illness or in the loss of a loved one. It is also permissible

for a Muslims to escort a funeral to the cemetery, but he has to walk in front of

the coffin, not behind it, and he must depart before the deceased is buried.

5. congratulate the Zimmis for a wedding, birth of a child, return from a long trip, or

recovery from illness. However, Muslims are warned not to utter any word which

may suggest approval of the Zimmis' faith, such as: "May Allah exalt you,"

"May Allah honor you," or "May Allah give your religion victory."

RIGHTS

Muslim jurists allow almost all the basic rights of life, property, honour etc. to

their non-Muslim citizens. A list of these rights is given in the Appendix. There are,

however, certain rights that are restricted by certain conditions. It is not for us to discuss

them in detail. We shall only analyse the difference of opinion among the jurists to

highlight their changing perspectives.

Freedom of Religion

Umar: the moment you accept Jizyah from them, you forego the right to take

liberties with them or with their properties letter to Abu Ubaydah (Mawdudi 1960, 3 02).

Umar b. Abdul Aziz: how is it that the dhimmis are free in matters of marriage

regardless of consanguinity, wine and swine

Hasan Basri: the dhimmis paid jizya to be able to live freely in accordance with

their own personal laws (Mawdudi 1960, 3 07).

Dhimmis have no freedom of religion: Hanafis, Sarakhsi (Shishani 505),

Qadikhan dhimmi and musta'min have freedom of religion (ibid). General agreement of

all other schools on this position.

Harabi has no freedom, general agreed view (shishani, ibid 50 6)

Modern Islamic Jurisprudence

Classification of non-Muslims

Mawdudi classifies non-Muslims into three categories:

• Subjects of an Islamic state under treaty or agreement

• Subjects after defeat in a war

• Those who are in the Islamic state in any other way

 Contractees : rights in accordance with the terms of the treaty.

Shishani: non-Muslims in dar al-Islam two types: ahl al-Dhimma, al-musta'min.

Ahl al-Dhimma mu`ahadun ( Rosenthal, p. 107: minority+ several different

minorities, non Muslims, atheists, secularists, Muslim minorities

Classical Islam: ahl al-Kitab, mushrik, other religions

JURISPRUDENCE OF RIGHTS

Zuhayli, pp. 716 The principles of Islamic governance: (1)Shura, wa shawirhum

fi'l amr, a amruhum shura baynahum,

Adl P 717. wa idha hakamtum bayn al-nasi an tahkumu bil adl, wa la

yajrimannakum shana'anu qawmin ala alla ta'dilu..

Answerable to people (p. 723).

The fiqh books do not deal with constitutional matters. They do not discuss

political or religious rights. They do not speak of minorities. They do not speak about

non-Muslims in a separate chapter. The discussion about non-Muslims is usually in

chapters on Marriage, Jizya. Jizya relates to Dhimmis only.

Al-Mawardi (d. 450/) Al-Ahkam al-Sultaniyyah (Cairo: Mustafa al-Babi, 1973)

Mawdudi: Islamic state an ideological state, radically different from nation state. 5 points

of difference: (1)classification into Muslims and non-Muslims/majority and minority, (2)

responsibility to run the state of Muslims/majority community, (3)state defines the rights

of non-Muslims/hypocritical policy of equality of rights, but actually not given to

minorities, (4)state guarantees the stated rights beyond which they are not permitted to

interfere in the state affairs/minority problem solved: destroy separate entity, genocide,

untouchable , (5)guarantee of Shari`a for non-muslim rights, no deviation/will of the

majority often deprive minorities (295- 298).

The specific nature of this religious state [acc to Mawdudi] necessitates

distinction between two kinds of citizens; believers and dhimmis the latter are adequately

protected in life, property and freedom of religion. Exclude from the supreme direction of

affairs of state and policy making (150)

The fundamental principle: the relations between them and the Islamic state shall

be based on terms of the agreement. As such no specific laws have been formulated by

the Muslim jurists in regard to the treatment to be meted out to them (Mawdudi 19 60,

301).

Abu Yusuf: we shall take from them only what was mutually fixed at the time of

peace making. All terms of the treaty shall be strictly adhered to and no additions would

be permitted (Kitab al kharaj, p.35)

Types of rights

Mawdudi:

General Rights: Fundamental Human rights: equality with Muslims

PROBLEM OF HUMAN RIGHTS

The problematics

In order to understand the complexity of the problem, we must study the various

historical contexts in which the idea grew. It is also necessary to make us aware of the

need to distinguish between different historical contexts so as not to use one context as a

criterion to judge another. Plainly speaking, we should not judge the past by present

standards, nor should we expect the past measures to work effectively in the present

context.

Rosenthal

All their rights are safeguarded, inequality concerns their duties (107) Jizyah,

military service,

Classical Islam: jihad a duty of the state to propagate Islam. In modern world it is

a problem modern Muslims regard jihad only defensive (108) conversion by force is

today ruled out.

The dhimmis are a minority, no doubt, but not a racial or national minority (150).

In the case of Pakistan , the situations more complicated by the fact that Hindus are not

strictly speaking dhimmis … (205)

Modern Context

These problems are perhaps created by the fact that the concepts of 'nation' and

'nation-state' have not properly defined the role and status of non-majority groups. The

problem of religious minority is more complex, due to its probable origins in the

medieval political thought in which the legitimacy of the political power was derived

from religion. The political order in this period was not necessarily based on the principle

of the majority rule. The medieval kings often treated even the majority religious groups

of their subjects as minorities if they differed with them in religion or in religious

denomination within one religion. They did not enjoy the same status as that of the ruling

class. People of different religious persuasion were entitled to "protection" within the

confines of a religious community, represented by institutionalized religious leadership.

This legal framework is hard to operate in a modern state, particularly in a democratic

setting.

The Islamic legal definition of the rights of non-Muslims was formulated in the

period of conquests, most probably in line with the laws of nations in those periods. A

comparative study of Islamic laws on the subject with the laws of other nations is

required to understand these developments. The terms of Dhimmah, Dar al-Harb, Dar al-

Islam belong to a particular historical context. It is difficult to define rights of minorities

in this framework for the modern polity.

Asad: since jihad is permissible only in defence the non Muslim citizens of a

Muslim state share the duty to defend the country. They are entitled to exemption from

military duty on grounds of conscience; in that case they pay Jizyah (133)
 Mayer the problem: Muslim suspect human right criticism: imperialist campaign

to undermine sovereignty of Muslim countries in the past

European commercial connection with Ottomans. Europeans claimed that Shari`a

treatment of non-Muslims unacceptable, concessions, capitulations agreements to exempt

European citizens from the jurisdiction of ottoman courts (143) this exemption later came

to be associated by Muslims with European imperialism (144)

19 th century European powers sought to protect Christian minorities1839 and

1856 formal edicts formally granting equality to non-muslim ottoman citizens (14 4).

The question of Jewish homeland disregarding rights of local Muslims and

Palestinians, Muslims saw in it a Christian plot against Muslims

After independence the non-muslim population emigrated [giving the impression

that this was not their country] old non-muslim populations remained behind (144)

The problem of human rights thus has a particular political background; Muslims

find it self-righteous and hypocritical. The west's record of exploiting this issue to obtain

political advantage at the expense of local sovereignty is cited, and resentment over the

double standards that the west has continued to employis stirred up ( 145)

An examination of the present context of the issue of the status of non-Muslims

shows the implications of criticizing the rights accorded non Muslims in Islamic human

rights are different from the implications of criticisms of the treatment of non Muslims in

the colonial era. Muslim countries have adopted modern concept of citizenship in a
nation state. The Islamists are challenging this position of Muslim governments. Even the

question of who is Muslim undermining those minorities who call themselves Muslims.

Muslim minorities. Dissident groups. The question of the right of non-Muslims has a new

context the non Muslims other than traditional non-Muslims, Christian and Jews has

emerged

The question of the incompatibility of Shari `a rules with standards of

international human rights. Division of ahl al Kitab and mushrik, the division of dar al-

Islam and dar al-harb, the doctrine of jihad, early muslim community weak threat from

the enemy, conquest or war period.

Theory, non-Muslims other than ahl al kitab when conquered must accept Islam

or die. The theory and doctrine had to be readjusted (148)

Today the influence of secularism has waned and the influence of Islam as a

political ideology is mounting (149) Islamists, secularists (Islamization discriminatory

against non-Muslims), modernists (Islamic law properly understood does not allow

discrimination) Subhi Mahmassani: there can be no discrimination on the basis of

religion, original sources, early Islamic history. Compatibility of Islamic law and human

rights: Mahmassani, Tariq Bishri, Abdullahi al-Na'im (150).

CONCLUSION

The idea of religious minority faces difficulties operating in the framework of a

nation and nation-state. The religious minority groups do not necessarily share a compact
territorial space, same language or ethnicity. Consequently it is hard for them to function

as even a 'sub-nation'.

Appendix

RIGHTS OF NON-MUSLIMS

BASIC RIGHTS

• Right to the protection of life.

• Right to the protection of honour.

• Right to property.

• Right to privacy.

• Right of permanent settlement in a Muslim country.

• Right of equality before law.

• Right to freedom of conscience.

• Right to dissent.

RELIGIOUS RIGHTS

Freedom of Religion.

Rights of religious rites and protection of places of worship.

 Right to protection against religious discrimination.

ECONOMIC RIGHTS

Equal rights with Muslims in Bayt al-Mal and Zakat.

Right to trade or profession and to hold government services.

LEGAL RIGHTS

Right to Justice.

Equality before law.

Right to be governed by their own personal laws relating marriage, inheritance,

food etc.

POLITICAL RIGHTS

Right to vote.

Right to political representation.

Right to Freedom of expression.

Duties:

1. Jizya payable annually by every adult male.

2. Hosting a Muslim for three days when he comes in their territory.

 3. Payment of one tenth tax on the trade commodities in territories other than their

residence.

4. They will not build a church in a Muslim city or a conquered city. In other

areas they are allowed.

5 They will not deny access to their churches to Muslims.

6 They will not abuse any prophet.

DISCRIMINATORY LAWS

• They would not openly advertise their faith.

• They will not ride horses or ponies, only donkeys.

• They will walk on the sides of the road.

• They will wear some identity like Zunnar.

• They will not spy on Muslims.

• They will not hire a Muslim as servant.

Draft paper for the Seminar on the concept of Human Rights in Islam (9

December 1998), under the auspices of the Solidarity International Islamabad.

NOTES AND REFERENCES

1. Abdullah, Najih Ibrahim Bin, The Ordinances of the People of the Covenant and

the Minorities in an Islamic State, Balagh Magazine, Cairo, Egypt, Volume 944,

May 29, 1988; Volume 945, June 5, 1988.

2. Al Muslimun, Vol. 8; issue No, 418; Friday 2, 5, 1993.

3. Doi, `Abdur Rahman I.; Shari`a: The Islamic Law; Taha Publishers; London UK;

1984.

4. Mawdudi, S. Abul `Ala', The Rights of Non-Muslims in Islamic State, Islamic

Publications, LTD. Lahore, Pakistan. 1982

5. Muraghi, Abdullah Mustapha, Islamic Law Pertaining to Non-Muslims, Library

of Letters. Egypt. Undated

In Switzerland , in 1529 the Peace of Kappel recognized the right of the state to

decide for the entire territory to which faith its citizens belonged. Until 1712 religious

minorities, which meant Christian sects, were ignored. In 1798 freedom of worship was

granted to other sects. In 1874 constitutional guarantees were provided in this point.

In England , toleration Act 1698 exempted Protestants dissenting from the Church

of England from penalties. In 1829 and 1932 Catholic Emancipation Acts provided

toleration of Catholics in England . In 1846 the provisions of toleration Acts exempted

the Jews.
 On the International level, treaties were made to protect the religious minorities in

the form of capitulation. In 1536 between France and Ottomans, 1846 Catholics and

Protestants, 1878 Ottoman Empire was divided into states on the pretext of these treaties.

Erwin i. J. Rosenthal, Islam in the modern national state ( Cambridge , 1965), p.

107. Abd al-Wahhab abd al-Aziz al-Shishani [ huquq al - insan wa hurriyatihu al -

asasiyya fi al - nizam al - Islami wa ' l nuzum al - mu'asara ( np: al-jam`iyya al-Ilmiyya

al-malikiyya, 1980), p.673] cites Metz saying that it is astonishing to see a large number

of non Muslims holding posts in Islamic states . Ann Elizabeth Mayer [ Islam and human

rights . Tradition and politics (London: west view press,1991), p.148] remarks that

despite incidents of discrimination and mistreatment of non-Muslims, it is fair to say that

the muslim world, when judged by the standards of the day, generally showed far greater

tolerance and humanity in its treatment of religious minorities than did the Christian west.

The Oxford Compact English Dictionary (Oxford University Press, 1971), Vol. 1,

p. 1805, notes its usage in four meanings: (1) The condition or fact of being smaller,

inferior, or subordinate, (2) the state of being minor or under age, (3) the smaller number

or part of something, opposed to "majority", and (4) the number of votes cast for by the

party, opposed to the majority.

In a League of Nations document, the term 'minority' has been used in the

meaning of 'community' within the frame work of the concept of 'nation', namely

stressing on its following components: territory, identity (based on religion, race,

language and tradition, all of them in one community, or communities identified on one

of these basis), and a sense of solidarity. See Advisory Opinion of the Permanent Court
of Justice , 31 July 1930 , PCIJ, Series B, No. 17, pp. 19-22, vide Satish Chandra,

Minorities in National and International Laws (New Delhi: Deep and Deep, 1985), p. 12

f.

Shishani, op.cit. p.505,n.1.

Ibn Qayyim, Ahkam ahl al-Dhimmah , Ed Subhi al-Salih, Damascus University,

1380H, vol.1, pp3-111.

Qur'an, 5:32, 6:151, Wahba al-Zuhayli , Al-Fiqh al-Islami wa Adillatuhu , vol.6,

450, Shishani,663)

Qur'an, 33:60-61, 9:11 , Zuhayli, op.cit. Shishani,663

Qur'an, 62:10, 7:31 , 22:41,104:2-5, Shishani, 663 According to Zuhayli, OP.CIT.

their churches and property including wine and swine are also protected. They have full

right of ownership and inheritance in their properties, powers of transfer, sale , grant etc.

State cannot dispossess them. Mawdudi, however, notes that Muslims have right to

confiscate the place of worship in a conquered town (Mawdudi, op.cit.)

Qur'an, 24:27-28, 49:21, 33:53.

Zuhayli and Shishani (op.cit.) note the difference of opinion among the Muslim

jurists as follows. Abu Hanifah allows them entrance even to Haram in Mecca , but he

does not allow their settlement therein. The Malikis don't allow their settlement in Jazirat

al-Arab, i.e. Hijaz and Yemen . But they can enter Haram in Mecca . The Hanbalis allow
non-Muslims entrance to Hijaz for trade but they do not allow stay in it beyond three

days. Shafi'is do not allow entrance to Mecca or settlement in Mecca in any case.

Qur'an, 49:13,:

Qur'an, 2:256, 88:2 1, 22, 50:45, 10:108.

Qur'an, 5:2.

Qur'an, 2:256, 10:9 9, 18:29, 60:8, 102: 5. Zuhayli explains that no non-muslim

can be forced to accept Islam (Zuhayli, op.cit., 717)

Shishani, op. Cit., pp.308-309)

Qur'an, 6:108, 5:48 .

Shishani, op.cit. p.669. General view is that the dhimmis have no right in zakat.

Malikis and Zaydis, however, allow them to receive from zakat fund( ibid., p.670)

General view of the Muslim jurists is that the posts related with faith (aqidah) are

not to be given to the dhimmis. They also mention the exception of key posts, like head

of state and military head (Shishani, op.cit, 319). Similarly the jurists do not allow a

dhimmi to be qadi for Muslims. Abu Hanifah was in favour of a dhimmi qadi for the

dhimmis (shishani, 666). On the question of key posts, Shishani explains that other posts,

e.g. Accountant general, engineer, post, ministries with the exception of those dealing

with justice and armies, even at the highest level may be given to them (671). Mawardi

elaborates the principle in the following manner. Wizarat al-tafwid cannot be allowed to a
dhimmi, Wizarat al-tanfidh may be given, because in that the scope of authority is

defined by the imam and his policies (vide ibid. p .673).

Abd al-Hamid al-muta'alliq [ mabadi nizam al - hukm fi ' l Islam , Cairo dar al-

ma`arif, p. 736] justifies this obvious lack of complete equality between Muslims and the

dhimmis as natural' in an Islamic state. (vide ibid., p. 673)

Beware, whoever zalama (injustice ) to a mu`ahid or reduced his right or obliged

him to do more than he was capable or took away anything from him without his will i

will dispute with him on the day of judgment . (Abu Daud, and Bayhaqi vide Zuhayli,

op.cit, p. 720).

Zuhayli speaks about justice among minorities, political and religious. They have

equal rights with Muslims. .no violation is allowed against their person, property, temples

and honour (Zuhayli, p. 719).

According to Muslim jurists the non-Muslims have a right to have their own

courts. In case of dispute between dhimmis, Maliki and Imamiyya schools allow a

Muslim qadi to hear the case only if both parties agree. Abu Hanifah insisted that a

Muslim judge cannot hear the case without the agreement of parties. Abu Yusuf and

Muhammad allowed it if only one of the parties chose to go to a Muslim qadi. Shafi'is

and ibn Hazm differed with these jurists and ruled that there should be only Muslim

qadis. Shishani prefers the view that non-Muslims must have freedom in their personal

affairs and these disputes must be settled by their own qadis (op. Cit., p.667).
 The Qur'an stresses on human dignity (17:70). Bukhari and Muslim both report

the prophet saying, Your blood, property and honor are inviolable (vide Zuhayli. 720).

Zuhayli observes that if a Muslim kills a dhimmi, even if unintentionally, he must pay the

similar diyat as payable for a Muslim.

Mawdudi notes that Islamic criminal laws apply to Muslims and non-muslim

alike. According to Malikis non-Muslims exempted in case such as drinking and adultery

on the basis of religious freedom (Mawdudi 1960, 3 05).

Shishani, op.cit. 665.

Mawdudi, p. 676.

Mawdudi, p. 317. According to Shishani, the general view is that shura limited to

Muslims (shishani, 675) non Muslims may be hired as consultants in technical, industrial,

and agricultural. They cannot be members of ahl al-hall wa'l aqd. Some modern scholars

like Mawdudi allow them membership in certain assemblies of secondary importance in

municipal and local bodies. Mawdudi further suggests a possible separate representative

assembly of the non-Muslims (Shishani, op.cit. 667).

Qur'an, 4:136.

According to hadith, if you fight against a people and overpower them and they

agree to pay a fixed indemnity or annual revenue (kharaj) to you in order to save their

lives and those of their progenies, then do not take more than the fixed amount, because

that will not be valid (Abu Daud, Sunan , book of jihad, vide Mawdudi 1960, 300).
Jizyah is fixed according to the financial position of a non-muslim. No fixed amount has

been prescribed in Islam. It should not involve undue hardship.

It was levied only on those who have actually fought against Muslims, or could

participate in a war, non combatants were not subject to Jizyah (women, children, slaves,

physically disabled, clergy) (Mawdudi, op.cit.)

According to Shishani, jizya was levied on the combatant ahl al-Kitab and

mushrikin, with the exception of Arab mushrikin (p.677). It was not in lieu of saving their

live or for not accepting Islam, it was a token of their obedience and the pledge not to

fight against Muslims ( shishani,678)

Mawdudi explains that annual levy cannot be changed; lands and properties

cannot be confiscated.

Zuhayli, op.cit.

These laws are mentioned in Zuhayli, op.cit. P. 717.