A Contemporary Islamic View of Dhimmah *

The First Encounter

The first encounter between Islam as a state and non-Muslim citizens occurred in Madinah shortly after the Prophet's Hijrah. The nascent state had to establish a system that its citizens could follow and by which its authorities should abide. In other words, the state needed a constitution. Here the first Islamic political document was written, and most probably dictated, by the order of the Messenger (peace and blessings be upon him). This document was historically known as the Document of Madinah or the Paper of Madinah, although nowadays it is called it the Constitution of Madinah.

The following are some of the articles in this document:

• This is a document from Muhammad, the Prophet and the Messenger of Allah (governing the relations) between the Muslims of Quraish and Yathrib, and those who joined them and struggled along with them.
• They are one Ummah to the exclusion of all [other] men [i.e., people].
• The Jews who follow us deserve aid and equality; they shall not be wronged nor shall their enemy be aided.
• No polytheist shall protect a property belonging to Quraish nor shall he deter a believer from it.
• The Jews shall contribute, along with the Muslims, to the cost of war if they are in a state of war.
• The Jews of the Banu `Awf are one community with the believers; the Jews have their religion and the Muslims have theirs. This applies also to their freed slaves and their persons except those who behave unjustly and sinfully.

The document also mentions nine Jewish tribes and states that theyhave the same rights as the Banu `Awf. It also states that the Jews and Muslims must advise, cooperate, and help each other against anyone who attacks the signatories of this document. The document concludes by making Allah the witness of what is agreed upon.

According to this document, the non-Muslims living in the state of Madinah were considered to be citizens; they had the same rights and duties as Muslims.

The First Dhimmah Covenant

The first covenant that included the word dhimmah was written when the Messenger of Allah (peace and blessings be upon him) made an agreement with the people of Najran. The covenant went as follows:

The people of Najran and its surrounding area are under the protection of Allah and the (security) pledge (dhimmah) of Muhammad the Prophet and Messenger of Allah, (a protection) that embraces their property, their souls, their land, their religion, those of them who are present or absent, and all that which they possess, whether ample or little. No bishop, monk, or priest shall be removed from his office. No army shall enter their land. If anyone of the people of Najran demands their rights, justice shall be given to him. Neither shall they oppress nor shall they be oppressed.

A Covenant, Not a Status

The dhimmah or "covenant of protection" is one made by Allah and His Messenger, not anyone else. It was intended to safeguard non-Muslims' rights, to respect their religion, and to recognize their right to keep their faith. Dhimmah is a type of covenant and not a status.

Linguistically, dhimmah literally means covenant, security, and guarantee.

As a legal term, the word dhimmah refers to a perpetual covenant that recognizes non-Muslims' right to practice their religion, and to have security and protection from the Islamic Ummah, provided that they pay the jizyah and accept the rulings of the Muslim state in their non-religious affairs.⁽²⁾

The dhimmah covenant was not an Islamic invention; rather, it was common among people before Islam. Islam gave it legality by acknowledging it. Islam also added a further guarantee by making the covenanter Allah, His Messenger, and the believers; in other words, the covenanter was the Islamic state itself instead of merely an individual or a trube. Islam also made the covenant everlasting and irrevocable to protect non-Muslims against the oppression of any Muslim ruler.

As for the jizyah, it was not originally a part of this covenant, as indicated by the dhimmah's definition. Jizyah was a compensation for going to war and therefore, Companions and Successors absolved non-Muslims who participated with Muslims in defending their country from the tax.,⁽³⁾ Because of this, Suraqah ibn `Amr absolved Armenians from paying jizyah in AH 22, as did Habib ibn Maslamah Al-Fahri with the non-Muslims of Antioch (Antakya). The companions of Abu `Ubaidah ibn Al-Jarrah, with his approval and the Companions' approval, absolved a non-Muslim community on the Turkish–Syrian border known as Al-Jarajimah.

In addition, Muslims also made an agreement with Nubians in Egypt, during the reign of `Abdullah ibn Abu As-Sarh, that they would exchange gifts every year. Muslims also made an agreement with the people of Cyprus, during the reign of Mu`awiyah, on a tax that would be paid by anyone of either side passing through the lands of the other side. The agreement also stipulated that the people of Cyprus had to maintain a neutral position between Muslims and the Byzantine people.

Nowadays, as it has been for more than a century, non-Muslim citizens living in Islamic countries perform military service and protect their nations. Therefore, they are not liable for paying jizyah according to the correct juristic point of view.

The End of the Dhimmah Covenant

Like all covenants, the dhimmah covenant was liable to termination. So the first dhimmah covenant was terminated by the state which had concluded it. The Muslim state today in any country is not an extension of the first Muslim state, which concluded the dhimmah covenant, for such state ended by occupation that took away its sovereignty, changed its laws, and introduced into its culture and identity many alien elements.

All the nation's citizens, Muslims and Christians alike, resisted such colonization in all its forms, just as they are still resisting all attempts of hegemony and subordination. As a result of that successful resistance, the present countries came into being, introducing a new type of sovereignty that is based on a new form of social contract that earlier jurists did not discuss. In other words, the sovereignty known in early jurisprudence was based upon the victory of one side over another, but the sovereignty of our states today is based upon real partnership with the two sides equally sharing the making of the country, as well as the rights and obligations assigned to each of them.

This was what the Messenger (peace and blessings be upon him) did when he founded the first Islamic state in Madinah. I have no doubt that had the Jews not breached their covenant or acted treacherously towards the Messenger of Allah and the Muslims, the covenant would have still been respected and honored by Muslims. But the Jews acted treacherously and deceitfully, and so they were expelled from Madinah.

It is an established principle in all schools of Islamic jurisprudence that being a religious majority does not entail any right, and, by the same token, being a religious minority does not represent a hindrance from pursuing and obtaining rights. A free political system is meant to carry out the will of the nation as a whole or at least the will of the majority that is expressed by the people's votes. This kind of expression is what brings about a political victory or defeat.

Obviously, victory and defeat has nothing to do with religion; they are related to political success, which can be achieved and sustained only by achieving the voters' interests. In which case, those who fulfill people's interests would attain the political majority, however diverse their religions may be.

Political understanding dictates that if it is acceptable to associate with a political group to advance a national project that takes either the majority's or the minority's religions as its basis, it would not acceptable, in either case, to ban people of a different faith from participating in such a project so long as they accept the work. The claim that the right to practice politics or assume rule is restricted to the followers of a certain religion in a multifaith country lacks evidence in Shari`ah. The claim does not realize any legal interest, and there is a legal maxim that any act that fails to bring about its purpose is null." In fact, this claim entails dozens of evils, and the maxim to be applied here is that "preventing evil is given priority over obtaining benefit."

This claim cannot be supported by citing the authentic hadith in which the Prophet (peace and blessings be upon him) said "A non-Muslim may not have authority over a Muslim" because what is meant in the hadith is general, all-embracing authority, not the specific one in which each official, even the head of the state, is responsible for a specific and specialized area. Institutional administration and specialized ministries have done away with the idea of the general ruling discussed in the Islamic juristic works. An exception for this may be wilayat al-faqih (the authority of the jurist), still recognized by the Twelver Shiites, and yet some of them, such as Imam Muhammad Mahdi Shams Ad-Din, prefer what they call "the authority of the nation."

The new condition that has resulted from the termination of the dhimmah covenant does not entitle Muslims to deny the rights established by this covenant to the non-Muslims living in Muslim states. But if the new reality gives non-Muslims certain rights or assigns certain duties to them that were not included in the old covenant, we should grant these rights and demand these duties without diminishing their original rights by any means. On the other hand, other duties, such as the jizyah, have been annulled by the introduction of alternative duties like defending the homeland and having the honor of serving in the army, while other duties are confirmed in the new reality, such as respecting fellow citizens and not offending their creeds or hurting their feelings.

* This is the script of a lecture delivered by Prof. Al-`Awa at the Arab Christian Media Men Conference, The Middle East Council of Churches, Beirut, Oct. 10, 2002.

Dr. Mohammad Salim Al-Awa is the secretary general of The International Union for Muslim Scholars

(1) The texts and the comments on them are in Abu Yusuf. Al-Kharaj. pp. 78, 155, 159.

(2) See `Abdul-Karim Zaydan, Ahkam Adh-Dhimmiyin wal Must'manin (Beirut: 1967), p. 22 and Yusuf Al-Qaradawi, Ghair Al-Muslimin fi Al-Mujtama` Al-Islami (Cairo: 1977), p. 6.

(3) This is mentioned by Imam Ibn Hajar in his commentary on Sahih Al-Bukhari, Fath Al-Bari, vol. 7, p. 38. He attributed this to the majority of scholars.