The "dhimma contract"
Based on Quranic verses and Islamic traditions, classical sharia distinguishes between Muslims, followers of other Abrahamic religions, and pagans or people belonging to other polytheistic religions. As monotheists, Jews and Christians have traditionally been considered "People of the Book," and afforded a special status known as dhimmi derived from a theoretical contract—"dhimma" or "residence in return for taxes". In Yemenite Jewish sources, a treaty was drafted between Muhammad and his Jewish subjects, known as kitāb ḏimmat al-nabi, written in the 17th year of the Hijra (638 CE), and which gave express liberty unto Jews living in Arabia to observe the Sabbath and to grow-out their side-locks, but were required to pay the jizya (poll-tax) annually for their protection by their patrons. There are parallels for this in Roman and Jewish law. Muslim governments in the Indus basin readily extended the dhimmi status to the Hindus and Buddhists of India. Eventually, the largest school of Islamic scholarship applied this term to all non-Muslims living in Islamic lands outside the sacred area surrounding Mecca, Saudi Arabia.
Classical sharia incorporated the religious laws and courts of Christians, Jews and Hindus, as seen in the early caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system. Quoting the Qur'anic statement, "Let Christians judge according to what We have revealed in the Gospel", Muhammad Hamidullah writes that Islam has decentralized and "communalized" law and justice. In medieval Islamic societies, the qadi (Islamic judge) usually could not interfere in the matters of non-Muslims unless the parties voluntarily chose to be judged according to Islamic law, thus the dhimmi communities living in Islamic states usually had their own laws independent from the sharia law, as with the Jews who would have their own rabbinical courts. These courts did not cover cases that involved other religious groups, or capital offences or threats to public order. By the 18th century, however, dhimmis frequently attended the Ottoman Muslim courts, where cases were taken against them by Muslims, or they took cases against Muslims or other dhimmis. Oaths sworn by dhimmis in these courts were tailored to their beliefs.
Non-Muslims were allowed to engage in certain practices (such as the consumption of alcohol and pork) that were usually forbidden by Islamic law, in point of fact, any Muslim who pours away their wine or forcibly appropriates it is liable to pay compensation. Zoroastrian "self-marriages", that were considered incestuous under sharia, were also tolerated. Ibn Qayyim Al-Jawziyya (1292–1350) opined that non-Muslims were entitled to such practices since they could not be presented to sharia courts and the religious minorities in question held it permissible. This ruling was based on the precedent that the Islamic prophet Muhammad did not forbid such self-marriages among Zoroastrians despite coming into contact with Zoroastrians and knowing about this practice. Religious minorities were also free to do as they wished in their own homes, provided they did not publicly engage in illicit sexual activity in ways that could threaten public morals.
However, the classical dhimma contract is no longer enforced. Western influence has been instrumental in eliminating the restrictions and protections of the dhimma contract.
According to law professor H. Patrick Glenn of McGill University, "[t]oday it is said that the dhimmi are 'excluded from the specifically Muslim privileges, but on the other hand they are excluded from the specifically Muslim duties' while (and here there are clear parallels with western public and private law treatment of aliens—Fremdenrecht, la condition de estrangers), '[f]or the rest, the Muslim and the dhimmi are equal in practically the whole of the law of property and of contracts and obligations'."
The dhimma contract and sharia law
The dhimma contract is an integral part of traditional Islamic sharia. From the 9th century AD, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulama). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community. Through succeeding centuries and empires, the balance between the ulema and the rulers shifted and reformed, but the balance of power was never decisively changed. At the beginning of the 19th century, the Industrial Revolution and the French Revolution introduced an era of European world hegemony that included the domination of most of the lands of Islam. At the end of the Second World War, the European powers found themselves too weakened to maintain their empires. The wide variety in forms of government, systems of law, attitudes toward modernity and interpretations of sharia are a result of the ensuing drives for independence and modernity in the Muslim world.
Muslim states, sects, schools of thought and individuals differ as to exactly what sharia law entails. In addition, Muslim states today utilize a spectrum of legal systems. Most states have a mixed system that implements certain aspects of sharia while acknowledging the supremacy of a constitution. A few, such as Turkey, have declared themselves secular. Local and customary laws may take precedence in certain matters, as well. Islamic law is therefore polynormative, and despite several cases of regression in recent years, the trend is towards modernization and liberalization. Questions of human rights and the status of minorities cannot be generalized with regards to the Muslim world. They must instead be examined on a case-by-case basis, within specific political and cultural contexts, using perspectives drawn from the historical framework.
The end of the dhimma contract
The status of the dhimmi "was for long accepted with resignation by the Christians and with gratitude by the Jews" but the rising power of Christendom and the radical ideas of the French Revolution caused a wave of discontent among Christian dhimmis. The continuing and growing pressure from the European powers combined with pressure from Muslim reformers gradually relaxed the inequalities between Muslims and non-Muslims.
On 18 February 1856, the Ottoman Reform Edict of 1856 (Hatt-i Humayan) was issued, building upon the 1839 edict. It came about partly as a result of pressure from and the efforts of the ambassadors of Great Britain, France, and Austria, whose respective countries were needed as allies in the Crimean War. It again proclaimed the principle of equality between Muslims and non-Muslims, and produced many specific reforms to this end. For example, the jizya tax was abolished and non-Muslims were allowed to join the army.
Views of modern Islamic scholars on the status of non-Muslims in an Islamic society
- The Iranian Ayatollah Ruhollah Khomeini indicates in his book Islamic Government: Governance of the Jurist that non-Muslims should be required to pay the poll tax, in return for which they would profit from the protection and services of the state; they would, however, be excluded from all participation in the political process. Bernard Lewis remarks about Khomeini that one of his main grievances against the Shah, Mohammad Reza Pahlavi, was that his legislation allowed the theoretical possibility of non-Muslims exercising political or judicial authority over Muslims.
- The Egyptian theologian Yusuf al-Qaradawi, chairman of the International Union of Muslim Scholars, has stated in his Al Jazeera program Sharia and Life, which has an estimated audience of 35 to 60 million viewers: "When we say dhimmis (ahl al-dhimma) it means that [...] they are under the covenant of God and His Messenger and the Muslim community and their responsibility (ḍamān), and it is everyone's duty to protect them, and this is what is intended by the word. At present many of our brethren are offended by the word dhimmis, and I have stated in what I wrote in my books that I don't see anything to prevent contemporary Islamic ijtihad from discarding this word dhimmis and calling them non-Muslim citizens."
- Muhammad Husayn Tabataba'i, a 20th-century Shia scholar, commenting on a hadith that says that the Quranic verse 9:29 enjoining Muslims to fight dhimmis "until they give the jizyah willingly" had "abrogated" other verses asking for good behaviour toward dhimmis, states that "abrogation" could be understood either in its terminological sense or its literal sense. If "abrogation" is understood in its terminological sense, Muslims should deal with dhimmis strictly in a good and decent manner. If "abrogation" is understood in its literal sense, then it is not in conflict with the verse of fighting. He then points out that uses of words in their literal sense (as opposed to their terminological ones) are common in the "traditions of the Imams".
- Javed Ahmad Ghamidi, a Pakistani theologian, writes in Mizan that certain directives of the Quran were specific only to Muhammad against peoples of his times, besides other directives, the campaign involved asking the polytheists of Arabia for submission to Islam as a condition for exoneration and the others for jizya and submission to the political authority of the Muslims for exemption from death punishment and for military protection as the dhimmis of the Muslims. Therefore, after Muhammad and his companions, there is no concept in Islam obliging Muslims to wage war for propagation or implementation of Islam.
- The Iranian Shia jurist Grand Ayatollah Naser Makarem Shirazi states in Selection of the Tafsir Nemooneh that the main philosophy of jizya is that it is only a financial aid to those Muslims who are in the charge of safeguarding the security of the state and dhimmis' lives and properties on their behalf.
- Legal scholar L. Ali Khan points to the Constitution of Medina as a way forward for Islamic states in his 2006 paper titled The Medina Constitution. He suggests this ancient document, which governed the status of religions and races in the first Islamic state, in which Jewish tribes are "placed on an equal footing with [...] Muslims" and granted "the freedom of religion," can serve as a basis for the protection of minority rights, equality, and religious freedom in the modern Islamic state.
- Tariq Ramadan, Professor of Islamic Studies at the University of Oxford, advocates the inclusion of academic disciplines and Islamic society, along with traditional Islamic scholars, in an effort to reform Islamic law and address modern conditions. He speaks of remaining faithful to the higher objectives of sharia law. He posits universal rights of dignity, welfare, freedom, equality and justice in a religiously and culturally pluralistic Islamic (or other) society, and proposes a dialogue regarding the modern term "citizenship," although it has no clear precedent in classical fiqh. He further includes the terms "non-citizen", "foreigner", "resident" and "immigrant" in this dialogue, and challenges not only Islam, but modern civilization as a whole, to come to terms with these concepts in a meaningful way with regards to problems of racism, discrimination and oppression.