The Shariah and non-Muslim rights Friday, 08 October 2010 06:03

ByKhalid Baig
Islam’s treatment of non-Muslims in its midst has been a favourite topic of discussion for the Orientalists and other pundits who make careers out of denigrating Islam. They have been singing essentially the same song for centuries now, but over time their tunes have changed. It is instructive to take a brief look at this change.

Towards the end of the 19th century the Reverend Malcolm MacColl wrote at length on this pet topic of his. His 1896 book The Sultan and the Powers was an urgent call for the Western powers to take action against the Ottoman Khalifah to save the Christians in the Muslim world. Its chapter Islam as a Ruling System is a searing indictment of not the Sultan but Islam itself. Realising that his extreme views and recommendations would betray his fanaticism against Islam, he claimed that he was an advocate of religious freedom. However “My toleration ceases when the religious doctrines of one man invade the aboriginal rights of another, as they do, and have ever done, in every State, without exception, where Islam ruled supreme.” He claimed that under the Shariah a non-Muslim’s evidence could not be received in a court of law against a Muslim; non-Muslim places of worship were in danger; their women were at the mercy of Muslim males; and they were taxed so heavily with jizya and kharaj that more than 67% of the produce of their soil was taken in special taxes, not to mention other taxes. He combined these fabrications and distortions with a crude and extremely derogatory language for Prophet Muhammad (peace be upon him). And in his self-righteous rage this worthy blatantly advocated the use of force by European powers to remedy the situation.
A similar article by him in the Times of London published in January 1895 so excited the Christian missionaries in India that they distributed an Urdu translation with a challenge for anyone to answer the charges. They were confident that the stunning evidence in the article would silence the Muslims for good. (A fitting response was given by Allama Shibli Nomani in two historic papers.)

No Inquisitions
A century later the language has changed. In a widely quoted article among the Western academicians, P R Kumaraswamy begins by admitting: “Systematic persecution of minorities was unheard of in Islamic history. There are no Islamic parallels to the Inquisition or the Holocaust. Even contemporary anti-Semitism in various Islamic countries in the region and elsewhere was primarily a contribution of the Christian missionaries who were active in the Islamic Middle East.”
(P R Kumaraswamy, “Islam and Minorities: Need for a Liberal Framework”, Mediterranean Quarterly 18:3 summer 2007, 94-109, 97.)
Nice words. But they do not go very far. He then goes on to assert that, nonetheless, the Islamic treatment of non-Muslims was bad. Because dhimmis were not equal to Muslims in law or practice.
After castigating the past he moves on to declare his total dissatisfaction with the present where constitutions of Muslim countries declare that all subjects, Muslim and non-Muslim, are equal under the law. This is so because these constitutions declare Islam as the official religion and Islamic Shariah as the source of law. He complains: “Most of the Arab and Islamic states have declared Islam to be the official Religion… Furthermore, a number of countries have recognised Shariah (Islamic religious law) as a major source of jurisprudence.” He recognises that Muslims want Shariah and to oppose it “would be authoritarian and dictatorial.” Yet that is precisely what he wants to do because implementation of Shariah “evokes apprehension among non-Muslims of legalised discrimination.”
So is Islam the problem after all? No. He says: “For a dhimmi or a non-Muslim, the problem has never been what Islamic scriptures say but how they are practiced by rulers who were the followers of Islam.” In his words the problem is not theology but history and not theory but practice. Yet the solution lies in disbanding the theology and overriding the Shariah.
How far one will have to go to appease him? Very far. His utopia will not be achieved until he is given the charge of deciding who is a Muslim. He demands: “It is imperative that the Alawis, Ahmadiyas, and others are recognised as Muslims. Only then could they secure any meaningful role for themselves.”
Unlike MacColl, Kumaraswamy does not use any derogatory words for the Prophet, and has even inserted a few words of praise for Islam. But what this smooth talking academic is asking for today is much more than the fanatic reverend had asked for a century ago. The language has been refined, but the goal posts have been moved much further while the blinders to Islamic Shariah and history remain constant.
Kumaraswamy admits: “Unlike Europe, the Islamic Middle East never resorted to systematic persecution of its minority population.” The crucial question is why. What made the Muslims behave differently than the other powers before and after in their dealing with the other in their midst? That investigation is central to the discussion but he does not probe it at all.

How the muslim rule different
To get an answer we can visit the court of Harun Al Rasheed (d. 809) who was a contemporary of Charlemagne (d. 814), the father of Europe. Charlemagne had forcibly converted the Saxons to Roman Catholicism. There was no forced conversion in the powerful empire of Harun Al Rasheed, in which Christians enjoyed full freedom and even high positions in the court.
Not that there was never a temptation to do otherwise. When Byzantine emperor Nicephorous insulted Harun Al Rasheed and repeatedly defied him, he did get irritated. As a result he felt like taking it out on his Christian subjects. So what did he do? He asked his Chief Justice, the great Imam Abu Yusuf, as to why the Churches had been left intact in lands conquered by Muslims and why Christians were allowed to take out crosses in their processions on their holidays.
The query and its response have been recorded in the marvelous Kitab Al Kharaj of Imam Abu Yusuf. He wrote that Muslims had reached a treaty with the dhimmis which spelled out these protections and the treaty could not be violated. The treaty of Hira signed by Khalid Ibn Waleed included these stipulations: “Churches will not be demolished. They will not be stopped from blowing their trumpets or bringing out crosses on their religious holidays.” None of the Rashidun Khalifahs had objected to it so it represented ijma (consensus), a major source of Islamic Law or Shariah.
As the firm and unequivocal answer by the great scholar made it clear, the non-Muslim subjects were under the protection of the Shariah, which was not subject to change with the moods or calculations of the ruler (or of the manipulated masses as in modern democracies). It was this protection that made the Muslim rule different from all others - before or since.

The Treaty of Najran
The concern for justice, which distinguishes Islamic rule from all others, can be seen in the preface to Kitab Al Kharaj where Abu Yusuf reminds the Khalifah to make sure the officers he appointed displayed “justice for the dhimmis, fairness for the victim, sternness against the oppressor, and kindness for the people.”
It was a result of the teachings of Prophet Muhammad (PBUH), who warned his followers, “Whoever wronged a mustamin (a non-Muslim under protection of a treaty) or burdened him beyond his capacity or took anything from him without the latter’s will, I will be his accuser on the Day of Judgment.”
Similarly the Treaty of Najran, which the Prophet, concluded with the Christians of Najran in 8 AH was the prototype for all subsequent treaties. It included the following terms:
1.    They will be defended against enemy attack.
2.    They will not be intimidated to convert to   Islam.
3.    They will not have to go to the tax collector to pay their jizya; he will come to them.
4.    Their lives, properties, businesses, and lands will be protected.
5.    Their priests and clerics will not be removed from office.
6.    Their crosses and statues will not be destroyed.
Such guarantees for personal and religious freedom were unthinkable in the tribal pre-Islamic Jahiliya society.
Once introduced by Islam, they were so internalised by its followers that they determined Islamic treatment of non-Muslims throughout its history as the following glimpses will show.
To be continued
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