By the grace of Allah (swt) this past academic year (2018-2019) one of the lessons I was able to attend was Jurisprudence of Citizenship Law and Religious Minorities given by Shaykh Haider Hobollah. Usually, these lessons are later published as a book and those familiar with Arabic will be able to benefit from it.

This discussion was strictly concerned with the application of legal and jurisprudential principles on non-Muslims living under an Islamic government, and do not necessarily have the same application for Muslims living under non-Muslim governments – such as Muslims living in the West. The latter would require a separate jurisprudential discussion of its own, better done by jurists who have some experience living under those circumstances – especially when it comes to determining practical implications of the jurisprudential conclusions.

These were around 100-odd lessons, and various discussions were covered as follows:

Part 1: General Principles Regarding Interfaith Relationships

1.1 Principles Relevant to Muslim and Non-Muslim Relations

1) Primacy of al-Ḥirābah and Primacy of al-Silm: What is the primary ruling for when the Muslims encounter a non-Muslim? Is it that of offensive warfare or peace? Before the 20th century there was a near consensus amongst Shī’ī and Sunnī jurists that the primary ruling is that of offensive war – in fact the technical definition of jihād in jurisprudence is only that of offensive war. However, this ruling became a subject of debate and reinterpretation in the 20th and 21st centuries. In other words, this discussion was regarding whether there is any evidence for the legitimacy of offensive war or not being a primary ruling, looking at the verses, traditions and as well as opinions of jurists and scholars up until recently such as the views of Shahīd Muṭahharī and Shaykh Ja’far Subhānī. The Shaykh concluded there is no evidence for the obligation of offensive war.

2) Principle of “Closing the Path” (Nafī al-Sabīl): This is a very famous principle whose application can be seen all over classical Shī’ī and Sunnī jurisprudence, particularly in laws pertaining to transactions. This principle establishes whether a non-Muslim can take up any position in an Islamic government where they have a type of authority over Muslims. This was an accepted principle, and its applications in classical jurisprudence was extensive. For example, a non-Muslim was not allowed to inherit from a Muslim, selling a Muslim slave to a non-Muslim was not allowed, a Muslim slave could not be endowed to a non-Muslim, working for a non-Muslim as an employee was not allowed, a non-Muslim father did not have guardianship over his Muslim daughter.

After the 20^th century, this principle began seeing more application in global politics. For example, Imam Khomeini applied this principle when confronting the West even if they were not on Muslim lands, nor directly killing the Muslims, but rather in cases where they held, for example, economic authority over the Muslims.

Shaykh Haider in his discussion regarding this principle concluded a number of things, such as:

1. The application of this principle is not as extensive as how the classical jurists understood it, rather it is a principle to be understood in a political context – meaning the Muslims and the believers should not be in a position – collectively and generally speaking – where they are considered belittled and humiliated in front of non-Muslims.
2. The principle dictates that Muslims should be independent and free in their legislation and policy making, and not subordinates to non-Muslim governments and their influence.
3. Today, this principle would not include instances of a Muslim working for a non-Muslim in a company, or various other transactions that may occur between Muslims and non-Muslims, because these things do not necessitate humiliation nor threaten Muslim identity for a Muslim qua being a Muslim. If such a scenario were indeed to exist, then this principle would apply.

3) Principle of Conciliation of the Hearts (Ta’līf al-Qulūb): This principle dictates that we need to conciliate our hearts with the hearts of non-Muslims in order to build an affinity with them and not act with them aggressively so that they can be lenient towards us and in fact even convert to Islam. The opposite of this principle is Primacy of Aggressiveness (Aṣālah al-Shiddah) which is often proclaimed by the Salafis. The evidence for both of these principles was discussed, which included a very lengthy discussion on [9:60].

What was concluded is that Islam encourages Islamic and Muslim identity by maintaining a difference between ourselves and non-Muslims, emphasizing that we are different than non-Muslims. At the same time, it is legally obligatory – as per the view of Shaykh Haider – to hate disbelief (kufr) and polytheism (shirk), but one can still maintain respect and act with fairness and goodness with the individual themselves. However, if they happen to be enemies then we are to act severely and harshly with them – and this enmity should be understood in a political context as the verses of the Qurān signify.

As an addendum to the discussion above, a short window of discussion was opened on human brotherhood (al-ukhuwwah al-insānīyyah or al-qawymīyyah) and whether such a concept exists in Islamic discourse.

4) Exculpatoriness of an Ignorant (Ma’zurīyyah al-Jāhil): This is technically a theological discussion, but since it has jurisprudential implications it was discussed briefly – although most of it has been discussed by the Shaykh in some of his previously published works, like his al-Ta’addud al-Dīnīyyah (Religious Pluralism). This principle concerns how we should ethically look and perceive non-Muslims who are not on the path of truth because of lack of knowledge, and not due to negligence or enmity, while at the same time – supposedly – act ethically and morally. The views of two camps were discussed, the Sufis & Gnostics, and the view of those Uṣūlī scholars who believe in the essential probative force of certainty.

5) Citizenship (Mawāṭanah) and Contract of Dhimām: This was the final and lengthiest discussion in the first part. Various subjects were discussed, such as jizya and who it is to be taken from. Is citizenship a contract and if so how – is it a historical concept, a birthright, a religious right, or does it depend on how long one has been living on a land etc. In this discussion, Shaykh Haider offered a very unique view concerning jizya and Dhimmīs, arguing that these two are not necessarily connected – meaning not every Dhimmī has to pay jizya and on other occasions even a non-Muslim not living under an Islamic government as a Dhimmī could be asked to pay jizya – similar to Germany paying reparations to other countries for World War II. On the contrary, the concept of jizya is necessarily linked with enmity (‘udwān) – be it the Ahl al-Kitāb or otherwise. This is because since the Shaykh does not accept the obligation of an offensive war, the phenomenon of jizya only appears in cases of defensive war which entails that enmity necessarily existed.

The reason for the extensivity of this discussion was due to it being built upon the conclusions arrived at in some of the previous principles, such as negation of offensive war – which is closely tied to the concept of Dhimmīs and jizya – and as well as a discussions concerning the legal nature of jizya, meaning whether it is a Shar’ī rule or a political rule, and whether it can be restricted to a time and place by the ruler of the Islamic state.

1.2 Principles Relevant to Human Relationships Qua Human

1) Primacy of Karāmah al-Insānīyyah or Karāmah al-Dīnīyyah: This is a very popular discussion in the 20th and 21st centuries and that is, is one’s nobility tied to their humanity or their religion? Once again, before the 20^th century, in classical Fiqh one does not find the notion of ‘every human being noble and respected for their mere humanity’, rather nobility was tied to one’s religion. Since the last century, many scholars, both traditional and reformists, have written and offered their opinions on this principle, and the opinions of these scholars, including contemporaries such as Āyatullah Jawādī Āmulī and Shaykh Miṣbāḥ Yazdī were discussed and critiqued.

Some of the questions tackled in this principle were what exactly is nobility, whether humans are ontologically noble (mukarram) or only legislatively (tashrī’an), when does Islam recognize the nobility and sanctity of another human, understanding religious justifications for when certain rights and sanctity are taken away from other humans, the instances where Islam tends to grant greater nobility and sanctity to a human due to acquirement of additional qualities (such as knowledge, degree of faith and so on).

The most important verse that was discussed in this principle was:

[17:70] وَلَقَدْ كَرَّمْنَا بَنِي آدَمَ وَحَمَلْنَاهُمْ فِي الْبَرِّ وَالْبَحْرِ وَرَزَقْنَاهُم مِّنَ الطَّيِّبَاتِ وَفَضَّلْنَاهُمْ عَلَىٰ كَثِيرٍ مِّمَّنْ خَلَقْنَا تَفْضِيلًا

as many have cited this verse to establish the nobility of humans qua humans. In addition, one can see various Sunni jurists using this principle derived through this verse in different jurisprudential rulings such as the essential physical purity of all humans, the physical purity of all dead humans, the physical purity of male sperm, prohibition of using another person’s hair as it constitutes disrespect, and so on.

Shaykh Haider concluded that there is no evidence to say that humans are not noble except if they are Muslims, but at the same time, there is no principle called primacy of human nobility qua human. All that can be established is that during warfare, one’s enemies are not noble and that otherwise, the only fundamental right every human has for being human is the right to live. Other rights and responsibilities need to be established through additional evidence and principles. In other words, this principle does not assist us in discussions of religious minorities because practically speaking there is a lot more at stake for a non-Muslim living under an Islamic government than the basic right to live.

2) Principle of Justice and Fairness: Only eight sessions were dedicated to this principle as only a certain dimension of it was covered. The main question tackled was whether the application of justice and fairness can be left in the hands of humans and common people or is it for God to tell us? If it is left upon humans, then its application on religious minorities will depend on what the common people perceive as fair and just today. A lengthy critique of Shaykh Shams al-Dīn ānḍ Shaykh Sanei – the latter being the most prominent proponent of this principle amongst the Shī’ī jurists today – was presented in these lessons.

As an addendum to this discussion, the Golden Principle of treating others as one’s self would wish to be treated was discussed as it is a common maxim cited today in ethical and religious discourse. God-willing, I will be publishing a separate post on the Golden Principle as it was discussed in class.

3) Primacy of Goodness: This principle dictates that one must act good and nicely with anyone, no matter who they happen to be. Evidence from both the Qurān and Ḥadīth was analyzed. Both this principle and the Golden Principle are ethical principles, not legal ones, and cannot address all legal issues. They justify certain acts in relation to our discussion on religious minorities, but as long as they do not go beyond the edicts of religion.

Part 2: Political Rights for Religious Minorities

This part of the discussion was mostly concerned with practical applications of what was concluded in part one. A number of areas of political engagement were addressed, such as:

1) Right of Running for Positions in Government Institutes: Is the condition that a person ensures Islamic rules are applied, or that the person themselves needs to be a Muslim?

2) Right to Vote or Run for Elections: Is this a type of granting authority to the non-Muslims or not? For example, in the West, Muslim minorities can impact who gets to rule based on their votes and hence why some political leaders cater to Muslim communities to win their votes. Is such a thing allowed to occur under an Islamic government?

3) Right of Receiving Wealth and Benefits: As per classical jurisprudence, if the zakāt and khums are given to an Ahl al-Sunnah citizen, it is only due to a secondary ruling, perhaps to avoid conflict and maintain peace. Otherwise, as per the primary ruling, such a thing is not allowed. If that is the case, then how can we allow for government benefits to be given to non-Muslims?

4) Right to Influence Bills and Government Policies

5) Right of Supervision (Riqābah): Is a non-Muslim allowed to over-look and oversee certain departments and keep them in check, particularly government-related offices?

6) Right of Becoming a Member of the Consultative Committee (Shūra Mulzimah) for the Walī Amr

For all of the above instances, the general principle applied by Shaykh Haider is that there is no evidence to suggest religious minorities are not to be given these political rights as a primary ruling. In some cases where there is a need for them to exhibit and present themselves with a Muslim identity so that the Islamic identity is not harmed, clauses and articles can be added to the constitution, but these are exceptional cases. As such, what differentiates Shaykh Haider’s opinion from the classical position in jurisprudence and liberal secularism is that the former denies all political rights to religious minorities and does not allow them to enjoy their religious identities at all, whereas the latter allows every behaviour and identity to be expressed no matter what it is.

In addition, there were also three specific principles that were discussed in relation to political rights:

1) The verse of intimates (biṭānah) [3:118] – many classical jurists used this verse to even argue for very specific matters such as impermissibility for a Muslim judge to take a non-Muslim as his scribe, or impermissibility of taking a non-Muslim as a translator in court and so on. The Shaykh concluded that this verse is not to be understood to that extent, rather it is referring to taking those individuals as intimates who themselves have an agenda and will use their proximity to you to destroy you.

2) The principle of isti’ānah – which is to seek help from polytheists or non-Muslims in general and whether this is allowed or not. All of the traditions on the subject were from the books of the Ahl al-Sunnah, and the Shaykh concluded that such a thing is not impermissible – as has been the view of most Shī’ī jurists.

3) Relying (rukun) on oppressors and tyrants – it was established that reliance in this principle meant a type of reliance that if such a reliance did not exist, the Muslims would not be able to carry out their work. It does not refer to absolute reliance.

These were some of the general and specific primary rulings discussed. However, a secondary discussion held was whether there is any evidence to argue for cases non-Muslims were excluded from the application of the general principle. Four major areas were discussed:

1) Arguments for and against whether a non-Muslim can become a judge or not.

2) Arguments for and against whether a non-Muslim can issue or participate in the formation of a legal verdict, such as in the parliament.

3) Arguments for and against whether a non-Muslim can become a ruler of a Muslim state.

4) Arguments for and against a non-Muslim leading a Muslim army.