Thursday, 25 September 2014 00:00
The Muslim state was mainly a state of institutions with a constitution and laws governing the relationship between successive governments and subjects of the state. Throughout Muslim history, this relationship has been safeguarded by a well-established judiciary system.
In this context, the judicial proceedings guaranteed by Islam for the protection of non-Muslims who lived in the territories under Muslim authority can be understood.
In fact, the Qur’anic directives for observing justice with all people including non-Muslims are quite general and comprehensive as is mentioned in numerous Qur’anic verses such as, “Verily, Allah commands that you should render back the trusts to those, to whom they are due; and that when you judge between men, you judge with justice.” [An-Nisa’ 4:58], and “… and let not the enmity and hatred of others make you avoid justice. Be just, that is nearer to Taqwa.” [Al-Ma’idah 5:8]
In his Commentary on the Qur’an, Ibn Kathir says that this verse commands not to be carried away by your hatred for some people to avoid observing justice with them. Rather, be just with every one, whether a friend or an enemy.
Besides, there is a special command in the Qur’an for the Prophet (peace and blessings be upon him) that he should judge with justice between non-Muslims in His saying, “And if you judge, judge with justice between them. Verily, Allah loves those who act justly.” (Al-Ma’idah 5: 42)
Indeed, this is a clear-cut directive for the Prophet and his Ummah to judge with justice and equity between People of the Book. The most outstanding example on this can be seen in the following verse, “Surely, We have sent down to you (O Muhammad) the Book in truth that you might judge between men by that which Allah has shown you, so be not a pleader for the treacherous.” [An-Nisa’ 4: 105]
This verse was revealed on the occasion of suspecting a Muslim and a Jew of a theft, whereas the Muslim was the perpetrator. The Muslim’s kith and kin wanted to go to the Prophet on his behalf to plead not guilty to the theft and to charge the Jew therewith. Therefore, Almighty Allah revealed the verse to declare the Jew’s innocence and to command the Prophet (peace and blessings be upon him) and his Ummah to observe absolute justice with all people regardless of their faith.
Historical Muslim Practices
In the same vein, the protection covenants given by Muslim rulers to people of other faiths attest to this. This started with the Constitution of Medina which was endorsed by the Prophet (peace and blessings be upon him) after Hijrah, in which he defined the nature of the relationship between Muslims and the Jews as well as the stance of the rising state towards the latter.
It clarified the relationship between Muslims and Jews as one of its articles stipulated that, “If anyone attacks anyone who is a party to this Pact the other must come to his help. They [parties to this Pact] must seek mutual advice and consultation.”
One who browses through Muslims’ history will find that the legal and literary literature in the Abode of Islam has urged to the protection of non-Muslims’ rights. Judge and Jurist, Muhammad ibn al-Hasan ash-Shaibani (131-189 AH\748-804 AC), said, “If a dirham was unjustly taken from a Jew in the East, it becomes incumbent on ruler of the West and his Muslim subjects to head for the East to return that dirham to its owner. Unless they do this, they may be punished as if they were the unjust ruler’s accessories.”
As for Abu Hamid al-Ghazali (450-505 AH\1058-1157 AC), he wrote a letter to Seljuk sultan Sanjar (512-552 AH\1117-1157 AC) wherein he reminded him of the virtues of his late father, Sultan Malik Shah (465-485 AH\1072-1092 AC) who ruled over a great empire covering Iran, Iraq, and Central Asia.
Al-Ghazali advised Sanjar to emulate his father’s policy and gave him several examples such as: a Jew should not be unjustly expelled from his own land as his father had never expelled anyone or dispossessed anyone of his property and he was keen on pleasing his subjects.
Therefore, Muslim historians set criteria for measuring rulers’ justice that included the observation of their judiciary system and the laws governing affairs of the Jews and Christians under their rule.
Ibn Shaddad (613-684 AH\1217-1285 AC), who wrote the biography of Baibars the Sultan of Egypt and the Levant (658-676 AH\1260-1277 AC), pointed out the Sultan’s fairness through giving several examples from his life then he concluded, “Whenever a complaint was brought to him by a Jew, a Christian, or any common person against any of the heads of his administration, he would establish the formers’ right and forbid the heads from oppressing them. Consequently, all subjects became free from worry or fear due to his fairness and equity.”
Also, Persian historian Muhammad ibn Ali ar-Rawindi (6th–7th C., AH\12th–13th C., AC), in accounting for the reasons behind the corruption and ruin in Iraq and Iran that synchronized the collapse of the Seljuk State, outlined these reasons and underlined one of them as follows: when an Emir is appointed as ruler of a given territory, “he consequently appoints a mean minister and vile notaries and asks this minister to administer the territory.
Thereupon, the minister ignores all laws defining the collection of land taxes and\or the tribute to be paid by the Jews.” This means that ar-Rawindi considers the unjust treatment of the Jews and the manipulation of taxes levied on them as one of the reasons behind disintegration of the state.
Equality between Rulers and Non-Muslim Citizens
Not only statements by judges, scholars, and historians are to be cited to prove the validity and credibility of such judicial system, but also several incidents from Islamic history can be recalled here.
Foremost among which is the well-known incident where a Christian Copt complained to Caliph Umar ibn al-Khattab (13-24 AH\634-644 AC) against the son of Amr ibn al-`As (d. 43 AH\663 AC) as he (Amr’s son) beat his (the Copt’s) son following losing before him in a contest. The Caliph immediately ordered the son of Egypt’s ruler to be flogged in return. He even wished that Amr ibn al-`As should be flogged as his son relied on his father’s position when he unjustly beat the Copt’s son. Then, Umar ibn al-Khattab declared his famous statement, “Since when did you enslave the people though they were born from their mothers in freedom?”
The judgment passed by Umar ibn Al-Khattab is associated with what is known as the Board of Grievances — a judicial system designed for holding governors and those in authority accountable for their acts and judging between them and the subjects.
This can be illustrated in the instance in which Caliph Umar ibn Abdel’aziz (99-101 AH\717-719 AC) judged between the Umayyad Emir Hisham ibn Abdelmalik and the Magian who complained against Hisham for usurping his farm. The Caliph ordered the farm to be returned to its Magian owner as his evidence was stronger than that of Hisham ibn `Abdel Malik.
This incident not only shows justice in restoring rights to their owners, but also in the judicial proceedings applied, as the Caliph rejected the Emir’s authorized representative and insisted that the Emir should be present in person during the trial. He also equally treated the two litigants in terms of seating and deterred Hisham from threatening the Magian.
Official documents and papyri provide us with information on examining grievances and complaints. In three notifications written in Coptic, Greek, and Arabic from the Abbasside Era (137-140 AH\754-757 AC), we find that the governor of Akhmim and Tahta of Egypt, Yazid ibn Abdellah received complaints against the tax executive, Amr ibn `Itas who was accused by the farmers of overestimating the taxes levied on and collected from them. Thereupon, Yazid ibn Abdellah ordered that the local chiefs, Muslims and Christians, should be gathered together to hear from them their testimonies in relation to the case at hand.
Likewise, two separate documents dated (91 AH\709 AC) that are administrative letters sent by the then ruler of Egypt, Qura ibn Shuraik (d. 96 AH\714 AC) during the Umayyad Era to the governor of a town ordering him to look into the complaint of two Copts whose money was taken by force. In these two letters, Qura ibn Shuraik stressed that no one should be done any injustice while investigating the case.
Non-Muslim Religious Elites
Besides looking into grievances and complaining to Caliphs and rulers, there were other judicial systems designed for the restoration of non-Muslims’ rights. Foremost among which was the appointment of Muslim judges for such purposes as cited by al-Kindi in his Rulers and the Judiciary. As Egypt’s Judge Ghawth ibn Sulaiman (d. 168 AH\784 AC) examined the grievance of a non-Muslim woman, as well as Judge Khair ibn Nu`aim al-Hadrami (d. 137 AH\754 AC) who used to look into the grievances of non-Muslims of his time.
In addition, Muslim rulers and sultans were keen on regulating the judiciary issues of people of other faiths by means of establishing some of their prominent figures to look into their own affairs.
Many examples can be cited to prove this, such as when the Ottoman Sultan Muhammad al-Fatih (855-886 AH\1451-1481 AC) when he regulated the judicial affairs of the Orthodox Christians in Constantinople and allowed them to elect one of their heads to look into their own affairs. He also allowed the non-Muslim religious elite to look after their community’s personal status law regulating issues such as marriage, divorce, etc.
An impartial researcher who looks into judicial systems in Muslim history will surely admit these systems’ superiority and loftiness.
He/she would also find out that Islamic legislation did not look down upon people of other faiths as savages or barbarians. On the contrary, they enjoyed the protection of Muslim rulers themselves as they were regarded as citizens with equal rights and duties entailed by their residence in Muslim territories.
Translated by Dr. Ali Al-Halawani
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