Document 4

A MEDIEVAL LEGAL VIEW

THE TREATMENT OF AHL-ADH-DHIMMA

at-Turtūshī (d. 1126)[1]

The Covenant of `Umar

How the tolerated classes are to ride

On Muslims= employing Jews and Christians

A polytheist may not be asked to help, even if he is powerful

When a person under dhimma breaks the pact

The special dress of Jews and Christians, etc.

The jizya tax

Churches

The following chapter of at-Turtūshī represents the severest and most fanatical of Muslim position regarding Christians.  Although no Muslim country of our time recognizes the dhimma system as part of its laws or constitutions; theoretically all citizens are equal, the 1935 editor of at-Turtūshī expressed this wish in a footnote to this chapter.[2]

The Covenant of `Umar

`Abdarrahmān b. Ghunm said: We wrote to `Umar b. al-Khattāb at the time when he made a settlement with the Christian people of Syria:

AIn the name of God the merciful and kind.  This is a letter from the Christians of such and such a city to the Commander of the Faithful. When you took holy possession of us, we asked you for a guarantee of safety (amān) for ourselves, our children, our property, and the people of our community (milla).  We  agreed to the following conditions:

 1)   We will not build in our cities or in their neighbourhood any new monastery, church, monk's cell, or hermitage.

 2)   We will not restore such buildings which fall into ruin, neither by night nor by day, especially when they are surrounded by Muslim compounds.

 3)  We will keep our doors open to people passing by and to travellers; moreover, we will give food and lodging for three days to Muslims who stop at our places.

 4)   We will not harbor a spy in our churches or houses.

 5)   We will not hide from the Muslims any plot to hurt them.

 6)   We will not teach our children the Qur'ān.

 7)   We will not display our religion, or invite anyone to join it.

 8)   We will not prevent any of our relatives from joining Islam if he wishes.

 9)   We will respect Muslims, and give them our seats if they wish to sit down.

 10)          We will not in any way imitate their way of dressing, such as wearing a cap (qalaswa = Hausa hula), a turban, or sandals, or parting the hair.

11) We will not speak as they do, or use their surnames [like "Abū-Tālib"].

12) We will not use saddles in riding.

13)  We will not wear swords, or possess or carry any arms,

14)  We will not use Arabic letters on our signet rings.

15)  We will not sell alcoholic drinks.

16)  We will clip our hair from covering our foreheads.

17)  We will keep to the same dress wherever we are, and will wear a belt.

18)  We will not display our crosses or books in any way in the roadways or markets of the Muslims.

19)  We will play the nāqūs [a wooden percussion instrument] only very lightly in our churches.

20)  We will in no way read the lessons loudly in our churches when Muslims are about.

21)  We will not have processions on Palm Sunday and Easter.

22)  We will not pray loudly while bringing our dead to the grave.

23)  We will not at all display processional lights in the roadways or markets of the Muslims.

24)  We will not bury our dead near the Muslims.

25)  We will not take possession of any slave who belongs to a Muslim through the division of war booty.

26)  We will not have places where we can look down into Muslim houses...

"We bind ourselves and our community to these stipulations.  In return for them we receive a guarantee of safety.  If we should contravene any of the stipulations which we accepted from you and made ourselves responsible for, we shall no longer enjoy this dhimma pact, and we shall be liable to be treated as rebels and seditious people."

`Umar wrote back to `Abdarrahmān b. Ghunm, saying, "Ratify what they requested, but add the following two stipulations which I impose on them in addition to what they took upon themselves:

27) They may not buy anyone captured by the Muslims.

29) If any of then deliberately strikes a Muslim he has broken the pact."

How the tolerated classes are to ride

Nāfi` related from Sālim, a client of `Umar b. al-Khattāb, that `Umar wrote to the Christians of Syria, saying that they should stop using stirrups, but should ride sitting sideways between the pack-bags (= mangala).  They should also dress differently from the Muslims, so that they may be recognized.

It is also related that the Banū-Taghlib [an Arab tribe] visited `Umar b. `Abdal`azīz and said, "O Commander of the Faithful, we are Arabs; tell us what you require." `Umar asked: "Are you Christians?" They answered, "We are Christians." He told them, "Call for a barber," and they did so.  He had the barber clip short the hair hanging over their forehead, and cut off a strip of their robes to make a belt for them to wear, and commanded them not to ride sitting an saddles, but only on packbags, sitting sideways.

It is also related that the Commander of the Faithful al-Mutawakkil dismissed the Jews and Christians, and did not employ them.  He humiliated them, and made them dress differently from the Muslims.  He also placed images of devils on their doors, because that is the kind of people they are.  He surrounded himself with People of the Truth, and kept far away from himself the People of Falsehood and Error.  Because of this God made Truth flourish through him, and made Falsehood die.  Al-Mutawakkil will be remembered and blessed for this as long as the world lasts.

On Muslims= employing Jews and Christians

`Umar b. al-Khattāb used to say: "Do not employ Jews or Christians because they are dishonest people in their religion, and dishonesty is not permitted in the religion of God."

Once `Umar b. al-Khattāb had Abū-Mūsā al-Ash`arī come to him from Basra, where he was the minister of finance.  Abū-Mūsā came into the mosque where `Umar was, and called for his secretary, who was a Christian.  `Umar exclaimed, slapping his thigh: "May God fight you!  You have allied yourself to someone under dhimma in preference to the Muslims.  But you heard what God said: 'O you who believe, do not take Jews or Christians as your allies.  They are allies of one another, and anyone who allies himself to them has become one of them' (Qur'ān 5:51).  Could you not have hired a Muslim?" Abū-Mūsā answered: "O Commander of the Faithful, his secretarial service belongs to me, and his religion belongs to him." But `Umar answered, "I do not honour these people, since God despises them.  I do not respect them, since God has humiliated them.  I do not put them in my company, since God has sent them away."

Once a governor wrote to `Umar b. al-Khattāb, asking: "Since their numbers are so great, and the jizya tax is so plentiful, shall we employ the foreigners (non-Muslims)?" `Umar replied: "They are the enemies of God, and are treacherous to us.  Put them in the place where God has put them, and do not give them anything in return."

A polytheist may not be asked to help, even if he is powerful

`Amrān b. Asad reported that `Umar b. `Abdal`azīz wrote to Muhammad b. al-Muntashir, saying: "I heard that you have in your employ a man named Hassān b. Barzī, who is not a Muslim.  But God the Most High said: 'O you who believe, do not make allies of those who were given Scriptures before you and who consider your religion a joke and a plaything, nor make allies of unbelievers.  Fear God, if you are believers' (Qur'ān 5:57).  When you receive this letter, invite Hassān to become a Muslim.  If he does so, he is one of us and we are one with him.  But if he refuses, do not keep him in your service.  Do not employ a non-Muslim in any work of the Muslims." Hammad b. al­Muntashir read the letter to Hassān, and he became a Muslim.

When the Prophet was going to the battle of Badr, a polytheist followed and caught up with him at al-Harra, and said: "I wish to follow you and win victory with you." The Prophet answered: "Do you believe in God and his Messenger?" The man said: "No." The Prophet then said. "I do not want the service of a polytheist." The man caught up with him again at ash-Shajara, and the companions of the Prophet liked the man because he was strong and brave. He said: "I came to follow you and win victory with you." The Prophet asked him: "Do you believe in God and his Messenger?" The man again said, "No." The Prophet said: "Go back. I do not want the service of a polytheist." The man caught up with the Prophet once more on the top of al-Baydā' and said the same thing. The Prophet said: "Do you believe in God and his prophet?" The man answered. "Yes," and went with him.

It is an important principle not to make use of the services of an unbeliever.  In the latter case, the non-believer was ready to fight with the Prophet and shed his blood.  How much less should we make use of them in preference to Muslim persons!

`Umar b. `Abdal`azīz wrote to his governors: "Put only the People of the Qur'ān in charge of your works." They wrote back: "But we find treachery among them." `Umar replied: "If there is no goodness among the People of the Qur'ān, it is more certain that there is no goodness among the others."

When a person under dhimma breaks the pact

When a person under dhimma breaks the pact by contravening one of the stipulations which were placed upon him, he may not be restored to his position of safety, and the imām has the choice of killing him or enslaving him.

The special dress of Jews and Christians, etc.

The Shāfi`ites say that Jews and Christians must be distinguished from the Muslims in their dress.  If they wear qalaswa caps (= hula), they must distinguish them from those of the Muslims by an opening.  They must tie belts around their waists, and must wear around their necks a ring of lead or a piece of copper or a bell.  They must keep these on when they go into the public baths.  They may not wear turbans or head shawls (taylasān) Some say that a woman should wear her belt under her wrapper. Others say over; this latter opinion is best. She also must have a ring hanging from her neck which she keeps on when she goes to the public bath. One of her shoes must be black, and the other white. They may not ride horses, but only mules or donkeys, and that without saddles, but sitting sideways over the pack-bags.

They may not enter Muslim gatherings, and not initiate a greeting, (with "as-salāmu `alay-kum")

They must keep to the narrow path by the side of the road.

They may not build their houses higher than those of the Muslims but they may build them equally high.  Another opinion is that they should even be prevented front building them equally high.  Yet if they already own a tall house they may remain in it.

They should be prevented from displaying hateful things, such as wine, pigs, playing the nāqūs, reading the Tawrā or the Injīl (Gospel) loudly.

They may not take up residence in the Hijāz, that is, Mecca and Medina, or in Yamāma [of central Arabia.  Note that the prevailing opinion (except for the Hanafites), and that enforced today, is that a non-Muslim may not even visit the sacred territory around Mecca.]

The imām should have a man from the Jewish and Christian communities write the names of his people together with what precious things they possess, and see that the tax is fully paid by them according to all the stipulations.

The pact is certainly void if: 1) they do not pay the jizya tax, 2) they do not keep to the statutes concerning their community.  According to one opinion, the pact is also voided 3) if one of them has illicit sexual relations (zinā) with a Muslim woman, or tries to marry her, or 4) harbors a spy belonging to the unbelievers, or points out the weak spots of the Muslims, or 6) turns a Muslim away from his religion, or 7) kills a Muslim, or 8) robs a Muslim on the highway, or 9) speaks of God or his Messenger in a way that is not permitted.

If a person from one of these communities does something forbidden to them, but not very harmful, such as not wearing the ghiyār [a coloured cloth or any distinctive dress], or displaying wine etc., a mere discretionary punishment shall be imposed on them.  If they do anything which necessarily dissolves the pact, according to one opinion they may be restored to their state of safety.  According to another opinion they should be killed immediately.

The jizya tax

The assessment of the jizya is disputed among the schools.  One opinion is that the lower and upper limits are set by `Umar in his ­letter to `Uthmān b. Hanīf in Kūfa.  According to this, a rich man must ­pay forty-four dirhams, a man of average wealth must pay twenty-four dirhams, and a poor man twelve dirhams.  This is the opinion of Abū-Hanīfa and Ibn-Hanbal, and one of those advanced by ash-Shāfi`ī.  They say that the imām is bound by this and cannot alter it.

Another opinion is that the imām can add to or subtract from this amount; this opinion bears the greatest analogy (qiyās) to other cases.  Another opinion is that the lower limit of the jizya is fixed, but not the upper; thus the imām may add to what `Umar laid down, but not subtract from it.  Another opinion is that the imām may charge everyone alike one dīnār.

Mālik said that a rich man must pay forty dirhams, and a poor man one dīnār [= 10 dirhams] and ten dirhams.  Because of Mālik=s position which set two limits to the jizya, and because a tithe is also levied on the people subject to the dhimma, opposite opinions have arisen concerning whether or not these limits are of divine law (sharī`a) and do not admit of addition or subtraction.  The two opinions on this question are also related from Mālik.

Women, slaves, children and mad people do not have to pay the jizya...

Churches

Regarding churches, `Umar ibn-al-Khattāb wrote that any church which was built after the coming of Islam should be destroyed, and he forbade any new church to be built.  He also commanded that the exterior of a church should not be such as to attract attention, and if any cross is displayed outside the church it should be broken over the head of the owner of the church.

`Urwa ibn-Muhammad used to destroy churches in Sanā`a.[3]  This is the position of all Muslim scholars.

`Umar ibn-`Abdal`azīz was particularly severe about this.  He ordered that in Islamic territory no synagogue or church should be left, whether old ones or new.  Al-Hasan al-Basrī held the same opinion when he said: "It is a sunna to destroy the churches which are in old or new cities, and to prevent the people under dhimma to rebuild what fell into ruins."

Al-Istakhrī said: "If they want to plaster the outside of the walls, they should be prevented, but not the inside. Their churches may not be higher than the buildings of the Muslims.  According to one opinion they may be of equal height, but according to another opinion they may not be."

 


[1]A translation of chapter 51 of Sirāj al-mulūk [Torchlight for kings] (Cairo: al-Mahmūdiyya Pres, 1935), pp. 252-258.

[2]P. 257.

[3]In Yemen.