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But reciprocity, as the most fundamental principle of justice, is often employed to denote mutual recognition by individual members of the community, and rarely a relationship among moral groups and communities. This applies to both modern and pre-modern scholars. It is evident that while classical Muslim jurists recognized the moral autonomy of non-Muslim religious communities, they did not attribute to them equal moral freedom, and hence failed to developed rules that they would accept if they happened to come under the hegemony of others. The same can be said about those Western scholars who are driven by a single-minded desire to export those human rights schemes to the rest of the world, and who have shown little interest in engaging non-Western points of view in any meaningful cross-cultural dialogue.
Having identified the criteria for evaluating historical shari`a, we can turn now to examine its pronouncements concerning the civil and political rights of individuals.
CLASSICAL LEGAL THEORY: THREE FAULT LINES
We started our discussion by asking whether a political order based on Islamic ethos is capable of promoting human rights. We argued that critics of Islamic law have advanced the proposition that women and non-Muslims did not enjoy equal rights with Muslim men. However, the evidence presented by the critics of shari`a is inconclusive as to whether the fault lines that separate Muslims and non-Muslims, as well as men and women, stem from intrinsic features of the Islamic sources themselves, or whether they result from the failure to develop shari`a to cater to modern settings. This ambivalence may be attributed — at least partially — to the fact that Islamic sources and legal rules appear to combine statements that emphasize equality with other statements justifying religious and gender differentiation. It is therefore incumbent upon us, before we go on to study the possibilities of reform, to understand the reasons behind the contradictions cited by the critics, and to examine the nature of the methods and arguments used to justify and reconcile contradictions.
Human rights scholars have identified various shari`a rules which are in direct contradiction with international human rights. The shari`a rules incongruent with international human rights can be subsumed under three major headings: restrictions on freedom of religion, discrimination against women, and discrimination against non-Muslims. However, a close examination of the corpus of shari`a rules developed by early jurists reveals three important facts that eluded modern critics of shari`a. First, that shari`a rules concerning particular issues have changed over time, pursuant to changes in the social and political structures of Muslim society. Secondly, jurists have adopted varying positions regarding women’s and non-Muslim rights. These positions were influenced by the cultural milieu of the jurist, and the jurisprudential school to which he belonged. Thirdly, while the systems of rights developed by classical Muslim jurists were far from being perfect, it is evident that classical jurists recognized the intrinsic dignity of non-Muslims and women, even when they failed to provide a complete and comprehensive list of rights for its protection.
Early jurists recognized that non-Muslims who have entered into a peace convenant with Muslims are entitled to full religious freedom, and equal protection of the law as far as their rights to personal safety and property are concerned. Thus Muhammad bin al-Hasan al-Shaybani states in unequivocal terms that when non-Muslims enter into a peace covenant with Muslims, “Muslims should not appropriate any of their [the non-Muslims] houses and land, nor should they intrude into any of their dwellings. Because they have become party to a covenant of peace, and because on the day of the [peace of] Khaybar, the prophet’s spokesman announced that none of the property of the covenanter is permitted to them [the Muslim]. Also because they [the non-Muslims] have accepted the peace covenant so as they may enjoy their properties and rights on par with Muslims.” Similarly, early Muslim jurists recognized the right of non-Muslims to self-determination, and awarded them full moral and legal autonomy in the villages and towns under their control. Therefore, al-Shaybani, the author of the most authoritative work on non-Muslim rights, insists that the Christians who have entered into a peace covenant (dhimma) – hence became dhimmis – have all the freedom to trade in wine and pork in there towns freely, even though such practice is considered immoral and illegal among Muslims. However, dhimmis were prohibited to do the same in towns and villages controlled by Muslims.
Likewise, early Muslim jurists recognized the right of dhimmis to hold public office, including the office of a judge and minister. However, because judges had to refer to laws sanctioned by the religious traditions of the various religious communities, non-Muslim judges could not administer law in Muslim communities, nor were Muslim judges permitted to enforce shari`a laws on the dhimmis. There was no disagreement among the various schools of jurisprudence on the right of non-Muslims to be ruled according to their laws; they only differed in whether the positions held by non-Muslim magistrates were judicial in nature, and hence the magistrates could be called judges, or whether they were purely political, and therefore the magistrates were indeed political leaders. Al-Mawardi, hence distinguished between two types of ministerial positions: plenipotentiary minister (wazir tafwid) and executive minister (wazir tanfiz). The two positions differ in that the former acts independently from the caliph, while the latter has to act on the instructions of the caliph, and within the limitations set by him. Therefore, early jurists permitted dhimmis to hold the office of the executive, but not the plenipotentiary, minister.
Given the communal nature of the social and political organizations of premodern Muslim society – indeed most premodern societies for that matter – it would be erroneous to argue that dhimmis were considered a second class citizens, or that they were not treated with equal “concern and respect”. Such a conclusion results from an ahistorical perception of society, whereby a premodern, communally-based society is evaluated using concepts – such as citizen or equal protection of the law – developed under conditions quite unlike those existed in the historical Muslim society.
But while early shari`a law recognized the civil and political rights and liberties of non-Muslim dhimmis, shari`a rules underwent drastic revision, beginning with the eighth century of Islam. This was a time of great political turmoil throughout the Muslim world. It was during that time that the Mongols invaded Central and West Asia inflicting tremendous losses on various dynasties and kingdoms, and destroying the seat of the caliphate in Baghdad. This coincided with the crusaders’ control of Palestine and the coast of Syria. In the West, the Muslim power in Spain was being gradually eroded. It was under such conditions of mistrust and suspicion that a set of provisions attributed to an agreement between the Caliph Omar and the Syrian Christians were publicized in a treatise written by Ibn al-Qayyim. The origin of these provisions is dubious, but their intent is clear: to humiliate Christian dhimmis and to set them apart in dress code and appearance. Their impact, however, was limited, as the Ottomans, who replaced the Abbasid as the hegemonic power in the Muslim world, continued the early practice of granting legal and administrative autonomy to non-Muslim subjects.