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The early Muslim community was cognizant of the need to differentiate law to ensure moral autonomy, while working diligently to ensure equal protection of the law as far as fundamental human rights were concerned. Thus early jurists recognized that non-Muslims who have entered into a peace covenant 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. 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`ah 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.
But while early shari'ah law recognized the civil and political rights and liberties of non-Muslim dhimmis, shari`ah 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.
ISLAM, CIVIL SOCIETY, AND THE STATE
The modern state emerged to foster individual freedom from arbitrary rule, and to ensure that the members of the political society assume full control over public institutions. To do so, the modern state found it necessary to free public institutions from the control of all exclusive groups, including organized religions. However, despite the clear desire of the pioneers of the secular state to replace religious morality with civic virtue as the moral foundation of the state, secularism gradually developed anti-religious tendencies, leading to the gradual erosion of the moral consensus. The continuous erosion of morality, and the rampant corruption in modern politics threatens to turn the state into an instrument in the hands of corrupt officials and their egoistic cronies.
This has prompted calls for the return of religion and religiously organized groups into the political arena. Nowhere are these calls louder and clearer than in Muslim societies where Islamic values have historically exerted great influence on the body politics. Unfortunately, the reunion envisaged by the advocates of the Islamic state is often presented in crude and simplistic terms, as it fails to appreciate the great care that was taken by early Muslims to ensure that the state incorporates, both in its objectives and structure, the freedom and interest of all intra- and inter-religious divisions.
This calls upon Muslim scholars to engage in new thinking that aims at redefining political principles and authority. In doing so, Muslim scholars should be fully aware of the need to transcend the historical models of political organizations in Muslim society. Political structures and procedures adopted by early Muslim societies are directly linked to their social structures, economic and technological developments, and political experiences. While historical Islamic models provide a mine of knowledge for contemporary Muslims to utilize, any workable formulation of the modern Islamic model of the state that is true to Islamic values and ethos must emerge out of fresh thinking that takes into account the structure of modern society.