another what the heck

8/13/2019 another what the heck

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Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities

from the Second/Eighth to the Eleventh/Seventeenth Centuries

Khaled Abou El Fadl

Islamic Law and Society, Vol. 1, No. 2. (1994), pp. 141-187.

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ISLAMIC LAW AND MUSLIM M INORITIES:THE JURISTIC DISCOURSE ON MUSLIMMINORITIES FROM THE SECONDIEIGHTH TO TH EELEVENTH/SEVENTEENTH CENTURIESKHALED ABOU EL FADL*

(Princeton, New Jersey)

AbstractThis essay examines the juristic discourse on Muslim minorities from thesecond/eigh th century to the eleventhJseventeenth century with regard to 1 whetheror not Muslims may reside in non-Muslim temtory and under what circumstances;(2) the relationship of these Muslims to dar al-Islam; and (3) the ethical and legalduties that these Muslims owe to the Shari a and to their host non-Muslim polity.

The juristic discussions on legality of residence in non-Muslim territory in thefirst Islamic centuries were cryptic and ambiguous. Systematic juristic positionsdeveloped only after the sixth/twelfth century as a response to historical chal-lenges. The various position s adopted by the jurists were a function of historicalspecificity and reflected a dynamic process of lega l development.In theory, the position of Muslim minorities residing in non-Muslim territory isproblematic because of the traditional dichotomy between r al-Islam and dar al-harb. In practice, the persistent existence of Muslim minorities residing outsideddr al-Islam challenged this dichotomous view. The linguistic dichotomy betweendar al-Islam and dar alrb obscures a much more complex historical reality.The juristic discourse on the issue was not dogmatic and does not lend itself toessentialist positions.

T H E STATUS OF Muslim minorities residing in non-Muslim territoryhas been the subject of juristic debate at least since the second/eighthcentury. The position of these Muslims has been problematic for avariety of historical and doctrinal reasons. It has often been arguedthat a just life is possible only if lived under the guidance of theShari a which, in turn, is possible only if there is an Islamic politydedicated to the application of the Shari a. That is to say, a just life is

I would like to thank Professors Michael Cook and Abraham L. Udovitch,and Ms. Asma Sayeed and Wanjiku Barrington, Esq. for their insight andassistance. My deep a ppreciation to Professor Hossein M odarressi, who not onlyprovided me with many helpful comm ents but also graciously granted me a ccessto his files on the subject. My special thanks to the Executive Editors of IslamicLaw and Society, who shared with me their critical insights and helped transformthis into a coherent essay. This research was partly funded by a grant from theProgram in Near Eastern Studies, Princeton University.

E.J. Brill, Leiden, 994 Islamic Law and Society 1,2


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42 KHALED ABOU EL FADLpossible for a Muslim only if lived in an Islamic polity that dutifullyapplies the Shari'a. Consequently, a certain dichotomy results. On theone hand, there is the abode of Islam (ddr al-Isldm) where it ispossible to live n ethical life under the guidance of the Shari'a. On theother hand, there is the abode of unbelief (diir al-ku fr, diir alrb orddr al-shirk)where the Shari'a is not applied, and Islamic justice doesnot prevail.' The historical reasons for this dichotomous language, andwhat it actually means is a multifaceted matter. But ultimately thisdichotomous view is largely theory, and theory is often harshly testedby history. As often occurs, the precise lines delineated by theory orreligious dogma are blurred by the trials of history. The history of thejuristic discourse on the problem of Muslim minorities is the history ofan attempt to reconcile the demands of theory with the challenges ofhistory.Several writers have argued that because of this dichotomousposition, the Muslim worldview is insular and exclusive. BernardLewis asserted that in Islamic thought ''Ulust as there is only one Godin heaven, so there can be only one sovereign and one law on earth,that is, the sovereignty of ddr al-Isldrn and the law of Shari'a.2 Thelands of Islam are superior to lands where Islam does not prevail, andeven if the non-Muslim world is temporarily tolerated, ultimately itmust be converted to Islam through The existence of Muslimminorities voluntarily residing in non-Muslim temtory complicates thisissue and raises questions as to the significance of the purportedIslamic worldview. If the position of Muslim minorities is the excep-tion to this worldview, it is often the case that the exception is muchmore worthy of study than the rule. The material reviewed in thisessay suggests that the linguistic dichotomy, ddr al-Isldm versus dara l - k r b obscures a much more complex historical reality.In this essay I will review the pre-modern juristic discourse onMuslim minorities, emphasizing the main issues of contention anddebate within this juristic tradition. My objective is t call attention tothe complexities of this field of research and to raise issues deservingof further exploration. For centuries large Muslim populations lived in

Throughout this essay I will use the Arabic term d ir al-Isl im in the sense ofthe land of Islam and dcir al-harb in the sense of the lands of non-Muslims .Bernard Lewis, Discovery of Europe (New York and London: Norton andCo., 1982), 61.Daniel Pipes, In the Path of God : Islam and Political Po wer (New York:Basic Books Inc., 1983 , 70-88 ; Majid K hadduri, War and Peace in the Law ofIslam (Baltimore and London: John Hopkins Press, 1955), 6 2-66.


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143SLAMIC LAW AND MUSLIM MINORITIESnon-Muslim territories, and a study of the juristic reaction to thishistorical fact may lead to a better understanding of the linguisticdichotomy between ddr al-Isldm and ddr al-krb.Because this field of research remains largely undeveloped, willsurvey the pre-modern juridical literature on three main issues from thesecond/eighth century to the eleventh/seventeenth century: (1) whetheror not Muslims may reside in non-Muslim temtory and under whatcircumstances; (2) the relationship of these Muslims to dcir al-Islcim;and (3) how Islamic law applies or is to be applied by these Muslims.At issue are the ethical and legal duties that these Muslims owe to theShari a and to their host polity. Some concepts discussed here, such ashijra, were used in Muslim sectarian debates and as oppositionaldoctrines to Muslim rulers. This aspect of the study, which requiresseparate treatment, will not be dealt with here.I will argue that systematic juristic positions on the issue of Muslimminorities developed after the sixth/twelfth century and that the variedjuridical positions were a function of historical specificity. The reactionof different jurists reflected a dynamic process by which doctrinalsources, legal precedents, juristic methodologies and historical realityinteracted to produce diverse results.1 Where May Muslims Reside?The Early PositionsThe Prophet established a city-state after emigrating to Medina in101622. The Qur Ctn, especially after the pact of Hudaybiyya (628-630), emphasized the principle that all Muslims are obliged to performmigration (hijra) to the Pr~phet.~ignificantly, before the Prophetemigrated to Medina, a group of Muslims escaped persecution inMecca by seeking sanctuary in Abyssinia, a Christian state (615-622).Hence the idea of performing hijra to escape persecution and topropagate the faith was established at an early date.5

See Q 8:72, Q 4:89 and Q 4:100. Unless otherw ise indicated, all transla-tions of the Qur'Ln are from Ahmed Ali, Al-Qur'rin (Princeton: Princeton Univer-sity Press, 1988). Slight changes have been mad e to reflect my u nderstanding ofthe original.On the centrality of hijra in Muslim theology, see Montgomery Watt,Hidjra , Encyclopaedia of Islam, 2nd ed., vol. 3 (1971), 366-67; MuhammadKhalid Masud, Shehu Usum an Dan Fodio's Res tatement of the Doctrine ofHijrah, Islamic Studies, 25:l (1986), 56-77; idem, The Obligation of Hijra inIslamic Law, in Muslim Travellers, ed. Dale Eickelman and James Piscatori(Berkeley and Los Angeles: University of California Press, 1990), 29-32; idem,


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144 KHALED ABOU L FADLComplementing these historical precedents were three Qur'gnicinjunctions which instructed not only Muslims but also Jews andChristians to govern themselves by what God had decreed for each ofthem. Q. 5 reads, Those who do not judge by God's revelationsare infidels indeed. 6 Additionally, Q 5:5 calls upon Muslims not toally themselves with Christians or Jews: believers, do not holdJews and Christians as your allies. They are allies of one another andanyone who makes them his allies is surely one of them; and Goddoes not guide the unjust. Finally, Q. 4:97-100 calls upon Muslims toescape oppression by migrating in the cause of God:

As for those whose souls are taken by the angels (at death) while in astate of injustice against themselves, they will be asked by the angels:What state were you in? They will answer: We were oppressed inthe land. And the angels will say: Was not God's earth large enoughfor you to migrate? . But those who are helpless , men, women andchildren, who can neither contrive a plan nor do they know the way,may well hope for the mercy of God; and God is full of mercy andgrace. Whosoever migrates in the cause of God will find many placesof refuge and abundance on the earth7These three injunctions did not necessarily lead to a consistentresult. What did the Qur'fm mean by those who were oppressed, andis oppression synonymous with living in non-Muslim lands? What if aMuslim encounters oppression in an Islamic land and the only havenis non-Islamic territory; in that case, what becomes of the injunction

not to take Christians and Jews as allies? And how is one to governby what God has decreed if one escapes to non-Muslim territory?Adding to the complexity of the problem are several hadiths thatforbade Muslims from living in the lands of unbelief. One such kdi thstates: Whoever associates with an infidel and lives with him, he islike him. Other hadiths state that hijra is an ongoing obligation. Forinstance, the Prophet is reported to have said, The hijra will not cometo an end as long as the infidels are fought. Inconsistently, however,other hadiths assert that the duty of hijra ended with the conquest ofMecca.8Being a Muslim in a Non-Muslim Polity, Journal of the Institute of Muslim

Minority Affairs, 10:l (Jan. 1989), 120.Also see Q. 54 9. For Jews, see Q. 54 4- 45; for Christians, see Q. 547-48.Q. 4:97-100.ee Abii ZakariyyH' al-Nawawi, al-Majmli Sharh al-Muhadhdhab (Beirut:

D al-Fikr, n.d .), vol. 19, 262-63. For a discussion of these hadiths, see Masud,Obligation, 33-34; Wilfred Madelun g, Has the Hijra Come to an End? , LaRevue Des Etudes Islamiques, LIV (1986), 227.


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145SLAMIC LAW AND MUSLIM MINORITIESThe issues raised by the historical and doctrinal precedents were notonly of theoretical significance. The concept of hijra played a role bothin the internal political struggles of the early Islamic state9 and inmatters relating to foreign policy. Since the secondleighth century,significant Muslim populations have resided in non-Muslim territories,especially in coastal India and China. In the late Umayyad period,Muslims reportedly fled the tyranny of al-Hajjiij b. Yiisuf (41-951661-714) by taking refuge in Malabar, India. During the reign of al-Mahdi(158- 1691775-785) and H M n al-Rashid 170-1931786-809), Muslimlands were lost to non-Muslim rule.10 In the fifthfeleventh century,large Muslim populations came under non-Muslim rule in Messinaand Sicily. The problem of how to treat Muslims who reside in non-Muslim territory became particularly urgent in the seventhlthirteenthcentury, when vast Muslim territory was conquered in the East byMongols and in the West by Christians.These historical challenges elicited a variety of responses fromMuslim jurists. Some jurists argued that Islam and ddr al-Isldm areinseparable and that Muslims therefore may not reside in non-Muslimlands under any circumstance. Other jurists conceived of hijra as adynamic concept that requires Muslims to be in a constant search forlands in which they can attain greater religious fulfilment; some ofthese jurists argued that it may be recommended or even obligatory fora Muslim to reside among unbelievers.The early jurists addressed the issue of a non-Muslim who con-verted to Islam while in non-Muslim territory. Should that person nowmigrate to ddr al-Islam? One might expect Sunni jurists who wereaccustomed to the formal association of the polity with Islam todemand that such a person immediately migrate to ddr al-Isldm.12 Butexamination of the historical progression of juridical thought on theissue suggests that such an assertion should be qualified.

Ibid.See Husayn Mu'nis (trans. and ed.), Asrui al-m atdjir baydn a&dm manghulaba 'a16 wafanihi al-Nascird wa lam yuMjir, Revista del Institute Egipcio deEstudio Islamicos en Madrid, V (1957), 135-36. See also Muhammad Hami-dullah, Ex-Territorial Capitulations in Favour of Muslims in Classical Times,The Islamic Review, 38 (1950), 33-35; idem, The Muslim Conduct of State (7thed. Lahore: Muhammad Ashraf, 1977 ), 12 1-29 .i See Bernard Lewis, Political Language of Islam (Chicago: University ofChicago Press, 1988), 104-05.l2 See Bernard Lewis, Legal and Historical Reflections on the Position ofMuslim Populations under Non-Muslim Rule, Journal of the Institute of MuslimMinority Affairs, 13 :l (Jan. 1992), 6 . am grateful to Professor Lew is forproviding me with a copy of this essay prior to its publication.


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146 KHALED ABOU ELFADLThe early Hanafi jurist, al-Shaybiini (d. 189/804), reports that theduty to migrate to the land of Islam (ard al-Islam) after conversionwas abrogated at the time of the Prophet. Those who convert but donot migrate to ddr al-Islcim are like the nomads (a rcib) who acceptedIslam but refused to join the Prophet in Medina. Although they areMuslims, they are not allowed to share in the spoils of war.13However, al-ShaybBni reports on the authority of Abii Yiisuf (d.1821798-99) that Abii Hanifa (d. 1501768) disapproved of Muslimsresiding in non-Muslim territory.Early MQiki jurists were less equivocal. Sahniin (d. 2401854)reports that Miilik (d. 1791796) strongly disapproved of Muslimstraveling to the lands of non-believers for purposes of trade because

they might become subject to the laws of unbelievers.15 The operativelegal cause in Mdik s view is that Muslims will be forced to submit tonon-Muslim law, an issue that later became a crux of legal discus-sions. It is also reported that Mdik discouraged people from residingin territory inwhich the Companions of the Prophet are vilified. This istaken by later MBliki jurists to mean that residence in lands ofwidespread sin is not allowed.16Al-Shiifi i (d. 2041819-20) chose a very different approach. Heargued that even after the establishment of the Islamic state inMedina, Abdalliih b. AbbBs (a Companion of the Prophet) andothers were allowed to reside in Mecca (then a non-Muslim territory).l 3 Abii Bakr al-Sarakhsi, Sharh al-Siya r al-Kabir, ed S. al-Munajjid (Cairo:Ma'had al-Makhpgit, 1971), vol. I, 94 (a commentary on a work attributed to al-Sh ay bb i entitled al-Siyar al-Kabir hereinafter al-Shaybiini ). Writing manyyears after al-Shay bhi, Abii akr al-Sarakhsi explained that although the duty tomigrate was abrogated, most jurists recommended that the nomads migrate toMedina so that they might learn their religion; but if these nomads could learntheir religious duties in their tribal residence, there was no reason for them tomigrate. See al-Mabslit (Beirut: D t al-Ma'rifa, 1986), vol. 10, 94-95. Althoughlawbook s cite the example of the nom ads residing outside of Medina as if it werea politically neutral issue, this was a bitterly contested domestic issue in theUm ayyad period (see Mad elung, Hijra ). The political debates concerning whois an emigr6 (muhdjir) and who is entitled to spoils of war (fiya') had little to doat that early stage with Muslims residing in non-Muslim territory. See also Abual-Hasan al-Miiwardi, al-Ahhim al-Sul?dniyya (Beirut: D t al-Kutub al-'Ilmiyya,1985), 163-64.l Abii 'Abd Allah al-Shaybbi, The Islamic Law of Nations: Shaybdnl'sSiya r, trans. Majid Khadduri (Maryland: The John Ho pkins Press, 1966), 187; al-

Shaybiini reiterates this view in his al-Ra dd 'ald Siya r al-Awzd'i, ed. Abii al-Wafa' al-Afghbi (Beirut: D5u al-Kutub al-'Ilmiyya, n.d.), 124.l 5 Abii Sa'id Sahniin, al-Mudaw wana al-Kubrd (Cairo: Dar al-Fikr, n.d.),vol. 3 278.l Abii Bakr Ibn al-'Arabi, Ahkcim a l-Qur'dn, ed. 'Ali Muhamm ad al-Bajgwi,(Cairo: D t hya' al-Kutub al-'Arabiyya, 19 57), vol. 1,4 84 .


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47SLAMIC LAW AND MUSLIM MINORITIESAdditionally, the Prophet allowed nomadic tribes that converted toIslam to remain outside the domains of the lands of Islam. TheProphet, according to al-Sh2fiLi,would not have given these people achoice of residence if it was sinful for them to retain their inde-pendence. Consequently, Muslims who convert in non-Muslim landsmay reside there unless these Muslims fear enticement away fromIslam (idhd lam yakhcfuJl-fitnata fll-din. l7By the end of the third/ninth century, several unrefined notions hademerged. Mdik s view that Muslims should never e subject to non-Muslim law entailed a hostility to Muslims leaving the territories ofIslam even for the purpose of trade. The Hanafis did not oppose so-journs for the purpose of trade, although they discouraged permanentresidence by Muslims in the territory of non-Muslims. For al-ShBfi i,who focused on the threat of losing one s religious beliefs, each caseturned on its specific circumstances.Al-Tabari (d. 310/923), the founder of a shortlived school of law,discussed several other operative causes that subsequently weredeveloped and systematized. In commenting on the Qur Bnic versesregarding the duty to migrate from the lands of oppression (seeabove), he states that at the time of the Prophet those who failed to jointhe Islamic state in Medina were considered infidels, although this rulewas abrogated prior to the Prophet s death. G1-Tabari explains thatthese Qur hic verses refer to a specific group of people who convertedto Islam but refused to join the Prophet n Medina, preferring to stay inMecca. The Prophet required them to migrate to Medina because theywere unable to worship freely n Mecca. Hence, the operative cause( illat al-hukm) is the inability to practice Islam. But al-Tabari alsomentions that it is improper for a Muslim to prefer the territory ofunbelievers over Islamic lands, and he argues that the group ofMuslims specifically addressed by the Qur Bnic verses was culpablefor contributing to the strength of unbelievers who were fighting theProphet at the time (takthir sa w d al-kuffar).lg

l Abii Abd A I lh al-Shiifi i, al-Urnrn. ed. Muhammad al-Naiilrr (Beirut: Diir..al-Ma rifa, n.d.), vol. 4, 161.Abii Ja far al-Tabari, Jcirni al-Baycin (Beirut: Dlrr al-M a rifa, 198 6), vo l 4147 -51 . Al-Tabari records several con flicting reDorts regarding what m otivated thisMuslim group to refuse to join the hophet.jn addition-to ~agari,ee also Abii al-Qlsim al-Zamakhshari, al-Kashshcif (Beirut: Diir a l-Ma rifa, n.d.), vol. l 292-93;Abii al-Fidl Ibn Kathir, Tafsir Ibn Kathir (Cairo: DSu al-Khir, 19 88), vo l. 1, 513 -15; Mamiid al-Aliisi , Rlih al-Ma cini (Be irut : Dlrr Ihyri al-Turrith al- Ara bi,198 5), vol. 5 , 1 25-26; Abii Ja far b. al-Hasan al-Tiisi, Tafsir al-Tibycin, ed.@mad al-Amin and @mad Qasir (Najaf: Maktabat al-Amin, n.d.), vol. 3 , 302-


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148 KHALED ABOU LF DLShi i books on hadith add a further dimension to the early dis-cussions. They cite the traditions cited by Sunnis in which the Prophetis reported to have condemned any Muslim residing among non-Mus1ims;lg and they cite the case discussed by the Hanafis and theShiifi is relating to the nomads who did not join the Prophet after thehijra to Medina. But early Shi i jurists reportedly disapproved ofMuslims residing among nomads because this was bound to lead toignorance. Residence in an area in which access to jurists is difficult isdangerous to one s level of knowledge.20 But when someonereportedly asked Ja far al-SHdiq (the sixth ImHm, d. 1481765 if hewould die an unbeliever if he entered the lands of unbelief, al-Siidiqsuggested that he might in fact be able to better serve Islam in non-Muslim territory.21Although the Shi i jurists consider the nomads mentioned in thehadith to be Muslims, they advise that residing amongst them isimproper. Hence residing amongst Muslims is not in itself alwayssufficient. The quality or the type of Muslim residence is also amaterial issue. The question treated by Shi i jurists is: Is migrationrequired from lands that are formally Islamic but in which peopleindulge in widespread sin ma dsi)?Possibly, early Shi i jurists repre-senting an oppositional movement were more interested in substantivequestions of justice, corruption and knowledge than in the formalcategorization of the territory.22 Interestingly, later Shi i jurists areequivocal in their response to the question of whether Muslims shouldmigrate from lands of widespread sin.In the first four centuries, Muslim jurists manifested a degree ofambivalence toward the problem of Muslims residing in non-Muslimterritories. Such Muslim minorities are not specifically mentioned in

03; Fakhr al-Din al-Rbi, al-Tafsir al-Kabir (Beirut: D k al-Kutub al-'Ilmiyya,1990), vol. 2, 12.l 9 See, for example, Ab i~ a'far al-Kulayni a l-RM , al-Kdfi , ed. 'Ali al-Gh aff ki, (Tehran: D k al-Kutub al-IslHmiyya, 1377-7911957-59), vol. 5, 43;Muhamma$ BHqu al-Majlisi, Malddh al-Akhydr, ed. Mahdi al-Rajii'i (Qum:Maktabat Ayyat All& al-Mar6ashi,140h/1986),vol. 9, 402.2 See Muhammad al-Hum al-'Amili, Wasci'il al-Shi'a, ed. Ahmad al-R a b b m al- Sh ira i (Beirut: Diir @yH' al-Turitth al-'Arabi, n.d.), vol 11, 75-76. On

the litical-im plications of this argum ent, see Madelung, Hijra .Al-'Amili, W a s d p i f ,77. However al-Sildidiq is also reported to have said,The tru expatriate (al-gharib)is he who resides in the land of unbelief (aiir al-shirk). This statement does not necessarily signify disap proval (ibid., 76).22 See Bernard Lew is, Islam and the West (New York and Oxford: OxfordUniversity P ress, 19 93), 45, 155-65; Hossein M odarressi, Crisis and Consolidat-ion in the Formative Period of Shi'ite Islam (Princeton: Darwin Press, 1993), 3-18.


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ISLAMIC LAW AND MUSLIM MINOFUTI S 149early legal texts. Despite the wealth of reports and concepts, the dis-cussions are often cryptic and impressionistic. This ambivalencecontinued well into the fifthfeleventh century.23 The Andalusian irijurist, Ibn Hazm (d. 456/1064), viewed with disfavor Muslims whoentered non-Muslim temtory, even for the purpose of trade, if entryentailed being subject to non-Muslim law. The Hanafi jurist, lSarakhsi (d. 48311090-91), on the other hand, insisted that tradingwith non-Muslims is a necessity for the sake of public welfare, butthat a Muslim should not sell weapons to non-Muslims. The duty tomigrate, according to al-Sarakhsi, had lapsed. Although hijra hadbeen necessary at the time of the Prophet so that Muslims might learntheir religion, the present situation, al-Sarakhsi argues, is very dif-ferent. Although al-Sarakhsi does not explain whether or not Muslimscan learn their religion in non-Muslim lands, he states that a Muslimshould not reside permanently in non-Muslim lands and should notbear offspring there. There are two main reasons for this: His childrenmight acquire the mannerisms of non-Muslims; and they are at risk ofbecoming enslaved by non-Mu~lims.~~The Mdiki position in the fifthfeleventh century had not becomecompletely uncompromising. Writing before the fall of Toledo in 1085,the leading Andalusian Mdiki jurist, Ibn Abd al-Barr al-Qumbi (d.463/1071), a student of Ibn Hazm, argued that it is generally forbiddenfor a Muslim to reside in non-Muslim territory, but that a Muslim mayreside there temporarily if he or she is safe and hopes to prevail overthe non-believers.25 The fall of Toledo marked the begining of a series

23 The S hi'i jurists: 'Abd al-'Aziz b. al-Barrgj al-Tarabulsi (d. 481/1088), al-Muhadhdhab (Tehran: Mu'assasat al-Nashr al- Is lh i, 1406), vol.1, 311 (althoughhe elaborates on certain laws pertaining to Muslims in non-Muslim lands, al-Tarabulsi does not discuss wujrib al-hijra or the legality of Muslim residence innon-Muslim territory); al-Tiisi (d. 460/1067), Tafsir, vol. 3, 302-03, does notmention wujub al-hijra in the context of the Qu r'h ic verse on migration; withoutmentioning wujrib al-hijra, Abii 'Ali al-Ta brisi (d. 54811 154), Majma al-Baycin(Beirut: D Maktabat al-Hay , 1 986), vol. 3, 151, cites a report to the effect thatif sin is widespread in a land o ne should leave it. The Su nni jurist, Abii M ansiiral-Tamimi al-BaghdHdi (d. 463/1072), Kitcib Usti1 al-Din (Beimt: D al-Hila,1980), 154-55, cites the opinions of those who argue that Islamic territories inwhich Muslims espouse heretical opinions are in fact dcir Kufr, but he does notmention the issue of residence (iqcima)in such territories.4 Abii Muhammad al-Qurtubi al - m ir i Ibn Hazm, al-Muhallci, ed AhmadSh h (Cairo: D al-Turgth. n.d.). vol. 7. 349: al-Sarakhsi, al-Mabsrit, vol. 10,.6-7, 74,'92.5 Yiisuf b. 'Abd al-Barr al-Nimri al-Quflubi, al-K cififi Fiqh Ah1 a l-Madinaal-Mciliki (Beimt: D al-Kutub al-'Ilmiyya, 1987), 210.


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150 KHALED ABOU EL FADLof defeats for Muslims in al-Andalus,26 following which the positionof Mdiki jurists became increasingly strict.Perhaps the most significant opinion emanating from the fifth/eleventh century is that of the Sh3fibiurist, al-Mfiwardi (d. 450/1058),who is reported to have said, If [a Muslim] is able to manifest [his]religion in one of the unbelievers' countries, this country becomes apart of dar al-Isldm. Hence, residing in it is better than migratingbecause i t is hoped that others will convert to Islam [through him]. 27Al-Mawardi adds a new dimension to the problem. First, residence ina non-Muslim territory may actually be preferable to migration.Second, the question of what is dar al-lslam comes into focus. Some-times the liberties accorded to a Muslim in territory outside the geo-graphical domain of Islam will impact upon the classification of theterritory in which this Muslim resides. This opinion became a distinc-tive mark of the S h a b i chool.By the sixthltwelfth century, vast Muslim populations had comeunder non-Muslim rule. While this was not a novel situation the scalewas quite unprecedented, and several centuries would pass before thelaw schools fully developed and systematized their responses. Initially,the schools appear to have been overwhelmed and often resorted toclaiming consensus where none existed. They struggled to develop aconsistent doctrine that would take account of the many reasons that aMuslim might find himself or herself in non-Muslim lands: A personmight sojourn to non-Muslim territory for the purpose of trade; a non-Muslim living in dar al-harb might convert to Islam; or Muslimterritory might e conquered by non-Muslims. Additionally, the juriststried to account for the sectarian divisions within the Islamic Empire. Itseems that different jurists were addressing different scenarios in theirexpositions without specifically indicating the issue they had in mind.The most notable reaction to the problem of hijra in the sixthltwe1ft.hcentury came from Mgliki jurists. Ibn Rushd (the grandfather, d.52011 122), who was primarily concerned with the problem of Muslimsliving in or visiting ddr al -krb, was uncompromising in his response.Building upon the early judgments of Mdik b. Anas, he states, in alegal opinion (famd), that it is strictly prohibited for a Muslim to enteror live in dar al-harb. Trade also is prohibited if it means sojourningin dar al-harb, although it is allowed if non-Muslims enter dcir al-

6 Anwar Chejne, Muslim Spain: Its History and Culture Minneapolis: TheUniversity of Minnesota Press, 1974), 67.27 Al-Nawawi, al-Majmri , vol. 19, 264.


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ISLAMIC LAW AND MUSLIM MINORITIES 151Isldm. The main problem, according to Ibn Rushd, is that a Muslimentering d ar a l - k r b will subject himself or herself to non-Muslim law,something only an unethical and corrupt Muslim would accept.Consequently, such Muslims are generally of suspect credibility, theirtestimony in court cannot be accepted, and they cannot be allowed tolead prayer.28 Ibn Rushd s fatwa probably was a direct response to theloss of Muslim territory in the Iberian peninsula. In fact, he advisesMuslims that if lost territory is restored to Islam, they may return andreestablish residence in their former homeland. 9Although Ibn Rushd was the foremost Miiliki jurist of his time, hisattitude did not represent the unanimous view of his school. Whenanother Miiliki jurist, al-Miizari (d. 536/1141), was asked if thedecisions of judges appointed by non-Muslim authorities in Sicily arelegally recognizable in Muslim territory, he responded in the affirma-tive. Al-Miizari conceded that a Muslim should not be allowed toreside in non-Muslim territory under the best of circumstances. Butsuch residence does not necessarily undermine a Muslim s credibility,either because such a Muslim might have no choice in the matter, orbecause his refusal to migrate might be based upon an erroneousinterpretation (ta'wil)of the validity of residence in non-Muslim terri-tory. More importantly, if a Muslim resides in non-Muslim temtorywith the aim of eventually restoring the lost territory to Islam, ordedicates himself or herself to bringing the Islamic message to non-Muslims, then his or her residence is legal. Moreover, as a practicalnecessity, Muslims residing in non-Muslim territories need their ownjudges to adjudicate conflicts and resolve disputes. That these judgesare appointed by non-Muslims is regrettable but necessary. Here al-Miizari focuses on the motive of the resident and the idea of necessity.The resident s motive, which is to spread Islam, and the practicalnecessity of having Muslim judges, although appointed by non-Muslims, preserves the credibility of such residents.30 By implication,

28 AbO al-Walid Muhammad b. Ahmad Ibn Rushd, al-Muqaddimcit al-Mumahhidcit, e Muhammad Hujji (Beirut: DFu al-Gharb al-Isltimi, 1988), vol . 2 ,151-54; idem, al-Baycin wa'l-Tah sil, ed. Muhammad Hujji (Beirut: DFu al-Gharbal-Islami, 1988), vol. 4, 170-71.9 Ibn Rushd, al-Muqaddimcit, vol2 , 153.3 Al-M&ari9s farwci is recorded in Ahmad al-Wansharisi, al-Mi'ycir , ed.Muhammad Hajj (Beirut: Diir al-Gharb al-Islitmi,l981), vol. 2, 133-34. On al-Mbari and his fatwa, se e Abdel Majid Turki, Consultation juridique d'al-Imamal-MHzari sur le cas des musulmans vivant en Sicile sous l'autorit6 desNormands, Melanges de L'Un iversite' Saint-Joseph, 50:2 (1984); H usayn Mu'nis,Asnci ; and Hassan Hussni 'Abd al-Wahhab, al-Imcim al-Mcizari (Tunis, 1955).


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152 KH LED BOU EL F DLresiding under non-Muslim sovereignty is not always unethical. If aMuslim mistakenly thinks that his or her residence is justified then hisor her ethical status is preserved. In other words, although residenceitself may be morally wrong, the residing Muslim remains an ethicalperson.Other jurists of the sixth/twelfth century, notably from the Shsi iand Shi i schools, argued that a Muslim is permitted to reside in non-Muslim lands if he or she is able to manifest his or her religion, butthat hijra from non-Muslim territory is obligatory if a person fears theloss of religion (khashiyya an yufanafl dinihi).31Several jurists extended their discussions of hijra beyond thedichotomy between ddr al-Islcim, and dcir a l-brb. They insisted that aMuslim should leave any territory in which corruption is widespreador in which a Muslim is not physically secure. Therefore, one shouldmigrate to places where one can attain greater religious fulfillment andphysical safety. This view may have been a natural extension of theearly reports regarding the Muslim emigrants to Abyssinia whoreportedly fle from oppression in Mecca, and of the reports regardingthe nomads of Arabia. More important, it was a direct result of theinternal theological and political divisions that plagued the IslamicEmpire. By the thirdlninth century, the Mu tazila, Zaydiya andKhawCuij schools developed well-formulated doctrines requiring hijrafrom lands formally ruled by Muslim rulers. Shi i jurists distinguishedbetween dcir al-irnm (the abode of true faith) and dcir al-Islrirn.Qualitatively, drir al-lslrim could be equivalent to drir al-kuj? if corruptbeliefs and practices are widespread, but in the absence of the abodeof true faith Muslims may continue to reside in corrupt territories aslong as they can practice their religi0n.3~ rom the perspective of theseFor another fatwd that relies on the logic of necessity, see al-Wansharisi, a l -Mi ydr, vol. 10, 135.31 An opinion of al-Baghawi (d. 510/1117) is cited in al-Nawawi, al-Majmtic,vol. 19, 264; see also AbtI 'Abd All& b. Idris al-'Ijli al-Hilli (d. 598/1202), a l -Sara ir: al-Hriwi li-Tahrir al-Fatriwi, in Silsilat al-Yandbi al-Fiqhiyya, ed. 'AliAsgh ar Murwilrid (Beirut: D k al-TurHth, 1990), vol. on Jihad, 183. The phrase,manifesting one's religion became an established legal term between the sixth/twelfth and the seventhlthirteenth centuries. Several sixth/tw elfth century Hanafijurists discuss the laws that apply to Muslims living in non-Muslim landswitho ut commenting on the legality of hijra or residence in such lands. See 'Alii'al-Din al-KHsHni d. 587/1191), Badd i al-Sarui i (Beirut: D k al-Kutub al-'Ilmiyya, 1 986), vol. 7, 105; AbtI al-Hasan al-Fa rgh m al-M argh inb i (d. 59311196-97), al-Hiddya (Cairo: M usfafii al-BHbi al-H alab i, n.d.), vol. 2, 152-53.32 Al-Nu'mHn al-Mufid (d. 413/1022), Awd il al-Maqrildt, ed. Shaykh al-I s l h al-Zanjiini (Qum: Maktabat al-Dawzi, n.d.), 70-71; see Muhammad b.Muhammad BHqir al-Najafi (d. 126611850), Jawdhir al-Kaldm, ed. Muhammad


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ISLAMIC LAW AND MUSLIM M INORITIES 53oppositional groups a just life is not necessarily achieved in a temtorythat formally espouses Islam. Rather one must engage in a constantsearch for a just land and for physical safety or one must migrate toterritory under Muslim control.33 As noted earlier the role hijra playedin the internal political conflicts in Islamic history is outside the scopeof this essay. Suffice it to say that this debate has been the subject ofcontinuous juridical discussion up to and including the late ninteentthand early twentieth centuries.The Developed PositionsWell-formulated recognizable schools of thought on the problem ofMuslims in non-Muslim territory emerge only after the sixthltwelfthcentury. As always these schools of thought manifest a richness ofdiversity and many minor variations. Each school adopted a cohesiveposition which it applied at times with compulsive rigidity.The Mdiki school adopted an uncompromising position. A Muslimshould never reside in non-Muslim territory primarily because he oral -k hU nd i (Tehran: Diir al-Kutub al-Isllmiyya, 1378), vol. 21, 34-38; see alsoAnn K. Lambton, State and Government in Medieval Islam (Oxford: OxfordUniversity Press, 1981), 30, 261.33 Abii al-Hasan al-A sh1ari (d. 324/936), Maqrilrit al-Islrimiyyin, e d. M a a m -mad 'Abd al-Hamid (Beirut: al-Maktaba al-'Asriyya, 1990), vol. 2, 154-55; 'Abdal-Ralpniin al-Badawi, Madhrihib al-lslrimiyyin (Beirut: Diir al-'Ilm li'l-Mallyyin,197 1), 324-27. On Zaydi thought, see RidwZin al-Sayy id, al-Diir wa'l-hijra wa-al&lmuhuml 'inda Ibn al-Murtada, ul-ljtihdd, 12 (1991). For pre-modernjuridical discussions, see the Hanbali jurist, Mansiir al-Buhoti (d. 105111641),Kashshrif al-Qirui , ed. Hil d Musta fi Hilid (Beirut: Diir al-Fikr, 1982), vol. 5 , 4 4(migration from the land of sin is not required). Shiifili jurists: M a a m m a d al-Shirbini al-Khatib (d. 97711569-70), Mughni al-Muhtrij (Cairo: Mustafi3 al-B lbial-Halabi, 1958), vol. 4, 239 (migration from the land of sin is required, and aMuslim always should migrate to the land in which he or she best can worship);Shihlb al-Din and Shaykh 'Umirah, Hrishiyat Qalwlibi wa - Umir a ala al - Minhrij(Cairo: Diir Ihyl' al-Kutub 'al-'Arabiyya, n.d.), vol. 3, 227 (reporting differentopinions). Mllikis: AbU 'Abd All& al-Quflubi (d. 671/1273), al-Jdmi li-Ahkcimal-Qur rin (Cairo: Diir al-Kutub al-'Arabiyya, 1967), vol. 5, 346-47, 349 (report-ing different opinions); Ibn 'Arabi (d. 54311148) sets out six different categories ofhijra in his Ahkrim, vol. 1, 484-86, including leaving non-Muslim tem tory, but h ealso explains that a person should migrate from areas in which his or her moneyor person is not secure, and from places of widespread corruption, even if thistemtory is formally a part of drir al-Islrim. Zaydis: Ibn Muhammad al-Shawkfini(d. 125011834), Nay1 al-Aw~rir Cairo: Diir al-Hadith, ad.), vol. 8, 27 (reportingand discussing different opinions). Shi'is: al-Tabrisi, Majma , vol. 3, 1 51 does notmention the duty to leave non-Muslim territory, limiting himself to reporting thatone should leave the land of corruption. The Mu'tazili, al-Zamakhshari (d.53811 144 ), al-Kashshrif, vol. 1, 292-93, states that although the duty to migrate(wrijib al-hijra) had been abrogated, one should migrate to lands in which onemay attain greater religious fulfilment.


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ISLAMIC LAW AND MUSLIM MINORITIES 155After finishing his scholarly exposition, al-Wansharisi reveals theessentially political nature of this issue. He condemns in the strongestpossible terms those who mock the Muslim lands of Islam. How couldanyone say Christian territory is superior Such a claim reveals thehypocritical and immoral nature of people who lack any appreciationor judgment. How could anyone prefer the company of non-Muslimsover Muslims? The intensity of the competition between Christians andMuslims and the deep sense of humiliation that al-Wansharisi feels isevident in his emotional lang~age.~7The social and political considerations that preoccupied al-Wan-sharisi are even more apparent in the second fatwci The question,which originated from Marbella subsequent to its conquest in the late1400's,38 mentions the case of a man who remained in that town inorder to search for his missing brother. Although the brother wasnever found, the man continued to reside in Marbella because hisunique skills made him an effective liaison between the Christianauthorities and the resident Muslims. He interceded on the behalf ofthe Muslims, acting as their spokesperson and advocate. Although hewas free to leave, he remained because the Muslims were poor andneeded his services.39Al-Wansharisi responds unequivocally that the man must leaveMarbella immediately, basing his response on what he believes to ehistorical precedent. He argues that anyone who resides in non-Muslim territory, even for lofty purposes, exposes himself to sub-jugation and degradation. History demonstrates, al-Wansharisi con-tinues, that Christian authorities cannot be trusted to honor their pactswith Muslims. Those who investigate history will find that Christianauthorities invariably violated their treaties and exploited Muslims.Even if their kings observed their treaties, their agents and lordsnevertheless exploited Muslims. Further, history shows that Christianshave never respected the honor of Muslim women, and that Muslimwomen end up marrying Christian men, an act strictly prohibited byIslamic law. Even if mature adults do not lose their religion, experienceshows that children suffer a different fate. Like the Muslims of Avila,al-Wansharisi continues, Muslims will lose their mastery over theArabic language and will be influenced by Christian mores, habits andfashions. Christian authorities consistently impose unfair taxes on

37 Al-Wansharisi al -Mi ydr , vol 2 121-24 130-32.38 See Harvey Islamic Spain, 56.39 Al-Wansharisi al-Mi ycir, vol. 2 137.


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156 KHALED ABOU EL FADLMuslims, and Muslims do not have the opportunity to question orresist these levies. Regardless of deceptive appearances, Muslimsinevitably are reduced to subjugation and invariably end up losingtheir culture and religion.40Al-Wansharisi's rhetorical strategy here is to invoke fears ofbetrayal. He assumes that it is impossible for Muslims to practice ormanifest their religion in Christian t e mt~ ry .~ lut inasmuch as alWansharisi bases himself on an essentially empirical argument, it islegitimate to ask, What if Muslims can in fact manifest their religionin a particular non-Muslim land? Al-Wansharisi probably wouldrespond that the doctrinal sources would still forbid such a residence.The fact remains, however, that the Mfiliki position, whichpredominated in al-Andalus and Sicily, was heavily influenced by itsown historical experience. As noted earlier, even the Andalusianjurist, Ibn Hazm, was hostile to residence in non-Muslim territory.Significantly, the Egyptian Maliki jurist, al-'Adawi (d. 118911775),reflects his own environment in not reiterating the polemics of his WestNorth African brethren. Rather, he says only that if a Muslim becomessubject to the laws of the unbelievers, he should migrate; if thatMuslim does not migrate, he or she is considered a sinner, not anapostate.42 Another Egyptian Mdiki jurist, al-Sawi (d. 124111825),adopts a typically Hanafi position (see below) in arguing thatconquered Muslim territory remains Muslim despite non-Muslimsovereignty, as long as the laws of Islam, as applied to Muslims,remain respected; hence migration is not necessary from such terri-tory.43 Moreover, while the most prominent MQiki jurists exhibited arigid hostility to residence in non-Muslim territory, it seems that thisissue was contested within the Mdiki school. The MQiki jurist,'Ubaydallilh al-Maghrfiwi al-Wahriini, for example, issued a fatwa n909-10/1504 in which he advised the Muslims of Granada on how topractice their religion n complete secrecy inorder to avoid persecution.

40 Ibid., vol. 2, 140-41. Hanna Kassis , Muslim Reviva l in Spain in theFifthIEleventh Century, Der Islam, 67:l (1990), 78-110, contains information onthe concerns that might have affected al-Wansharisi. The risk of apostasy andassimilation was very real, and many Muslims responded to this threat by areturn to orthodoxy. See also Jamil Abun-Nasr, A History of the Maghrib in theIslamic Period (Cambridge: Cambridge University Press, 1987), 142-43.

41 Al-Wansharisi, vol. 2, 132.42 'Ali al-Sa'idi al-'Adawi, Hcishiya alci Kvciyat al-Tcilib al-R ubb ani (Cairo:MustafH al-BHbi al-Halabi, 1952), vol. 2, 4.43 Ahmad al-MHliki al-Sawi, Bulghat alSdlik (Cairo: Musfafa al-BHbi al-Halabi, 1952), vol. l , 361.


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ISLAMIC L W AND MUSLIM MINORITIES 57Al-WahrBni did not advise these oppressed Muslims to migrate; indeedhe did not even mention the word hijra although migration must havebeen an obvious choice considering that these Muslims were unablefreely to practice their religion.44Unlike the majority of Maiki jurists, the jurists of the other Islamicschools for the most part were unwilling to assume, as a matter oflaw, that Muslims invariably will be unable to practice their religion innon-Muslim lands. Although the non-Mdiki jurists considered theability to practice Islam to be a central factual determination, they didnot explain how the determination was to be made. Perhaps theyexpected that the decision would follow some guidelines but be madelargely on a case-by-case basis. Be that as it may, the Hanbali andJabfari chools adopt similar approaches, while the Shfifi6i and Hanafischools pursue different methodologies of inquiry while reachingsimilar results.The Hanbalis and Ja'faris argue that if Muslims can practice theirreligion in non-Muslim territory, provided they are secure from harmand do not fear the loss of their religion, migration is not obligatory.Even if all such conditions are fulfilled, the jurists still recommendmigration so that the Muslims will not contribute to the material wealthand strength of the unbelievers. If Muslims suffer from some physicalor financial hardship, they are excused from migration in allcircumstances until such hardship is rem ~ve d. ~sUnfortunately, these jurists do not speclfy what they mean by thephrase, able to manifest or practice religion. Muslim jurists use a

44 This fatwri is reproduced and translated in L.P. Harvey, Crypto-Islam in16th-Century Spain, Actas del Primer Congresso de estudios arabes E Islamicos(Madrid, 1964 . That the issue remained contentious even within the Mfdiki schoolis reflected in a fatwd issued by Shaykh Abii 'Abd All* 'Ulaysh (of Moroccanancestry, but born and lived in Egypt, where he died in 129911882 . See his Fathal- Alay al-Mcilik (Cairo: Mustafa al-Biibi al-Halabi, 1958 , vol. 1 375-89.45 Hanbali jurists: Muwaffaq al-Din Ibn Qudtima (d. 620/1223-4 al-Mughni(Beirut: Dar al-Kutub al-'Ilmiyya, n.d), vol. 10, 380-82; al-Buhiiti (d. 1051/1641 , Kashshdf al-Qind , vol. 5, 43-44. Shi'i jurists: Abii al-Qkim al-Muhaqqiqal-Hilli (d. 676/1277 , Sharri i al-Islcim i Masd il al-Halcil wa l-Hardm (Beimt:ral-Adwii', 1983 , vol.1, 308; Ibn Sa'id al-Hudhali (d. 689/1290 , Jdmi al-Sharci i , in Silsilat al-Yancibi , 236; Muhammad b. Makki al-'Amili, al-Shahidal-Awwal (d. 786/1384 , al-Lum a al-Dimashqiyya, ed. al-Sayyid MuhammadKalantar (Najaf: Jiimi'at al-Najaf al-Diniyya, 1398 , vol. 2, 383; Fakhr al-Muhaqqiqin al-Hilli (d. 771/1370 , Idcih a l-F aw d id (Qum: Mu'assasatIsmB'iliyyW, 1387 , vol. 1, 352; al-Najafi, Jawdhir, vol. 21, 34-38. For the Zaydiposition, see Alpnad b. Y a y & b. al-Murtacjl (d. 840/1437 , Kitdb alSahr al-Zukhdr (Cairo: Dik al-Kiab al-Isltimi, 1949 , vol. 6,469 .


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158 KH LED OU EL FADLvariety of expressions to refer to this idea;46 but do they mean anability to perform acts of worship such as prayer or fasting, orperhaps the ability to apply the laws of Islam in their totality? Thedistinction is important because while it might be feasible to pray orfast in non-Muslim lands, it is far more difficult to apply Islamiccriminal, commercial and personal status laws.Muslim minorities in different ages and localities often enjoyed asemi-autonomous status. Frequently, they had their own judges andgovernors who managed their affairs and applied some Islamic laws.The variations in practice were so numerous that it is impossible totake account of l l of them in a single generalized ~tatement.~7ernardLewis has argued that Muslim jurists envisaged a kind of communalautonomy similar to that given to non-Muslims (dhimmis) in Muslimlands. According to this view, manifesting Islam means applying theIslamic laws of personal status as well as other laws consideredintegral to the Shari'a.48Although this argument makes good historical sense, the languageused by the jurists does not admit any definitive conclusion. Somejurists mostly Hanafis specify that manifesting Islam meansthe manifestation or application of Islamic laws;49 other Hanafi juristsspecify that a Muslim judge should be appointed and that Muslimsshould demand a Muslim governor.50 The problem, however, is thatthe Hanafi school maintains that if a locality has a Muslim judge and

46 Expressions used include iqcimat amr al-din, izhdr al-din, izhcirsharci'i' al-Islcim, and al-qiycimbi-wcijibcit al-lslcim .47 See, for example, Ivor Wilks, The Position of Muslims in MetropolitanAshanti in the Early Nineteenth Century, in Islam in Tropical Africa, ed. I.M.Lewis (2nd ed., Bloomington and London: International African Institute, 1980 ,144-65; Hamidullah, The Muslim Conduct, 121-28; idem, Ex-territorialCapitulations, 33-35; Joseph O'Callaghan, Mud ejars of Castile and Portugal inthe Twelfth and Thirteenth Century, in Muslims Under Latin Rule 110 0-130 0, ed.James M . Powell (Princeton: Princeton University Press, 1990 , 11-56; Robert I.Burns, Muslims in the Thirteenth Century Realms of Aragon: Interaction andReaction, in Muslims Under Latin Rule, 57-102; Mark Meyerson, T h eMuslims of Valencia in the Age of Fernando and Isabel (Berkeley and LosAngeles: University of California, 1991 , 184-224; L.P. Harvey, Islamic Spain,56-63; Robert I Burns, Islam Under the Crusaders (Princeton: PrincetonUniversitv Press. 1973 . esD. 223-70.48 ~ . ~ e w i s , ' ~ e f l e c t i d n s ,0, 12.49 See, for example, Kamd al-Din Ibn al-Hum8m (d. 86111456-57 , Fath al-Qadir (Cairo: Mustafii al-B8bial-Halabi, 1970 , vol. 7, 131.50 Muhammad Amin Ibn 'Abidin (d. 125211836-37 , Radd a/-Muhtdr (Beirut:D2t IhyyH' al-Turiith al-'Arabi, 1987 , vol. 3, 252-53; Al-Fatciwci al-Hindiyya(seventeenth century, also called al-Fatriwri al- Alamgiriyya) [Beirut: Diir b y H al-Turath al-'Arabi, n.d.1, vol. 6, 31 l


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6 KHALED ABOU EL FADLThey [the Muslims] are under the authority of a Christian king whotakes from them land taxes in proportion to [what these lands] pro-duce. Otherwise he has not committed any injustice against them eitherin their monies or persons. They have mosques in which they pray andthey [are also allowed to] fast during the month of Ramadan. They[the Muslims] also give a lms and ransom captives from the hands ofChristians. They publicly apply the laws of Islam (hudzid al-Isldm )and they openly manifest the fundamentals of Islam (yuzhirzindqawci id al-Islrim), and the Christians do not interfere with any of theirreligious acts. They [the Muslims] pray in their sermons for Muslimsultans without specifying a particular name and they ask God tomake them [the sultans] victorious and to destroy their enemies.Despite this, they are fearfu l that they are sinning by continuing toreside in non-Muslim lands. Is hijra obligatory upon them althoughthey are ab le to manifest their religion, considering that they have noguarantee against [eventually] being forced to apostacize, may Godforbid, or that the laws o Christians would be app lied to them?Alternatively, they may be immune from all of this considering theirpresent [favorable] situa tion. 53

While describing a very favo rable situation and a ge neral sense ofsecurity, the mustafti betrays a sense of insecurity and distrust.According to the questioner, there are n o guarantees that the presentsituation will continue indefinitely. Al-Ramli, citing the precedent of aCom panion who w as allowed to reside in non-Muslim M ecca, repliesthat these Muslims do not have to emigrate because they can manifesttheir religion. H e then argue s that it is not a llowed for them to leavebecau se their residence might be the mechan ism by which Islam couldspread. Significantly, al-Ramli co ntends that the area in which theyreside is part of dar al-Islam and that if they left, it would revert tobeing d a r al-kuji-. The long period during w hich Muslims hav e beenable to e njoy their religious freedoms creates the presumption that theywill b e s afe from forced con version or opp ression in the future.54In the second fatwa, Ibn Hajar is asked about a C hrist ian whoconv erted to Islam and sought the protection of M uslims in Malibar. fthe Muslims gran ted him protection and refused to return him to theChristian s, they would have to leave their homes in order to avoid theoppressive repercussions that would fo llow. Ibn Hajar responds tha t ifsheltering that convert entailed Mu slims being forced to aba ndon their

53 Shams al-Din al-Ramli, Fatdwd al-Ramli on the margin of Ahmad b.Muhammad Ibn Hajar al-Haytami, al-Fatdwd al-Kubrd al-Fiqhiyya (Beirut: DSral-Kutub al- Ilmiyya, n.d.), vol. 4 52-53.54 Ibid.


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162 KHALED ABOU L FADLconditions are fulfilled: The laws of non-Muslims are applied; theconquered territory is separated from the rest of dcir al-lslim by non-Muslim territory; and no Muslim or dhimmi enjoys the protectionsprovided by the previous government (ciminan bi l-amcini al-awwal.)57According to this view, territories conquered by Christians or Mongolsremain Muslim territory as long as prayer is allowed or as long asMuslim judges remain in office. In fact, in the opinion of some Hanafijurists, as long as a single Muslim law is in force such territoryremains a part of uiir al-IslZm. This meant not only that Muslims wereunder no obligation to emigrate but also were encouraged to stay ifthey could do so safely.58 As to territory that is legally considered dciral-kufr, Muslims do not have a duty to emigrate but are recommendedto do ~0 59Shiifi i jurists went further than their Hanafi counterparts, maintain-ing that conquered Muslim territory never reverts to the status of dciral-kufr. Conquered Muslim territory is dcir al-kufr in appearance only,not in law. Whether or not a Muslim may continue to reside in suchterritory depends on whether he or she can contribute to its Islamiza-tion. The Shifi i position, as noted, developed in stages but it seems tohave become well-formulated by the tenth/sixteenth century.60ShBfi4iurists start out by stating that whether non-Muslim territoryis considered dcir al-kufr in appearance (that is, conquered Muslimterritory) or in law, it is preferable that Muslims migrate even if theyare able to manifest their religion. Migration is preferable becausethese Muslims might unwittingly add to the strength of non-Muslimsand they also run the risk of becoming oppressed. But such migrationis not mandatory because the Muslims are able freely to practice theirreligion. If these Muslims hope that by residing among non-Muslimsthey might contribute to the spread of Islam, then it is preferable thatthey not migrate. If Muslims are autonomous and can maintain adegree of independence (qadird ala al-imtinci wa al-i tizdlliterally, imtinci means self-protection and i tizcil means segregation),then it is obligatory upon them to continue to reside in the non-Muslim

57 Ibn Abidin, Radd, vol. 3, 252; al-KLlni, Badti i , vol. 7, 130-31 (wheresafety is the key issue and not the laws of Islam).58 Al-Fatriwti acHindiyya, vol. 2 232 , 31 1-12; vol. 3, 584 (with reference tothe Mongols ); Ibn Abidin, Radd, vol. 3,252-53.

59 Ibn al-Hum-, Fath, vol. 5,445.6 Jurists writing a century earlier did not manifest the same sophistication.See AbO Ishiq al-F mii bidh i al-Shirui, al-Muhadhdhab (Cairo: Mu~tafaal-Babial-Halabi, 1971), vol. 2 290.


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ISLAMIC LAW AND MUSLIM MINORITIES 163territory because the area in which they reside is, in reality, a part ofdar al-Islam. Shiifi i jurists do not explain what is meant by autonomyor independence.In summary, the late Shiifi i position holds that migration may berecommended, not recommended, or even prohibited, depending on thedegree of freedom and autonomy a Muslim enjoys in non-Muslimterritory. Objective factors, such as autonomy, determine whether aparticular territory is legally a part of dar al-Islcim. For the most part,however, subjective factors, such as the hope of spreading Islam,determine whether one has a duty to migrate. Migration is obligatoryonly if a Muslim fears enticement away from religion; even then, aMuslim is excused if there is financial or physical hardship, such aspoor health, or if he or she fears the dangers of travel.61The picture that emerges from this review does not lend itself toessentialist positions. The response of most jurists in the early centu-ries of Islam was cryptic and ambivalent. Early jurists recommendedthat a Muslim should reside among Muslims in a place in whichreligion could be learned and practiced. But those who chose to residein non-Muslim territory were not necessarily considered to be immoralor un-Islamic. Subsequently, historical circumstances forced mostMiiliki jurists to adopt an absolute and uncompromising position. AsMuslim territory came under siege and vast Muslim populations werethreatened, most Miiliki jurists responded by demanding that allMuslims make a clear and decisive choice in favor of Muslim lands.Theological doctrines combined with political polemics because, formost Miilikis, choosing to reside in a non-Muslim land was a religiousand ethical decision as much as a political one. Muslim lands, Islamand a moral life, became inseparable. Making the political decision tofavor non-Muslim territory is the ultimate unethical act.Hanbali and Shi i jurists, who were not involved in this particulardilemma to the same extent as the Mglikis, adopted a compromiseposition. They conceded that a good, ethical Muslim might prefer toreside among non-Muslims. But lest this admissionbe understood as a

6 Shams al-Din al-Maniifi al-Ramli, Nihdyat al-Muhtdj (Cairo: Mustafi al-B bi al-Halabi, 196 7), vol. 8, 8 2; al-Shirbini, Mughni vol. 4 239; Qalwiibi and'Umira, H d s h i y a t vol. 3, 226 -27. ShS'i jurists also contend that a Muslimshould constantly search for lands in which he or she can perfect his or her reli-gious practice. This means that a Muslim should migrate from a Muslim temtoryin which corruption is widespread. Al-Shirbini (ibid .) asserts that if all territoriesbecome equally corrupt, as was the case in his time, the duty to migrate dropsentirely.


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ISLAMIC LAW Ah D MUSLIM MINORITIES 165commonly arises in the context of non-Muslim territory conquered byMuslims, and whether Muslims found in these territories are to betreated as unbelievers or as Muslims. If they are treated as unbe-lievers, under certain circumstances, these Muslims may b e enslavedand their property may be confiscated.With regard to the first question, the vast m ajority of Muslim juristsdutifully affinn that ll Muslims belong to a single community (ummawGhida) regardless of their residence. Even the H anafi school, whichemphasizes the notion of territoriality, methodically insists that wher-ever Muslims reside they belong to dcfr al-I~larn .~2The inviolability ( isma) of a person s life or property is a differentmatter. Inviolability is a legal category, not theological or moral one.Th e essential question is, What is the source of a M uslim s inviola-bility? T wo alternative views emerge. Inviolability stems either fromthe simple fact of being a Muslim or from the protection (hirz) that aMuslim territory provides. In other words, inviolability is groundedeither in religion or temtory.63Th e Hanafis argue that inviolability stems from the protection thatMuslim territory is able to afford its residents. But they distinguishbetween what they call isma muqawwima and isma mu aththima.The first is legal, the second , moral inviolability. A Muslim residing innon-Muslim lands enjoys moral inviolability but not necessarily legalinviolability. For exam ple, if a M uslim kills another Muslim in non-Muslim territory, he or she is not held criminally liable in Islamiccourts. The killer is, however, a sinner and is held accou ntable by Godin the Hereafter. The Hanafi jurists justify this view, in part, on theground that Islamic courts lack jurisdiction over extra-territorial crimeseven if those crimes are committed against Muslims. Som e jurists addthat a Muslim who resides among non-Muslims and unwittinglycontributes to their strength lacks full inviolability. Other jurists arguethat by leaving the security and protection (hirz) of Muslim lands, a

6 2 See, for example, al-Sarakhsi, al-Mabsfi f ,vol. 10, 61; Shams al-Din IbnQayyim (d. 751/1350-51), Ahkdm Ah1 al-Dhimrna, ed. Subhi Salih (Beirut: Dhr al-'Ilm li'l-Maliiyyin, 1983), vol. l 367.6 On the issue of i s m a , see Baber Johansen, Der 'ism a-B egrif f imhanafitischen Recht, in a signification du Bas Moyen Age duns [ Histoire et laCulture du Monde Musulrnan (Aix-en-Provence: Union Europ6ene des Arabisantset Islamisants, 197 6), 89-108; Johann Krcmarik, Beitrage zur Beleuchtung desislamitischen Strafrechts, mit Riicksicht auf Theorie und Praxis in der Tiirkei,Zeitschrift der deutschen morgenlandischen Gesellschaft, 5 8 (1904), 87-90, 333,340-41 , primarily a study of Ibn 'Abidin.


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168 KH LED BOU EL F DLThe Ja'fari and Zaydi schools adopt an intermediate position.Generally, both schools insist that Islam and not territory is the realsource of inviolability. If a Muslim is found in non-Muslim territory,or if a person converts to Islam and then migrates, leaving familybehind, his or her minor children and movable property are allinviolable. Adult children and spouses have an independent status anddo not derive protection from the legal status of another member of thefamily. Immovable property in a non-Muslim territory is not protectedbecause its status derives from its location, not from its ownership.Additionally, full liability attaches to the murder of a Muslim in non-Muslim lands exactly as if he or she had been killed in dcir al-I~lcirn.6~Perhaps the most interesting case is that of the MQikis, whoseresponse to the matter of inviolability is as equivocal and confusing astheir response to Muslims who refuse to migrate. This confusion isreflected in the fact that jurists from other schools who attempt todescribe the Mdiki position reach contradictory results.70The Mdikis agree that in the case of murder the offender is liable ina Muslim tribunal regardless of where the crime occured. The con-fusion arises over the inviolability of persons and property. Al-Wansharisi reports that Mglik agreed with AbG Hanifa that legalinviolability stems from territorial protection, not from Islam.71But IbnRushd the grandson (that is, Averroes d. 59511198) reports thatMQik argued that the person is protected by Islam but that Islam doesnot protect property; that is to say, MQik differentiated between theinviolability of the person and the inviolability of property. The personis protected by Islam; property is protected by territorial jurisdiction.72But al-Wansharisi claims that this distinction was made by another

see Ibn Qayyim, Ahkdm, vol. 1,367.6 9 Al-Tariibulusi, a l - M u h a d h d h a b , vol. 1, 311; Jamiil al-Din Miqdiid al-Su yM al-Hjlli, al-Tanqih al-Rd'i' , ed. Al-Sayyid Abd al-Latif Kuhkamhi (Qum:Maktabat Ayyat Alliih al- Azam i al-Mar ashi, 1404), vol. 1, 588; al-Majlisi,Malddh al-Akhydr, vol. 9, 401-02; al-MurtadH, Kitdb al-Bahr, vo1.6, 409-10. TheZaydis differ with the Ja faris on a minor point: If a non-Muslim enters d6r al -Isldm and then converts there, his or her minor children are protected, but movableand immo vable property are not protected.7 In his Kitdb al-Bahr , vol. 6 , 410, the Zaydi jurist al-Murtad2 states thatMiilikis believe that if a person converts in ddr a l -Is ldm leaving children andproperty in ddr al - rb , the children or property have no immunity. In his a l -Mughni , vol. 10, 420-21, the Hanbali jurist, Ibn Qudtima, attributes the oppositeopinion to the Mdikis.7 Al-Wansharisi, al-Mi'ydr , vol. 2, 12872 Abii al-Walid Muhammad b. Ahmad b. Muhammad b. Ahmad Ibn Rushd,Biddyat al-Mujtahid i Nihdyat al-Muqtajid (Cairo: Musrafa al-Biibi al-Halabi,1981), vol 1, 400.


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ISLAMIC LAW AND MUSLIM MINORITIES 169Mdiki jurist, Ibn al- Arabi (d. 54311 148).73 Ibn Rushd s own view,regardless of Mdik s position, is that both the person and property areprotected by 1slam.7~Clearly, the Milikis were divided on the issue. Ibn al- Arabi,himself, complains that this is an obstinate issue that has not beendealt with systematically by Mdiki jurists.75 The dilemma results fromthe fact that, because of their jurisdictional theory, early Mdiki juristswere inclined to extend inviolability to all Muslims, whereas lateMdiki jurists disliked Muslims who refused to migrate. The solutionworked out by some Mdiki jurists writing after the ninthlfifteenthcentury was particularly innovative. These jurists argued that even ifthe persons and properties of Muslims residing in non-Muslim landsare, in fact, inviolable, this is only a partial consideration. By residingin a non-Muslim territory, these Muslims become similar to criminal orillegitimate rebels (muhdribfin).76 While inviolable as Muslims, theirillegal residence compromises their status. Consequently, if theseMuslims physically assist non-Muslims, they may be killed legitimate-ly. If these Muslims extend financial assistance to non-Muslims, theirproperty may be confiscated. And for the sake of their children, thelatter may be enslaved so that they may be rescued from the custody oftheir parents and taken back to the lands of Islam, where they can beraised properly as Muslims. Al-Wansharisi addresses this view whilediscussing the Mudejars who refused to leave Barcelona after it fell toChristians. Immediately after explaining this subject, he launches intoa tirade against the Mudejars who, for economic reasons, preferrednon-Muslim lands.77One of the fields of Islamic law that may yield insight into theperception and treatment of Muslim minorities by Muslims residing inddr al-lsldm is that of ritual. Muslim jurists often discuss whetherrebels (bughat) or brigands (harbis) may be treated as Muslims upondeath (that is, whether the corpse should be washed, blessed through

7 Al-Wansharisi, al-Mi'ycir, vol. 2, 128.74 Ibn Rushd, Bidciya, vol. 1 ,400 .7 This opinion recorded in al-Wansharisi, al-Mi'ycir, vol. 2, 128.76 See Khaled Abou El Fadl, Ahkcim al-BughBt: Irregular Warfare and theLaw of Rebellion in Islam, in Cross, Crescent and Sword, ed. James T . Johnsonand John Kelsay (Westport, C.T.: Greenwood Press, 1990); Joel L. Kraemer,A ostates, Rebels and Brigands, Israel Oriental Studies, 10 (1980), 34-73.P7 See al-Wansharisi, al-MiiyBr,vol. 2, 129-30; 'Ulaysh, Fath, vol. 2, 380-81. For a similar, less polemical view of a Shi'i jurist, se e Abil Sal* Taqi al-Dinal-Halabi, al-Kcififll-Fiqh, in Silsilat al-Yancibi', 38.


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170 KHALED ABOU EL FADLprayer and buried in Muslim cemeteries).78 But the jurists say littleabout the status of Muslim minorities in this regard, e.g., may suchMuslims be buried in Muslim cemeteries in dar al-Islam if they desire?Muslim jurists often do comment on a situation in which a person ofunknown identity is found dead among non-Muslims. May thatperson be buried as a Muslim after the proper rituals have beenperformed? The Hanbali jurist, Ibn Qudiima, argued that if the corpseis found in ddr al-Islam the presumption is that this person is aMuslim; but if the corpse is found in dar al-kufr the presumption is theopposite. Hanafi jurists generally agreed that the presumption is linkedto the territory, but they add that if a corpse found in non-Muslimterritory has the appearence of a Muslim then the person should beburied as a Muslim. The MFdiki, Ibn Rushd the grandfather, assertedthat regardless of the territory, the corpse of an infant is presumed tobe Muslim but that of an adult is presumed to be non-Muslim. Somejurists, from various schools, argued that one must consider thereligious composition of the population in which the corpse is found; ifthe majority are Muslims, then the corpse is Muslim. Shgi'i juristsmaintained that regardless of the circumstances the corpse must betreated as Muslim. Even if one suspects that only one corpse out of100 is Muslim, all 100 must be buried as mu slim^ ^^ But suchcomments are scarce and scattered. Perhaps Muslim jurists who didnot prohibit residence in non-Muslim temtory considered this matter tobe a non-issue, and since ll schools affirmed the moral inviolabilityof ll Muslims, it followed that Muslim jurists assumed that a Muslimresiding in non-Muslim territory should be sent to the Hereafter withthe proper rituals as long as his or her religious identity was known. Inany case, the relation between rituals and Muslim minorities deservesgreater exploration in order to better understand the juristic positionson religion and territorial sovereignty.In summary, all schools claimed that a bond unites Muslimswherever they may be and all schools affirm a Muslim's moralinviolability. The Hanafis were not opposed to Muslims residing innon-Muslim territory; but for them territory, not Islam, was the sourceof inviolability. The Shiifi'is were more receptive to the idea of

8 See, for example, Ibn Qudlma, a l - M u g h n i , vol. 10 61-66; Kraemer,A states.Ibn Q u d h a , a l - M u g h n i , vol. 2 406; Abii Muhammad b Ahmad al-'Ayyini, al -Bimiyaf i Sharh al-Hialiya (Beirut: D& al-Fikr, 1990), vol. 3,280; IbnRushd, al -Baydn, vol. 2,2 58 ; al-Nawawi, al-Majmri , vol. 5,258 -59.


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7SL MIC L W ND MUSLIM MINORITIES

Muslims residing in non-Muslim territory, insisting that Islam is thesource of inviolability in all its forms. Although Muslims morally andlegally belong to one community, that does not mean they must allreside within the same political jurisdiction. The Hanbalis and Zlh irisdiscouraged Muslims from residing in non-Muslim lerritory butaccorded inviolability to Muslims wh o disregarded the moral impera-tive to reside among M uslims. While concurring with the Hanbali andZiihiri view, the S hi is maintained that imm ovable property is notprotected because inviolability emanates from the classification ofimm ovable property according to territory, not according to religion.Although the Mllikis were compelled to affirm the moral imperativerendering a M uslim inviolable, some managed to affirm the principleand yet sim ultaneously undermine it.The specific positions adopted by the jurists defy a single, compre-hensive e xplanation. Mu slim jurists responded to different historicalchallenges in different way s, and they responded to the same historicalchallenges in a diverse and innovative fashion. Moral, political andlegal imperatives interacted in a complex and elusive manner. Reli-gious dogma yielded to political reality as much as to self-perpetuatinglegalistic criteria. Essentialist and dogmatic conclusions fail to capturethe dynam ics of Islamic jurisprudence. Islam ic law frequently dis-tinguishes between a moral rule and a legal rule, and the fact thatMu slim jurists in sist on the unity of all Muslims at the theological an dmoral level does not entail that all legal rules must follow accordingly.The divergence between the m oral imperative and the legal rule pointsto the tensions that permeate a legal system that emanates from auniversal theology.Having exam ined the relationship between Muslim m inorities andthe Islamic polity, we now turn to the relationship between Muslimminorities and Islamic law. This inquiry is essential for an under-standing of the relationship between non-resident Muslims and Islam.T o what extent are these Muslims bound by Islamic law? How shouldthey conduct themselves in non-Muslim lands? If Islamic law doesapply to them does it apply as a moral imperative or does it havejurisdictional force? Although the responses to these questions tend tovary according to the school of thought, there is considerableconsensus.


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172 KHALED OU LFADL3 Islamic law and Muslim MinoritiesThe extent to which Islamic law is applicable to Muslims in non-Muslim states and the permissibility of residing in such states areinterrelated issues. Many jurists made the permissibility of suchresidence contingent on the ability to practice Islam, without specifyingthe extent to which Islam must be manifested or practiced. Clearly,Islamic legal precepts do have a certain degree of universal applica-bility. Hanafi jurists assert that Muslims residing among non-Muslimsshould establish congregational prayers, especially the Friday weeklyprayers (Jum a prayers), and the prayer after the month of Ramadanand the new year s prayer ( ' id prayers), and should demand theappointment of Muslim judges and governors.80But the issue wascomplicated by the question of what is dar al-Islam. For example, thevery acts recommended by these jurists might transform territory fromiir al-harb to ddr al-Islam.81 Despite the legal classification ascribedto a particular territory, certain political realities remained. Even if aterritory ruled by non-Muslims is classified as a part of dar al-IslGm,the fact remains that the coercive power of the Islamic sovereign isabsent. Hence, who is expected to apply Islamic law to theseMuslims? If an Islamic polity exists, does it have coercive power overMuslims outside its territory? In other words, assuming that Islamiclaw is applicable to all Muslims, regardless of their place of residence,to what extent does an Islamic polity have jurisdiction over these

Muslims? And what is the status of the laws of the host non-Muslimstate? To what extent are Muslims obligated to obey the laws of theirhost state and what defines the terms of their conduct?Al-Shfifi i asserted unequivocally that the obligations and laws ofIslam remain applicable regardless of the categorization of theterritory:There is no difference between dcir al-harb and dcir al-lsldm as to thelaws that God has decreed to His people because God says [TheProphet has expounded certain laws] and he did not except those whoare in dcir a l- ls lh or dcir a l- k rb . He [the Prophet] has not exemptedany of his people from any of his decrees, and he did not permit themanything that was forbidden in dcir al - rb. What we are saying isconsistent with the Qur Sin and Sunna, and it is w hat rational people

Ibn Abidin,Radd, vol. 3 253; al-Fatciwci a[-H indiyy a, vol. 6 , 31 1.8 1 See al-KBsHni Badci'i', vol. 7, 130; Ibn Abidin, Radd, vol. 3 252; a l -Fatciwci al-Hindiyya, vol. 6 , 311.


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ISLAMIC LAW N MUSLIM MINORl TIES 173can understand and agree on. What is allowed in bilad al-Islam isallowed in bilad al-kufi, and what is forbidden in bilid al-lslim salso forbidden in ddr al-klfr. So whoever commits an infraction issubject to the punishment that God has decreed and [his presence in]bilad al-knrfr does not exempt him from anything.

Sh Si 'i, Hanbali and Md ik i jurists often make similar statements,that is, Islamic law applies to Muslims with equ al force wherever theirresidence.83 According to most schools, not only does Islamic lawapply as a moral imperative, but also the Islamic polity has enforce-ment jurisdiction. Consequently, if a M uslim fornicates, steals, mur-ders, consumes alcohol, or transgresses any other Islamic norm, theIslamic polity has extraterritorial jurisdiction over the infraction, andthat Muslim may be punished by the Islamic polity although theoffense did not occur in ddr a l - I s l~ im.8~ccording to the ShCtfi'i juristal-Shiriizi (d. 81711414-15), because the prohibitions are the sam e inboth territories, there is no reason for the penalties to be different inany sense. 85But Shiifi'i jurists permit an exception in the case of a Muslimresiding in non-Muslim territory who claims ignorance of the law a san excuse. If a Muslim commits, say, adultery, in his or her non-Muslim residence, and if that Muslim claims that he or she did notknow that this is prohibited by Islamic law, that Muslim is exemptedfrom pun ishmen t, but only if this is a first offence. The underlying ideahere is that the level of Islamic knowledge in non-Muslim lands mightbe s o poor that Mu slims would be ignorant of the basic prohibitions,and it would be unfair to hold these Muslims to the normal standardsof Islam ic conduct.86The main dissenters, as might be expected, are the Hanafis, forwhom in the case of most infractions, the prohibitions of Islamic lawapply without distinction. Hence adultery, theft, murder, defamation(qadhf) and the consumption of alcohol are prohibited in dar al-harbas well as in dar al-Islam. But this prohibition is merely a moralimperative; a person committing any of these offences in a non-Muslim territory is liable only before God in the Hereafter. Islamic

s2 Al-ShBfifi i,al -Umm, vol. 7, 354-55; see also al-Shirlizi, al-Muhadhdhab,vol. 2, 310; al-Nawawi, al-Majmli , vo1.19, 338.83 bn Qudtima, a l - M u g h n i , vol.10, 162; SalpOn, al -Mudawwana, vol. 4,425.8 Ibid.85 Al-Shirbi, al-Muhadhdhab, vol. 2, 310.86 Al-Shsi i , al -Umm,vol. 6, 35.


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174 KHALED ABOU EL FADLcourts have no jurisdiction over crimes committed outside of Islamicterritory and conseque ntly may not punish extraterritorial crimes.g7What is significant about the Hanafi position is the argument thatparticular Islam ic legal prohibitions or laws do not apply outside theterritory of Islam. Ha nafi jurists argu e that a Muslim residing in anon-Muslim territory may deal in usury (riba)with non-Muslims, maysell or buy prohibited substances such as alcohol, pork or an animalkilled by Islamically unacceptable means such as suffocation or club-bing (mayta), and may engage in gambling or questionable financialdealin gs such as insurance schemes and the like on the conditionthat such transactions are legal under the laws of the host territory andthat the transactions are between a Muslim and a n o n - M u ~ li m . ~ ~Al-Kgsgni adds that such transactions are permitted in dar al-harhbetween one Muslim and an0the r).~9Although the reasons offered forthis rule are varied, the most salient justification holds that the sourceof inviolability for money and property is territory. Non-Muslimproperty, especially abroad, is not protected by Islamic law. Conse-quently, a Muslim may take the money and property of a non-Muslimin non-Muslim territory by any means as long as he or she does sowith the consent of the sovereign in the host territory. That is, as lon gas the non-Muslim polity does not outlaw such transactions, Islamiclaw will not intervene in order to protect the monies of non-M uslimsfrom what Islamic law considers to be exp1oitation.w Regardless ofthe justification, according to Hanafi jurists, a Muslim does not incurliability for these ac ts either in this life or the Hereafter.The other schools reject both the rule and its justification. TheIslam ic prohibitions regarding financial transactions a re unaltered innon-M uslim territory. Som e jurists insist that Islamic law sh ouldintervene to make the money of non-Muslims inviolable as far as aMuslim is concerned.9 Although most Islamic schools formally

87 Al-Shayblni, al-Siyar, vol. 5, 1851; al-Klslni, Badd i , vol. 7, 132; Ibn'Abidin, Radd, vol. 3 , 248. The Hanafi jurist Abii YBsuf strongly dissents fromthe Hanafi position.8g Al-Shayblni, a l -S i ygr , vol. 4, 1486-90, 1492; vol. 5, 1884; al-Klsiini,Badri i . vol. 7. 132: Ibn 'Abidin. Radd. vol. 3. 247. 249-250: al-Sarakhsi. a l-~ a b s l i t ;ol. 10 21L22; a l - ~ a t d w d l - ~ i n d i y yk ,01. 2 , 227. ' ~ b i i Bsuf onceagain dissents from the Hanafi position.89 Al-KiisBni, Badd i , vol. 7, 132.

9 Ibid. The rule also w as justified as a means to spite non-Muslims (see al-Sarakhsi, a l -Mabs l i ? , vol. 10, 21-22) and as a means to accommodate theignorance of Muslims residing in ddr al-harb as to the prohibitions of Islamic law( K l s h i , Badri i , vol. 7, 132). Neither view gained wide support.9 Al-Shlfi' i , a l - U m m , vol. 7, 358-59; Buhtiti, Kashshdf, vol. 5, 108. See


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ISLAMIC LAW AND MUSLIM MINORITIES 75refused to relax the obligations imposed by Islamic law, some con-cessions were made. The very fact that a Muslim is allowed to residein non-Muslim territory entails a concession. Such a Muslim is forcedto pay taxes and to contribute to the economic power of a non-Muslimpolity. Additionally, Islamic obligations cannot be fulfilled since aMuslim cannot assist or aid the Islamic polity, as, for example,through the performance of jihdd. Despite the formal insistence on theapplicability of Islamic law in its totality, in reality many particulars ofIslamic law cannot be enforced in a non-Muslim temtory. By permit-ting Muslims to reside in a non-Muslim territory, Muslim jurists weremaking a de facto compromise, while formally insisting on theuniversal applicability of Islamic law.This discussion brings into focus two practical questions. First,how should Muslims conduct their affairs in a non-Muslim polity, thatis, what are their obligations and duties toward their place of residenceand what defines the terms of the e f cto compromise? Second, whathappens if corruption is so widespread that an ideal Islamic life is notpossible anywhere?92 Muslim jurists assumed that a Muslim sojourn-ing or residing in non-Muslim territory will do so under an agreementof safe-conduct amdn), according to which a Muslim is promisedprotection and in return he or she promises not to take action that isdetrimental to the host state and to obey the commands of the hoststate. All jurists agree that a Muslim must abide by the terms of theamdn. Consequently, a Muslim may not commit acts of treachery,betrayal, deceit or fraud, and may not violate the honor or property ofnon-Muslims. A Muslim must fulfil contractual obligations, pay offdebts and not defraud or deceive a party to a financial transaction.93also al-Shaybiini, al-Radd, 96; Ibn Q u dh a , al-Mughni, vol. 4, 162; Ibn Rushd,al-Muqaddimdt , vol. 2 10-11; Sahniin, al-Mudawwana, vol. 3, 279. As noted,there are other areas in which different rules apply in different territories. TheHanafis argue that if a w oman converts to Islam and migrates to ddr al-lsldm, hermarriage to a non-Muslim becomes null and void, but she is not required toobserve the waiting-period ( idda). Al-ShZfi i disagrees, asserting that a w aiting-period is necessary whether or not sh e migrates to dcir al-Isldm (al-Umm,vol. 7,359); for a disagreement on whether a difference in residence between spousesnecessarily results in voiding the marriage, see Ibn Qayyim, Ahkdm, vol.1, 363-.I Z92 We already have commented on the second question in the section on hijra.Some jurists argued that if all lands become equally corrupt, it makes nodifference where a M uslim resides (see al-Shirbini, Mughni,, vol. 4, 239). Here wedeal with the issue from the perspective of the extent to which Islamic obligationsare altered by widespread corruption.93 On amdn, see Julius Hatschek, Der Musta min (Berlin und L eipzig: Walterde Gruyter Co., 1919).


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176 KH LED ABOU EL F DLThe existence of an explicit amdn is irrelevant because it is impliedby the grant of permission to reside or enter non-Muslim temtory. Ifthe host non-Muslim government violates its obligations, as, forexample, by usurping the property of a Muslim, then the promissoryrelationship is voided. A Muslim, however, may not resort to fraud ortreachery unless the government or one of its agents clearly defaults onits promise of protection. Therefore, the violation of a Muslim's personor property by a private individual does not abrogate the anGn and theobligations remain intact.94A fatwd issued by a ShAfi'i jurist, IbnHajar al-'Asqalini, is illustrative:

He w as asked ab out the unbelievers (kuffcir)of Malibar who regularlyassist Muslims and administer the laws of Islam among them [theMuslims] because the prosperity of their [the unbelievers'] country isprovided for by Muslims. But no covenant or agreement has been[expressly] entered into between the two groups. The Muslims are theirsubjects and they reside in their countries, and Muslims pay taxes andother levies to them. Firstly, do [these] unb elievers belong to drir alrb (harbiyyfin)?And may one accept usury when dealing with themand cheat them in measures and weights [in the sale of grain andsimilar substances]?Ibn Hajar responded: The aforementioned unbelievers are krbiyy l in .Nevertheless one may neither accept usury from them nor cheat themin measures and weights. 95Thisfatwa elicits the question: What if a Muslim ignores the cove-nant and commits any of the acts mentioned above? The vast majority

of jurists hold that there are two major consequences. First, the Mus-lim incurs an onerous sin, and second, if that Muslim enters Muslimterritory, a Muslim polity has jurisdiction to force him or her tocompensate the victims. For instance, if the violation involves a refusalto pay a debt, a Muslim polity has the power of compulsion and mayenforce payment. Hanbali and Shi'i jurists, who are particularly vigi-lant about this, argue that the Muslim polity should either hand overthe compensation to a representative in Muslim temtory or, alterna-tively, send it by means of an emissary to the non-Muslim polity.9 Al-Shaybiini, al-Siyar , vol. 2, 507-11; vol. 4, 1486; al-Marghiniini, a l -Hidciya, vol. 2, 152; Ibn al- Hu mh , Fath, vol. 6, 17; al-Shirtizi, al-Muhadhdhab,vol. 2, 338; al-Nawawi, al-Majmli ' , vol . 19 , 453 ; AbB Yahyii Zakariyyii al-

Anski , Fath (Cairo: Mustafii _al-Biibi al-Halabi, 1948), vol. 2, 177; al-Buhiiti,Kashshcif, vol. 5, 108-09; Ibn A bidin, Radd, vol. 3, 247; al-Sarakhsi, al-Mabslit,vol .10, 65, 95-96; Ibn Qudha, al -Mughni , vol.10, 515-16; al-Fatdwci al-Hindiyya, vol. 2, 232; al-Sh 8lfi i, l-Umm, vol. 4, 248.9 Ibn Hajar, al-Fatciwci,vol. 4,245-46.96 BuhBti, Kashshcif, vol. 5 , 108; al-Hilli, iddh, vol. 1, 379; al-Tariibulsi, a l-


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ISLAMIC LAW ND MUSLIM M INORm ES 177Once again the primary dissenters are the Hanafis, who agree thatstealing, cheating, deceiving, defrauding and the like, committed inviolation of an aman, are immoral and sinful, but hold that, for themost part, a Muslim polity has no jurisdiction over such acts if theyare committed outside its own territory. If, for instance, a Muslimrefuses to repay a debt or usurps property in non-Muslim territory andthen escapes to dcir al-Isldm, that Muslim should be advised to returnthe money if he or she wishes to avoid incurring a sin. Nonetheless,the Muslim polity has no power of compulsion. An exception is madein the case of a Muslim who obtains an amdn before leaving theterri

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