The Interaction Between Islamic Law and Non Muslims

7/28/2019 The Interaction Between Islamic Law and Non Muslims

http://slidepdf.com/reader/full/the-interaction-between-islamic-law-and-non-muslims 1/10

Theme Issue: The Interaction between Islamic Law and Non-Muslims: Lakum Dīnukum wa-lī

DīniAuthor(s): Ze'ev MaghenReviewed work(s):Source: Islamic Law and Society, Vol. 10, No. 3, The Interaction Between Islamic Law and Non-Muslims: Lakum Dīnukum wa-lī Dīni (2003), pp. 267-275Published by: BRILLStable URL: http://www.jstor.org/stable/3399421 .

Accessed: 06/12/2011 04:46

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

BRILL is collaborating with JSTOR to digitize, preserve and extend access to Islamic Law and Society.

http://www.jstor.org

http://www.jstor.org/action/showPublisher?publisherCode=bap

http://www.jstor.org/stable/3399421?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp

http://www.jstor.org/page/info/about/policies/terms.jsp

http://www.jstor.org/stable/3399421?origin=JSTOR-pdf

http://www.jstor.org/action/showPublisher?publisherCode=bap



THEMEISSUE:

THEINTERACTIONBETWEENISLAMICLAW AND

NON-MUSLIMS:LAKUMDINUKUMWA-LIDINI

GUESTEDITOR:ZE'EVMAGHEN

NEAR THE END OF HIS SECTION on Last Rites in the Kitdb al-

Umm,al-Shafi'i furnishes a prime example of naskh in the contextof sunna. He stipulates that "one is not to rise at the passing of a

bier,as therisingfor such has been abrogated," uttressing hisrulingwith a pairof propheticexempla that describe how Allah's Apostle"used to standin honor of funeral processions, but later on he sat"

or "stood andenjoined standing,then sat andenjoinedsitting."' Al-

Shafi'i indicates neither the reason for the original practicenor the

occasion for the subsequent change of heart, but two canonical

traditionsmay

illuminate the relevant circumstances.

The first tradition s fromJabir,who reported:"A funeralcortege

passed by and the Messenger of God stood up for it. We stood upwithhim,butwe protested, O Messengerof God! She (thedeceased)is a Jewess!' He replied: 'Death is a terriblething; so if you see a

funeralcortege, standup' (inna al-mawtafaza'un fa-idha ra'aytum

al-jandzafa-qimu).2 The second is narratedby 'Ibada b. al-Samit,who recountsthatwhen theProphetwouldfollow a burialprocession,he would remainstandinguntil the body was interred.Once a rabbi

approachedhim andcommented:"We do likewise, O Muhammad!"As soon as he heard this, the Messenger of God took his seat, ex-

claiming:"Oppose hem!" fa-jalasarasulAllahwa-qalakhalifihum).3Islam's relationshipwith the People of the Book has had its ups

and downs. Thegrowing familiarityof the inhabitantsof the Arabian

Peninsula with the ideas, institutions and communities of the sur-

rounding monotheisms, followed by the initial and increasinglyintensive encounters of the nascent Muslim ummawith the same,

1 Muhammad b. Idris al-Shafi'i, Kitdb al-Umm (Beirut: Dar al-Fikr, n.d.), 1,318.

2Bukhari,Kitdbal-jand'iz,bdb manqama li-jandzatyahudi,23:198 (no. 1229).

3 Tirmidhi,Kitdbal-jana'iz, maj'afi'l-julus qabla an tudi'a (no. 941).

? KoninklijkeBrillNV, Leiden,2003Also availableonline- www.brill.nl

Islamic Law and Society 10, 3



ZE EV MAGHEN

bred the complex mixtureof attitudesto Judaism,Christianityand

Zoroastrianismdiscernablethroughout he classical literatureof thefaith. The seminal texts and genres-Qur'an, Hadith,Tafsir, Sharh

and Fiqh-evince a multifacetedand pendulatingposturevis-a-vis

thereligio-cultural"other" hatpartakesmoreof dialectic thandogma."Whoso chooses a religionotherthanIslam,"the Qur'anwarns,"this

will notbe acceptedfromhim, andin the Hereafterhe will be amongthe losers" (3: 85). Yet the same sacredtext reassures"[t]hosewho

believe, and those who are Jews, and Christians,and Sabaeans-

whoever believes in God and the Last Day and does right-[that]

theirreward is with their Lord, and there shall no fear come uponthem, neither shall they grieve" (2: 62).

Effortsby traditionistsandexegetes to harmonizethese and other

conflicting perspectiveson non-Muslims often resulted in synthesesthatblur ines anddefinitionseven further.Thisis thecase,forinstance,in the matter of assessing the spiritual-moralstatus of scriptuariesand determiningwhether they are ultimately headed for "gardenswateredby runningstreams"or for a "haplessjourney's end.""AnyJew orChristianwho hears me out,"theProphet s made to admonish,

"yetneverthelessgoes to his gravewithoutbelieving in my message(yamut wa-lam yu'min bi'lladhi ursiltu bihi), will join the inmates

of the Fire."4 But does "believingin my message"necessarilyentail

formal conversion to Islam?

God congratulates he Muslimson being "thebest communitythat

has been raised up for mankind (khayra ummatin ukhrijat li'l-nasi).You enjoin good and forbid evil andbelieve in Allah. If the Peopleof the Book had believed, it would have been betterfor them...." (3:

110). Yet, onlya few lines later we learn that substantial

segmentsof that same People of the Book not only "believe," but also are

endowed with all of the same praiseworthycharacteristics hat sup-

posedly singled out the Muslims as the "best community":

They(theahl al-kitcb)are not all alike. Of thePeopleof Scripturethere is a staunchcommunityummatun a'imatun)who recite therevelations f Allah n thenightseason, allingprostrate eforeHim.Theybelieve nAllahand heLastDay,andenjoin hegoodand orbidtheevil,andvie withoneanotherngoodworks.Theyareoftherighteous(3: 113-4).

4 Mawlanaadlal-Karim,Mishkdtl-MasablhLahore:MalikSiraj l-Din,n.d.),vol.1,11:16.

268



INTERACTIONBETWEEN ISLAMIC LAW AND NON-MUSLIMS 269

Here we have "believers" who are not, strictly speaking, Muslims

(nor are they generic hunafd'),but who nevertheless have a greatdeal to look forward to ("Whatevergood they do, they will not be

denied the just reward thereof' - 3: 115).5

Commentingon thepreviouslyadduced2: 62, al-Tabari nsists that

formal adoptionof Islam is not requiredin orderto merit paradiseand avoid hell. The verse clearly distinguishes between Muslim

believers (alladhinaamanu)andJews, ChristiansandSabeans(alla-dhinahaduwa' -nasarawa' -sabi'lna), yet all withoutexceptionare

guaranteedheavenly recompense if only they "believe in God and

the Last Day and do right."It follows that (in al-Tabari'swords)"themeaning of 'believing' [in this context] is not, as you (a hypo-thetical questioner) might have thought,the act of exchanging one

religion for another,as when a Jew or Christianadopts [the Islamic]faith"(intiqdlmin din ild din ka-intiqalal-yahudiwa' l-nasrdni ild'1-

iman). In fact, the very opposite of conversion is intended by our

verse: "Rather,the meaning of the 'belief' of the 'believer' in this

passage is specifically his steadfastperseveranceas a devotee of his

ownfaith,andhis unwillingness o exchange t for another"thabatuhu

'aldimdnihiwa-tarkuhuabdilihi).6"God,greatlymayHe be praised,"concludesal-Tabari,"does not favor-in terms of the reward orgoodworks and faith-one group of His creatures over another."7

5Many Qur'anicpassages displaythisdiscriminatingattitude oward the various

religious communities thatcompose the ahl al-kitcb, althoughthese passages arenot unequivocal. See, e.g., 98: 6-8: "Those who disbelieve among/including the

People of Scriptureand the idolaters will abide in the fire of hell. They are theworst of createdbeings. And those who believe and do good works are the best ofcreatedbeings. Theirrewardis with their Lord..."Depending on how we translate

the preposition"min" n "alladhinakafaruminahl al-kitdbi",these verses may bedistinguishing between good and bad tendencies among the ahl al-kitab or,

alternately,lumping them all togetheras "the worst of createdbeings." Al-Tabari,for one, appearsto read them in the former fashion (see his commentary to sura

98).6 The Qur'an occasionally exhorts adherents of the monotheist religions to

adhere more closely to the precepts of their own systems-and excoriates themfor neglecting the same-as, for instance, in 2: 65, where the Banu Isra'il arecensured for violating the Sabbath. This applies, however, only to those

prescriptions sent down by God himself, and not to the many unnecessary and

sinfully innovative additions tacked on by the Jews to the genuine revelations

they had received from On High. In this case, al-Tabari understandsthe passagehe is parsing to urge not just Muslims, but all of those who "believe in God andthe Last Day"-including "Jews, Christians and Sabeans"-to cling loyally to

(the unadulterated,pristine forms of) their belief systems.7Muh.ammad . Jariral-Tabari,Jdmi'al-Bayan 'an Ta'wl Ayal-Qur'an(Beirut:



ZE'EV MAGHEN

If all of this sounds too ecumenical to be true, that is because we

have yet to scrutinize al-Tabari's motivations for encouraging script-uaries to "persevere steadfastly in their own faiths." A probing analysisis not possible here, but we can point in the general direction of his

thought on the subject. Entrenchment in a position is a function of

sinking roots below the surface. When an adherent of one of the Semitic

monotheisms plunges deeply enough into the heart of his own religion,he encounters there the primal force underlying and informing all

legitimate spiritual systems, indeed, all workings of the cosmos as

a whole: fitra-otherwise known as Islam. This fundamental law of

natureand propriety (comparable to what Judeo-classical sources meanby the term 'derekh eretz') contains within it articles like belief in

one God, obedience to and trust of Him, faith in resurrection and

retribution, the pursuit of righteousness, and the establishment of

justice.8 These are the values that form the bedrock of every valid

creed and way of life, values that are increasingly distorted (saysIslamic doctrine) at the more superficial levels of Judaism and Chris-

tianity.

Something else, however, lies buried beneath the foundations of

these two religious traditions. Latent in the belief systems of the ahlal-kitdb and integral to their divinely encoded teleologies are what

we might call sleeper clauses, dormant seeds of essential ideas that

are programmed to germinate, bud and blossom when the time is

right. The sleeper clauses are activated at those points in history when

Allah decides to send a new messenger, as al-Tabari writes:

The [genuine] faith of the Jews prescribedcleaving to the Torahandto the sunnaof Moses untilsuch time as Jesus wouldcome. OnceJesus

came, whoever continued to cleave to the Torah and hold fast to the

sunna of Moses, and did not reject these and follow Jesus, was lost(kdnahdlikan).The [genuine]faithof theChristiansconsistedof cleav-

ing to the Evangel and to the laws of Jesus (shara'i' 'Isa) until suchtime as Muhammad would come. Once Muhammadcame, whoever

amongthem didnot follow Muhammadandrejecthis earlierallegianceto the sunna of Jesus and the Evangel was lost.9

Daral-Fikr,1988), 1, 457 and461. Al-Tabari's lucidationof the meaningof"mu'min"n this verse is connected o a questionof usage:a-m-n n theQur'ansignifiesnot ustthe nvoluntarytateofbeingconvinced f atruth, ut hewillfulact of changingone's mindaboutwhat is true,and with it one's religious(and

perhaps venpolitical)affiliation.n2:62,he is arguing,his atter onnotationsnotpresent,itherwithrespecto theMuslims rwithrespecto theJews,Christiansand Sabeansmentioned here.

8 Ibid.,4, 73 and75. See alsoTabari,30, 333-5.9Ibid.,1,461. TheProphet eclared o Salmanal-Farisi: Whosodies aChris-

270




Thispassageis puzzling.How cantrulybelievingJewsandChristians

-whom we have seen the Qur'anassure that "their reward is withtheir Lord" and that "no fear shall come upon them, neither shall

they grieve"-at the sametime be "lost"?Howcan al-Tabari ncouragethese scriptuariesto remain loyal to their respective faiths, while

simultaneously emandinghat hey"update"heirbeliefsandpracticeswith the arrival of each successive risala?

The answermay perhapsbe sought along the following lines. Al-

Tabaris notsaying-could not be saying-that Jews shouldeventually

reject the Tawrdt and the sunna of Moses, and Christiansthe Injil

and the sunna of Jesus, due to the erroneous natureof these God-given sources of right religion. Indeed, it is only the erroneous-

that is, the corruptedand perverted-versions of these sources that

stubbornly esist their own dissolution.Rather,al-Tabari'sstatement

is a variation on the well-known Islamic (and Christological)claim

thatwoven into the fabricof the previousdivine dispensationsis the

necessity of their own demise and supercession(or metamorphosis).The final fulfillmentof the PentateuchandNew Testamentis, at the

proper point in history, nothing less than their self-renunciation as

abrogatedsystems. With the adventof Islam in the seventh century,in order for Jews and Christiansto "persevere steadfastly in their

own faiths" (and therebyensure their place in paradise) they must

minimally be willing to "believe in God and His Apostle, trust in

Muhammad ... follow the Guidance, and the Book of God and its

prescriptions,and [observe] the laws of His religion."'0Thisno longersoundsso ecumenical.Accordingto his own concep-

tion, by the time al-Tabaripenned these words the only way to be

agood

andproper

Jew or Christian was tobecome,

for all intentsand purposes,a Muslim. By means of this interpretation,however,thegreatcommentatorhasreconciled(atleast to his own satisfaction)the two contradictorysentiments reflected in the verses with whichwe beganthis discussion."MFor while it is true that"[w]hosochooses

tian ('aid dini 'Isa) or a Muslim (? 'ald'l-Islam) before hearingmy message (qablaan yasma'a bi), his situation will be felicitous (huwa 'ald khayrin). But whosohears me todayandneverthelessdoes notbelieve, such a one is lost (fa-qadhalaka)"

(Tabari, 1, 461, no. 928).10 bid., 4, 75 and 73.1 That these verses were considered contradictorywe know, inter alia, from

the fact that Ibn 'Abbas-the father of ta'wl or Qur'an interpretation-opinedthat the more exclusivist passage (3: 85) had abrogatedthe more inclusivist one



ZE'EV MAGHEN

areligionother hanIslam... will be in the Hereafter mongthelosers,"

yet "those who areJews and Christiansand Sabaeans"-if they areso in the purest and most profoundsense of these epithets-havenot really "chosen a religion otherthan Islam" at all. Therefore,in

the Hereafter,"theirreward will be with their Lord...."

So swings the pendulumbetween exclusivity and catholicityuntil

its arc approacheszero and the bob hovers imperceptiblyabout a

centralsynthesis: "The Jews say the Christiansfollow nothingthat

is true, and the Christianssay the Jews follow nothingthat is true"

(2: 113) ... "We believe in Allah and that which is revealed unto us

and thatwhich was revealed unto Abrahamand Ishmael and Isaacand Jacob andthe tribes,and that which was vouchsafed unto Moses

and Jesus andthe Prophetsfrom their Lord.We makeno distinction

betweenanyof these,and untoHimhave we surrendered"ldnufarriqu

bayna ahadin minhumwa-nahnu lahu muslimun- 3: 84). In the

formativestagesof thefaith,itwas alreadyquitedifficultto saywhere

the othervalidreligionsended andwhere Islambegan.The mist around

this issue has never fully cleared:Islam is the blurringof lines.

The eclectic attitude o infidels (if suchtheymay fairlybe called)12

in early Islamic literature has led to variety and uncertainty-andtherefore to flexibility-in the evolution andapplicationof the law.

This amorphousness begins at the most elementarylevel with the

taxonomy of non-Muslims,a field characterizedby much fuzziness

and inter-scholastic dispute (as Yohanan Friedmann has shown).13Are Jews and Christiansmushrikun?Are Zoroastriansscriptuaries?Do Arab polytheists have a special status? Should tribal or ethnic

affiliations be given any weight? Who are the Sabeans? The same

inherentambiguitygoes

on to influence thegrowth

andtrajectory

of

legislation regardingthe treatmentof the ahl al-dhimma and other

(2: 62) (Tabari, 1, 461, no. 929). Al-Tabari appearsto have preferredthe methodof reconciliation (jam') as a means of dealing with this contradiction.

12 One occasionally encountersdescriptions of "believing unbelievers"-suchas in al-Qurtubi's citation of al-Mawardi to the effect that Sura 109 "'ana bi'l-

kdfirin qawman mu'ayyinin ld jami' al-kdfirin li-anna minhum man dmana wa-'abadaAllaha"-but it is possible that the intent here is actual(future?)conversion,

especially since the reference is purportedlyto polytheists (Abu 'Abd Allah b.

Muhammad b. Abi Bakr al-Qurtubi,Al-Jdmi' li-Ahkamal-Qur'dn (Beirut: DarIhya' al-Turathal-'Arabi, n.d.), 20, 229). It should be remembered that the ahl al-kitab are regularly designated kuffdr.

13 Yohanan Friedmann,"Classification of Unbelievers in Sunni Muslim Lawand Tradition,"Jerusalem Studies in Arabic and Islam, 22 (1998), 163-95.

272



INTERACTIONBETWEENISLAMICLAW AND NON-MUSLIMS 273

types of kuffcr.When state apparatusesattemptto carry out such

legislation in theirterritories, he inconstancyandconfusionis com-pounded. After all, even in those areas where Islamic legal theorywas and is relatively unequivocal on paper, its historic translation

into practicehas generallybeen markedby desultoriness.Where the

theory itself is unstable and equivocal, it is an argumenta fortiorithat its implementationwill be uneven.

The essays in this issue of Islamic Law and Society include three

case studies of thedevelopmentand/orapplicationof laws concerningnon-Muslimsto particularminorities.Each in its own way illustrates

theconsiderable"room o maneuver"reatedby the internalvacillationof the sharl'a aroundthis question, as well as the mannerin which

Muslimregimes have takenadvantageof these broadparameters n

orderto further heirown liberal or not-so-liberalagendas.Tensions

between toleranceand discrimination,theory and practice,mosqueand state, all play a majorrole in these surveys.

JohannaPinkintroducesa new wrinkleinto an alreadycomplicated

subjectby considering hepredicament f thesmallBaha'ipopulationin Egypt.Baha'ls,sheexplains,constitute"anunprecedented roblemfor Islamic law" because they emerged as a distinct religious com-

munityafterthe adventof Islam-the finalrevelation o humankind-

and splinteredoff from it. As such, they can neither be classified as

adherents of a previous (and thereforeat least partiallylegitimate)

dispensation,norcan theypleadthe ignoranceof thejahillya. Indeed,the fact of their collective secession from Islam affordedEgyptian

jurists-otherwise ill-equippedto addressthis novel circumstance-

with a sort of catch-all criterionupon which to base variousrulingsin the matterof Baha'is:

apostasy.Throughan examination

offatwasconcerningcases broughtby, or against,Baha'isduringthefirst two-

thirds of the twentiethcentury,Pink demonstrateshow a moderated

version of the Islamic law of ridda was often used bothas a crutch-

by legists who were wary of engaging in ijtihad-and as a stick-

by authoritieswho were concernedaboutthepublicmalaise thatmightbe engenderedby an official acknowledgement f Baha'irights.Alongtheway, Pinktouchesuponimportantquestionssuchas theinteraction

of overarching egal principleswith specific injunctions,hepreference

of manymodern uriststo avoid dealingwith problematic ssues, andthe effect of Islamism in Egypt on the country's legal system.

Eli Alshech employs anecdotal information and even terse and

offhand statementsculled fromthe Geniza material n orderto paint



ZE EV MAGHEN

a vivid and in many cases moving pictureof dhimmipovertyunder

theAyyubids,and of theexacerbationof thisplightby therequirementto pay the jizya. He shows that while jurists from three-and-a-half

of the four schools of Sunni law optedto exemptthepoorerelements

of protectedcommunities from the poll-tax, one of the two "well-

known narrations" rom al-Shafi'i on this issue subjects even the

destituteo thisQur'an-basednnualexaction.Pointing o aninterestingshift in favor of the latter opinion evident in the writings of juristswho lived near theend of, or immediatelyafter,the Ayyubidperiod,Alshech speculatesthat the Ayyubid authoritieseitherexploited the

opportunity rovidedby themorestringentpositionorelse manipulatedShafi'i 'ulamd' in Egypt andSyriainto throwingtheirweight behind

it-all for the purposeof filling their coffers.

DanielTsadikexamines a plethoraof Arabic and Persian egal texts

beginningwith reportsfromthe Imamsandconcentratingespeciallyon works by mujtahidsliving under the IranianQajar dynasty, in

search of the Shi'i legal outlook on non-Muslims andnon-Shi'is. He

traces both the consensus and the disputes regardingthe status of

religiousminorities,as thisstatuspertains o subjects ike thedispersalof alms, the proceedsfrom endowments,burialrights,ritualpurity,

jizya, inheritance,marriageandmore.Although he Shi'aaregenerally

portrayedas more"xenophobic" han the ahl al-sunna,Tsadik exca-

vatesmaterialwhichoffers a more nuancedpictureof theShi'i attitude

to Sunnis anddhimmis.This is one of the reasonswhy, as he pointsout, the improvement n the legal statusof minorities as a result of

the early twentiethcenturyConstitutionalRevolution was relativelyminor: the situationwas not really so extreme to begin with.

If these threearticlesnvestigate

variationson thethemeof Muslim

respect for non-Muslims, as exemplified in the above-mentioned

account of the Prophet'srising in honor of the funeralof a Jewess,

my own essay looks at issues connectedwith Muhammad'sprimaryreason for repudiatingthat policy: the struggle for religio-cultural

independence.Here, too, dualityreigns.Qur'anic evelationacknowl-

edges-indeed, insists and even boasts-that it is musaddiqun i-ma

bayna yadayhi, "a confirmationof that which came before it"14n

the divine communications to the Christiansand the Jews. At the

sametime, theProphetpromisedhis followers concerningprescribedablutionsfor prayer(wudu'):"You have been given a characteristic

14 2: 97, 3: 3 and elsewhere.

274




[ceremony]possessedby no others" lakum imd aysat li-ghayrikum).15

Islamic sources, then, proudlyanchorthe religion that Muhammadbrought deep within the heritage of the precedingAbrahamic con-

fessions, yet just as proudly declare the uniqueness of many keyMuslim institutions. This latter claim has been largely dismissed by

importantWesternscholars,especially in connectionwith certainof

the 'ibadat. Chief among those who have overtly ascribedmost of

Islamic ritual (including the practiceof wudu') to foreign sources is

Joseph Schacht. I have challenged him on this point.As Muslim organizationsand populationsaround the globe stub-

bornlyrefuse to ratifyOlivierRoy's decade-oldobituaryof politicalIslam,and continue to search forways in which to realize theelusive

dream of sharl'a rule, the question of the impact of Islamic law on

non-Muslims emainshighly significant.As respect or humandiversityandappreciation or the distinctivecontributionsof various cultural

traditionsmakes steadyheadway, the questionof the impactof non-

Muslims on Islamic law becomes significantas well. At a time when

worlds collide and civilizations clash, both of these topics assume

special urgency.

15Abu 'Abd Allah Muhammad b. Abi Bakr al-Qurtubi,Jdmi' al-Ahkdm al-

Fiqhiyya (Beirut:Dar al-Kutub

al-'Ilmiyya), 1, 66. The context-an imaginedprotest against the authenticityof a hadithin which the Apostle declares: "This is

my wudu' and that of the prophetsbefore me and of my father Ibrahim"-showsthatthe statementrefers notjust to thepresentlyexclusive but also to thehistoricallyunprecedentednature of this rite.

Documents

The Interaction Between Islamic Law and Non Muslims