The Jizyah Tax – Equality And Dignity Under Islamic Law?


Sumber:
http://debate.org.uk/topics/history/xstnc-5.html

by Walter Short

Introduction

It is an oft-repeated assertion of Muslims that other faith-communities have always been treated with respect and dignity by in a genuine Islamic State. Indeed, as one peruses Islamic literature, this claim is noticeable for the frequency of its presence. For example, the Muslim author Suzanne Haneef state about Islam’s attitude to other religious communities:

…Islam does not permit discrimination in the treatment of other human beings on the basis of religion or any other criteria… it emphasises neighborliness and respect for the ties of relationship with non-Muslims …within this human family, Jews and Christians, who share many beliefs and values with Muslims, constitute what Islam terms Ahl al-Kitab, that is, People of the Scripture, and hence Muslim have a special relationship to them as fellow “Scriptuaries”. [1]

Similarly, the German convert Ahmed von Denffer, examining the position of Christians in Islam, states that ‘It is thus clear that, seen from the legal perspective, Christians are entitled to have their own prescriptions.’ [2] From what he terms ‘the Societal Perspective’, he tackles the problem of Surah Maidah 5:51 which warns against taking Jews and Christians as ‘friends’:

On the other hand, Christians being ahl al-kitab may not be harassed or molested for being non-Muslims. It is true that the Qur’an warns against taking Jews and Christians as friends, but that does not mean they should be molested or harmed because of their being non-Muslims. [3]

So far, all very positive, but both Haneef and von Denffer are Muslims residing in the West, thus interacting with Christians, and addressing a Western audience. Thus, their approach will be conditioned by that reality. A somewhat different attitude is exhibited by a Muslim writer based in Saudi Arabia, a state governed largely by Islamic law, and which forbids all expressions of religious liberty:

In a country ruled by Muslim authorities, a non-Muslim is guaranteed his freedom of faith…. Muslims are forbidden from obliging a non-Muslim to embrace Islam, but he should pay the tribute to Muslims readily and submissively, surrender to Islamic laws, and should not practice his polytheistic rituals openly. [4] (Emphasis mine)

In this paper I will examine aspects of Islam’s attitude to non-Muslims, especially the Jizyah tax, to consider whether Haneef’s claim in particular is valid. My emphasis will be on Islamic law, since that practically regulates everyday relations. Since Muslims in the West, as much as in the Muslim world uphold the divine character of the Shari’ah, based as it is primarily on the Qur’an and the Sunnah, and uphold the Islamic State with Islamic Law as the ideal society, it is important to see what this would mean in practice for non-Muslims, if the Caliphate was ever restored and applied to the West.

1. The value of human life

In the West, at least in constitution terms, however inadequately outworked in practice in some places, the equality of human beings is a fundamental assumption – ‘all men are equal before the law’. For this reason, Justice is often depicted in statues as blindfolded; the class, religion or race of anyone is irrelevant – the law, at least in terms of its goal, applies equally to everyone, and safeguards everyone equally.

In Islamic law, however, this is simply not the case. The life of a Muslim is considered superior to that of a non-Muslim, so much so that whilst a non-Muslim killing a Muslim would be executed, the reverse would not occur. [5] This is despite the fact that murder is normally considered a capital offence in Islam, with regular executions in most Muslim states. This inequity is also demonstrable in the blood rate paid to non-Muslims where murder or injury has occurred, which is half that of a Muslim. [6] Effectively, this ruling means that a Muslim need not fear the usual retribution for murder if he kills a non-Muslim. The law deliberately and consciously does not protect non-Muslims as it does Muslims. The position of Islamic law is not that human life is sacred, but that Muslim life is so.

2. The value of evidence

What we have just stated about Justice becomes very pertinent when considering evidence in a court. Haneef’s assertions can be immediately questioned by pointing to the fact that in Islam, the court testimony of a non-Muslim is considered inferior to that of a Muslim, a practice given official sanction in countries like Pakistan. [7] This means in practice that if a Muslim offends in some way against a Christian, whether by stealing from the latter, inflicting injury or even committing rape, the Christian must gain at least another Christian witness even to match the testimony of the Muslim, and even then in practice the assumption is that the latter is a more credible witness. This rule also carries the insulting presumption that non-Muslims are intrinsically dishonest, and unreliable witnesses per se.

Obviously, this considerably disadvantages non-Muslims, and becomes of practical import when we consider the frequent charges of blasphemy used by Muslims against Christians in places like Pakistan, which usually have an ulterior motive (often personal or land disputes). Legal conditions such as these give unscrupulous Muslims the idea that it is ‘open season’ on minorities. A similar ruling endangers the inheritance rights of Christian wives of Muslims. [8] Again, this gives opportunity to dishonest Muslim relatives of a widow.

3. The value of human dignity

What we have just examined becomes very important when we consider the issue of human dignity. It almost naturally follows that if the life of a non-Muslim is considered inferior to that of a Muslim, the dignity of the former will be held in the same lack of esteem. Rape in most Muslim countries usually results in execution for the offender where the victim is a Muslim. Where the victim is a non-Muslim, and the perpetrator is a Muslim, this is not the case. [9] Thus, the honour of a Christian woman is not considered equal to that of a Muslim woman. This ruling is quite chilling.

A particularly objectionable ruling concerns the Christian wife of a Muslim man. Their difference in religion precludes their common burial place. Moreover, if she be pregnant at time of death, the foetus, being considered Muslim, cannot be buried in a Christian cemetery, and thus the woman may not be buried there either, and so must be buried in a ‘neutral’ place. [10] Even in death, Christians are sometimes denied dignity.

4. The value of human property

The right to the defence of personal property is usually considered a fundamental liberty, and its violation by theft is punishable in all societies, again, irrespective of the religious identity of the thief or his victim. This is not the case in all circumstance in Islamic law. The situation is somewhat ambiguous at times, especially if items haram to Muslims are concerned. [11]

Another ruling, however, suggests that if a Muslim stole an item from a Christian, such as a gold crucifix, and then stated that he did so in order to destroy this ‘infidel’ object, he may escape prosecution. [12] Hence, there is nothing clear-cut in Islamic law which protects the property of Christian subjects, as would be the case in most Western systems which protects all property per se, whatever people’s race or faith.

5. Religious liberty

Most Western constitutions today guarantee complete religious liberty, in opinion, practice and propagation. A person is perfectly free to hold or change his opinions, or even hold no religious opinions whatsoever. Under Islamic law, however, this is not the case. Whilst a person may be free to be a Muslim, Jew, Christian or Zoroastrian, he may not hold other religious opinions, as the ban on paganism illustrates. [13]

Moreover, whilst a non-Muslim may change his religion to Islam or one other ‘Scriptuary’ faith, a Muslim who converts from Islam faces execution. [14] It follows from this that Christians are forbidden to proselytise Muslims, though no such reciprocal ban exists on Muslims. This also affects marriages, since if a Muslim apostatises, the marriage is dissolved, and there is at least one recent example of this in Egypt, where a liberal Muslim was declared apostate by a court, and his marriage dissolved, necessitating the couple’s removal to the West, illustrating that the ruling is not merely theoretical. [15]

Most blatantly, whilst the post-war era, especially since the 1970s, have seen an energetic upsurge of mosque construction in the West, there has been no corresponding development in Christian religious buildings in the Muslim world, since Islamic law permits only the repair of existing buildings, forbidding the construction of new ones. [16] The same ruling forbids any Christian presence whatsoever in the Arabian peninsula, so we can see the anomaly that whereas the Saudis recently constructed a giant mosque in Rome, there is no possibility of reciprocity for the Roman Catholics (or anyone else) to build even the smallest chapel in Saudi Arabia. The issue is not simply one of reciprocity; national Christians in the Muslim world are denied this right as well, whereas Muslims may freely construct mosques.

6. The Jizyah Tax

The American Revolution was fought on the principle ‘no taxation without representation’, the idea being that constitutional equality was a precondition for the sovereign exercise of levying taxes. The only basis for different levels of taxation is socio-economic distinction, but even here the tax is identical in character, is levied without regard for one’s communal origins. The principle of distinction in progressive taxation is ability to pay. The tax imposed does not punish a businessman for his success. Refusal to pay will result in fines or imprisonment, but never execution. Furthermore, the tax he pays grants him entitlement to the full protection of the state, and thus full and equal citizenship. The goal of the tax is the same with everyone – the enabling of the state to provide for the security and well being of all its citizens.

This is not the case with the Jizyah, which is a tax that the Dhimmi uniquely had to pay. It has its origins in Surah Tauba 9:29, where it is explicitly revealed as a sign of the subjugation of conquered non-Muslims. [17] Hence, the tax is clearly a tribute, and a sign of subjection, in no way equivalent to the alms tax Zakat. Yusuf Ali’s comment on the Jizyah clarifies this:

1281 Jizya: the root meaning is compensation. The derived meaning, which became the technical meaning, was a poll-tax levied from those who did not accept Islam, but were willing to live under the protection of Islam, and were thus tacitly willing to submit to its ideals being enforced in the Muslim State. There was no amount permanently fixed for it. It was in acknowledgment that those whose religion was tolerated would in their turn not interfere with the preaching and progress of Islam. Imam Shafi’i suggests one dinar per year, which would be the Arabian gold dinar of the Muslim States. The tax varied in amount, and there were exemptions for the poor, for females and children (according to Abu Hanifa), for slaves, and for monks and hermits. Being a tax on able-bodied males of military age, it was in a sense a commutation for military service. But see the next note. (9.29)
1282 ‘An Yadin (literally, from the hand) has been variously interpreted. The hand being the symbol of power and authority. I accept the interpretation “in token of willing submission.” The Jizya was thus partly symbolic and partly a commutation for military service, but as the amount was insignificant and the exemptions numerous, its symbolic character predominated. See the last note. (9.29)

Abul ‘Ala Mawdudi, Qur’anic exegete and founder of the Islamist Pakistani group Jama’at-i-Islami was quite unapologetic about Jizyah:

…the Muslims should feel proud of such a humane law as that of Jizya. For it is obvious that a maximum freedom that can be allowed to those who do not adopt the way of Allah but choose to tread the ways of error is that they should be tolerated to lead the life they like. [18]

He interprets the Qur’anic imperative to Jihad as having the aim of subjugating non-Muslims, to force them to pay the Jizyah as the defining symbol of their subjection:

… Jews and the Christians …should be forced to pay Jizya in order to put an end to their independence and supremacy so that they should not remain rulers and sovereigns in the land. These powers should be wrested from them by the followers of the true Faith, who should assume the sovereignty and lead others towards the Right Way. [19]

The consequence of this is that in an Islamic State – specifically the Khilafah – non-Muslims should be denied Government posts, since the state exists for the Muslims, who alone are true citizens, whilst the non-Muslims are merely conquered residents, and the Jizyah signifies this:

That is why the Islamic state offers them protection, if they agree to live as Zimmis by paying Jizya, but it can not allow that they should remain supreme rulers in any place and establish wrong ways and establish them on others. As this state of things inevitably produce chaos and disorder, it is the duty of the true Muslims to exert their utmost to bring an end to their wicked rule and bring them under a righteous order. [20]

Differences of taxation demonstrate distinctions in citizenship. As a symbol of subjection, it signifies that the state is not really the common property of all its permanent residents, but only the Muslims. The non-Muslims are conquered outsiders. It demonstrates their inferior condition. It also punishes them for their disbelief in Islam. Islamic law makes it very clear that the Jizyah is punitive in character. [21] Further, it is to levied with humiliation. [22] Hence, it is in no way comparable to Western tax systems. Even progressive taxation is not a ‘punishment’ for economic success, nor is any tax specifically humiliating in character.

This illustrates that essentially, in an Islamic State, the non-Muslims are in a worse situation than prisoners out on parole, since they are still being punished – they are not considered ‘good, law-abiding citizens’ however exemplary their conduct, but rather criminals given day-leave. Their crime is their faith. [23] Moreover, their crime is capital in nature – they deserve death. [24] This demonstrates the unique character of the Jizyah tax – unlike Western taxes, payment does not grant equality and liberty to the payee, but rather merely permission for another tax period to live; failure to pay it results in death. Again, it is rather analogous to a convict on parole regularly visiting the police station or parole officer to register. This is different from the case of someone in the West who refuses to pay his tax for whatever reason; he is punished, though it must be stated not by execution, for breaking the law. The reverse is true with the Jizyah – the tax itself is punishment, and the payee lives in the permanent condition of being punished for his faith until he converts. Essentially, non-Muslims live under a permanent death-threat.
Conclusion

Only by the wildest stretch of the imagination could the situation of non-Muslims under Islamic law be seen as one conferring equal citizenship, whatever Muslim apologists claim. Similarly, only a leap of fantasy could ever believe that such a situation is one that non-Muslims would welcome. The honour, dignity, equality and even the lives of non-Muslims are by no means guaranteed under Islamic law. The Jizyah tax in particular demonstrates the constitutional inferiority and humiliation such a legal arrangement confers. For non-Muslims, it is rather like permanently walking under the sword of Damocles, ready to fall at any moment. If Muslims wish Christians and others to regard an Islamic political order as something attractive, their scholars had best engage in a some heavy work of ijtihad to revise those elements of Islamic jurisprudence and legislation which are particularly offensive to non-Muslims.

References

1. Haneef, Suzanne, What everyone should know about Islam and Muslims, (Kazi Publications, Lahore, 1979), p. 173.
2. von Denffer, Ahmed, Christians in the Qur’an and the Sunna, (Islamic Foundation, Leicester, 1979), p. 38.
3. von Denffer, Christians in the Qur’an and the Sunna, p. 41.
4. Al-Omar, Abdul Rahman Ben Hammad, The Religion of Truth, (Riyadh, General Presidency of Islamic Researches, 1991), p. 86.
5. Sahih Al-Bukhari Hadith 9.50
Narrated by Abu Juhaifa
I asked ‘Ali “Do you have anything Divine literature besides what is in the Qur’an?” Or, as Uyaina once said, “Apart from what the people have?” ‘Ali said, “By Him Who made the grain split (germinate) and created the soul, we have nothing except what is in the Qur’an and the ability (gift) of understanding Allah’s Book which He may endow a man with, and what is written in this sheet of paper.” I asked, “What is on this paper?” He replied, “The legal regulations of Diya (Blood-money) and the (ransom for) releasing of the captives, and the judgment that no Muslim should be killed in Qisas (equality in punishment) for killing a Kafir (disbeliever).”
Sunan of Abu-Dawood Hadith 2745
Narrated by Abdullah ibn Amr ibn al-‘As
The Apostle of Allah (peace be upon him) said: …A believer shall not be killed for an unbeliever, nor a confederate within the term of confederation with him.
6. 7498
AL-RISALA (Maliki Manual)
37.04 BLOOD RATE TO OTHER THAN MUSLIM MEN
The blood-wit for a woman shall be half that of a man. Similarly the blood-wit for a male Christian or Jew is half that of a male Muslim, and the blood-wit for their women is half that of their men. As for a Magian, his blood-wit is eight hundred dirhams. The blood-wit for their women is half that of their men. Similarly, in respect of wounds, compensation given to non-Muslims is half what is given to their Muslim counterparts.
7. 4833
AL-HEDAYA Vol. II (Hanafi Manual)
Christians and Jews may testify concerning each other
The testimony of Zimmees with respect to each other is admissible, notwithstanding they be of different religions. Malik and Shafe’i have said that their evidence is absolutely inadmissible, because, as infidels are unjust, it is requisite to be slow in believing any thing they may advance, God having said (in the Koran) “WHEN AN UNJUST PERSON TELLS YOU ANY THING, BE SLOW IN BELIEVING HIM; “whence it is that the evidence of an infidel is not admitted concerning a Muslim; and consequently, that an infidel stands (in this particular) in the same predicament with an apostate. The arguments of our doctors upon this point are twofold. First, it is related of the prophet, that he permitted and held lawful the testimony of some Christians concerning others of their sect. Secondly, an infidel having power over himself, and his minor children, is on that account qualified to be a witness with regard to his faith is not destructive of this qualification, because he is supposed to abstain from every thing prohibited in his own religion, and falsehood is prohibited in every religion. It is otherwise with respect to an apostate, as he possesses no power, either over his own person, or over that of another; and it is also otherwise with respect to a Zimmee in relation to a Muslim, because a Zimmee has no power over the person of a Muslim. Besides, a Zimmee may be suspected of inventing falsehoods against a Muslim, from the hatred he bears to him on account of the superiority of the Muslims over him.
3197
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[Qualification of a witness]
It is necessary that the witnesses be … Muslims; the evidence of infidels not being legal with respect to Muslims.
8. 4781
AL-HEDAYA Vol. II (Hanafi Manual)
CHAPTER IV.
OF THE DECREES OR A QAZI RELATIVE TO INHERITANCE
[Case of the widow of a Christian claiming her inheritance after having embraced the faith]
If a Christian die, and his widow appear before the Qazi as a Muslima, and declare that “the had become so since the death of her husband,” and the heirs declare that she had become so before his death, their declaration must be credited. Ziffer is of opinion that the declaration of the widow must be credited; because the change of her religion, as being a supervenient circumstance, must be referred to the nearest possible period. The arguments of our doctors are, that as the cause of her exclusion from inheritance, founded on difference of faith, exists in the present, it must therefore be considered as extant in the preterite, from the argument of the present;–in the same manner as an argument is derived from the present, in a case relative to the running of the water course of mill;–that is to say, if a dispute arise between the lessor and lessee of a water- mill, the former asserting that the stream had run from the period of the lease till the present without interruption, and the latter denying this, case, if the stream be running at the period of contention, the assertion of the lesser must be credited, but if otherwise, it follows that the argument in question suffices, on behalf of the heirs, to desert the plea of the widow. With respect to what Ziffer objects, it is to be observed that he has regard to the argument of apparent circumstances, for establishing the claim of the wife upon her husband’s estate, and an argument of this nature does not suffice as proof to establish a right although it would suffice to annul one.
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[Case of the Christian, widow of a Muslim claiming, under the same circumstances]
If Muslim, whose wife was once a Christian, should die, and the widow appear before the Qazi as a Muslima, and declare that she had embraced the faith prior to the death of her husband, and the heirs assert the contrary,- in this case also the assertion of the heirs must be credited, for no regard is paid, in this instance, to any argument derived from present circumstances, since such an argument is not capable of establishing a claim, and the widow is here the claimant of her husband’s property. With respect to the heirs, on the contrary, they are repellents of the claim; and probability is an argument in their favour, the widow is supervenient, and is therefore an argument against her.
9. 7520
AL-RISALA (Maliki Manual)
37.27 A CHRISTIAN RAPIST
If a Christian rapes a Muslim woman he is to be killed immediately by any Muslim.
But a Muslim cannot be executed on account of a non-believer.
10. Fiqh-us-Sunnah
Fiqh 4.75a
A non-Muslim Woman who Dies while Carrying a Child by a Muslim is to be Buried in a Separate Grave
Al-Baihaqi reported from Wathilah bin al-Asqa’ that he buried a Christian woman bearing the child of a Muslim in a cemetery that belonged to neither Muslims nor Christians. Ahmad supports this opinion because he says that the woman being a disbeliever, cannot be buried in a cemetery of Muslims, for they would suffer because of her punishment, nor can she be buried in a Christian cemetery because her fetus, which is a Muslim, would suffer by their punishment.
11. 5556
AL-HEDAYA Vol. III (Hanafi Manual)
Section
Of the usurpation of things which are of no value.
A Mussulman is responsible for destroying the wine or pork of a Zimmee-
If a Mussulman destroy wine or pork belonging to a Zimmee, he must compensate for the value of the same; whereas, if he destory wine or pork belonging to a Mussulman, no compensation is due.- Shafei maintains that in the former case also no compensation is due. A similar disagreement subsists with respect to the case of a Zimmee destroying wine or pork belonging to a Zimmee; or of one Zimmee selling either of these articles to another; for such sale is lawful, according to our doctors,- in opposition to the opinion of Shafei. The argument of Shafei is that wine and pork are not articles of value with respect to Mussulmans,- nor with respect to Zimmees, as those are dependant of the Mussulmans with regard to the precepts of the LAW. A compensation of property, therefore, for the destruction of these articles is not due. The arguments of our doctors are that wine and pork are valuable property with respect to Zimmees: for with them wine is the same as vinegar with the Mussulmans, and pork the same as mutton; and we, who are Mussulmans, being commanded to leave them in the practice of their religion, have consequently no right to impose a rule upon them.- As, therefore, wine and pork are with them property of value, it follows that whoever destroys these articles belonging to them does, in fact, destroy their property of value: in opposition to the case of carrion or blood, because these are not considered as property according to any religion, or with any sect.
5557
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And must compensate for it by a payment of the value.
Hence it appears that if a Mussulman destroy the wine or pork of a Zimmee, he must compensate for the value or the pork,-and also of the wine, notwithstanding that be of the class of similars; because it is not lawful for Mussulmans to transfer the property of wine, as that would be to honour and respect it. It is otherwise where a Zimmee sells wine to a Zimmee, or destroys the wine of a Zimmee; for in these case it is incumbent upon the seller to deliver over the wine to the purchase, and also upon the destroyer to give as a compensation a similar quantity of wine to the proprietor, since the transfer of the property of wine is not prohibited to Zimmees:-contrary to usury, as that is excepted from the contracts of Zimmees;- or to the case of the slave of a Zimmee, who having been a Mussulman becomes an apostate; for if any Mussulman kill this slave, he is not in that case responsible to the Zimmee, notwithstanding the Zimmee consider the slave as valuable property, since we Mussulmans are commanded to show our abhorrence of apostates. It is also otherwise with respect to the wilful omission of the Tasmeea, or invocation in the slaying of an animal, where the proprietor considers such omission as lawful, being for instance, of the sect of Shafei;- in other words, if a person of the sect of Haneefa destroy the flesh of an animal so alin by a person of the sect of Shafei, the Haneefite is not in that case responsible to the Shafeyite, notwithstanding the latter did, according to his tenets, believe the slain animal to have been valuable property; because the authority to convince the Shafeyite of the illegality of his practice is vested in the Haneefite, inasmuch as it is permitted to him to establish the illegality of it by reason and argument.
5561
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And must compensate for them by paying their intrinsic value.
PROCEEDING upon the doctrine of Haneefa, the destroyer, in the case here considered, is responsible for the value the articles bear in themselves, independent of the particular amusement to which they contribute. Thus if a female singer be destroyed, she must be valued merely as a slave girl; and the same of fighting rams, tumbling pigeons, game cocks, or eunuch slaves; in the other words, if any of these be destroyed, they must be valid and accounted for at the rate they would have borne if unfit for the light and evil purposes to which such articles are commonly applied; and other musical instruments. It is to be observed that, in the case of spilling Sikker or Monissaf, the destroyer is responsible for the value of the article, and not for a similar, because it does not become a Mussulman to be proprietor of such articles. If, on the contrary, a person destroy a crucifix belonging to a Christian, he is responsible for the value it bears as a crucifix; because Christians are left to the practice of their own religious worship.
12. 3915
AL-HEDAYA Vol. II (Hanafi Manual)
[or a crucifix or chess board]
Amputation is not incurred by stealing a crucifix, although is be of gold, – nor by stealing a chess-board or chess pieces of gold, as it is in the thief’s power to excuse himself, by saying “I took them with a view to break and destroy them, as things prohibited.” It is otherwise with respect to coin bearing the impression of an idol, by the theft of which amputation is incurred; because the money is not the object of worship, so as to allow of it destruction, and thus leave it in the thief’s power to excuse himself. It is recorded, as an opinion of Abu Yusuf, that if a crucifix be stolen out of a Christian place of worship, amputation is not incurred; but if it be taken from a house, the hand of the thief is to be struck off, for in such a situation it is lawful property, and the object of custody.
13. S. 9:28
O ye who believe! Truly the pagans are unclean; so let them not after this year of theirs approach the Sacred Mosque…
Sahih Al-Bukhari Hadith 4.393
Narrated by Said bin Jubair
that he heard Ibn ‘Abbas saying, “Thursday! And you know not what Thursday is? After that Ibn ‘Abbas wept till the stones on the ground were soaked with his tears. On that I asked Ibn ‘Abbas, “What is (about) Thursday?” He said, “When the condition (i.e. health) of Allah’s Apostle deteriorated, he said, ‘Bring me a bone of scapula, so that I may write something for you after which you will never go astray. The people differed in their opinions although it was improper to differ in front of a prophet. They said, ‘What is wrong with him? Do you think he is delirious? Ask him (to understand).’ The Prophet replied, ‘Leave me as I am in a better state than what you are asking me to do.’ Then the Prophet ordered them to do three things saying, ‘Turn out all the pagans from the Arabian Peninsula, show respect to all foreign delegates by giving them gifts as I used to do.'” The sub-narrator added, “The third order was something beneficial which either Ibn ‘Abbas did not mention or he mentioned but I forgot.”
14. AL-HEDAYA Vol. II (Hanafi Manual)
CHAP. IX
Of the Laws concerning Apostates.
An exposition of the faith is to be laid before an apostate;
When a Muslim apostatises from the faith, an exposition thereof is to be laid before him, in such a manner that if his apostasy should have arisen from any religious doubts or scruples, those may be removed. The reason for laying an exposition of the faith before him is that it is possible some doubts or errors may have arisen in his mind, which may be removed by such exposition; and as there are only two modes of repelling the fin of apostasy, namely, destruction or Islam, and Islam is preferable to destruction, the evil is rather to be removed by means of an exposition of the faith; – but yet this exposition of the faith is not incumbent*, (according to what the learned have remarked upon his head,) since a call to the faith has already reached the apostate.
* That is, it is lawful to kill an apostate without making any attempt to recover him from his apostasy.
4131
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[who, if he repent not with in three days, is put to death;whether he be freemen or a slave]
An apostate is to be imprisoned for three days, within which time if he return to the faith, it is well : but if not, he must be slain.]
It is recorded in the Jama Sagheer that “an exposition of the faith is to be laid before an apostate, and if he refuse the faith, he must be slain:” – and with respect to what is above stated, that “he is to be imprisoned for three days,” it only implies that if he require a delay, three days may be granted him, as such is the term generally admitted and allowed for the purpose of consideration. It is recorded from Haneefa and Abu Yusuf that the granting of a delay of three days in laudable, whether the apostate require it or not : and it is recorded from Shafe’i that it is incumbent on the Imam to delay for three days, and that it is not lawful for him to put the apostate to death before the lapse of that time; since it is most probable that a Muslim will not apostatise but from some doubt or error arising in his mind; wherefore some time is necessary for consideration; and this is fixed at three days. The arguments of our doctors upon this is fixed at three days. The arguments of our doctors upon this point are twofold. – First, God, says, in the Koran, “Slay the Unbelievers,” without any reserve of a delay of three days being granted to them; and the prophet has also said “Slay the man who changes his religion,” without mentioning any thing concerning a delay : Secondly, an apostate is an infidel enemy, who has received a call to the faith, wherefore he may be slain upon the instant, without any delay. An apostate is termed on this occasion an infidel enemy, because he is undoubtedly such; and he is not protected, since he has not required a protection; neither is he a Zimmee, because capitation-tax has not been accepted from him; hence it is proved that he is an infidel enemy*. It is to be observed that, in these rules, there is no difference made between an apostate who is a freeman, and one who is a slave, as the arguments upon which they are established apply equally to both descriptions.
* Arab. Hirbee; a term which the translator has generally rendered alien, and which applies to any infidel not being a subject of the Muslim government.
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AL-RISALA (Maliki Manual)
37.19 CRIMES AGAINST ISLAM
A freethinker (zindiq) must be put to death and his repentance is rejected. A freethinker is one who conceals his unbelief and pretends to follow Islam. A magician also is to be put to death, and his repentance also is to be rejected. An apostate is also killed unless he repents. He is allowed three days grace; if he fails to utilise the chance to repent, the execution takes place. This same also applies to women apostates.
If a person who is not an apostate admits that prayer is obligatory but will not perform it, then such a person is given an opportunity to recant by the time of the next prayer; if he does not utilise the opportunity to repent and resume worship, he is then executed. If a Muslim refuses to perform the pilgrimage, he should be left alone and God himself shall decide this case. If a Muslim should abandon the performance of prayer because he disputes its being obligatory, then such a person shall be treated as an apostate – he should be given three days within which to repent. If the three days lapse without his repenting, he is then executed.
Whoever abuses the Messenger of God – peace and blessing of God be upon him – is to be executed, and his repentance is not accepted.
If any dhimmi (by ‘dhimmi’ is meant a non-Muslim subject living in a Muslim country) curses the Prophet – peace be upon him – or abuses him by saying something other than what already makes him an unbeliever, or abuses God Most High by saying something other than what already makes him an unbeliever, he is to be executed unless at that juncture he accepts Islam.
The property of an apostate after his execution is to be shared by the Muslim community.
15. 7410
AL-RISALA (Maliki Manual)
32.11 EFFECTS OF CHANGE OF RELIGION
If either of a couple apostatises, according to the view of other jurists, such a marriage is to be dissolved without a divorce…
16. 4120
AL-HEDAYA Vol. II (Hanafi Manual)
SECTION
[The construction of infidel places of worship in a Muslim territory is unlawful; but those already founded there may be repaired.]
The construction of churches or synagogues in the Muslim territory is unlawful, this being forbidden in the traditions: – but if places of worship originally belonging to Jews or Christians be destroyed, or fall to decay*, they are at liberty to repair them, – because buildings cannot endure for ever, and as the Imam has left these people to the exercise of their own religion, it is a necessary inference that he has engaged not to prevent them from rebuilding or repairing their churches and synagogues. If, however, they attempt to remove these, and to build them in a place different from their former situation, the Imam must prevent them, since this is an actual construction : and the places which they use as hermitages are held in the same light as their churches, wherefore the construction of those also is unlawful. It is otherwise with respect to such places of prayer as are within their dwellings, which they are not prohibited from constructing, because the these are an appurtenance to the habitation. What is here said is the rule with respect to cities; but not with respect to villages or hamlets; because as the tokens of Islam (such as public prayer, festivals, and so forth) appear in cities, Zimmees should not be permitted to celebrate the token of infidelity there, in the face of them; but as the tokens of Islam do not appear in villages or hamlets, there is no occasion to prevent the construction of synagogues or churches there. Some allege that in our country Zimmees are to be prohibited from constructing churches or synagogues, not only in cities, but also in villages and hamlets; because in the villages of our country various tokens of Islam appear; and what is recorded from Haneefa, (that the prohibition against building churches and synagogues is confined to cities, and does not extend to villages and hamlets) relates solely to the villages of Koofa; because the greater part of the inhabitants of these villages are Zimmees, there being few Muslims among them, wherefore the tokens of Islam do not there appear : moreover, in the territory of Arabia, Zimmees are prohibited from constructing churches of synagogues either in cities or villages, because the prophet has said “Two religion cannot be professed together in the peninsula of Arabia.”
17. Surah At-Tauba
29 Fight those who believe not in Allah nor the Last Day nor hold that forbidden which hath been forbidden by Allah and His apostle nor acknowledge the religion of truth (even if they are) of the People of the Book until they pay the Jizya with willing submission and feel themselves subdued.
18. Mawdudi, The Meaning of the Qur’an, vol 2, page 183.
19. Mawdudi, S. Abul A’la, The Meaning of the Qur’an, (Islamic Publications Ltd., Lahore, 1993 edition), vol 2, page 183.
20. Mawdudi, The Meaning of the Qur’an, vol 2, page 186
21. AL-HEDAYA Vol. II (Hanafi Manual)
… capitation-tax is a sort of punishment inflicted upon infidels for their obstinacy in infidelity, (as was before stated;) whence it is that it cannot be accepted of the infidel if he send it by the hands of a messenger, but must be exacted in a mortifying and humiliating manner, by the collector sitting and receiving it from him in a standing posture : (according to one tradition, the collector is to seize him by the throat, and shake him, saying, “Pay your tax, Zimmee!) – It is therefore evident that capitation-tax is a punishment; and where two punishments come together, they are compounded, in the same manner as in Hidd, or stated punishment. Secondly, capitation-tax is a substitute for destruction in respect to the infidels, and a substitute for personal aid in respect to the Muslims, (as was before observed;) – but it is a substitute for destruction with regard to the future, not with regard to the past, because infidels are liable to be put to death only in future, in consequence of future war, and not in the past. In the same manner, it is also a substitute and in the past…
AL-HEDAYA Vol. II (Hanafi Manual)
[Arrear of capitation-tax is remitted, upon the subject’s decease, or conversion to the faith]
If a person become a Muslim, who is indebted for any arrear of capitation-tax, such arrear is remitted : and in the same manner, the arrear of capitation-tax due from a Zimmee is remitted upon his dying in a state of infidelity…capitation-tax is a species of punishment inflicted upon infidels on account of their infidelity, whence it is termed Jizyat, which is derived from Jizya, meaning retribution; now the temporal punishment of infidelity is remitted in consequence of conversion to the faith; and after death it cannot be inflicted, because temporal punishments are instituted solely for the purpose of removing evil, which is removed by either death or Islam. Thirdly, capitation-tax is a substitute for aid to the Muslims, and as the infidel in question, upon embracing the faith, becomes enabled to aid them in his own person, capitation- tax consequently drops upon his Islam. –
22. 4118
AL-HEDAYA Vol. II (Hanafi Manual)
[In a case of arrear for two years, one years tax only is levied]
If a Zimmee owe capitation-tax for two years, it is compounded, – that is, the tax for one year only is exacted of him : – and it is recorded, in the Jama-Sagheer, that if capitation-tax be not exacted of a Zimmee until such time as the year has clasped, and another year arrived, the tax for the past year cannot be levied. This is the doctrine of Haneefa. The two disciples maintain that the tax for the past year may be levied. If, however, a Zimee were to die near the close of the year, in this case the tax for that year cannot be exacted, according to all our doctors : and so likewise, if he die in the middle of the year, (which instance has been already treated of.) Some assert that the above difference of opinion obtains also with respect to tribute upon land : whilst others maintain that there is no difference of opinion whatever respecting it, but that it is not compounded, according to all our doctors. – The argument of the two disciples (where they dissent) is that capitation-tax is a consideration, (as was before said,) and if the considerations be numerous, and the exaction practicable, they are all to be exacted; and in the case in question the exaction of capitation-tax for the two years is practicable : contrary to where the Zimmee becomes a Muslim, for in this case the exaction is impracticable. The arguments of Haneefa upon this point are twofold. First, capitation-tax is a sort of punishment inflicted upon infidels for their obstinacy in infidelity, (as was before stated;) whence it is that it cannot be accepted of the infidel if he send it by the hands of a messenger, but must be exacted in a mortifying and humiliating manner, by the collector sitting and receiving it from him in a standing posture : (according to one tradition, the collector is to seize him by the throat, and shake him, saying, “Pay your tax, Zimmee!) – It is therefore evident that capitation-tax is a punishment; and where two punishments come together, they are compounded, in the same manner as in Hidd, or stated punishment. Secondly, capitation-tax is a substitute for destruction in respect to the infidels, and a substitute for personal aid in respect to the Muslims, (as was before observed;) – but it is a substitute for destruction with regard to the future, not with regard to the past, because infidels are liable to be put to death only in future, in consequence of future war, and not in the past. In the same manner, it is also a substitute and in the past. With respect to what is quoted from the Jama Sagheer – “and another year also pass,” so as to make two years, – for it is there mentioned that capitation-tax is due at the end of the year, wherefore it is requisite that another year be elapsed, so as to admit of an accumulation of two year’s tax, after which the two year’s taxes are compounded : – Others, again, allege that the passage is to be taken in its literal sense; and as capitation-tax is held by Haneefa a to be due upon the commencement of the year, it follows that by one year passing, and another arriving, an accumulation of the tax for two years takes place.
23. 3989
AL-HEDAYA Vol. II (Hanafi Manual)
[Infidels may be attacked without provocation].
The destruction of the sword is incurred by infidels, although they be not the first aggressors, as appears from various passages in the sacred writings which are generally received to this effect.
24. AL-HEDAYA Vol. II (Hanafi Manual)
…capitation-tax is due only in lie of destruction… That is to say, is imposed as a return from the mercy and forbearance shown by the Muslims, and as a substitute for that destruction which is due upon infidels.
3997
AL-HEDAYA Vol. II (Hanafi Manual)
[On infidels refusing either to embrace the faith, or to pay tribute, they may be attacked.]

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