Citation: Anver Emon, Religious Minorities and Islamic Law: Accommodation and the Limits of Tolerance, in Islamic Law and International Human Rights Law: Searching for Common Ground? 323–43 (Anver Emon, Mark Ellis, and Benjamin Glahn eds., 2012).
*Note: All page numbers used as citations refer to the above chapter.
Summary
In medieval Islamic societies, dhimmīs were non-Muslim residents of Muslim polities, who were subjected to a special set of rules for minorities. Conceiving religion as citizen, as was typical of medieval Christian and Islamic societies alike, Islamic law treated dhimmīs differently than Muslims, the latter of whom were granted full citizenship rights. For example, Islamic law required Muslims to pay one Qurʾānically mandated poll tax (zakāt), and required non-Muslims to pay a separate poll tax established by administrative order (jizya).
There is significant debate as the fairness of the differential treatment of Muslims and non-Muslims in Islamic law. Contemporary scholars who have attempted to assess Islam’s degree of tolerance for non-Muslims disagree over whether the rules regulating non-Muslims in medieval Muslim societies constituted systemic persecution or benign legal rules that allowed diverse peoples to live together in contexts where religion was the basis of citizenship.
However, by approaching the debate with these agendas, many scholars miss the complexity of the rules regulating non-Muslims. When closely examined, this area of Islamic law—especially the property rules—provide better insight into medieval forms of Islamic governance. More generally, by examining property law pertaining to non-Muslim minorities, interested readers can gain a better understanding of the compromises and creativity of Muslim jurists in governing minority groups. Rather than instruments of either persecution or peace, the rules regulating non-Muslims were an attempt of Muslim empires to meet one of the most common challenges of governments throughout history: ruling different groups fairly without sacrificing legal coherence.
Is Islamic Law Clear on the Application of its Laws to Minority Communities?
Muslim societies have always included religious minorities. Therefore, medieval Islamic laws had to include jurisprudence for dealing with non-Muslims. The rules regulating Muslim minorities rules were the output of that jurisprudence. These rules were complex, and jurists often disagreed on legal issues regarding minorities. The successes and failures of Islamic law in this area remain relevant today, as the governments of Muslim-majority and non-Muslim-majority societies alike attempt to govern increasingly diverse societies in a rapidly globalizing world, and as the governments of Muslim-majority societies often draw on their founding precedents, which included versions of Islamic law.
In this respect, one of the most-studied aspects of the treatment of minorities in Islamic law is the pre-modern set of rules regarding dhimmīs, or non-Muslims. This area of Islamic law is of special interest to historians trying to understand the extent of religious tolerance (or lack thereof) in Islam. Because non-Muslims were explicitly treated differently than Muslims, some scholars have argued that Islam is intolerant toward minorities. Other scholars have claimed that the rules regulating non-Muslims are not indicative of the overall treatment of minorities in Islam, and that the religion is inherently tolerant. The debate is complicated because both sides have strong historical evidence to support their views. For that reason, perhaps the solution is not to view the debate through the lens of “tolerance,” but rather to see the rules regulating non-Muslims as products of a legal system trying to address the common issue of religious and legal pluralism. Both the myth of Islam as oppressive and the myth of the Muslim state as a harmonious and tolerant utopia miss the nuances of the treatment of non-Muslims minorities in Islamic law and the lessons that can be learned from it.
Non-Muslims Living in Medieval Muslim Lands (Dhimmīs) and Contracts
The relationship between non-Muslims and the state in medieval Islamic societies was governed by a contract of protection (ʿaqd al-dhimma), hence the name dhimmī (protected one). This type of contract, sometimes explicit and sometimes implied, is an important politico-legal paradigm through which scholars today may study the practice of religious accommodation in medieval Islamic law.
However, the terms of the contract were sometimes unclear, even when the contract was explicit. Rather than an exhaustive agreement, it was simply a legal device for jurists attempting to clarify the mutual obligations of non-Muslims living in Muslim societies. For example, one issue requiring clarification in many societies was whether consumer goods forbidden for Muslims, like wine and pork, could be protected property for non-Muslims. Historically, Islamic law did allow non-Muslims to consume these products within certain limits meant to safeguard the public good (i.e., subject to a ban on “open carry” or public drunkenness). But those permissions raise another set of questions: when someone stole pork or wine, could the thief be subjected to the Islamic law punishment for theft? Jurists struggled with this issue, recognizing the need to allow non-Muslims their liberty but wanting to remain faithful to Islamic law and its expression of moral values through criminal law. Most jurists ultimately concluded that the theft of such goods was not subject to criminal law penalties. However, some jurists allowed victims to collect monetary damages, thereby striking a creative compromise between the dictates of Islamic criminal law and the property rights of non-Muslims.
Securing the Public Good
The idea of the public good, which justified restrictions on the public consumption of alcohol by non-Muslims, at times created other legal issues. One such issue was whether non-Muslims could establish endowments to benefit their own religious causes. Under Islamic law, a property owner could create an endowment, or waqf, which would allow him or her to maintain legal title to a property while designating its revenues for the use of another person or a charitable entity, often a religious institution.
The concepts of private benefit and public good involved in waqf-creation led to some idiosyncratic views among early jurists when determining the types of permissible endowment beneficiaries. While Muslim jurists respected the right of dhimmīs, non-Muslims living in medieval Muslim societies, to create waqfs to benefit individuals, these same jurists struggled with the question whether to allow non-Muslims to promote their religion publicly. In the jurists’ estimation, if the aim of their medieval Muslim polity was to establish Islam as a state religion while accommodating non-Muslim minorities, using waqfs to further other religions was arguably contrary to the public good. At the same time, using waqfs established by non-Muslims to benefit Islamic causes, such as mosque-building or supporting Muslims’ trips to the ḥajj pilgrimage, might also be impermissible. Doing so would be contrary to the non-Muslim dhimmī’s faith, which the Islamic polity had a responsibility to also protect.
In the end, Muslim jurists came to no general consensus on which categories of beneficiaries were permissible for endowments established by non-Muslims for religious purposes. Some jurists banned such endowments, while others allowed dhimmis to create them through a bequest with a limited portion of their estates. Yet, in sum, the debate over this and other issues shows the effort Muslim jurists made to protect minority property rights while safeguarding the values of the dominant society.
* * *
Although these questions involving non-Muslims and the law of property and endowments arose in the context of pre-modern Islamic societies, their lessons remain relevant today. After all, pluralism has been a challenge for governments all over the world throughout history.
For instance, the current wrongful death rules regulating non-Muslims in Saudi Arabia track the medieval rules regulating non-Muslims closely. Moreover, Saudi Arabia is a Muslim-majority society in a pluralistic world, that often seeks to understand the past for a starting point in its attempt to accommodate religious minorities in the present while maintaining its own unique identity and accommodating changes in the new world order.
It would be hypocritical to label the Islamic rules regulating non-Muslims as archaic and uniquely intolerant features of an Islamic legal regime. Even modern Western democracies struggle to govern pluralistically. Examples like discrimination against veiled Muslim women or the now-overturned U.S. Supreme Court decision Minersville School District v. Gobitis (1940)—which allowed discrimination against Jehovah’s Witness schoolchildren for their religious beliefs—are reminders that scholars today should approach the Islamic law regulating non-Muslims (the dhimmī rules) with humility. When studied in a nuanced way, they are a valuable insight into the challenges of governing a diverse nation.