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MINORITY
RIGHTS
Islamic Jurisprudence
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M inority Rights
Author: A.6. Amid Zanjani
Publisher: International Publishing Co.
P.0.Box: 141 55/6319
Tehran, Islamic Republic of Iran
Print: 1st edition 1997/l 418
All Rights Reserved
ISBN: 964-304-060-7

l\'1i11ul'icy Hii:,hts

Table of Contents
Page
1i-no0UC110NT0 THE nuRo Eomoi; .... ............... .................. 1

The qut!~tiPn of1e/igloui 111i1101'liie.s 1n 1/Jc pl1n fo1 the


big house fl/ Islam........ .. .. ........... ............. ............................. ........ .... I

CHAPTER ONE ............................. ......... Error! Bool:mMk


THE 0Et'l:.."ICU.F.~ A UL1'1S ....

. ........... ... .. ........ . .

..

1101

dcOned
. I3

A S V!WP.YOl'Tt/6 POSITWf: I Nl'W l'/,1T/ONAl. /..AIPS................. ..

'llJc i\11i1n 1'1l1<: s

... 13
Dcli:r1c~lc:,~ Alic:11s .................................................. I J

Memiing of 'A /i<D ........................................................................ . 14

Aliens 1'n 1J1c R8cis} and Relr~iOu$ Go1-em11u:11ls ... .... .. ...... ............. I 5
The Aliens in the ErA 0J"Gova111r11e'nt 1111d l11111................... .............. 21
lntcmation11J Problc1ns ofthe Minorities ................ ~................ 13
... 26
Acce.1,111ncr.."" of tht: Al1t.-"11; ............ ........... ........... .. .. ........ ...... ............ :!7

CllAPTER TWO ......................................................... .............. ........ JI


G E'IERALI'lltS ....... .

33

MtNORIT/E:S PJJ7'F:r71![ ) UJ IJl l; lTE:IW.. A (j/l}'f:.lfEN?'S...... ' ' .. .... .. .. ...... ' .. 33

GonemJitic; ........... ............ ............. .......... ....... ............... ... .. ......... ....
Comeotional Cidzcmh1p...................................... ..........................
Two Fundamental Points................................................................ ,.
71ic 011/y Leg./ Soured ..... .. .... ................. ............... .. ............ ...........
nu>R ole othcc Will in Lcgallef.tt1d1s: ..........................................
The Nturo oft/JC Ape~ment and its Effet:tf<:........ .......................
The Worth oftlx: Ag1'Cf1m<nts in Is!.m: ..........................................

33
J.5
J7
./I
./5
./6

JS

T/Jc MH11d.ic "fl/1" l111M 1 Ali (A.S.) ........ ..................... ................... SJ


/nYil.al1Qa ltJ C o11c/udc J>o.hiIcR/ A~CJucnls ........ ............................

52

ii

Minority Rights

Explicimess oflnu:f71JIJio1111! Agrcemen1s ............. .. .......,................... 55


Cim1pelenco for Drawif18 11p Political Agtt:t:mcnls......... .................. 56

Proreclion ofJn1crm1iooal Agreements............................................ .S 7


Pem1n111>nt a11dProvision11lAgro1'111en/s ,.......................................... 59

The Principle ofOblig111ory Fullillmenl ofPromiSds and


respe"ling them.............................................................. .. ................ 62
.4nnul111ent of'/111ema1io1111/ Agtt:emeat>............................ ............. 62

Cnmp;lcnl /sJH1111c Aut/1ori1y for Concluding


Agrc:.cmc111s ................ .........-........ ,.......... ... ..........

.. ........ .... .. 65

CHAPTER TH REE ........................................................................... 67


THE LAW OP TRmlffE A UREEMEN1' ...................... , ................. ........

69

l..&GAL l iwJEOFTHETP.EATYOl-'NATIONAL UNl'iY......... ......... ............... , 69


J'IUJJCITE A0Rlil-::AIEN1'0R TREATY Or NATIONAL U.wrr................................

69

THENA1'\JREOFTIIETR!BUTAGREEMENT ................ ,,, ............. ........ , 75

I. The Rcspn1Jsiblc lor Conc/udit11f a 1'ribu1e AgrecmCJ1/ ................. 76


2. Commiut:d Allies ........................................................................ 79
A swdy of ll1c View of Ille SunJJi Jwisp1vden1~ ............. ........ .. ......... 86
Com:cJion of an trror...................................... .............................. 89
f>rion1y oflb Folloncrs of !Jcanmly Books. .......................... ,.. ...... 89
THE T E.'IT OF THE TIUlltJTE AGREEMF.l>'T ...............................................

93

CRAPT R FOUR. ............................................................................. 99


R$PO'.'SllllUTJEs Of BoTII PARTIF.S ............ , .................................

IOI

A Surwuro1'0BuG.11r10Ns on111::Mmoxn1c~ 11.J 'f'iuu1n 1::.ltiut:111,, 1s ... 10 1


Cond.i tions dl'ld 1'anis ofTn.b111a Agreen1ents
Rcspn11sibilitic:; of 801/J Sid~.!!.......................................................... 101
Dasie: Atticfe~ o/'n 1iibuft: Agn:cnienl. ............................ .............. 102

Condiuiws lo be Stipu/nu:d ........ ............. ................ ............. .. .......


Compn1i/>} Contli1io11s ............................................................-.. ..
/llegi1imn1c Conditions...................................................................
'llic Tl'ibu1c........... ... .............. ..... ...................................................

1(N
I05
I 09
113

iii

t\'!lnority

Right~

Does 1be Paymeqt of Tribute Menn AQjectness? ...... .................. .... I 15


Studying the ayab 011 the Jizyfl .......... ......................... .... .... .. .... .... JI IJ
A Talk wil/J Self.Sold Weslcmised Pcrso11s ......... ............ ..... ., ....... 123
Me11sure ,,f1~i'nant:1~11 Co1mnftI11en1 .......................... ........ ... ... ~ ....... 126

Financinl Ability - Consent.. .... .....:............ ...............:................... 126


771c Diiiy ofthe Trib111c CoJ/cctors, ................................... .. ...... .... J28
Wlio ls 10 P.vy //Jc Tributc?.. ............................................................ /37
Exemp/Jon lfom Trib11te Pnymenr............ ............... ....................... . f 42

CllAPT'ER FIVE ............................................................................. 15 I


Mt:sLIMS' COMMl'l'MENTS ............................ .............. ........ .. ...... .. ...... 151
J. An Over81/ Jmnrun1iy ................. , .............. .. .............................. 157

Unilnrernl Defenc< 'fh,11(y.......... ...... ........ .. .... ........ . ... ..... ... 161)
The Totalt in the Qw',ftJ........
.. .. .. .......... ................ ...... ..... 166
U1< Gospel iJ11/Jc Q1u'iln ........... .............. .. .. ................ ~.. .......
169
ln11iDfJ'on Md Propac111ion on 1/1<: Ba.~'1$ ofl~o.gi, ll/1(}
Re11son .. ..... ........... .

.. rn

Free Discu<;sioo ................,. .......... .. ,, .. ,, .......~ ~ .... ...... .... .. .. .. ...... 176
Tbt.: Forbidden Argurne111 ... ........................ ....... ........... ..., ............, J79
Fn:cdom of C/Jifdren ....................... ............... .... .............. .... ..... ... .. 181
FreedOIJJ -0J'Rcligiot1!i Rites and Ce1'Cfl)Onies ... ........ ..................... JIJJ

SeoUJiry of Temples Hod Sflcrcd P/.1ccs ................... ......... ,. ............. /84


Newl)"Founded Places of Worsltip ... ............. ...... .......................... 185
Apos1.1sy ofRoligiuu; Minuritic;............. .. ............... ...... ............. , 188
Probibited Zones............. ..... .. ................. .. .................... .. ..... ...... . J92
W/Jy Do the ls/Amie Co urt> H11vc Rn Option ?................ ..
.. 202
Fair fudgement ............... ........ ................... ............. ........ .... .... .. . .. . 203
77lird Vlew ... ., ............... , .... ................... ...... .......... , .............. .... ..... 204
771c View ofthe Shiite lurisf)J'IJdents.. ........ ............................ ........ 206
T111: J~ws 'Pleading 101 Justice in the P1'DJ'he,1's Pre..;enc:r: ............... 208
Freedo11.1 ofl}1e lvfino.ritics i/1 Cbo"sli1g l11c Cotu'fj . . .. .. ....-........ .. .. 208

Minority Righi~

iv

Capitulauon ........................... ........................................................ 109


lntematioMI Cowt or Arbi1rolio11.....................................,............. 110
AltfJU.,cr Pn'vilcgc................................... ~ .... ........ .......................... 211

Onerslup right of/be Comuullcd Minuritks............. . ............. 214


Fr~cdom

of C{>ttu11crco......................... ... .. ,., .... ....... ..... .. , .. .......... , , 2 15

l.liwy isForbidde11 .................. ............ .. .............- .......................... l 16


Agricu//urc and F11n11ing ...........................................~ 218
Free tCono1t11C Relation:, ........ .......... .. ...................... ..... ......... ....... 2 18
J'rade Taxes and Du1ics............................................................. 220
TAXCS on

l.nttd 1iansfer ................................- .... , ........ ..... ,. ...... 222

F reedom ofJohs.................. ..... ............... ..... ...... ........................ , 22./


l .1tu>:; o.flt1/hr1ihgc 0J'Nnn-Mus/1111s ....

225

~11t:11ils,~ uf1/u: Mi11tJr1tic.-s n11/t M us/Jin ~Vr11ncn . ...

:!:!8

)l

Will'.>('vn~J':illJll IU /:;/1ou . .. . .. ....... ... .... ,, ............................ 129

CQnt ,rs1on t1fUoth , ..,J>c:s 10 IJila111 ....... - ...............

233

Wilen tlu: Jlu~b1111d (. 'un1c.rts f (J 1~/11111 ............................................ 233


A,Rlsf,vsy tJf tltc 1w11-M1t>li111 r(lupk .......................................... 23~

MrriagcofMu.1inrMen WilhN011-Muslinr Women .......... ......... 214


.~1ur1'o!Jt.~ u/'1t l1..fus/1i11111t111 u1/1b Jc1vlsh

,111tl Ctuis11:111

Women ......................... ................................................................. 235

11u; n;, 01c.c: I.JIU' . ..

. ..................................................... - .... .......

138

lr1/u;r111111ct: /.It u....... . .......... ........ ....... ., ........ .......... ,. ... .... ........ ... ]39

I Vpft:ssi<n1 of'lfl/0111/ ttnd flu11111n /t.elin&~ ,....................... ....


S()c1a/ Cu.'t/OlllS. .

, , .... .. ... ..... ................................

1.JJ

u.. .... , l.J3

Ob$ctvnncc ofSoot! /;'trqulleo'.,, .......... , .......... ....... ...... ......... ... ,, .. 2/.I
F~l'Ollr 11nli Hen~ o/cncc................................- .................. - .. ........ U6

RernlsJ.i<Jn 11nd fndulgr:ncc ............................................................. 2.J7


$'/1nu1Dg A!Tt:c:tiou und J;rlr:.n d.-.luiJ ..... .......... ........ ..................... ... . 250
S<:/l; Surnm<fer am/ X cfltlplli/i;m ...... ............................................ 253

An Jgno11111u"nus S"Janth;:r. .............. .... ............. ................... .... ..... .... 160
'/111.: Quri;n '.\ lagit tJn tlu.: Prin1..1j1/i. o f' Co-upc:ratio11 ..................... 265

Minority IUi:hlS

D>-opcmtion on a Uni>'eml Len:/................................................. !67

Mlnurt'lies'p;utici'p1Jtion in Co-Opc.mti"C Activities. ...................... 170

PART TWO- l7J


PART l'liREE ............................................................................... 277
So'c.rcianty 1i1 t/1C /s/a111ic lan

1. . . . . . . . . . . . . . . . .... . . . . .. . . .. _ , . .. . . .. . . . . . . . . . . . . . . .

18.J

Principle of Sow:1..,ign1y /I ccording 10 tM h>IM11'c:


Jurispnxil:JJC<: ................................................................................. ! 87
Muslims' Pulitit:8l Independence in the Qur'ln ......- ................... !88
Agittmcnt> Cootnuy to tlJC Pnnciplc o flotkpendcncc .................. !9!
Pri'ncip/c of Nonlntcrfcrc-11c,....... ..................................~.~ ... ~tJ~
'/1u: ~\'0 1 ttt'riijj.11/y of' fshun _,,, ................ ................ ................ ........ ] 98

P1;...,-w.,11.1ti<Jn visove1ciGJ1ty 1n

/11tt!1'f11Jtio1111/

C o11v1111n1.:111s ...............~ .............. ............ ........... ................. _

300

CUAlTER SIX - .. 31S


. 3 IS
Annu/11H:nt of ibc Jfibute Agrc:cnu:nt........................ ._..... ....... J IH
/;ffr:<:IS of the Annu/DJenl oftht: 1n/Jul< Agrrx111cn/...................... JJO
Vio/Ation of the lnbute Agreement ............................................... JJ I
I. Vi<Jl.won by the Mu.<Hms:.. ...................................................... JZ I
2. Vio/,,tio n ol.lhe Ag,.ee111cn1 by tlir; Co1111ni11cd
Minorities. .......... ........ .............................. .. ........ ..... .. .... .. .. ............ J24
indirect Viol11tiun aJ't/Je 7/ibult: AJJ,1'tfe11u.;nt ............................ ...... J2S
ConsG-"l/Ucnc;cf/ of Violaling llu: '/i1"bu10 Agrcx111t:n1 ... ............ ......... 126
C.onvcr.;iuo to l~l111u after Vio/111inJJ 1/u; Pact .................................. JJ9

PRECEPTS COt<CF.R.'llSG n tr TRllll-'TAJllES................... ...... ................ 331


PREC1'1'S CONCERNU<G THETIUllUfAlUES ................................... 333
Exmws fom1 Tahrir uJ. WM17a by tlu: Imam KJ101ucini.................. 333

Ct>11diu'ons uJ' tl1c 11-ibute Ag1ccn1cn1 ...... ....................... ... ...... ...... . JJ./

GLOSSARY-.................. 337

vi

.Minority Rights

R'FER.ENCS............---... 341
Cn111111C11t.tries 011 tile: Qurlln: ............. ............... ........................ .... J4 /
Shiite Jur1spn xkne.: ...................... ............................................. JJ/
Book.< on !he Aynf1 ofPttccpts .... ........... ... ..................... .............. 3./2

SUJ1Dj Jud<prudcnt ................ ............... ........................................ 341


/JJiilOlj'-

.......... ............................. "... ....... . ...

JJ2

S/11j1e ~}lrdit11.< ............. ................. .................................................. 3./3

Sunni ff~d1tb,-

....... ............................. ..................................... 1-43

M1S<.' .:l/Rniqus ... ............... ......... ................ ... ................... ... ............. 3JJ
lnlcn11J1ir>r1al Rig ht.< (fs/.vmlc;............ ..........

.......... ............... .. 3-/.I

lntenJNtt0nal IU&flls (Nm)......................................................... ..JJJ

g;,

,h.,. "'"'"'" pf' .,/(//,,/,.,

!/.,,, fi)e,.11Ji';e.,,t,., tft.c- Jl:k.r<;;/(,/

Introduction. to the
Third Edition
The question of religious minorities in
the plan for the big house of Islam
iucc tbc rise oflslam and organisalion of lhe Muslims
and !be appearance of the lsla mi<; soci~ljes, groups of
the followers of various religions lived alongside !he
Muslims in Islamic lands wi11Jou1 adopting Isl~m. Th~y preferred to live with 1he Muslims rather than to emigrate or be
converlcd.
Bui with lbe rapid spread of Islam among various oatioos
of !he world, and the ex1raordinary growth of Ille Islamic
ummab and expansion of lhe Llamic l and~, tbe religious mi-

Minority Rights

nori1ics did not grow so much or augmeor io number, inspi re


of rhc frc...'dom and tokrable life Ibey enjoyed. A number of
1hem gradually 1umcd to Islam, and many of them lost lheir
solidcri1y. in ilia1ivc aud iu1crcs1 in lheir rdigious cx.pansion
and 11c1ivity.
In 1hc history of Islam w..: rarely mecr a case in which religious miuori1ics bav.: engaged in orgaoised uprisings, combals and clashes 10 secure 1beir rights and fr~doms.
TI1osc rare cases w~n: relarcd 10 panicular poli1ical cvcnls
Rnd rcla1ions, but no1 cooocc1cd 10 lbc Islamic qucs1ions.
Th..: his1orical position of 1ht! religious miuorilit!s in 1h..:
lsl11mic sockrics and lhe Islamic lands was q11.,s1ioncd wirh
au 1111l>cli..:vahk as1onisl11ncu1 wi1h lhc invasi on of 1hc wesl<' rn cullnrc of Islam. Bui si nce 1hc true n:ason f(>r ii was the
allrnc1ioo of Islam and its logical Me1hods or co11v..:rsio11 as
well as 1he ucgation or compulsion or imposition or n:ligioo.
and al 1hc same time a spirit or co-existence, peacd'ulncss,
and gran1ing gTL'll1cr njgbts and freedoms, all of which were
unfamiliar or iuadmissiblc !Or 1hc western world. they made
a wrong iu1crpreta1ion o f Ihis mnguiliccnt hi storica l evenI.
This n1is1akcu iutcrpr<:talion which accused Islam and 1hc
Muslims of' rougbucss and !Orccful imposi lion of r<!ligion,
roused 1hc falamic scholars to deal wi1h th..: q111.:s1ion from
lwo aspects in order 10 defend Islam.
They tried first refutt: this unjusl accusation against 1hc
Muslims hy describing the rights and liberlil!S grautcd by Islam 10 the religious rninori1ics and delining lh<! tbcor.:1ical
and j urisprudential dimensions of 1hc qucs1io11s, aud surveying th.: hi s1ory of Ill~ Muslims' poli1ical. social aud econom ic

Minority Rights

relations witb the religious minorities even in the conditions


and cases where the Muslims did not act so much according
to jurispmdentia l tbcories. 1
Altho ugh this reaction was natural by tile Islamic scholars,
yet it is regreted that we should perform our dutii:s in the
form of a reaction, and instead of takiog 11recautions we
should wait until we are criticisl M d accused. and then
when we begin. Why should we coofiac ourselves to refuting
a charge instead of analysing the mancr fundamentally?
Finally, what policy is to be cdoptcd by a religi on wbicb
claims to have a universal mission and hy an ummflh which
coosid~rs itself commissioned to carry out a role in th..:
world, aud by these two uhimMe bcirs of the earth and human gcncrntion, iu attaining this ullimatc goal in the quc:stion
of relationships with the followers of o th.:r creeds'! What
positio n will the religious minorities have in the IJlnds of Islam, and what rights and liberties will tb ..y enjoy?
The questio n of the relatio nships of the Islamic lauds with
non-Muslim uations and groups is one of the most important
political problems of Islam in its civil and international di mensions lo be investigated carefully wilb referenc..: to the
Islamic texts and jurisprudenc~.
Ir in the past such legal and political topics have had a
mere comparative value in presenting tbe theories of the
school o f thought to prove the comprcbcosiveness of Islam.
Today, especially after the glorious victory of the Islamic
Revolutio n, its vital and obj ective necessity is evident to eve1

The t\VO \Vo1ks: n 1c Gul11ds of' l'cNcc 11ntl Co-exis11111ce " and 77Jc
RiBlusofr/ie Minnrities ''have be-en wrilh;n fvr 1his purpose.

Minority Rights

ryoue:
In ihe Islamic republi.can 01der where, according to the
coustitutiooal law of the country, all. the laws and regulations
should be based oo lbc Islamic laws and principles, and the
position of the leadership of the Revolulion sbould be derived from religious guardianship and jurispnadeoce. No exC\IS~ is acceptable in neglecling inves1iga1ioo iu Ille lcga~
political and economic matters oflslam.
Tb is book of "Rights of Minorities" which bas been out of
stock for many years, is now offered lo 1he readers iu its lhi.rd
ed ition, and it may be considered as the first hu1J1ble step io
perfom:ting that grea1 !ask. As the book was wrillen 1wenly
years ago under the conditions of the taghut regime, many of
irs 1erms and expressions cannot be clear enough iu preseoliog tbe Islamic realities. But the book is based oo jurisprudeniial principles aod the views of rbe greal Islamic jurisprudenls, for the c.ompilation of which the author has spent several years of research and bard work, hoping that it will be
accepted and rewarded (by Allah).
\Vltilc apolagiziog for all rbc defects 1b~t Ibis book may
have, l invite all. rhc lslamic rbiukers and scholars in whose
heans the eternal flame of [slam is kindled aod rbiuk about
the future of Islam and Jsla1J1ic Revolt11iou, to look al this
book, 1101 wirb the eye of iodt1lgence, but with .a critical aniIUde as 1beir duty oeccssitatcs, aod with bener and more e.x planations make. more perfect this bumble step by a deeper
inves1iga1ion and discussion of its legal, J>olirical and economic mailers which the needs of !he time require.
Tllc views of rbe luxam Kbomeirti, expressed in Al- Wassila

Minority Rights

aboul Ille rigbls of lhe minorities have been added 10 the


topics of the book in order 10 give ibc nalysis a complete
form as a basis for furTber researches by the researchers.

'Ahbas-Ali 'A mid Xanjiini


October 1983

l.

~ /he

/t//le>

d$ IJIJ~.,~"'"4

(>/'' vt!//ah,
~he- .dk-rrf/'J,./

I have found no fitter and no more


Suitable opening for this book than
the following brilliant and meaningful utter;u1ees
selected from the eternal charter
of Imam A.Ji, peace be upon him.

'' ... D

o not reject any kind of peace and


pact of co-existence to which your
enemy invites you and in which there
is Allah's satisfaction; it is in peacetime that your army and
military forces will get a greater readiness and strength; and
you will be freed from your anxieties and griefs. and your
co\mtry, too, will live in safety.
But take coustallt care, aud be cautious of the enemy aflcr
making peace with him; for the enemy may often approach
you to benefit from yo11r negligence and take you by surprise.

Minority Rights

T herefore, never abandon caution, hut take


suspicious of your optimism."

c~re

and be ever

If you c,onclude an agreement with your .:nemy or uuderlalce an obligation, be faithfill to your pact and carry 0111 your
commitments in foll honesty, and make your life a guarantee
for the protection of yo11r obligatioos, for there is nothing
greater and highc.r tban loyalty lo a p ro mise aud agreemcnl
amoog hioding mauers of Allah about which there exists
unanimity. zeal and interest inspite of all the differences in
people's desires and views ...
J)o nol seek excuses. in your agreement, and do n01 allow
any treasc;m, plottor c.tLnning 10 enter your promise ancl pac.t.
Do uot miskad your coemy by deceit and slyness. Uudoub1edly ooly iguorau1 and miserable people show disobedience
to Allal1...
Allah has made prnmise and agcee1.11ent Ille means of securily and ba.~ granted ii lo 1he people because of his Favour
and Merey. He bas made ii a sanctuary in lhc sheller of
which they may live in c.asc aud tranq11ility, and with lhc aid
of which they may gain many benefits.
Therefore, uo fraud. deceit, 1emplatio n, doubt o r treason is
pe1missibk Never conclude a pact in which then~ is rnisin1crpNta1iou and aherration. a:nd afler co11cluding ii li rlnly au<l
giving your 11ssuraucc, do uot resor1 to 1nul1i-sidecl arguments.
The diflicu lly of lhe task in o bscrvi.ug Allah's pact shou ld
not lead you w <lemaud ils abrogation unjust ly; for, you fortitude in bearing the difficulties aud hardships which you hope
to have a good cud, i~ better than lbe slyness aud cunning Ille

Minority Righ!S

J>Unishmcnt of which frightens you, and makes you afraid of


o~ing calt.:d to accounts by Allah, and fail w s~cur~ the possi l>ility of being pardou~d in lhis W(lrld and in rb~ next, T he
Imam Ali (i\.S.)

I
j

l
'

Chapter One

The Defenceless Aliens


A Survty ofthe Positive
International Laws

I
Chapter One

.J

The Defenceless Aliens


A Survey of the Positive
International La'IJ!s
The Minorities Defonceler;s Aliens

be ueed for ao excbangc of mental and material


products of various groups of mankind from the
viewpoint of blood, language, religion, and tbe spi rit
of association and acquaintance among nations; and their liberal feeling, and the right in the choice of dwelling and .rcsideuce, have necessitated, since the remotest period of man's
social life, the inevitable mingling of various racial and religious groups iu most of the iob1tbi11cd lands and countries
which have been formed.
Owing to this same forc.ible mingling of the nations, few
countries can be found whose citizens have the same religion
and race, or whose members possess the same national characto:ristics desired by a pel'Son or persons or by tire dominant

1
J

14

Minority

Right~

majority.
lt goes without sayiog that in every country, a rulc.r or a
government follows a special racial or religious or Mtional
aud citizenship policy, aud makes the enjoyment of 1<!al aud
governmental protection conditional upoo the conformity of
th.: individuals with th.: ci tizenship system of tbat cbuntry.
T hi s point is ever truer io the case of past nations and conditions of former centuries where the system of racial and religious policy was carried out more violeully and faoatically by
their govcmmenls.
In most casl!S the execution of the policy n:sulled iu lb<!
privAtion or th<: .b'Toups which did not fall under that system,
and many difliculties and restrictions were oll<:o placed upon
them. They were treated unkindly or cvco cru.::lly by th.:: ruling ch1ss aod by th.: majority. and wer.: in some cases tortured most savagely. Conse4uen1ly tbc question or minoriti.:s
and the protection of their legitimate rights bavc, for long in
the polit ical history of tbc world. taken the form of an ioteroa11onal problem 10 be considered aud investigated.

Meaning of' Alien'


In the past a group or tniuoritics wer.: looked at as a lieus,
except that this term assumed a differeot meaning according
to the difference in the pol itical system of each country.
Jn th.: realms where a racial system governed, an alien was
a person wl11m! blood, language or other characteristics did
not c<>nform with !hos<.: of 1bc ruler or of the dominant majority.
S imilarly in countries where a religious policy was follow~d and nationality was l>ascd 0 11 religion, an alien was

Minority Rights

15

coosidered a person who did 001 follow 1be religion of th"


ruler or 1he domioanl majority of lhe na1ion.
J\t 1he presen1 lime, 100, whco the ci1izeuship o f every
country is based on particular national clements. those p"rsons who lack such ele mcn1s and pcculiari1ies arc cpnsidcrnd
aliens and a group forcigo 10, and apan from, 1he nation.
The nature o f bciog an alieo bas undergone no cbang" in
1he so-called progressive modern limes as compared with the
so-called decadetit past. The only noticable difTercoce is 1bat
in the pas! it was 1he ruler or 1he ruli ng group tba1 decided
who was au alien, but now be follows lhe law coined again
by the majority. In 001h cases the minority is coun1.:d Hs an
alien and a foreign group and an ill-matched palch upou th<'
garroenl of 1hc oa1io11, and a group 1tpJ1 from 1he human
elements which fonn a country. There exists 110 na1ioual
unity between the two groups of alien minori1y and ua1ional
majori1y, and the national unily is 001 possible except
tbroug b a cbaoge of ci1izenship.
Bot in the system of 1be Islamic laws, although ci1iunship
is based oo religion, 1be word "alien" bas no practical application and Rn individual or the religious groups can joio the
group of the Islamic Ummah by concluding a 11act or agreement of dhimmah. In Ibis way a single Ummah and nation is
formed by lb~ unio n o f differeo1 groups possessing different
citizenships. This poi111 will he explained in th.; following
chapters.

~I'

Aliens ia the Racial and Religious


Governments
Before dealing with the righls of tbe minorities in the ls-

I-

:Ji'

16

Minorily Righl5

lam ic legal system, it would be necessary 10 consider briefly


the posi1io11 of the aliens in past govemmcols as well as in
the 1J1oder11 lega l systems. For ibis purpose we make a survey
of their position in tht: following periods:

1. The period of the rule of racial aud political systems


(before lbe .:s1ablisbmen1 of the Uuitcd Nat ions Organisaliou).

2.

T he peri(ld of the rule of lbc law (after the establishment of the UNO).
lo the countri<!S uuder racial or religious governments, aliens usually bad, au uu fort uua te position ~xccpl in rare cases,
and lucy were uul o nl y deprived of the sources and rights of
the o flicial r~ce and rdigion or the country, but they wo:r.:
also treated badly hy both the govemrncut and the people,
aud owi ng 10 this 1rca1n1cu1 lbi:rc often occurred incidents
which Jed 10 group 1onures, massacres aod tragic scenes.
J;:wisb governments, which before Christ wen: lbc most
JJowcrful aud th<:! oldest govemmt:nl oftbe 1i111c, owing lo the
special band bc1ween race and religion iu the Jewish faith
which bad given it an acute form, usually follow.:d a harsh
rncial and religious po licy and treated oon-fowisb gro ups as
animals 10 be used by tbc seh:cl jewish race.
T he Jewish government, which was chosen by the Jewish
11a1io n, and , li>r lltis 1c11.~on cou ld not adopt 1bc 1hcory of a
government formed of various rncial and religious groups, o r
th<! formalion of a world govemmcot for its goal, had but 10
adopt oue of the two following plans in relation 10 its policy
towards the extensive oun-jewis h masses:

1. To destroy non-Jews and purge 1bc land from the un

Minority !lights

17

clean elemenls (non-Jews).

2. To enslave and exploit such groups in the inlerest of the


select Jewish people.
The second policy was naturally followed whenever religious fanaticism was not at iL~ height. But when the conditions
resembled those of the time of ihe rise of Christ and the
spread of Christian influence on the Jewish governments of
that time, only the policy of the annihilation of the non-Jews
was followed.
The sto1y of Jesus life and the 11agic eveuts of Ille short
period. of1bat gre<1t Prophet's mission, as well as the 1om1enls
and tortures sutlCrcd by his apostles at the bands of the Jewish goverumeut of ibe lime and the wandctings aucl homelessness of the Christians in that period. are a clear example
of the crud conduct of the Jewish governments.' The genocide of the Christians by 1he Jewish government of Yemen is
an example of tbe disgraceful bigotty of the Jewish governments and !heir unhumau treatmenl of the noo-Jews.
In this fearful massacre tens of thousands or 1he Christians
wen: tragically killed and b1tmt in fire. /.u-Navas, a Jtlwish
ki.ng of ycrncn, in a single occasion killed twenty thousand
Christians ofNajran and buml their bodies in fire.1
lu tbe early years of the fourth century A.O., when Christianity was accepted as the official religion of the Roman Empires, and Christia~ governments and r ulers held the rein of
affairs, the era of the freedom of lhe Christians and e11slavcme1)t of lhcJcws beg.au.
"At- ~1 'ilyusJ1 sd-Dini /jJ-Js/an1 : (Religious Co-cxislcncc in lsf1u11) pp.
20-22,
i lbrd.
1

I)

18

Minority Rights

The Jews were massacred several times during the Christian govenimenl~ of the Roman Empire or banished in groups
from the Roman realms. Ou one occasion Cyrus, king of
1ran, g ranted asylum t<> tens of thousands of exciled and
homdess Jews. Io the 16th century A.D. the Muslim Ottoman governtn e1Jt received thousaods uf Jews who bad been
cn1elly driveu out of Spain and Port.uagal aod allowed thew
to selllc in the Islamic lands.
ill many Christian countries, tbc .Jews were deprived of all
civil rights and were not even allowed to keep slaves which
was free and common in lhos<! times.
Io this c.o nuection the Encyclopedia Britalluica, writes:
..The whole of western Europ.e was closed to the Jews in the
I 61h ceurnry, and 01Jly iu a pal'I of uoribern 11aly aud a small
parl of France and Germany were they allowed some freedom.''
Iu 1648 a law was passed in the British parliament condemning lo dealb a3yone who expressed an opioiou contrary
10 the principle. or trinity, and in 1688 the same parliament
decla red Pro1 cstautism as the official religion or the country,
aud stipulakd lbat no Catboli~ bad Ille right to perform bis
religious rites in the Aritish realm.
In Prance, uu1il the end of the 17th century in accordant.:
with special regula1ious eo~ctcd by Catholic governmeuis,
protestants were placed under severe restrictions. They were
no! even free to bu1y their dead except at special times, and
uo more than thirty people were allowed to escort the fuucral,
and oo more than twelve people could attend a weddiug or a
haptism.
In C hri stiau governments 1he subject of 1be eliens bad

I
I

Minority Righls

19

mostly a religious aspect. and the alieos suffer~ all ki nds o f


priva1io ns and restrictions and cvco tortures and oppressions,
wi thout having auy refuge.
The dreadful scenes and happe nings which took; place iu
this connection in various Christian countries unlit", th~ 17th
century, resulted in paying anentioo to rite question of religious freedom in most of 1bc Treat ies of the 17th, 18th and
19th ccn1uries, such as 1be famous II<!Alics of Weslpbalia and
Vienna. In lhe Paris Treaty of 1856 it was stipulated that discri mination should be abolished in both its racial and rdigious aspccrs. In th~ Bcrliu rrcaty of 1878 th~ big powers of
th~ rime compdled fooMical governmcors 10 recognise freedom of religion, bur 1bere remained ao arnhiguily couc~rning
mailers of race, laoguage and natio nality.'
l t is noteworthy that the subject of minority rights was
considered in connection wi th the racial aod religious minorities who were citizens of their n:sid cotial realms, and as
explicitly mentioned in the Paris Treaty of 1856 it was declared that there should cxis r on discriminatioo among th.:
individuals of a co11n1ry ei the r relii,riously or racially.
After the fin;t World War ce11aiu principles were stipu
lated in the general and particular treaties condudcd for th<:
international protection ofminoriry rights and maoy governments accepted to observe equal treatments wjtb all their
subjects including the racial, lingual and religious minorities
residi ng in their respective conntries. 2
Finally with the Crcflting of tbt: League of Nations the
' ..Huqoq-r Bn.rnil MiM"( l11remtia nal U.w) by Dt. Sfdari, Vol. l. p.
234.

Ibid.

20

Minority

Right~

question o f protecting minorities entered a uew phase and the


League of Nations stipulated: 'To guarantee respect for, and
observance o f the minorities. it should be reflected in their
constitut ions, aud the League
Nations, too, wi ll s~e to the
1
fullihncnt of these ob1igations."
It goes wi1bo11t saying th at when the question o f safeguarding the minimum rights of the minorities who an: citi:tcos o(
their resident country requires the agreements a11d emphatic
recommendations of the UN, obviously 1he question of aliens' rights iu a n intematjooal life will be faced with greater
difficulties.
lo the case of aliens too, it was o uly bi-lateral or multilate ral agreements that cou ld safcg1iard so.me rights, for tbem
aud inspite of' the recommendations of the Institute o f Intcrnatioual Rights wbicb was sci up at Geneva ia 1874 to thi::
effect chat the aliens, iadependen1ly and wi1bou1 the need of
any stipulation in the treaties in their favour. aud even withou t auy reciprocal treauncnt. possess rights and privileges
which must be observed by the goverumcnts. 1 This mailer
was oot conlirmed by the co1111tries as a binding law and "
1.:ga l principle. Thus the governme nts bad com1>lclc frocclom
iu dete rmining the righ1s o f the alie ns, and could d evise
regulations and de termine the rigbls of the aliens in accordaucc wi th their own security, econo mic a ud political condi tioos and on the basis of reciprocal observaucc of 1bosc
regulations.

or

I hut., p. 2)5.

"lluquq-<' B~yr1il /lefi/,1/ Kliu.,o.-i"(Special ln1erw1ticmJ L11w), p. 82.

Minority Rights

21

The Aliens in the Era of


Government and Law
After the Second World War, when the League of Na lions
was formally dissolved and the United Nations' Organisation
was created with a good deal of fuss and golden hopes by the
victors of the war, inspi te of its apparent .advances ilJ the solution of i11ternational difficulties. no fresh steps were iaken
to protect the rights of ibe alic.ns and the minorities.
The last step taken was in 1929 in the form of a great international conference in Paris, but no positive result was
obtained inspite of all ihe efforts made for determining the
ma oner of treati ug aliens. 1
The steps taken after this conforence befor<', afler and
during the Second World War, t.o solve this prohleo1 have
bad no noriceable effect on the situation, and at no time hav~
the rights of Ilic minorities been more violated thao al the
present period. 2
Disregarding tbc acts of the .governments, 1bc jurists have
tried to regulate minimum rights for the aliens. For iusrnuce
Werdross, ao Austriatl jurist, bas proposed ihe following
formula for the minim11tn rights of the aliens:

I
I
'

l1

1.

Ar.tic.I.. I:
The governments should grant the particular rights to their
alien citizens which are necessary for each individual to continue his Ii fe.

Article Il:
The governments should recognise the acquired rights
I

Ibid., P 80.
Ibid., p . 8-081.

,.

2'2

Minority Rights

which the aliens bad obtained according to 1be positive laws


of thei r own. or olber countries, should be obscrv..xl and respected.

Art,iclc lll:.
TI1..: governments should observe rigbts for the alicus rcquisik for rcspec1ing 1bc personality of tbe individuals, including personal freedom, freedom of dwelling aud movcm.:nt.

J\ rticle

rv:

The followers foreign natiouali1ies should have 1h.: righ t 10


ap110.:al 10 Ille courts oftbc eoun1ries they reside in.
Articl~

V:

Protecting 1bc alieus against such acts which may result io


the damage of their life aod property, is the duty of lh.: govcmmen1 the country th.:y reside iu.1
l\'a111 rally 1he analysis and recommendations of the learned
la,vyers. si milar 10 lbc conclusions o f lhe international conforences aud the emphatic declarations o f lhe United Ntttions
and ils charters, provide no ~ecutional guarantee. and. so
lnog tts they are not stipulMcd in a formal agrcemenl , they
possess only a moral worth.
T herefore in this era of progress, civilisation and law. no
j ust and regu lar law may b.i found, which, by its .ix.:cutiou,
the rights of the aliens can be safeguarded in all couu1rics.
Obviously even bi-lateral or mult i-lateral ln.:;itics and
agrecmcuis cannol protect !he rights of the aliens ius11i1c of
lh<l policy of rccipro(;al trealmcut. since, supposing 1ha1 lb..:
French govcrument maltreats so me 13ri1ish nationals r<!siding
I

Ibid.

Minority Righ ts

23

io Fraoce, this act is not a legitimate excuse for a reciproc.al


treatment of t'rench nationals residi,Dg in Britain by the Bri1ish governmen:, or abusing their legitimate ln1man rights.
Naturally, the fa.ct 1bat tbe Frcocb govcrnm.ent represe11ts all
Frenchmen does not mean tbat a Frenchman residing in
England should pay out of bis own human rights for the
damage not caused by him. hut hy his sovereign government,
rightly or wrongly, for some political r~asons.

International Problems of the Minorities


We have said that oppression and 1rausgression against the
human rights arc not confined to aliculs alone, as the matter
of protectiug tbc rights of racial aud religious groups. who
are in a minority, even thougb they way be the citi zens of
'their residenT country, is in itself' an unsolved internatioual
problem, for the solution of which nothing bad been done
until lhe Second World War beyond tbe recommendations of
the international couferences aud tbe uoguarautccd reg11la 1ions of the League of Nations.
Afier the Second World War ~ud the crealion of the. Unit~d
Nations Organisation, even though the United NMions Charter paid, to some extent, a special alteotiou to the fuudamcutal rights and the liberties of buroao beings, yet the minority
question. as a special case. as was tabled to Hie League of
Nations, due atteniion. In the peace lrearies concluded after
lhe Sec-0nd World War, even though defeated couotrics uodenook to observe the fundam~ntal huinan rights and tbe liberties of their subjects without a discrimioAtion or religion.
race and language, yet the minorities have not been protected

24

Minority llig.'lts

ac.cording to their special and indepcndant position. 1


Tn view of the articles of the treaties concluded after the
Second World War, it CJ!n be said that no special regu lations
have been drawn up with regards to minority rights, and llll
panicular organization has been set 11p to supervise this mat2
ter. If something is stated in the treaties about this question,
it is usually related to a set of some other political waiters
which have been under consideration,
The General Assembly of the United Nations declared in
the firs t period of its session: "The high interests of humau
society require that an end liti put to tormen ting and molestation of human heini,rs and to religious and racial discrimina. "
ttons_
To carry out this decision in 1947 the Human Rights
Couuuittec and its s\1h-com111i1lee for protec1i ug minorities
and checking discrimination began to lake steps, but their
measures never went beyond a comprehensive investigation
and sludy of Lbc question of discrimination and occasional
recommendation and emphatic statements. 3
In rhe progressive twentith cen tury the queslion of protecting miuoritics is considered only at a time when it would
promo1e some political objective. Tn such a case, extensive
propaganda is employed for the verbal support of the minority which is to serve the interest of some policy, and then racial or religious discriminations are condemned and minority
rights an: strongly defended.
If we hear that the world condemns the racial policy of the
1

"Huq1lq-e Hayoil Milnl-eo umomi"(Generat lotomAtionat Lllw) by Dr.


Snfd11ri, Vo. 3, pp. 236-7,
' lbicL
' lbicL

Minority Rights

25

Nazi government and speaks of the German Jewish propk as


a wronged minority aod the savage rncial policy of the Nazis
as the most fearful, barbarous a1Jd cruel conduct. it is because
the policy of International Zionism and the padded Jewish
government makes it necessary to use all its means and
propaganda in various counui cs in order to cover up all its
crimes and aggressions, which are undoubtedly greater than
those of the Nazis, and present itself tn the. world puhlic
opinion with a mask of innocence o n its savage. tyrannical
and 1reacherous face. Tllen it coudemous the racial prejudices
of the Nazis and considers tbe conduct of Nazi leaders with
German Jews, which was the deserved punishments of their
treasons, as an evid~nce of the innoceocc of the nation of Israel.
Just now the Muslim minority in this Jewish gove.rnmo!IJt,
whose rulers condemo Ille racial Nazis' policy, make use of
the slightest artHicial pretexts to engage in group massacres,
destroy Muslims' houses and send them to torture cells and
fearful dungeons, while the rest are deprived of most human
rights, and live in a state of captivity.
The manifestatioos aud happenings of racial discriminations of the USA. the wost proggressivc country in the world,
make one tremble, but the USA; at the same tim~. considers
racial policy of Germany as anti-human and condemns it 10
auuihilation. tu Rodesia and South Africa rncial discriminations Rte condemned because of their disobeying the policy
of the masters, and the world is called upon to figllr aud besiege and punisb these countries economically.
But thousands kinds of discriminations tak,; ph1ce in all
pans of the world, where Ibey do not clash with any policy.

I
I

26

Minority Rights

or are in favour of a policy, no voice is raised in a loudspeaker to condemn or blame them. On the contrary, they are
even confirmed and supported.

Individual Rights Sacrificed to Policies


We may conclude from the ahove points which were based
on the views of the ex.perts on International Law that the
rights of the aliens in the constitutional law of various countries depend on the policy of the governments and diffCT according to the conditions and political interests of each
country as well as t he tenns o f reciprocal treatment of the
governments. There is no fixed measure which might guarantee the aliens' rights in either international or oationol laws.
Govcrnmeots are perfectly Cree in determioiog the aliens'
rights, aod have no responsibility before any law or principle.
In such a case the individual and bis interests and rights are
sacrificed to the interests and the policy of the govcromcnts,
and in many cases he is treated io the manner of those guilty
people who are deprived of human rights. even without having commiltcd a sio.
This is an example o f the perverseness, lhe blind-alleys
and the legal errors o f the legislators of the prnt,'Tessive
world. With their limited ideas and vision, where they make
laws for the preservation of social interest, they fail to see the
shortcomings in which they are involved due lo their limited
thought and .knowledge. Consequently they are driven lo
blind-alleys some of which are a disgrace to humanity of today in the form of insolu ble international problems io the

Minority Rights
world.

27

In later discussions we will deal with the system of 1be Islamic laws concerning the solution of this problem wiibout
noticing the smallest blind-alley in them.

Acceptance of the Aliens


O:>nceroing the right of entering, passing staying and residing of the aliens, there exist tw0 views:

First view:
Absolute freedom of accepting the aliens. The su11porters
of this view declare that the governments cannot at wi ll prevent the entra.nce and residenc~ of foreign nationals or limit
this right. Vittoria, a learned spanish jurist, says: "If we refer
to the history of the human heiugs, we SC1! that everything
was held in common between people al first, and there existed no limitation for individuals, and every person could
freely move about withoul aoy check, and later on, when
land and property changed from being communal into priva.te
ownership, there arose no need for cbeckiog peopk 's movement on the basis of1his cbange."2

S.ec!;mul..v.fow;
Limitation .in admitting the aliens. T he. upholders of this
view believe tbat the governments have absolute freedom in
drawing up regulatipns cooceroiog the euhy and .residence of
the alien.s in their territories. According to ibis view, if no
t

Respec1ed re.adc:rs. for further dctai1s in this respect 1na_x refer ro 1he

book "/slam.and l111cn1.11ionnl RiiJ/J1s ; under 1he tirle '' Is 1nHn capable of
fhdng la,v?"
..F!uquq-e 8Ayr1il Mi/HJ';. pp. 48-99.

Minority Rights

21)

agreement is concluded be1we.in the countries, no country is


compelled to admit foreign nationals to its tcrrilory.
This view was accepted by the Institu1e of ln1croa11011al
Law which was established in Geneva in 1928. But a proviso
was added lbal _justice aud mngo imity require that rhis opliou
shou Id not be misused by the govemmeuts. 1
fn 1his connecrioo it should be said that the above views
are two opposed ones, both of which go to extremes. lo the
first view only the right of the individual is considered, ignoring many social aod ideal interests, while in lhe second
view, rhe rights aod the interests of the individual arc sacrificed to the illusory intt:n:sls of the society and the policy of
the governmeul.
Concerni ng tbe accept anc.: of rile aliens, irrcspcctiv.: of the
legal vit:ws, wbar is actually observt!d is tbat no dcfioitc limit
aod uo criteria exist in the function of the guv~rnments, aud
the conditions for Ille admission of the alieos depend ou 1b1:
attitude and policy of the govcmmcots, as is tb.i cas~ with
otbcr social. religious, \.'C(momic, political aod .iud1cial
. IHS.,
ng
Tl1erdore every government has the au1 bority 10 refuse the
admission or an alieu w ithout giving any reason , or deprive
hioo of civil righL~. as well as the rights or citizenship. ownership. commerce, occupalioo, or re ference to the courts of that
country, or benefitting from the rights security, transfer of
movable and immovable property, performance of religious
or national rites, or even expel him without giving any ex-

or

cuse.
I

Ibid.
Ibid.

Minority Rights

29

This is tbc meaning of the law and the rights in the century
of progress, the era of the space and lhe travel to 1be moon.
Now we must see what the Islamic law hits offered to the
human society fourteen ceotuEies ago, and what plans and
just solutions did it present !pr those international problems.

.Chapter Two

Generalities
Minorities protected by bi-Lr1te.ral

agree.nunls

Chapter Two

Generalities
Minorities protected by bi-lateral
agree171ents
Generalities
Confederate allies
"Minorities" in the Islamic
Jttrisprudcncc

he Islamic j11Tisprudcocc docs 1101 cn1isidcr mi11orf


lies !LS alien or as a minmi1y w hic h lacks 1h" power
to de1e.rm111c its own rights and dcsiin>' visavi, the
will and interests of the majmi1y. M1lrcov<!r, 1herc cxisl> no
ground for the rise of the probkm of racial and minority diffcr<rnces wi1h regard 10 language, race or any 01her factor (on
1he ba.is of which citizenship is determined in coulemporry
law) as com1iarcd wi1h the majori1y.
To explain 1his poiol, it is u"c~ssary lo 11ay ancution 10 1hc

34

Minoril)' Rights

kgal meaning and Islam's vi<:w o f cili zenship.1 In lh~ Islamic un iversal law Md ideology, lb~ <1u.:s1 io n of cilix.cnship
and na1ionali1y docs uot depcod on blood, language, lc rritory
nor other material faclors. 11 is an oplional ma11cr related 10
the vie w and atlihJ\k of ihe individuals who form the Isla mic
society.
Every iudi vichrnl who hdi cve.~ in lhc Is lamic faith is con side red a member of 1he lslamic Soci ety r.::gardkss of his
race, language, rc;;idcocc, bisiorical backgn1und o r fomily.
True un ity in the societ y aod amoog vario us human groups
a:s scco by the Islamic law, can be realized only lhrough 1hc
unity of tho ught, will powe r and inte llo:!ctual inclinatio ns. For
1his reason au Islamic society or oaliou consis ts of di fl<:rcu l
g roups whid1, vn lhc basis o f a singk vie w and bdicf, have
adopted a common, lrnrmonious li fo a nd a si ngle law lo
regulate their pri.vatc aud social lives.
In this way, in the Islamic brotho.:rhood, o.:ac b individual
after voluntary acceplance of the covenant (faith) formally
beco mes a uicuibe( of 1bc organised Islamic society and ass umes its c iliz..:as hip, aod all acquire o:qual rcspons ibilities
and rights bdh rc lhe law in which h e hc lic.v cs. Privilegcs and
ot ho:r material d ilforeuccs disappear. Rich and poor, big and
s mall, black and wlute, red and yellow, ./\Jyan and Sc01i1c,
Arah and 11011-Arah, /\sia1ic ;ind European. Ame rican and
African all become l>rtilhers and responsihk m~mh..:rs oi' tho:
lsla mic socicly.1
1

~n11s subJoJCL 1s (:Xpla1ni;d 1n "/:>/11111 lt11d Jn1cn1n1101u1J R.1 h1s:

Cbaptc:.r

'['\,o,
' "nle noble Prophcc o f lsla111 ~tn.:ss..:d upon rhi:\ fflcl in hi:s hisLoricnl
spi;..:ch J11s r:a n;\\i;ll Pil[;rlroage. He sA icl: "O p~opl~. your Lotd is One~
and your l'it1h~r is one . .+\IJ of yuu an: 1'ro1n J\d;11H, ;111d Adan1 i~ ( nuHI~)

Minority Rights

35

JI is perhaps for this fuudamenlal reason !hat the Qur'ao


has used the word ' UI1iII1ah' instead o f (na1iou). and bas
calkd a uuitcd society which is composed of diffe re nt races
a single ummab.'
For this reason, iu au Islamic socicly, the unity o f wbich is
guaranteed by 1he uuity of thought, belie f and resoluliou, oo
problem' aris.es iu the form of miuority, discrimiuatiou or
rnce, aod every illusory privilege is coudc mucd and aholished. The Imam Ali (A.S .) s tated indispurnhlc Islamic
principle in 1be followi ng brief but profound scntel)cc io the
preseuce of !hose who demanded privileges 011 the basis o f
nobility of blood and race:
Who e ver accepts our faith a nd undertakes o ur covenanl,
the precepts oftbe Qur' an and tho Islamic laws aud rules will
be applicable Lo him, and no one has any supcriori Ly over
another except in piety aod uprightness."
0

Convcnt.ional Citizenship
lo tbc Islamic society uoo-Musli.ms, too.. under certain
condiiioos, cao 1akc part, aud formally join t.bo;: Muslims and
by means o f a bi-lMeral ag:r ccmcnt with !hem Ibey b~co.m.,
united to fonn a single Ummah.
of dust. The 1110s' honoured of you in the -sigh1 of A.Jlah i:-. 1ht: 1uos.1 pious
of you. There is 110 supel'iol'hy fo((t Hn AJ'~1b over H nooAn1b, an<l lhr nll
oon../uab o ve 1 an An1b.. nor f<>r ~ Tt'tJ 1.)V.:r fl \vh1I...:, nc>r C
br ~ '"hih.~ 1,.lv..;r a
rc<l, except accul'dlng to hi:.-.: piccy. I "'''t: J <li:livl:-n::d {th.: n'\!S:.<tgi:)'! ()
1\ llali, be ,,,.i,n~:;sl { .et rhe prcsen1 inforni 1hc Hb:ten1 :

When A1ninJ) Mu'ninin (A.S.} \\as dividing th..: spo ils :unong lh~
l'v1usli1ns, ao Mb obj~c.t~d ,..,b~n he Sl'l\\ his share sin1il:~r to 1hal of n
nonArilb. rhe lsnii1u St1id: "I sec no merit in 1his spoil Jbr the children of
ls111ael over others.
(a.s.) stao<ls for '<1/1J.v!Jis-s.'t!.tn1{i.e. pcRcc be upon hiln).
1

..
"

36

Minority Rights

This kind of cirizcnship which is acquired through a bilateral convenlion is called Dbimma in the terminology of
Islamic jurisprudence, and the person coucludi.ng such an
agreement with the Muslims is called a 'Dhimmi '.
Iii such agreements Jews, Christians aud Magians (fireworsbippcrs) can participate, and after signing the agreement
rhey become meu1bers of rbe great Islamic society and arc
regarded among rbe lslamic conveutiooal ci1izcas, and as
Dhimmis, Ibey enjoy all tbe righrs, freedoms and security
through-our the lslamic realm. as granted to them iu accordance with the agreement they had accepted and s_igned.
A ckar example of this type of agreement was the national
uni1y agreemeot whicb was signed by the Prophet and the
Jews in tl1e early days of his migration to a.l-Medinah.
By mcaus of this agreement the Holy prophe t united varjous 1ribcs of al-Medinah and formed a single 11mm1tb consisting of Muslims, Jews and Arabs. It was sripulated in this
agreement that the allies formed a distinct Umm1th in which
the Jews preser_vecl their own creed and the Muslims kept
llleirs, and in case of any difference, 1hey had to refer to Allah and His Prophet (namely the law oflslam). 1
Thus non-Muslims are never considered ali ens and foreigners io <to lslamic realm and govenu:neu1, and 1he word
'ali en' cedes its place in th" Ts lamic law and jurisprudence to
'ally', which is more huniaae and mag11ificeot. As 1be
agreement is voluntarily concluded by both sides, ihe spiril of
unity and barn1ony -and spiritual bo nd wli ich have !heir
~ource in option and will power, spreads a shadow of kindness, justice and co-operation over the relations of the Muslims wilh their allies.
' Jbn llisham 's Simh, vol. I, p. 503

Minority Rights

37

As will be discussed in later cbaptcts, the rights, privileges


and freedoms which have been envisaged in the lsl11mic law
for the allies (dhimmis) are by no means comparable with the
least rights determined for aliens today on the llmphatic recommendations of jurisl~. United Natioos Orgaoizatioo. aod
its Charter and in the reciprocal treaties in the present progressive and civilized world. Is lamic law is not only free
froro the bad feelings of alienation io the relationship of ali ens with the oilier cili;r,ens of ti.le country Ibey reside iu, b11t
actually there exisL~. in ii mo.ral bond and a spirit of unity as
a result ofits humane manifestations.

Two Fundamental Poin ts


To make a more complete survey of the aiiove subject it
would be necessary to pay cere fol 11lleution lo the following
two points:
l. The nature of the trihute agreement (dhimmah) and Lbe
rights aud privil~goes granted lo 1he allies residing io the
realm of the Is lamic gover111nen1 according to that agre~m~111.
as well as its essential conditions, terms. political and legal
consequences.
2. The right of admitting non-Muslims iu tl1c Islamic realm
on the basis of personal agreement of immunity is contirmcd,
besides its ualure and legal implications.
As the discussion of these two points is ba.s ed on !he pri11ciple of respec1ing tbe commitments and obligation stipu lated
in reciprocal agreeme11L<, we must begiu with a brie f' s11rvey
of the legal value of agreements aud iuternational treatks in
the Islamic law, and then, by Allah' s help, we s hall deal with
the first point. leaving the second one to another OJ>J>Orluni1y
on account of the size of this book.

..

....

Legal Value ofthe Agreements


here is no doubt tba1 the principle of 'ae<:~pting obligations'' is 1be basis of every kind of social lite. If
we cousider human inclination towards s.ocial life as
ao involuntary and innate atlraction, the n we must tl1iok of
"acc.epting ol>ligations" as som~tbing natural and iucvitahle.
lt is this natural principle tliat 'manifests itself in an individual' s li.te as a pledge towards a personal program -of order
and assiduity; and in the world of creation, as acceptance of
objective realities and scientific facts; and in connection with
acceptance, and acknowledgment, of the Creator of the universe it is manifested as faith and religious ol>ligations.
Other signs and manifestation of the principle of acceptance of obligation are iu~orporated in man 's social relations,
his respect for law aod social rules, and a wider basis, in i11ternatio11al relations, in universal treaties and convt:ntit>ns
audio man's remaiuiug faithful ta his pledges.
For Ibis reasoo the roots of 'inclination towards obliga1io11s' and ' respect for and fulfilment of pledg1:s' are the
same principle, aud by admitting them 10 be oatUl'al. this inclination to obligations is considered as the nobles! inherent
humao sentiments.

40

Minority Rights

13y paying allenlion to such principles and inherent roots


we can realise 1bc value of obligations aud agreements and
their humane, natural necessity throughout !lie human life,
especially in social life, and in the greater sociely of iu1crnational relations. /\s the real and exclusive humau life m11s1 be
based on prindples, natural desires and on lh<:! demands of
mau' s special oa1Ure, and since any devia1iou aud shortcoming related to the,~e natural principles and desires are accompanied l>y a deviation and dcfccl iu 1be iudividual lifo of mcu
thus, it follows 1hat the l ives of nations, too, in 1be greater
socie1y of mairkind, cauuol be fulfilled in a worth mauuer iu
liuc with man 's natural desire without being hasod ou inlernation<tl commitments and agreements.
Disregarding 1bc natural roots of ihc priuciple (if the
" necessity or accepting commitments'. a survey of 1be living
conditions of na1ions aod 1hc cb aogcs in iuteroa1io11al life
wbicl1 can under various conditions cause transformations in
the ioterests and probably cvco in 1bc cx:istcucc of nations,
clearly shows the intellectual. logical and vital necessity of
accepting irllemational agreements and obligaiions.
Evidently if is 001 possible under all conditions to resort to
torcc for the pr~servati oo of oatio1rnl iu1erests aud attainment
of desired gains. If we overlook the difficult ies of securing
and using power, we cao.uo1 ig nore the fact and the tradition
that every power is eventually vanquished by anotber pow<:lr.
Therefore, an incliu-atiou towards obligations and acceptance of inte.m atioual agreements may be considered the best
way for the preservation of the interests and rights of nations.
and the necessily which logic and intellect induct in the in1ematiooal life of human beings.

Minority Rights

41

Moreover, peace aud co-exislencc are fundamentally


among most revered human ideals. aod. wi1bou1 a doubt, of
the undeniable mental and vital human wanls. for the establishmenl and permanence of peace and co-cxistcocc, uo
deepet.. more effective and practical factor can he found than
principle of acceptanee of obligalions aud couelusion of intematiooal agrccmcuts.
lntemational agreements constimte the bes t legal boundaries for !he rights and ioterests of nations, and re IU<! most
potent guarantee for the establishment aud maiatainanc~ of
pcac.c, as well as 1be most effecfive media of uudcrstaudiug
and concord in the life oflhe big human society.
Obviously peace legally and convincingly be besl inculcated in the relation of na1ioos wbco its roots de~ply p..:netratc t;be spiritlial and moral emotions of hum au bci ngs
through pacts and agre9meu1s, and, like other spiritual durics
or ethical pducipks and natural desires of nations, develop a
profound link. We dare say thal human beings wil l uevcr find
peace as long as they do not limit their greet!, ambitio us and
profit-seekings within the framework of pacls and agree,.
meuts.

The Only Legal Source


It is usual in l.egal discussions to lake the principles of
' In1ernational Traditions and Customs' and ' !be positive
Law' along wilh the inlernatioual agreements as the three
sources oflhe Iaternalional Law_
There may exist a rea!5o.O io the minds of 1he jurists for
multiplying legal so.urces, but, u11on rctl9ction, Whal seems
decisive iu the natllre of !he above principles 1. s the singular-

J.,

42

Minority Rights

ily of the source of the International law and the convergence of the above principles oo that singularity which can
be nothing but the commi1meots and agreements mentioned
above.
If we rdlecl on the roo1 of lnteruatioual Traditions and
Cusloms and lbe factors lhat create and circulate them, we
will fi.nd their earlies1 forms 10 be a kh1d of limited agrcemt:nt by whicb individuals or some groups have bound lhemsdves. And then. other groups who have fell an inclinatiot1
to, or a need for, that agreement io tl1cir relationships, have
gradually joined it and undenaken its observance. Suhsequet11 .commi101euts have naturally extended lhe iu11ucncc of
such agreements and have eventually given 1hem the form of
International Tradition and Customs.
Why do nations consider tbcmsclvcs bound, in iutcma1ional fields. to observe tbe loternali<JOal Traditions, Customs. .Exigencies and Principles'! ls there a need for observiog them cvcu after realizing that they are no1 being respec1ed
by other governments? What is the philosQphy or the principle of reciprocity in such cases?
The answer to such questions is nothing but that the acceptance of the rules based on International Traditions and Customs hinds other nations because of an implied obliga1ion
and commitment to wbai the ma.iority have c.0 1nmitted themselves, and like other moral principles and olher aspects or
social lite, they acquire a binding force and respect l3u1 it
goes without saying that such au acccptanc~, inspite or its
incumbency, never loses its cooventional and contractual
nature aod is inseparable from iL
lu compari og 1hese two legal sources to show which of

Minority Rights

43

them is more i111po.rtao1 in international questions, some jurists have made the following statement: "Though the international Traditions and Customs arc not codified, yet they
possess this advantage, over other legal sources, that 1they are
older and more univer,~al, whereas agreements lack 11\ese two
features and cannot therefore be abs0lu1ely and generally
binding. "
George Sel, a famous juris1, and ProJessor Alvarez, on
American jurist. relying on the above s1atcu1e111, bavc pr~
fcrrcd the priority of the exigencies of ln1e.rnatio1rnl Trndi1ioos and Customs in international disputes. '
A tJumbcr of other jurists attach more importance and give
priority to commitments resulting from agreements since
they are better codi'fied aud more explicit, and the elemenL~
of option, resolution and indepeudcuce are more evident in
them, and tbcy consider the change in 1l1e l11terna1iooal Traditions aod Customs, which are gradually a11d actually replaced by agreement~, due to tbc said principle.1
ln view of tb<' common basis of ' the International Traditions aod Customs' and 'agre.emenls' in tbe facror of ob li~a
tion or commitment both of which are derived from tbis single principle, it must be said that the arguments offered in the
above eval~ation in support of each ol' tbe two said views
lack legal va)ue from the viewpoint of conclusion sioce nci1bcr the generality nor the uuconditioucd stale of tbe ohligatious resulting from the luternation8l Traditions and Customs, nor the explicitness and codificariou of.agr~emems, nor
historical precede.n ee can serve as a distinctive factor iu d.:' The Gener/ Jn/;:mtio11/ Rights, by Dr. ~afdori, Vol. I, pp. 162- 164,

fbid,

.l

11

44

Minorily Righls

terroiniog ti\eir hierarchy and legal value,~ . We can even suppose each of the apparent dislinctioos lo belong tc1 the otber
side, as in the general agreements which are approved and
signed by all natiops, or the codi fied commitmenls derived
from the recorded (nternational Traditions and Customs.
Initially, i1 should not be neglected Iii.al rule and principle
binding commitments must always stem from resolulion, oplioo aud uUer iudepeudcocc. Ou Ibis basis the cou1radiction
of ln1erna1ional Tradilioos aod Customs wi1h obligalions and
agreements can be conceivable on ly when the ohligalioos
arisiog from the lnteroational Traditions and Customs be in
conflict with both parties or one party io lhc agreemen1 and
lack 1he elemeDI of free will and deemed lo be ao impositiou. Clearly, witl1 such a supposilion, the Luternational Traditions and Cusloms in relation 10 the concem.:d goveromenls lose their legal value. The imposition of aoy undertaking, even if i1 takes the foro1 of tbe lnlcmational Traditions
and Cusloms. is considered a violal!on of the right of the related nations 10 freedom and independence.
Whcu a lradition and a custom arc approved, obligations
c.outrary to them are not possible. excepl through the breach
of the previous commitme~t. In Ibis case, too, the supposed
conflict between the obligations resulting from the luleroarioual Traditions and Customs, and obligations due 10 an
agreeme1JI is ioconceivahle, and a discussion of tbe priority
right of either is useless.
lt is surprising !hat Alvares, head of the New School of
Int(lrnational Law, considers the violation of the freedom aod
independence of oalions, io connection with the above point,
as a legitimale right for lite United Nations Organisation. Ue

Minority Rights

45

bdicvcs: 'Some decisions of 1hc Uni1cd Nations arc hind ing


fol' wor1d g<lvcnut\i!n1s evn if some: g<.lVt.:a1n1...:nts hav..: HtH
explicitly dcchm:d their agreement with 1hose decisions.'''
Moreov~r. he coosidcrs th~ gl..!n.C.ral l~ga l prttH.:.iph.!$ at.:cepted by t11c ,.;ivi lised(!) na1ions prevai li.11g nwr 1hc will and
destiny of other uatious and by adding several <ll hcr art ides.
he mentions 1hcsc I) ar1iclcs as the ~ourcc 11f 1hc new i11tcrna1ional laws.

The Role of Free Will in Legal Matters :


Respect for frccdom of lhc will is 1h, m11st aul hcnti hasis
~ad css~utial audi1or of hutllan life. and witho111 douh1. 1h;;
va.luc of human lik in bolh its individual and wide social dimensions is wbolly 1,;on11cc1c1I wi1h th~ cx1e111 of 1hc n1k <>r
this principle in the c.o ndi1 io11s ru ling <Wer l\!cir lives. Al l
laws and regulations. x.rc also subjccl t1> Ibis hasit principk
and law oflnunan li fo and lh,.;rc is no cxccp1iu11 111 it.
The acceptance of obligations or comn111mc111s. 1hc 11a1ural
ncc..'.\!SSity1 which \Vt.:: proved ~ fbc beginning t'>f 1bj~ tllscu.ssion, CV~ll hy lhc gr~cc of lhc free will of b1llh parlks. <>u ly .
1.:latm hu111an r~SJll'CI and J~gaJ Wt)t1h IH){\;vithsl<tudin.g i1ll ils
.ramiliea1io11s and cxh:nsivc role.
Oppnsilc IO 1he prin<'ipk of free will is lhc 1\.;ieckd nd
una<:ecplahlc pri11c1pk of impMilic>n, Which in any form and
sh;opc m dcriwd from any fac tor or clement. ;, rnnJc1n11cd
nd rcj..:ch:d hy man s 11a1urc.
1:t)r this n:ason rh~ l~g:al r~sulls ,1r ohl iga lions ancJ ag rc..:m~uls which arc C<)nsidcrcd hi ncling . ..: an IH>I h\! f<!kc11 as
somi::ihing inlp\)S\!d si ne..: cv~ry )('gal H~n..:..:n1\.!nl is d..:riv..:<l

I
11,

lhod., p. 165

46

Minority Rights

from free w ill.


We have discussed this point in detail in our previous
analysis, and our couclusiun now is 1bat io tht: sphere of the
inlernatiooal relations, as iu ocher spber~s of hu lJlao life, the
priociple of free will must be recognised as tile o nly governing princip le, aud all iutemutional laws and every regulntion
which uccessitate the acccprnnce of respousibility and
commitment arc lo be derivt:d from this human principle.
For this reason voluntary undenakings are the main source
and fundamcutal basis o f intcrnatioual Jaw, and the legal relations between govcrumcnts are secured on elements which
embody their voluntary uudcrrnkings. Every other princi ple
such as he lnterua tioual T radi1ioos aod Customs. posilive
laws, regulations and decisions of world organisations, or
lega l rules approv.:d by civilised governments a~ wd l as
otbcr principles 1'1at arc considered by the _jurists as sources
of m:w international law. are wit hout validi1y aud lega l value
if Ibey !Hck voluntary und.,nakiog; as man 's nature and life
acccpl o nly that kiod of obligatio n which is ba~ed oo the
principle of voluntary acceptance.

T he Nature of the Agrncmcnl


and its Effects:
Now we CAU easily understand the nature of agreements
and pacts, both wi1uiu the framework of iut.:rnational 1rnd
rntcma l relations defined as follows:
Au agrl!e01en1 is a kind of voluntary undertaking which is
formally accepted by two tlf mo re parties for the purpose of
tbe pcrfom1ance or relin411ish111cu1 of a t a~k or lasks in au
ahso lulc or C()ndit io nal mann~r.'

M;,IOrity Rigltts

47

As uml~rlakings are usually ftCCOmpanied by previous


agr.:emcn1 and good will of 1bc parti~ concerned, we may
couclud.: that io defini ng an undertaking the phrase
agreem~nt based on mutual expediency' may be l\)<<'11 tu
mean a 'requisite condition for the uodcrtaking', 001 'an element of substantive affect.'
Clculy, an u11dertaking in !he seose or !he explicitne.~s or
implied commilm<mt in it. as described io th.: comparison
between agreements and the ln1eroational Traditions and
Customs. does 001 create any diffcrcoce in the substance of
au uodcrlaking. Similarly, 1bc fact tbat an umlcrlaking may
he general and absolute 01 confined to one tl( several partie~.
or ils being pcrmaoeot or temporary, bas no effect on th.:
substance o f the underlaking. A ~cr all, the dTcct of the
agreement in all cases depends o n the quality and quulity of
the rc.o;ervations t:ovisagcd by the co ntracting parties i11 the
text of the agreement.
It goo:.; witbout sayi ng thal the mauucr of concluding
agreemenls may be different in different cases a11d under diffore nt cooditious, aod such conditions as 1he drawing up tcxl
of the agrccmcot, and tht: writ1c11 mcu1io11 of the pasons or
Ute group responsible for it at the opening sec lion of the tcx1,
and the signing or preparing copies of the agrccmcu1. or of
the previous negotiatioo, e tc. are mosily fom1ali1ics 1he absence of whic h has no effect on the l..:gl worlb of the agre..'ment if it bas bcco legally coocludcd.
What is meant by the eITec1s of au ag1eemen1 is the respoosibili1ics aod legal bindings to wbich the contracling
parties arc committed upon lh~ cooclusion of the legal formalities of the agreement, or the rigbts which are envisaged

4fl

Minority Rights

for Ille contractors according to the tem1s of 1he text of tJ~e


agreement, with lhe provision that the contractors have uo
obligaliou at all to make use of the second section.
Naturally, the said effects have legal v.alue only in connection with the contracto.r s and signatories lo the agreement,
and for this reason it becomes legal. But the legality of sucl1
an agreemeoL does not mean Lba: ii is biudiug on all, even ou
1hc govcmmcnts that have not signed it 1
Genernlly speaking, in the agreei:nenis concluded betwe<::n
two or 01ore goverumeu1s, lhe binding legal dimensions are
applicable olily to the conlrac1ors, and they do uot cover
olher goverumcms who have not signed it. But their nouobligator; rights and consequences may be considered for
other uncomilled govenuneuls, or, due 10 special tenns of !lie
agreement, uucomittcd governm<::nts. too. may be 11efi1 by i1s
advantages.

The Worth oflhe Agreements in Islam:


T be previous surveys acquaint us with the deep philosophy
of1he value, respect aod iwpor1aucc that lslam attaches to the
que&tiou of agreement.s in various aspec1s of the human life.
This evaluation and legal importance which are an exclusive
feature of Islamic law can he galbered from 1bc sludy of the
texll; which exisl wi1hi11 the folds cir lhe documents rela1ed to
1 Mr . StArk, Lhe Bri1ish '"'"Yer, believes tlrn1 in order 10 consider ao
agre.:anen( n1nong the legal coven;ao,s. ils regulacioos nluSt be agrutable
tQ HIJ Ille go,or.nments, o r mos! of 1her11, panic ularly 1hc big ones. 11 is
la ken for &'"nied iltltl such nn agreomenl will enjoy fuU imporlJlaco, and,
practically, even th governments \\lhich had oot openly nccepted il
would no! be able 10 acl agains1 i1. Aclually, "' has already been ex-

plained. lire rejection of th is theory, too, i." obvio us.

Minority Rights

49

the Islamic laws. Now yo,1 may have a glance at some of

these texts:

1. "O you who believe, fuf/il the obligalioos. "


(Sim1tul-lvla 'id11hll)

2. "ADd JU/Jil thc co11c1111nt o!Allah when you have made


covenanl, and do not break the oaths af/er making them 18.sl "
(Silt11tun-Na{JV9 J)

What is more worthy of notice in this verse is rhat here the


Qur'An speaks of agiccments as the covenant of Allah and
reminds the contracting parties that concluding an agreement
is like coucJudiog a c<)venant with Allah, and such a covenant
is subject to beiug called to accou11t. Anot11er vecsc says:

"And A.ll~b '.I coven11Dt shall he inquired of'

(Stirntul A~17:abll.5)

3. "So fulfil lheir agreement 10 lhe end o(l/Jeir tem1; .~we/y

so

Minority Rights

Allah loves those who feq Allah"


(Sorat11t- Tawbah/4)

4. "So long as they a1e fJ11c to yo11, be tr11e to them, surely


Allah loves those who are careful of'lheir duty. "
(Sorafl/t- Tawbah/7)

.5. "And fil./fil the covenant; surely 1he covenant shall be

qucsrioocd about. "


(Surafl/f Jsra '134)

6. "And the performers of their covenant when they make


.,

one.

(Suratul Baqarah/177)

7. 'Those who f'ullil the promise ofA.Dab IJDd do 1101 breal<


rhe covenant. "
(Soratur-Ra 'd/20)

51

Minority Rights
.,,. , ,,,, . ,,,-.,,, ,..fl ,,. ... ~.~.,,
;.,~ p.' e ,.., :-j ""J.:il\
:;<'r-~-'~

-r -.- ,

8. "/Ind those who ue .keepers of their trusls and their


cove11anl. "
(S1iratul Mu'minun/4) ond (Stiratul iW:a 'adj(J2)
lo the said few Qur'aoic verses, the importance of the
agreements and the necessity of fulfilling rhcm are taken beyond tbeir legal limits to the extent of regarding them to be
the mark of faith, as ii seems that the good fulfillmeu1 of a
covenant stems from failh iL~elf. while breaking one's word
is caused by a weak faith or a complete. uofailhfullness, as is
inducted from the verses 4 and 7 of Stwuu/ Batti 'ah, lo the
effect that giving a word and keeping it are completely connected to the spiri1 of fearing Allah. aod to separate these rwo
would cause the destruction of that spirit
There are numerous Islamic narratives to th.is effect, some
of which refer to thOe who break their protnises as renegades and faithless, as the breach of promise is regarded one
of the capital sins.

The Mandate of the Imam Ali (A.S.)


We may snady the logic of Isla m iu a wholly clear and
explicit way in the famous mandate of the Imam Ali concerning respect for agreemenL~. their legal worth and the necessity of their fulfillmenL
A part of this mandate, addr.esscd 10 Malik al-Ashlar
(g<,>vemor off:gypi), says:
" Whenever you cooclur.le an agrcc.menr witb yom enemy
or bound him with yo-ur pact and commitment, fulfil your
promise failbfu.lly and observe yo11r agreemeur most hooeslly, and use ymrr possibilities like a shield lo prolect what

52

Minority Rights

you bavc u_udertakcu, for among the ordioances of Allah


!here is nothing as impo rtaot and necessary as the fulfilment
of promise in a society of people inspire of the differences of
their desires and views.
''Do not se.el.\ excuse~ io your covenant, and allow no treasoo and trickery to affec1 your promise. Do mH mislead your
enemy by deceit. No douln only the ignorant opposes Allah
bas by flis Grace placed promise aod coveoaot among His
servants as a means of tranquility of life and bas made it a
sanctuary for people lo livl:l in peace, and through it to find
ble~siogs and goodnesses. Th.:refore oo fraud, doubt nor deceit are permissibk in it.
'The difficulty of the tnsk iu which you must observe Allah's covenant should not lead y(lu to violate that cove nant
uufaidy, for, your fortitude iu tolerating the hardship and
ditticulty which you hope to he llventually rid of, is bct1or
tbao the trick aud the cunning whose p11uisl1ment you are
afraid 01; fearing being called co accouu1 by A.llab without
having tbe hope of asking forgiveness in chis and the next
world~." 1

Invitation to Conclude Political


Agreements

In the Islamic ideology, peace and co-existence arc conside red tbc most fu ndamental principles in ioten:1ationaJ relations. For this reason it is recommended to make use of suitabl e opportunities for ~trengtheniog and c.reatiog conditions
f()r peace-treaties iu the foreign relations
the 1.slamic ;;oci-

or

N11hjul Bn!Ag/Jt'11, by Sh1tykh Mu~ammad Atx luh, pp. 536-7.

Minority Rights

53

ely.1
Io order to establish peace among nations and prevent the
rise of hostile relations a11d bloody dispufes, Islam bas nol
only given a greal legal value to it1lcrnll1iou-al pacls and
agreements, but if has also invited other oafioos and groups
to conclude such pacts and agreements and has recommended
tlie Isl amic s.ocicty to alw~ys be a pioneer in Ibis !ask and nol
to abstain from every effori to creafc aud expand a basis for i1
iu all human societies, and use every possibility to alfain 10
this humau and Islamic ldcal. In many cases this recommendation is made an incumben t duly and an obligation. and the
conclusion of peace-agreements is considered a duty of competenr and responsible Islamic governments. This duty is emphasised whcu inclination is shown by non-Muslim govenJmenls and groups for the conclusion of peace treaties.
It is on the basis of "the originality of peace in int.emational relations" that Islam considers 1bc duty of the legal
am11orities of the Islamic society is to welcome tbe proposals
for the cone lusion of peace treaties which are nol contrary to
the genuine ideological goals of Islam. Tb~ logic of the
Qu.r' an in this conneclion is as follows.

I. "Aod if they iocli11e to peace, you, too, incline to ii and


put yowtJ'USl in Allah''. (Sl1rllflil-Aofli.J/61)
What the Qur'an says in this coonection is very noteworthy, for it gives lbe implication tbat pea.c e and co-existence
1

As Ibis subject has been fully di<eu<$ed "' our book "Islam and the
,bi1malional Rights'; there \\'as 'no need to repeat it.

54

Minority Rights

hclween human beings are so d esirable tha1 man should sbow


love for 1bem and proceed towards tbem io tbe same way that
a chick !lies towards its mother uudcr whose wings ii finds a

secure baveo.

2. 'Therc/oJ'(: i f they withdraw kom you and do not fight


you 11nd otrer yo~ peace, then Allah hns not given you .1 way
11gains1thew. " (SOmllln-Ni.~;i '190)
.;;.11
:-:i, i"'.,...,
'i -.::.fl~
<'~1 ..;,~, : : : " ':-~ G1\"1:1: ..-:-- fif J'{\
.;.s- ..r
Cl~. '?"> ~J"' .,,.... ~... '1: -

w~~i ;_;::;Jl.,_:j._;~;.~\'i~~. ~ 1;.~-<1\;.'c ")!

/( :::.1 ~: ... ~ .}
,.)c .--re~l......_...-~..:.r.: , .

~u~ c~.f-..,~~Jr

..

_,,

,,~..:..;_.>
" / ;i': ::;/
/ ""-~{ /. 1\'.''-:<
"'-"t~~4U~,. ~

.. ..

J. "O You w/J(I be/icvc when you go to war in A/111/t _.


w11y, investig111e 11nd do not s11y 10 a11y one who oilers you
p.:11ce; 'You 11ro 00111 believer'. seekiog thi5 world's 1r1111siwries wirh A l/11h I/Jere 11rc 11buodant g11Jns' You wo wt'r<'
such befon:,. then A l/f1h bestowed llis Umc<: on you: thc-relim: investigate; stm::~y A //;1h is 11wnn: of' w/J,11 you do. "
(Slinuun-Nisii ')
In some cast!.~ 1hc pn:iposal oJ' peac..: may he us-:u as a tuwr
for hos1i lc iuteutions wwards th<: Muslims. 13111 so long as Ibo.:
M.uslinis are uol sure ol' the lreacb~rous intcn1ions of lho.:
governments aod groups wh ich 1m1poso.: 11eaco.:, 11J~y should
not r'jec1 such proposals.
Ju such cas~s th~ Qm"ao, wbile reconuner.ding 1he acc..::ptaoce of peace by th~ M uslims, assures !hem tha1 ii' the con-

Miaorily Rights

rractiog party cberisbes evil intentions, the lord of the Islamic


society wi II aid the Muslims to wi o vicl pry.

~~\~J\;~\J~~. -:.~~jl;~J\;~;~lJ

~'lV
-~
..._:_.,~_;.,..
'VJ-"'",

4. "Aud 1f 1hey in/end to deceive ynu, ihea surely Allah is


s ufficie111 (01 you, He ii is who s1reng1hent:d you wilh help
nnd with !he be!ieve1:~. " (SOr11tull\t1/Ml62)
Now 1ba1 we are a'cquainted with 1he Qu1"an's view concetni11g the ue.ccssiry of welcoming the offers of peace and
co-existence in iute.roational relations, we may glance al this
phrase of the e ternal mandate of the [mam Ali (A.S.) in this
connection:
"Do DOI refuse a peace to which your c ucmy iovit.CS you
and io wh ich lies Allah's pleasure, for, ii is al tl1c time and
conditions of pea.cc 1ba1 your forces find greater readines.s
and you are relieved of anxieties, ~od your co1101ry e njoys
security." 1

Explicitness of International Agreements


One of the important. 1>0in1s in in'ternational p~cts aad
agreeme111s, from th~ viewpoint of Islamic laws. i.~ their explicitness which is greatly emphasized iu Islam.
The reason clearly, is 10 block !be way of .d ece it ;rnd seeking excuses and 10 prevent damaging the interes t of the contracfing parties and hence, lo tbe agrcemcat per s~ and ils
consequences. This preveols ao agreement from requiring
1

For rnorc dt1S1ils ph:as.;; r.;fcr

89-99.

to

'1.s/;1111 3nd /11tc111111ion,'IJ Rights'; pp.

Sb

Minority Rights

interpretations wilb the passage of time as well as lh.: occu rriug ah.erations or distonion in it.
Just now we come across long discussions on the subj.:ct of
the modern lnt.ematioual Laws called the 'inlt:rpretatioo of
agrccmenL~ ' related to their aoalysis and advisability.
But to prevent such difCicullies from arising in international agreements aod to avoid "xcuscs for their alteration
and interpretation. it is stipulated in Islamic law that the texts
of agreements must be wri uen in a perfectly clea r and explicit manner, and avoid every ambiguity or use of phrases
with double meanings, so that no problem would arise al the
lime of their execution.
In the treaties aud agreemc111s which the Holy Prophet
concluded wi th various groups, he (1hserved this principle
most carefu lly. and after .:ach negot iation ust:d to order his
wrilt'rs 10 register up the texts of the agreements. and even
lbc uames of the scribes were wrineo at the cud of the treaties.
The lmam Ali (A.S.) instr11c1s, in bis mnndatc. 1hc gnvc!rnor o f Egypt:
" Never coucl11de an agr<!.:mcu1 iu which there! is some l!Xcusc or olher, aud aller making your declaratiou solid in lhc
agreement. dn not follow ii by a phrase tbat would weaken
. .. 1

II.

Competence for Drawing up Political


Agreements
ln modem laws compctcucc for conclusion o r international
1

Conuncni.ry on .5.1/Ji/Ju/ 8 11khn11: Vol. 14, p. 12.


Nn!yu/ Bn/Rgh.vh, Shaykh Mu~onun~d 'Abduh, p. 536.

Minority Righl

57

agreements is granted solely to the beads of governments or


their official deputies. Thus the people of a nation as well as
non-organized groups (lacking a govemmeot) are deprived of
this right.
But in Islamic law a wider meaning is giveo to ioternational agreements. aod the legitimate human right of coneJudiog peace agreement is formally recognised for oonorgauized individuals and groups, too. Aaordiog to this
principle individuals or religious mi norities may 11ego1iate
with com11etent Muslim authorities for the conclusion of a
peace treaty, ratify a11d sign it. This matter is dearly s<!en in
the question of the tribute dhimmah agreement. l Tn Quarter
and immunity agreements even a Muslim individual may
conclude a political immunity agreemeot2 with a 1100Muslim individual. lo all these cases a Muslim society and
competent Islamic government .are houod to observe and
confirm ihe agreements, and there exists no di fference or
privilege in it from the viewpoint oflegal worth.

Protection of International Agreements


According lo Islamic law not only the initiat ive for conclusion of international agreements has been recommended to
the M11slim sociely, l)ut its protection, 100 has been entrusled
10 the Moslims who bave bceo emphatically advised lo folfill
them most alertly ~ud carefully so thal they may nol be executed one-sidedly nor the commi tted enemy's reaction be
neglected.
T he Qur'ao warns the Muslims not to ucglcct their duty in
1
2

Re: Ch. 3 of 1Ws book.


This subject hl\s bec.n discussed else\vhere in this book.

56

Minority Rights

takiog full care of such agreements and the manoer of their


proper execution, and to retaliate iJ they suspect evil iuteotions.
ln this connection the Imam Ali (A.S.) advises M;ali.k alAshtar: "Do not refuse the enemy' s proposal for peace.... b111
be alert and atier making 11eace wilb the eoerny, beware of
him, for, be may approach in order to take you by surprise...
"Therefore use caution and care,. and be not deceived by your
1
good intention, rather 01is1rust your optimism."
Though treachery and violation of promise are considered
great sins in Islam, yet in the same way that an Islamic society doe<i its utmost in accordance with Ib is order to protect
and execute the terms of cQncluded agreements, it bas a
similar expectation io respect of the other party to remaio
loyal lowards what they bave undertaken. Thus a right is envisaged b y Islamic law for the Muslims whose rights have
been damaged 1hrnugh a violation by others, to take measures
to th.: violators. This punisltmeot is not intended as a means
of laking revenge. hut rather to discourage such anti-human
violations and treasons through such a corrective reaction,
and make the fulfilmenl of a promise binding, and preveot au
abuse of the sense of responsibility and the academic approach of 1be Muslims and loyally to their commi lmcuts.
The QuT' an says in this connection:

''Then fight I.be Je,1ders of disbelief-surely they keep no


oath so 1h11t they may desist." (S1iratul-Tawbah 112)
1

Nalijul lJahighah, conunonlary by Shaykh Mu~anuuad 'Abduh, p. 536.

Minorily Rights

S9

hi ano1her verse violence is suggested for 1he chaslisemo;>nl


ofviolatoij'.=
,I

...

j~*..:::,_,~!;~'r'\:t..; ~~G.1!
~\

>it>r'z'-'"""""' ':?~

'*' / .
..

..... ~';' ...-: \\.-.Y. ~::~t~~

.. ,..

~~ <t~>-

l;" ..,.. ....;.>~!""J

............ ..1z.._":'f... ,,,,-;,,,.. r>.~i~.-:::

~J..J-=--~>+W

..,.

'Those wJt/J whom you 0111ke an .agreement. rbeo they


break !heir agreeme.ot every time .wd they do 1101 fe1u A /111.h,
lberefore ifyou 01<e/'f11kc them in fighting, sc1111er tbem 10 the
/11s1 one and 011tke an example or them RJr those who follow
th11l thcymay be mindful " (Siiratul Au/RI 56-7)
The prophet 's t.rcatmenl and punishment of the Jews r:lf alMedi11a who were guilty of perjury and treason can be 1a)<e11
as a good example of the execution of 1his principle. The
Jews of Bauu Qayuuqa Lri he had openly and repeal~d.ly violated the treaty of non-agressioo and mutual defence; so they
we.re cveoiually banished from the oeighbourhood of alMddiau. The Jews of Bamm-Na;r.ir, 100, who had showu their
peculiarity of lm:al<i11g their promise <tad bad also made an
attempt on the life of tbe ProplJcl iospile of their .ioinl agreem-cnt, had the same fate a.~ their .Jewish brclbrt:n,
Tbc Jews ofBanu Quray:r.ah. loo, wh~n their treason as revealed at a mos1 difficull time when the Muslims were be.sieged hy the strong forces of AJ1zah. were puoishcd ou the
verdict of sa' d ibn Ma'adh, a judge and arbitrator of lh~ir
own choice.'

Permanent and Provisional Agreements


J'eacc agreements and intern.ational
1

11ea1i~s

Re: Religious Ct)-r..'Ji.i$1(.'nc:c: in Js/11n1. by ~1US11 al~Arab.

wlJich are

I ,

60

Minority Rights

concluded between Muslim societies and nou-Muslims may


be either permanent or provisional.
Tribute agreements, which will be discussed later, belong
to the group of permanent peace treaties which remain binding and keep their legal value except in the case of violation
of them or negligence in carrying them out:
The Immunity agreement, wbich will be detailed later, is
concluded as a temporary pact, giving the possibility to the
applicant who wants to change it into a permanent tribute
agreement for permanent stay in the Muslim realm, after declaring his readiness to accept iL
The Jludoa agreement, which is another formal international pact in tile Islamic law, sl1ould, according to many jurisprudeots, be drawn up temporarily. The duration of this
pact, too, varies from the viewpoints of the jurisprudents.
Some j11risprudeo1s, relying on the act of the Prophet in the
Hudaybiyyab peace agreement with the pagans of Mecca
concluded for ten years., believe that its maximum duration
should be ten years. Bui other jurisprudents think lhat lhe
Hudoa agreement may, in case of expediency, be prolonged
for more than ten years, and some others believe that it
should be permanent.1
The said agreements, each of which may have an effective
role in establishing a humane and honourable pe11ce, embody
the rights and peacefol intentions of both sides. and on general the rules of contracts, every specification and privilege
agreed upon must be clearly and without any ambiguity expressed in the text of the agreement. depending on the terms,
kinds and circumstanc~ of each pact. and both contracting
1 TI1is subject will be handled in scpMate book.

Minority Rights

61

parties jointly undertake the duty and responsibility of carrying out its terms.
This established Islamic principle, besides nol being contrary to the world view and the idea ofuniversi1l unity, which
is the ultimate goal of Islam, is also a means for exp~nsion of
the Islamic call, because Jslam desires tbe Islamic ideas be
propagated through peaceful and pacific ways and under
conditions where the principle of co-existence is dominant '
Io other words, in view of the existence of ideological, territorial and racial differences, the lslamic society is bound before such differences to take necessary steps through agreements for the establishment of security, peace and coexistence. Concurrent with the application of this doctrine,
the Islamic society is entrusted with the duty of propagating
for the Islamic beliefs to the extent of going beyond the territorial, racial and ideological boundaries which have produced
division among the single Ummah of mankind, taking the
Conn of a universal and international school of thought, aiJd
by peaceful means establishing itself over the whole of human society.2
It is surprising thal the wriler of 'Peace and War' should
err in this oonnection, an example or which is lhe following
statement
"As the general atti1ude of the Islamic legislation concerning the relations between Muslims and non-Muslims is not
pacific but rather warlike, therefore the duration of agreements is naturally temporary, and since Jihad (holy war) can1

For fmther details please refer to "ls/11D1 Rnd lntcmtional Rights: pp.

70-86.
1

For fur01er explaD!ltions refer to Jsla1i1 nnd fntema1ional Rights, pp.

70-86.

I.

ul

Minority Rights

nol 1hcoretically be postponed for more 1ban ten years, lhe


11.:rm of such agrecmeots must necessarily expire, even if ii is
001 slipula1cd in the agreement."

The Princ.iple of Obligatory Ful fillmcnt


of Promises
and respecting them
fn view of lbc explicit evidences quo1ed here from Q ur'lio
aod 1be Tradi1ioo (of 1bc Prophe1) are no1 only iudispu1able
hut. as ii was slalcd. I hey arc distincl fe<ilure of the legal and
moral lcacbings of falam. According to 1bc empha1ic injunctions given in 1bc Qur' an and 1he Tradi1ioo, th.:: Muslims a.re
1101 o nly hood to be loyal to the terms of agreements. but arc
also obliged 10 preserve the p11c1s. T he brief and mcaningf'ul
ullcrance or the Prophet 10 lhe effocl that ''Muslims arc:
bo und by their lem1s" is a fine and interesling rcfcrcocc 10
1his legal and ethical point

Annulment of i nternational Agreements


According to this princi1>lc, agreernenss rema in folly in
fore~ inspit c of change of rulers, ruling uulhoritics or
chRngcd conditions, 80d 1hc succeediog ruler has no righ t 10
airer or ahrog11tc an agre~mcnt which has lawfully been concluded between au Islamic society aud 01h<::r i,rroups. T his is
also lruc of every kind of treaty, whether pcrmanenl or limih:d and provisional.'
Obviously, on o ne condi1iou can a Muslims' lcgnl govcrnmcnl ignore an existing fom1al agrcemenl and declatc ii null
nod void, that is, when a perccpliblc danger 1brl!Hlcns the ls1

/ 1111/uivl

K11/lim, Vol. 21. p. J 13

Minority Rights

63

ll!mic society from the other side, and ihe enemy intends to
abuse the treaty of peace for bis own reinforcement and recovery of his fighting readiness, by exploiting the good will
ofibe Muslims or transgressing their legitimate rights.
In such a case the Qur'An commands as follows:

"And ifyou fear IJ'eocbery OD tbe pllTt of11 people,


TbeD throw back to them (their treaty)fa.il'ly, surely Allah
does DOf Jove the (J'Cachcrous. "(Siiratul Anlal 1 58)
In cases the Musliins annul a treaty unilaterally, it most be
b.ased on a definite proof co.O:firmin.g the danger and the
treacherous iutention of the other side. Bot the probability of
treachery without the supporl of sure evidence docs oot justify one-sided abrogation of an agreement by tl1e Muslims.1
Moreover, in cases wbeo Muslims' imerests necessitate the
annulment of an agreement, or if a peace treaty becomes detrimental to the Muslims interests, due to changed conditions
or when a change is made in tbe leadership of the l\ifoslims,
oo competent Isllltllic authority can effeet a one-sided abrogation of international agre.eroents.
This is aootber adva11tage of the Islamic Law over modem
international law, since in many cases the one-sid.ed abrogation of interoational agreements is allowed in the positive
law,2 while considering a one-sided annulment by the Muslims illegal by t.he Jaw of lslam, in many agreements such as
I Ibid., p. 294.
' Genorlfl /nlt:mHlioniJ/ Righi$, Vol. I, P 193.

64

Minority Rights

tbc tribute and Temporary Immunity treaties, the other party


is allowed to declare it null and void, if he iutcods to leave
the Muslims' realm.
h must be pointed out here that in one case iotcmatiooal
agreements are considered nu II and void even if they are
concluded legitimately, aud that is when rbc terms of tbe
agreement are found to be contrary to tbe univt:rsal goal of
Islam. Therefore, any treaty which is an obstacle in the way
ofrhe spread oftbe Islamic ideology, or if after its legitimate
conclusion it is placed in such a condition, it naturally loses
its legal value and is considered null and void by the universal logic of Islam; for Islam preserves for itself freedom uf
though! and belief and freedom of invitation to Islam as a
legitimate right, and no factor, not even an iuteruationaJ
agreement can deprive Islam of this natural right. Islam considers this deprivation contrary to the freedom of tbough1 and
religion. Therefore, any treaty which deprives this right cirber at tht! time of its conclusion or under certain conditions
after it is legally concluded, is considered as ao imposed and
objectionable agree01ent.
Tile philosophy of th.: .Islamic jih1id bas its sour<:.: in this
universal idea, and a liberating combat is allowed io order to
fight those clements wbicb intend to put a barrier in the way
of the un ivt!rsal invitation to Islam aod tbe progress of Islamic ideology. Peace agreements, too, are concluded as a
means of rcn1oving iotcruational difficulties aod obstacles in
the above! matters.

Minority Rights

65

Competent Islamic Authority for


Concluding Agreements
lo the time of the Propbe1 (A.S.) the competent autbori1y
was the Prophet himself for concluding Tribute Agreements
And temporary hudollh pacts of armis1ice with the pagans.
In other cases die responsibility for this 1ask was entrusted
by him to Muslim leaders and governors.
After the demise of the great leader oflslam, this authority
like other aspects of statehood, was handed over to bis successors and executors of his will who bad been explicilly
granted this right. According 10 the Sbii1c belief. this religious leadership belonged to the Propl1el' s household, and in
the time of the absence of the last Shiite Imam, namely 1hc
Imam al-Mahdi (A.S.), it is relegated to the decision of
chaste jurisprudents.
Another kind of interna1iooal agreement, which is called
'lmmuni1y pact' is of general char.acter and becomes official
with the approval of any Muslim, and binding on all.
But th_e treaties concluded by gi>vernmco1s ruling over Islamic lands, without having secured the above comp.:l<:nce,
wiib oon-Muslim governments or groups, are not binding on
tbe Muslims when such treaties are not in their interests and
Ibey shall he invalid from the viewpoint of the Islamic Law.'
But with regard to international agreements necessitated by
urgent expedieocy of the Muslims or which are io tbcintcrcst
of the Muslim society, the steps taken by just aud righteous
individuals are considered valid wheo 1a~e11 in the absence of
the competent authority, such as a fully qualified jurispru1

Tahriro/ Wasi/ah, Vol. , p. 466.

I
Ii

Minority Rights

66

dent, as mentioned in the Hisbab Law related 10 urgent cases.


Jurisprudents have, however, respected the Tribute pacts
concluded with cruel rulers as binding on all Muslims.'
We will discuss each of the Tribute, Immunity and lludnah
agreements separately and at lc11g1h.

' Jnwah1i11/ Ka!.1111, Vol. 2 1, p. 276, also

in

this book, under the utle:

"'Ooc Responsible for Concluding" Tribui.ry Agreement".

Chapkr Three

The Law of Tribute Agreement


Legal Value of the Treaty
of National Unity
Tribute agreement
or
Treaty of National Unity

Chapter Three

The Law of Tribute Agreement


Legal Value ofthe Treaty
of National Unity
Tribute agreement
or
Treaty of National Unity

o order to put an end to a hostile state and create a kind


of alliance and national solidarity and collaborati,oo
between the Islamic society and the non-Muslim groups
within lhe Islamic realm, a special agreement called Dhimmah or "Tribute' agreement bas been envisaged in the Islamic law wbicb is most remarkable in its nature and legal
vestiges in comparison with modem iotcmational pacts, and
in the treatment of the aliens and the minorities.'
Tile. tributaryagree1nent can be concluded ~i1h non.Mu.slim countries,
lhougb a l.ittle different from that concluded with ihc individual nonMuslims residing in the- Mu$Jim countries. This kind of agreements is
out of our concern just now.
1

70

Minority Rights

Non-Muslim individuals and groups who inte nd to reside


in the Islamic lands; can be nefit from legal advantages and
$Uitable freedoms through the conclusion of a tribute agreement , the main purpose o f which is to provide a11 e nvironment of security. mutual understanding, common, life aod
peaceful co-existence between various creeds wi thin an Islamic realm.
For this reason the tribute agreemeo1 is concluded on the
basis of the free-wi LI and total agree ment of both parties, aod
in this respect it is wholly diflhe nt Jrom the imposed rights
and privileges which are e nvisaged in contemporary international law concerning the aliens and the mino rities.
Of course the word freedom used here docs not mean that
every non-Muslim without signing the tribute agreement can
reside in the Islamic lands, like other tribtltaries and e njoy thi::
social rights of the Muslim society, for, this kind of freedom
is not only d etrimental to the rights of Muslims, but is also
incompatible with all Jaws and rules.
What is meaot by free-will in having the right for signing
rbe tribute agreement is that e very non-Muslim, who has the
necessary quali fications for tribute agreement. can, without
the slightest compulsio n or imposition, take part in this reciprocal pact, or leave the lslau1ic territory and e migrate to any
o the r land he wishes.
Cle.arly, any individual or group unwilling to sing a pact
for a common life and organised nation and co-ope ration,
musi lea\(e that society, and no law can permit the residence
of tl1ose who have oo desire for co11cord and common life io
a country wi1h whose nation they have contrary views and
beliefs.

Minorfty Rights

71

In the Islamic Jaw, the non-Muslims who have no desire to


conclude mutual 1ribute agreement, are sen! 10 a safe laud
desired by them under the complete protection of the Islamic
govemmeot, and before reaching a safe place of refuge they
are protected, in evl:lry way, by the Muslims.'
Accordingly, the residence of non-M11slims iu the Islamic
lands en coodi1ion of heiog quali tied , dcpcuds on !heir 1>ar1icipa1io11 in the 1rib111e agreement, after signing which they
will be considered as m embers of1he great Islamic socic1y.
The freedom of individuals who arc coinpctcnt 10 coucludc
the tribute agrcemeot is respected by the l slamic law lo tbat
exteol 1l1a1 tl1e sa-id agreement is uot s1ipula.1ed lo he pem1anent and deiiuite. The right is reserved for tributaries that, iu
case of their unwillingness to bind themselves to the said
agreement, 1hey can annul the 1rib11te agreement and go lo
their desired laud outside the Islamic realm.
T he. worth of thi~ free-will becomes clearer when we see
that the tribute agreement is binding for 1he Muslims, and so
loog as tho trib111arics respect their pact, the Muslims can
never abroga.te it or rbfrain from carrying out its 1enns.
The value of this free choice is belier illumiuated by paying attention to the following point: The adbcrcoce to the
T.cibute Agree ment is compulsory on rbc part of the Muslims,
and as long as tbc tributaries respect it. the Muslims can
never anoul ii nor disregard its s1ipu la1ions.
The late Allamab al-IIilli, io his T11dhkir11fl// F11q;iha, pu1s
this matter io a out shell aod says: " Concluding a T ribure
Agreemenl by the oou-Muslims is no111ecessarily required 10
1
This kind of protec\,ion covers every Jion~f\1uslhn '"'ho has gol Che
official pennisston of '1sccwity1' lo e nter lhc lshtn1ic 1erriloric~.

"

72

Minority Rights

be permanent, as they can rejoin their own laud anytime Ibey


like."
111e reason for this freedom is that the main goal of Islam
cao be achieved only in this way. By means of such a joint
agreement Islam bas devised the plan of a united society the
members of which, iospitc their differences of bolief and
faith, undertake the responsibility of cooducliog a common
life based on collaboralioo in turning the wheels of a great
and sound society, and such a human co-eltistencc is not
possible except through the preservation of the legitimate
human freedoms.
Another interesting advantage of Tribute Agreement is the
necessity of its acceptance by the Muslims, ia lhe sense that
thi: Muslims and the Islamic government are faced with two
kinds of obligations in connection with the cooclusioo of this
pact:
Firstly:
They must invite religious groups 10 conclude Ibis agreement, and without a formal invitation they cannot engage in
any c lash or molestation with them.
Secondly:
Whenever a proposal is made for the conclusion of a
Tribute Agreement by religious groups (Jews, Christians and
Zoroastrians) to Muslims, the Islamic government is obligoo
to welcome their offer, and is not permitted to reject the offer
of peace even when 1bc conclusion o f a tribute pact may nol
he in lhe interesl of the Muslims. Even though the Muslims
may l1ave a full domioaliou over the said groups, tile acccp-

Minority Rights

73

lance of peace proposal and conclusioo of lbe Trib111e


Agreement is.obligatory. 1 This is because the 11riociple of the
acceptance of the Tribute Agreement bas never depended on
the ex.pedieocy of the Islamic soeiely, and it is always coosidered urgent and obligatory. Thus this urgency crcatc-s a
legitimate righl for religious minorities io a perroa11c111 way.2
Naturally, such privileges that are e nvisaged in the Islamic
law for minorities are peculiar 10 1he universal ideology of
lqlam and we can find the like C?f it in no (.)!her Legal system.

Jawiihir:tl K.1/Am, Vol. 2 11 p. 294.


' Ibid.

The Nature of the Tribute


Agreement

be uature of every legitimate agreement and pact is


hased. accord ing to the viewroint o f 1he Is lamic law
o n three pri oci11al l(iundatio ns:
l. and 2. The two contracting parties
3. Affirmation aod acceptance of tbe agreement vcrhally or
in a written form.
Thus, an agreemenl means an undcrlaking by hoth cu otracting parties to carry out its terms. The Tribute Agreement. 100, follows 1his general rule o fbci ug based oo the saic.I
th.ree foumfations, and thus ii finds a legal value aud 1h..: ex..:
cutioo o f its terms becomes binding o o both pMlics, in tbc
sam e way 1ba1 other agrcemeols arc.
As there are for each ()f the above founda1io ns certai n and
limited conditions in lhe Islamic jurisprude nce, it would he
necessary 10 deal with them separately and give further explanations.

76

Minority !tights

I. The Responsible for Concluding a


Tribute Agreement
Muslim j1uispruden1S are unanimous on 1be point that the
responsible authority fot the conclusion of a Tribute Agreement on behalf of tbe Islamic society is the authorised niler
of Muslims or his deputy and representative. As drawing up
such a treaty is related solely to the high interests of lslam
and public benefits of the Islamic society, therefore signing it
is outside the responsibility of ordinary Muslim individuals.
aod belongs to lhe specia.I fuoclions of the ru !er in the lslomic
government.
Therefore, if an ordinary Muslim tries 10 conclude a Tribute .Agreement; ii will have no legal value as a Tribu1e
Agreement, bul only as a Temporary Immunity Agreement
worth I.o r tho person or persons who have been a party kl the
pact. Tf Ibey do nol negotiate with a competent and responsible Muslim authority for concluding a Tribute Agfeemen1.
they will be sent to their desired laod under Islamic government protection in accordance with a special law. 1
Owing to the di IIerences thal exist between Muslim groups
concerning the qualifications of the ruler o f the Islamic government, there is also a difference of view among tbe Islamic
jurisprudents related lo distinguishing the . responsible
authority for drawing up a Tribule Agreement.
According to ihe Shiite belief io the question of lmamate,
the responsibility for concludiog Tribute Agreements lies
with the Imams of the Prophet's household or their special or
1 Tiie la1e All&mah al Hilli, in afQawA 'id, in ibis respect, says: "lf it is
concluded by 8 Muslim ii will be invalid, even with a ingle person, but
he may not be killed, and is 10 be relumed 10 his safe place...

Minority Rights

77

general deputies. General deputies wbo arc appointed in tbe


period of the Imam's occultation io accordance with a special
order.' are the pious. virtuous and chaste jurisprudents who
are qualified to judge and issue verdicts.'
But under conditions when there are no adequate possibilities for the competeot jurisprud<Jnl< to assume 1bc positions
of rulers, and when the rein of Muslims' affairs is in 1be
bands of unqualified rulers, tbe Tribute Agreement concluded
he1ween such a government aod a non-Muslim individual or
group, bas no legal value and is automatically null, and void,
if it is contrary 10 the high in1ercs1s oflslam and Muslims. J
Wben the interests of an Islamic society neces-itate 1be
conclusion of Tribute Agreements and !here is no fully
qualified jurisprudent available, every Muslim who is sufficiently versed in tbe conditions and aspects of legal it~juuc
tious concerning the conclusion of Tribute Agreements and is
known for being fair, can take up lhe proposing and signing
of the said Agreement. But since in the time of Imam's occultation there is no possibility for jurisprudcnts (as general
deputies of the Imam) to bold the rein of Muslims' affairs in
their hands, !he Tribute Agreements, like other social and
political maners, are in lbe bands of unquali tied rul~rs. and
even in the time of the true and rightful leaders of religion,
"Umr ibn l;ln\llah, quoting the Imam ~~Miq (A.S.), S1tys: "'. .. Find
whoever of you narrates our b11d11/J, and conside~ our /111/.1/ and !u111t11
1

and l-U.O\\'S our decrcos, lei lhen1 ACtep1 bhu AS ~o Arbi1er, as Titppolntcd
hhn as "- ruler over you. If he judged ~ccording to our judgetncnt and it
\Vas not Accepted fro1n h11n, lhey v.ould be belittling 1he judgc1ucnt of
Allah and rejecting us, and the one wbo rejecrs ~~ is ns if one .has re
Jected AUah. and this is equal to asso~ia.1i.ng a p~nner '"ith llitu."
Tahriro/ Wasi/ah, Vol. l, p. 463.
' Ibid., p..466,

7U

Minority Rights

uojust rulers and cali phs have acted as rulers and coocludcd
Tribute ./\greements with religious minorities, who lived
carefree in the Islamic lauds. So it has become traditioual for
Muslims and j urisprudents to respect sucb Tribute Agreements and to accept the said groups as committed minorities
iu their own society.
Ash-Shaykh as-Sad11q quotes the Imam arRi~a (A.S.)
sayi ng: "The Christiaos of Daoi-Taghlib re fused lo pay tribute aod asked Umar to exempt them from its payment.
Umar. fearing that they might joi n the Roman govemmcut,
agreed w forego tbe per-bead tribute but to increase other
rnxes on them." Then the Imam is reported to have sa id: "The
Christians of Bani-Taghlib can act according to this Agreement they have agreed upon, until 1he day 1be trulb is revcal~d. "'
T he rurporl of this quotati on shows that a T ribute Agreement concluded by an unqua lified ruler, too, may be valid
aud have legal value like that of tbe Lmam's and a right ful
ruler:'
The 'Fi rst Martyr say~. in bis valuable book of Dunis
rLcssonsJ: "In lbc time Of lhj;! lnlflm's occulation ii is lli:!CCS
sury 10 treat minorit ies according tu the agrcemeut 1hey have
concluded witb the l.:aders aud the rulers of lbc Muslims".
Tbc late author of Jawiihirul-Ka/am [Gems of S pccch j,
ton. says on 1he basis of tbe said tradition: ''The purport of
thi~ tradition means that the T ribute Agreement of tho? unjust
rulers is to be considcrt.-d correct and val id, and this verdict
also appli es to cas.:s lacking the basic conditi ons of' a Tribute
1

Wm;ll 'ilu.<h-Shi'if/1. Ch. 68, jil1Ad. (1dilh No. 6.


' ./t,.Rhirul K11/,1m, Vol. 21, p. 263.

Minority Rights

79

Agreement, namely the payment of 1ribu1<:.1


Thus, if it is seeo 1ha1 some j urisprudcots consider the
Imam aod bis special or general depu1y as lhe only authorily
compcte1n for concluding Tribute Agreements, this is appli cable to c1>nditioos when the requi red possibilit!es exist for
the rule of lhe qualified leaders, and not lhal lbc said agreement should be coocluded by the Imam or bis deputies under
all conditions such that the 01hcr Tribute Agreements would
be null and void.
The same autho r, aft.!r confirming lhc above point. says:
''The fact is that the agreements concluded by un11ualili.:d
rulers have the same value and validity as 1hos<! of a just p<:r
son, and th" poll-tax received are legitimalc and acceplabk,
but I have oot come across this point in the aoalysis of jurisprudcnts." 2
Therefor.: the steps taken by Muslim rulers and governments in concluding io1cma1ional agn:emcnts a~ included in
1hc legal consequence of 1be law rdatcd to the undertakings
the j ust believers io the hisbiyyah al18irs' according to wbicb
they arc considered legally valid by all Muslims.

2. Committed Allies
Non-Muslims can become committed all ies of the Muslims
1hrnugh the law of tribute agrecmcnls, and tb<:sc include 1brcc
groups of Jews, Christians and Zorostrians who are called in
Ibid., p. 276
Ibid. , p. 263.
l l-lb;biyy11h arrairs an; a series or dtuie:t or p11rlitular uopo11aucc:, rind
due ro their nece~sary intcresls, 1hey tire entrusted to the- r<ligil\u~
ttuthority, ttn<.I, in cttse of his ~bscnc c or unti\ffilflhility, other righ1cuu~
I

and cquitHbl'c pcrsun:; nl~Y unden11kc to ..:Mny th1.!'1U l')Ut.

60

Minority Rights

the Islamic Jurisprudence "Ah/u/ Kitab" [Tbe people of the


J3ook]. Thi.s denominatioo is due to the fact that heavenly
Books were seot down upon Moses, Christ and Zoroaster and
have bccu recognised by Islam.
fl is true that tbe followers o f the said three faiths jiave lost
the heavenly books of tlu:ir Prophets and follow books wl1ich
have heco altered by profit-seeking pseudo-clergy and are
devoid of the authentic facts and truths of tbe relevant creeds,
bu t according to the law of Islam cooccming the propriety of
bcucfining from the legal advantage.~ of Tribute Agreements,
it is sufficient for au individual or group to introduce themselves as followers of one of the above creeds 10 b..: recognised as such wi1ho111 furlhllr evideucc. 1
lnspi tc of the Muslim jurisprudents' unanimity concerning
the competence of the Jews, Christians aod Zoroas1riaus in
benelitting from til e law of Tribute Agreement~. some Sunni
jurisprudenL~2 have expressed doubt tltat the Zoroastrians
belong to the group having a heavenly book. Tuey r.:ly on the
utternnce or the Prophet. saying: ''Treat the Zoroaslriaos as
you treat those with heavculy hooks."3
Shi ' a jurisprudents unao imously and on tlte basis of Ts4
lamic cvidence consider th.: Zoroaslrians as bdoogiog 10 the
gro ups with heavenly Books. They believe that this creed
was announced by a person selected and sent with a heavenly
Book to guide the human beings.
1

J11wA/iir11/Kalt1m. Vol. 21 , p. 235.


Al-T imudhis al-fmui, Vol . 2, p . 3!>2. Al-Bayhaqi's Swum, Vol. 9, p.
189. A1l111m/~Jarb. p . 7 17.
1
The Messenger of All~h (S.A.) was quoted IO bavc sitid: ..T 1'CAI them
AS you trca111h/u/ j(j111b." Jaor11/Jli'11/ KnMm, Vol. 21, p. 230.
' WnSllilushi"ah, Vol. 1 L. c h. 49, J1'l111<f.
1

Minority Rights

81

In one of ibese Islamic documents ii is affirmed that lbe


Zoroastrians bad a prophet whom they killed, and 1heir heavenly Books was wriueo on twelve thousand cow-bide which
was bnmt by bis followers. 1
Concerning the apll)ess of non-Musli1J1 groups who are not
included in 1he &'Toups with heavenly Books, jurisprudents
have expressed different views. These groups are as follows:

1. The atheists and those who believe in


it or deny religious beliefs.

no religioo, doubt

2. The polytheists and rbose who assume partoers and


equals for the Creator of the universe and tbc real worsbipped
one.
3. The followers of artificial and false creeds which lack
every true origin,. I.hat have bee n created merely by the \mime
allegations of false prophets.

4. The groups who c.oosider 1hemselves the followers of


one of the prophets mentioned in the Qur'iin other than 1be
Jews, lhe Chri;1ians and the Zoroastrians, such as 1be follow~rs of the Books of Abraham Sclb and Idris or !he Z ahur of
David.
Some of rhe Suooi jurisprudents consider all rhe said
groups as bei.ug apl, like those witb heavenly Hooks, for
benefilliog from Tribulc Agrccmeots, while some others have
exce11ted lhe polytheists of the Arabian Peninsula and other
Arab polytheists. Anotber group consid~r I.hat concluding
Tribule Agr<!ements is <!xclusivdy to b~ with ab/111 kitlib.
Shiite jurisprudents attnliute this privilege only ro 11hlul
I

Ibid.

82

Minority Rights

kitab too. Namely, the Jews, the Christians and the Zoroastrians who may join lbe alliance treaiy (Tribute).
The late scholar al-I:lilli says in TadltJdra/Ul-Fuqabii':
"With the ex.ception of the Jews, the Christians and the Zoroastrians, no Tribute 4'l'eemenl may be concluded. The
only thing that can permit their admittance to the Islamic
society is adoptillg ls lam, even if they consider themselves
followers of a heavenly book Ii.kc those of Abraham, Adam.
Seth, ldris or the Zabur of David. This is one of the two dictums of ash-Sbafi' i abo111 this matter, since these books are
not considered among the books which have been descended
from heaven, but they have be~n sent as revelations to the
Prophets. Moreover, they consist of a series of se.r mons and
include TIO laws or verdicts. The second view of ash-Shafi ' i is
lhat the proposal of agreement' and tribute may be accepted
from the said groups on the basis of the Qur' an' s verse, saying:

"'Out of' those who ha.ve been given 1hc .Book. " (S1ir111iJtTawh'1h/29)
But the definite article 'lbe' in 'the Book' conveys the.
sense of promise aud this is specially related to the three
groups of the Jews, !lie Christians and the Zoroastrians."'
According to this view there is no diffcreucc between Arabs and non-Arabs, and the only measure of aptoess for a
Tribute Agreement is belief and creed_ The late Shaykh Tusi
' Tadlikiratul FuqahA , /(jfAbuJjihild, Cb. 5, question 5.

Minority RighL

83

in his book, ,1/-MQb$ilf explicilly stales this p11i111:


.. Unbelievers (non-Muslims) are two groups: Those who
are apt for a Tribute Agreement, aod Lhose from whom rhis
Agreement is oot acceptable. The firs! group iocludes che
Je ws, the Chris1ians and the Zoroas1ri ans, and the second
group iocludes 1he followers of otl1cr creeds such as idola1ers,
star-worshippers, Sabians or else, wherher !\rahs or 11onluabs, from whom uo such Agreeme nl is acceprahle whereas
from cbe first group it is acceplablc, i\.rabs or non-Arabs.'
To prove rhe view coucei:oiug 11.ic ap1ucss of lbe groups of
ah!U.I Jcitiih for !he Trihure A.greeme111 (.lcws, Christians and
Zoroastrians) lhe following argumenls tnay he resorted to:

1. The view of the whole of Shii1e jurisprude111s who have


unanimously supported lbc above poinl.

2.

Vers~

29 of Si1nt1ul-B11ra'ah which makes rhc termi11a 1i1111 of th e $1ate ,.,,. WM conditional on "mcludin.g a Tri but..:
Agreement wi1h 1he grou11s of ah/11/ Kir11b. Thus th~ l1J.galisation of a T ribute Agreemenl with 1hc m 11~.:essitt<:s ils ilkgali1y iu 01her cas~s. On ibis basis 10 11rove the claim rclat~d
lo the said verse has oo need o f iute rprering lnl! sense ()f rhe
ve rse iu order to discuss ils meauing.2

3. T he annexation o f lbe Zoroas1riaus

lbe groups <>f


11h/11/ IV111b as being a11t for Tribute Agrecrncn1s. as slated in
some Sunni; and Shiite~ oarra1ivcs, shows that the !<:gal
I(>

,1/-Mnho1, Vol. 2, p. 36. Jawaliin1! KMm, Vol. 2 l, Pl" 234-5.


TI_
l e il\lthor of Alh.Hro/ '1aib, lhinking lha 1c iling lhc ttbove a_y11h is 6 nly
possihle 11uougb ifli conception, discussed il and clili111cd thin 1H~JHion
lngah/u/.Ki11ib in th.: said .iya11\\'as becau.:ie a-l the 1jnh! or i1s 1~\'Ctl11llt)-n
ihe non-Musl).rus ..facing the M.u.s lints 'A'CJ:c o nly ah/ul K1i.1b.
' Al-l3llylu111i' 51111.m . Vol. Y, p. J.89.
2

84

Minority Rights

value of coocludiog Tribute Agreements is legitimate only in


the case of groups of Ahlul K.itlib, otherwise there would
have been no need 10 annex the Zoroastrians to them.
4. The late Koleioi says in al-Kiili that the Imam as-Sadiq
was asked about the Zoroastriaos: " lfave they had a
propbel?" The lrnitm answered: "Yes. Do you not know of
the letter sent the Prophet to the Meccans? Io that letter the
Meccans wen: invited to Islam and were warned that they
must face war if they ref-used. The people or Mecca offered
in answer to pay tribute in order 10 be free in their worship.
The prophet wrote in answer:
"I accept tribute only from ahlul Kitllb. The Meccans supposing that there was a conlradictiun io lhe prophet's words,
wrote: "You claim that you accept tribute from none but
ahlul KitalJ, while you have acc.c ptcd it from the Zoroastrians
of Ilajar." In answer the Prophet wrote: "The Zoroastrians
have a prophet whom they killed and burnt the beaveoly
book which Ii.ad descended upon them. Their prophet bad
presented their heavenly book to thern wrilleo on twelve
lhousand cow-hides."'
In lhis narration t.he aptness of ah/ul Kiliib for Tribule
Agreements has e1'plicit.\y been me11ti.ooed, while other
groups have been deprived of tbe right of beoefittiog f.rnm
tbe legal ad vantages of Tribute Agreements.
Some .iurisprudents, relying OD a narration which will be
quoted below, have negated that the legilimacy or the Tribu1e
Agreemenl covers only Arab polytheists.. and have considered ahlu/ Kiliib as a privileged group to benefit from the law
Wasa'il11slt-Shhh, J6)Abul.iihtl/J, ch. 49.
' Furou/ Kali, Vol. l. p. 161

Minority Rights

85

of concluding Tribute Agreements.


Abu-Basir says: I asked the Imam 11$-~!diq (A.S.) about,
the tribute and h~ answered: "Allab bas forbidden taking
tribute from the Arab polytheists."'

(The w()rd ' e.nuama' (in this quotation) io the Arabic language gives the sense of restriction. Therefore, on that account, the prohibition of the tribute in rhe case of other tlum
the Arab polytheists and idolaters is negated. Lo connection
with the above noble verse, if must be said thal stating ahlul
Kifiib is due to the fact that they are privileged groups, or that
the word .:,.. (out ot) in the verse refers to:

'They do not believe iJJ tbe true religion" (SuratufTawbah/29) and. that conjunction of this sentence and the
sentence:

''. ... Who do not believe in Allah oor in tbe After Day" as a
kind of conjunction of the special to the (same verse above)
gener.il
A more careftil scrutiny of the sense of the above narration, however, shows the inexactitude of this reasoning, for,
1

WaA'i/u.<h-Shi'iih, al-jihitd, ch. 49.

06

Minority Rights

the question whiclJ 1he Tmam was asked, was related to the
Zoroastrians, and for the people o f that time the Zoroastrians
were uou-Arab l'olytheists in the same way lhat the idolaters
of the Arabian peninsula were Arab polytheists. Consequently the seuse of restriction, which is obtained from the
word 'ennama' is related to the Zoroastrians and uou-Arab
polytheis1s, aud such a case is usually termed additional
limitation.'
Couceming tl!is verse, too, ir wdl thought over, it is clear
l\J al 1be conj unction of sentcuces, as ex11lica1ive apposition, is
to explain tbe word
~.l.JI
"those" which stated of
beginning oJ the verse.

A study of the View of the Sunni


Jtlfi spruden ts
Most Sunni juris11rudems such as the Owza' i the Thawri
aod 1he Ma.liki, concerning the aptness of the Tribute Agreements, are of tbe opinion that all non-Muslim groups from
any religion, sect aod tribe can pariicipate in concluding such
agreemeols aud become commined allies of tile Islamic society and benefit Crom all its legal advaotages. They have
given two reasons to prove tllcir tlleory:

1.

l3uraydah says: It was the Prophet's habit - wb~n lie


euirustcd tlic command of the Muslims to someone or despatched irregular troops, while makiog special recommendations 10 them .and other Muslims aml in viting tb0m lo observe
chasti ty and lo fear Allah he iostructcd them oo facing pagan
enemi es to make the three following proposals to them. aod
if they accepted any of them, then the Muslims should abstain from fighting them. Tbc proposals were: Firstly, invite

87

Minority Rights

them to Islam, aud if they ref'use, then offer them peace on


the basis of a Tribute Agreement. lo case o f accepting it, you
should ab~tai n from all hostilities to them. And lastly if they
refuse this offer of peace. ask Allah' s help aud prepare for
war.

According to this narration, the pro posal of peace through


Tribute Agrecmcots is 001 only leflitimate but also obligatory
i'u respect of any pagan enemy. and for this reason there is uo
diilercnce between ,1h/11/ Kitiib and the polytheists.~

2.

The joining of the Zoroastrians to 11h/11/ Kiub. as mentioned in some narrations, is an evidence thut the tribute
peace treaty is not limited to ablul Kitiih. siocc the Zoroastrians are included in the s.aid agreement inspite of nol being o f

ah/u/ Kit/lb.
Tire reason why the Zoro<fstrians are not considered o f
a.h/11/ Kitii.h is a narration in which they are placed on an
equal basis with the groups having divine books in their ap1ness for concluding Tribute Agreements, a narraiion which is
ann'bllted to the J>rophet,l denoting that the Zoroastrians do
not belong to ,1h/11/ Kiliib, but that they should he Lreat~d in a
similar manner.' Trcai them as you treat 11hlul Killil>.

Treat them as you lre11t a/Jiu/ Kitiib.


This is an evidence ihal the 7.oroa.~t rians were IJ<lt of Hh/u/
1

Sbilas-&lilm, Vo,L 4, p. 46.


' Alh.m1J
. f;l.trb, pp: 722-3.
'

' Al-Bayhaqi 's Sun.w, Vol. 9, p. 189.

' Ibid.

11

88

Minority Rights

Kitab, but they were to be treated according to the law with


which ahlul Kittib were treated.1
In the above narration, the basic evideucc is the theory of
the universality of the law of Tribute Agreements, according
to which the said Sunni jurisprudents have affirmed the theory.
Dil>regarding the discussion about the a11then1ici1y ol' these
two narrations, an investigation into their purports shows the
obvious weakness of the above reasoning. In other words. in
the first narration, Duraydah repeated what the Prophet bad
said and it is not clear in those cases 10 which group the
Muslim troops were dispatched enabling the Prophet to refor
to them as pagan enemies. These enemies may easily have
been the Zoroastrians who, as we said before, used to be
called non-Arab polytheists.
Moreover, Buraydab's narration, according to the remi nder
of the narrators, belongs to a time after the descent of lhc
verse 29 of SorattJ/ Ba11/'ah concerning peace treaty of tribute,2 which verse descended after the conquest of Mecca and
the surrender of Ille pagans. Therefore wbal is meant by pagan enemies mentioned in lhe tradition. cannot be Arab pagans, and non-Arab pagans means lhe Zoroastrians who wer!il
considered as of ahlul Kiliib.
Concerning the second nanalion, it must be said that 1be
phrasing oI the narration is no evidence for negating the
Book for the Zoroastrians. fl rather means tha1 Ibey are on an
equal fooling with Mher groups having books. Moreover. lhe

' Al-Bayhaqi's Sllwn. Vol. 9, p. 189.


' Subu/u.<-Saltlm, VoL 4, p. 47.

Minority Righls

69

explicitness of ot.h<::r narrations' including 1hc Zoroaslrians


wi1b the groups having Books, removes th~ ground for the
above pcobabi lily al together.

Correction of an Error
The exclusiveness of the Tribute Agreement to the three
groups of the Jews, the Christians alld the Zoroas1rians does
not signify that the conclllsion of pence trcati~'S in the Islamic
law is not legitimate with other groups, since in 1he Islamic
jurisprudeocc, the establishment of p<::ace is envisaged by
means of various agreements each of which may be concluded in certai n CJISe:i in accordance with a sp~ial Jaw.
The T ribute Agreement is one of such pcac~ 1reaties which
bas special conditions and a definite law in the Islamic law,
according 10 which tbe said agreement is envisaged for
groups with heavenly Boolcs and has legal value only for
them.
In the case of other groups there are other peace troalics
with certain laws and co nditions o n the basi~ of which 1 b~
Islamic society and non-Muslims cao conclude re~c..: agreements and Jive in full security and tranq uility.2

Priority of the Followers of Heavenly


Books
Io view of the nature of 1be Tribute Agreement and its legal vestiges, the advantages and special superiority given by
Islam to the followers of heavenly books become clear.
Al-IJayhaqi's ~unan, Vol. 9, p. 189.
' This will he further discu:<scd in rbe coming chilp1e11>.

90

Minority Rights

We: have already s~id that this agreement docs not on ly


allow tbese groups to reside in all Islamic lands, but also
considers them as citizens and members of the great Islamic
Ummah and society and as internal allied elements.
This privilege and superiority is due 10 the fact thal Islam,
by declaring the natural freedom o f belief,1 auaches a i,rreat
imponance to individual and social ideology and evaluates
human peiwoality on the basis of faith and beli.:f. Thus the
legal and human worJc oi a person and society is determined
in proportion to the value of their ideological principles, and
in this evaluation, no aucnti on is paid to apparcnl diffen:nc~s
sucb as hlood. colour, raciH I prece<lence and 1rihal originality
and honour.
Therefore, au individua l and a society, declaring themselves a. followers of a belief which is recognised by Islam
as a holy heavenly creed, musl be regarded di ffcrcolly from
lhc viewpoin t of respecl, legal personality and human wonh,
as compared with a society and individuals who follow
baseless and wrong beliefs and lack a propcr origin and
foundation won hy o f human position.
Is lam recognises the religious of Moses. Christ and Zoroas1cr as lhree holy heavenly creeds announced to lhc human
society by the above propbcls on behalf of !he Creator of the
universe. But it believes thal none of the said creeds possessed an eternal a.~pecl, and they bad successively been
abolished until with the un iversal call of Tslam, Christianity,
100, which in its own time was in ils ideological evolu1iooary
stage, was abrogated.
1

Re: AyHll 257 of sDrntut Bqrh.

Minority Rights

91

Owfog to lhe >'plll:ial respect 1ha 1 Islam h<S for tbc great
d ivioc Propl11~1s. i1 oawrnlly feels respect. 100, for the indi
viduals and grnups who dt>'Clan; themselv~s followers of'llP~sc
exalted prophds, cvi::o ihough Ibey may go 111 excess in 11,cir
claims and disregard true faj 1hs.1
This respect, wbicb is io fact a rcspc~ I for the g~uuin~
ideo.l ogy of !heir prophet~, h as resu lted io the ir beneiiting
from special legal privileges and priorities in the Islamic jurisprudence, au example of which is seen in the law of the
Tribute Agreement.
Tbis kind o f .:valua1ion and granting legal privileges is a
peculiarily of the fslamic law, an example of whic h may 1101
be found in any other legal system even lbe commuaisl
countries which rcpreseul a single camp, regard 1hc cmnmunisi individuitls of other communist courtrics as aliens and
foreigners, and so long as they have 1101 bee-Om<: cilizens of
thal couutry, Ibey are nol admilled as allied m~ml>ers of the
communisl society of the country.
T he privileges ~ojoy~d by groups wi1h h~awnly books
through the law of lbe Tribute Agreement in ihc Islamic society are another evidence of the geucrnl pc acd'ul policy o l'
Islam aud a true wi1oess 10 the rcspcc1 and valu~ that I.shun
has for human beings, I.heir tho ughts and iilcologies.

This is t1'Ue of lhi: three groups. r1ic: rcHgions \Vhich 11r4.! no\v follO\vCd
by the Zoro('l,Stria.ns (fire V.'Offibippers). the Jc\\':.~ And 1hc Chri~ci~us Hrt:
nothing but a handful of legends fa bricated by the fanc ie. of numbor of
~he pscudon1eo of r~ligion. rncir originnl ht!<ivcnly book had been dis
tortcd <tnd their real be liefs. and priecepl.s lutV<: f<.lr long Jcfl 1hcrn.

II

l
I

The Text of the Tribute


Agreement

he text of the Tribute Agrecmeot, like every other


legitimate pact. is based on the agreemeol of both
partjes, on the proposal of oue side and acceptance
of the other.
A survey of the Tribute Agreements concluded by the
Prophet of Islam with various groups of ablul Kitiib will
show the actual form in which they were formulated.
These texts usually began with the name of Allah, followed by the names of the official representatives of both
contracting parties. Theo, after ioseniog 1be articles 11nd
conditions agreed upon, it was signed at ibe bottom by a
number of witnesses.
In drawing up these agTeemeots they tried lo state the purposes of both sides explicitly and without any ambiguity and
possibility of altef!ltion of its purport. So the phraseology and
style were usually very simple.
The text of the agreement concluded between the Prophet
aod Christians of Sinai, in the bandwr~ting of the Imam Ali,
went as follows:

'"linority Rights
" In the name or Allith, the Beocficcot, the Merci fut. This is
a lcner wrin.:o by M uhammad son of Abd ullah, as a bearer
of good news and a warner, and, in respect of i\llab's trust,
eu trnstcd with all creatures, so that no pica would be made to
Allah a lier the prophets. A llah, almighty, is Wise.
Ile has written this to th ose who follow bis faith as a trea ty
with th.: groups of the cast aud west who are Chri stians. be
they near or far, Arab o r non-Arab, known or n11kuown. This
is a writ according to which a treaty is concluded with them,
and w hoever o pposes its articles will be considered a transgressor to him and other Muslims. Such a person would be
rejecting Allah' s promise 0 01 being honest nor humble in his
agreemenl, ridicule hi s own re ligion and so deserving damuari on, he he a king or au ordinary Muslim bdiever.
Wherever mouks or traveller~ gel together, and res ide in
tbc mou ntains o r in the descns, iu inbabit.:d places or in
plane. in synagogues or temples. we will be behind them to
preserve and protect them. aud I will defend their lives, properly and goods with my life and that of my friends. helpers
and nation, since 1bcy are my subjects aud united allir.:s.
With tbc exception of what they willingly pay as tribute
they will hy no means be compelled lo pay anylhing more or
bclcl responsible for ir.
Their judges, monks, hcrrnirs and travellers will no1 be
molested, and no synagogue or church will be destroycd and
nothing o f their property may enter the Muslims' dwellings.
Judges aud monks arc exempt fro m payi ng tribute. so arc
1hose engaged iu 1be task of worship.
'The weahhy and men o f commerce should not he re<1uircd 10 pay anything in excess or their triburc.

Minority Rights

95

"None of them will be forced to fight or carry arms.


"Rather the Muslims should defend them, and converse
with them in the best manner and according to 1he holy verse
which says:

'.

'/Jo noL argue with ahlul Kitiib except in /he best maOIJer. '
siiratul 'Ankahiit/46)
T hey may live in a safe environment which is full of kindness, and everything is to be done to check wbat may caHse
them annoyance and UDC8$iness, wherever they may be and
wherever tbey may reside."
"This agreemenl is signed by 1he Holy Prophet, and undersigned by a number of bis friends.as witnesses.'
The following treaty, too, was concluded between the
Prnphet and Yuhanna son of Rubab chief of 1he Christians of
Ila (al-Aqabah) :
"In the name of Allah, the Beneficent, the Merciful.
This is a guarantee on behalf of Allah and Muhammad, bis
Me.~senger given to Yuhanna- son of Ru'bah, chief of the
Christians of Ila (al-' Aqabah): "ln the name of Allah, lhe
Bcnefieient, the Merciful. Thi.s ia a guaran1ee on behalf of
Allah and Muhammad, bis Messenger given to .YubaouA-son
of-Ru'bah, _and the people of Ila, according to which their
ships aud travellers arc under the protection and security of
Allal1 and His Messenger, and all their companions from ash
Sham, Syria or on the coasL~ of the sea are immune and under
protection.
1

Ibn Hisbam's Sirah, Vol. 2, p. 902.

96

Minority Rights

Elements causing incidents will never be exempted from


trial because of their wealth, and if they are captured they
will be considered as slaves.
It is forbidden to prevent access to waler-springs to them
(People of lla) or bar them from proceeding ou their way either by laud or at sea.
This treaty is wrilleo by Juhayn son of a~-Sah Scrjil son of
Uasoab with the permission of th e Messenger of Allah."
Some of the agreements concluded by the Prophet with
a/1/ul Kirab contained a number of conditions and pRnicular
obligations which were stipu lated in the text of tbc agreement
according to the circumstances of the time and th.: eidsting
cx p.:1dieocics. none of which ever went beyoud the lirni1 of
j uslice. The hostility and stubbornness of the otbt:r party did
1101 cause indifference to its in terests and to th.: ubservaoce of
tbc just criteria.
Al-Baladhuri quo1cs the following agrecmenl in bis book
F11/11hul B 11/dan about the poop le of Najrao, as 11 good example of such treatie.~:
" In the name of Allah. the I3eoeficent, 1he Merciful.
Tbis is a treaty concluded by the Mt1Ssengcr of Allah and
the peo1>lc of Najrau. Their agricultural products aud property will be protectt:d aud the whole will be returned to tbcrn.
T hey will pay two thousand suits of clolhcs annually, one
thousand of which must be deli vered io the month of
Ramac;lan, and the other thousand io the month of Safar. If
lherc is an increase or decrease of crops, they will be evaluated according to measure. Other products of theirs such as
war ganneols, horses, livestock and other war toiquipmcnt will
be received on 1be basis of calcu lation.

Minority Rights

97

The people of Najran "odertake to host the envoys of the


Messenger of Allah for a month or ltl8s, but not more than
one month. If 11 plot is batched in Yemen, the people of Najran lend thirty war equipment, thirty bon;es and thirty camels to reinforce the Muslims, end if any ofthis number is lost
or damaged, the Muslims must restore it by paying the
equivalent.
Naj rau and its neighbourhood will be under Allah's protection and will be bound by the pact of Muhammad, the
Messenger of Allah, together with its people, its territory,
property, lhe present or the absente~s. its travellers, dd~
gaies and temples. No change will be made in their coodi tions, and uo rigbls of theirs will be altered. Their 1cm11lc,q
remain intact, and !heir bishops, monks and church adherents
as well as what they possess will not be molested, and no imposition will be made on them. They are exempt from the
blood mony of the pre-Islamic period. T b.:y will not be
called to account nor arc they required to pay ooc-tcnrh tax.
Their 1erritory will 001 be occupied by Muslim troops. Thus.:
who appeal for justice will be trealed with equi ty and justic.:.
In Najran, there will Nmain no opJlressor uor oppressed.
Those who co111i011e to engage in usury wi ll receive no protection whatever. No person will be held rcspousilJle for an other person's Iau lt
''According to this treaty the people of Najran will be protcc1cd by AJlab and Mubamm3d, Ilis Messenger Iii! the Day
of Judgment, and so long as they do not deviate from the
highway of benevolence and peacefulm.-s.s, no imposition on
them and no injustice will he made towards them."'
1

FutD(Jtlf 8uldl111. Vol. I, p. 88.

98

Minority Rights

Al the end of th is lrealy Abu-Sufyitn ibn Harb, Gbablan


ibu ' Amr, Malik ibu 'Awf of the 1rib<> of Bani-Nasr, Aqra'
ibn l!llbiss al-llao<)ali and al-Mogbirab were chosen as wit-

nesses.
According 10 some documents, its text is in the handwriting of the Imam Ali ibn Abi Talib.

Chapter Four

Responsibilities of Both Parties


A Survey of Obligations of the
Minorities in Tribute Agreements

Chapter Four

Responsibilities of Both Parties


A Survey of Obligations of the
Minorities in Tribute Agreements
Conditions and Terms of Tribute
Agreements
Responsibilities of Both Sides

n concluding and drawing up !he articles of lbe Tribute


Agreemenl, the freedom of both parties is reserved on
the basis of conseol and accord as the main pi liar of the
Agreement. Each side can propose special terms and conditions according to its interests aod expediency (except in
special ca.~es) 10 be inserted in 1he lext of the treaty if bolb
sides agree upon them.
Such condilions comprise responsibililies which bind both
sides to carry out their duties and al !be same time beoetit
from the righls and privileges envisaged in 1be Agreemeot. In
this way the dulies slipulatcd for each side become a guaran-

102

Minority Rights

tee oftlic interests of the other commilted side.


For this reason the theoiy aud law of the Tribute Agreement in Islam is one of the fairest and most equitable agreemenL~. in which there is uo trace of the superiority of a strong
majority over a weak minority. On the contrary. tlotb sides
undertake mulual respoosibilities al the same level.l We may
even say 1ha1 tbe scale of duties of ao Islamic society is much
more heavier than that of iL~ allies.
Now we will first describe the condi1ions regardi ng the
duties of the allies (the 1ribularics), aud then deal witl1 tl1e
dulies of !he Islamic society as well as the rights aad privileges of the allies.
fu concluding a Tribute Agreement, the freedom and the
limits of the powers of the compclcol Islamic government are
witbiu the bounds of the special conditions s1ipula1ed in Islamic jurisprudence. The conditions envisaged in Islamic jurisprudence are as follows:

1 . Conditions which are necessarily stipulated in the


agreement aod must be wholly observed.

2. Couditions de.pending

the circumstances Of tbe


agreement, whether they are stipulated i.n the tex1 or not explicitly staled, all of which must he respected and confirmed
by both sides.
Oil

Basic Articles of a Tribute Agreement.


The first part is summarized in two articles:
Ar~jcle _Que;

Tbe Paymcnl of the lribule, which will be fully discussed


in later chapters.

Minority Rights

103

Article Two:
Respcc1 for the Islamic laws, observance of 1bcir execu rioo
and accepraocc of judicial, penal and social verdicts carried
our in lbc Islamic realm on 1be hasis of Islamic criteria.
According lo this arliclc, as 1bc Muslims must obey lbc
verdicts issu<!d by 1be competeo1 Islamic courls, the allies
(lributaries). 100 , must acr upon lb~ issued verdicls, when
1h~y arc rricd in these courts.'
l ilccwise. wb.mevcr a tribu1ary commits an ac1 forbidden
in 1hcir own religion aod condemned io Islam on 1ilc basis of
special regulations. the said regulatioos m ust iocvitahly be
enforced in bis case. For ~xamplc, if a triburary commits
adultery or lbcfl which are prohihiled in lbc relig io ns of 11h/11/
Kitllb, he will bt: puoisbed in accordance with the rules of
lslamic p~naocc. 2
As for lbc acls forbidden in lbe Islamic law bu1 permincd
in the religion of ablul kitAh, 1hey do 001 come under the
above rcgula1ioos unless affoc1a1ion to such deeds is not in
accord with 1be c riteria and exigencies of tltc agree ment
In view of lbc oa1u.re of a Trib111c Agreemenl which is
conc luded as a trea1y o f alliance and socia l solid arity, and
parlicipatioo iu a common social lite. lbe necessity of lhc ohservaocc oftbe above principle becomes evident
As an Islamic sociely rcspccls ils inle roal allic.<. ii also r<.'C
ogoises lheir laws and Cl!lcs in !heir mulual rela1ions. Tb..:
philosophy or Tribute Agreemen ls oo:ccssi1a1es a reciprocal
respecl 10 be shown by lbe allies 10 1bc Islamic social law~.
and 1beir abstcotiou from acts forbidden according 10 lb.: he1
1

This point will be refetred tn in Inter cha piers.


Jawahiru/K,./AIIJ, Vnl. 21, p. 318.

104

Minority Rights

liefs of both sides, and an obligation to respe<:t and carry out


issued verdicts.

In a big society where tributaries live alongside Muslims,


the observance of the above principle is not only an absence
of restriction of their freedom, but io view of the rights and
privileges which the tributaries enjoy on the hasis of Ibis
<1greemcot, this is the minimum right of which the criteria of
social justice considers lbc majority members, namely Lhc
Muslims, worthy.

Conditions to be Stipulated
The second necessary part of lbc agreement consists o f tbe
following points:
The allies (tributaries) must abstafo from every hostile plot
and sabotage and military activities against their Muslim confederates.
They must also abstain from giving aid, reinforcement,
refuge or protection to the enemies of the Muslims, and must
avoid every kind of espionage for the enemies of Islam, or
guiding and supporting spies and enemies o f the Muslims.
The late Mubaqiq, in his Sbarliyc', the All:lmab al-Hilli in
Tadbkiratul-Fuqabli', and ash -Sbal1id a1h-Tbftni in al
Maslifil<, have considered 1be acts of espionage of tributaries
and supporting envoy spie.~ a violation of the agreement on
the condition that these mauers are stipu lated in the text of
the agreement But in view of the role of' espionage and hostile acts, it can be said that such a condition becomes willynilly a part of a precondition stipulation to the effect that the
tributaries sliould refrai n from hostile acts, plots of supporting the enemies against the Muslims. Most jurisprudents, in-

Minority Rights

105

eluding the above three renowned scholars, have consid ered


it neeessllJY 10 stipulat<: the said conditions sucb that the violation of which would render th.e agreement uull and void.
It is, however, affirmed by some jurisprud..:nts that there is
no need lo $Upulate the said points in lhc gr..:cment since
1hcy are imp lied in 1be trl!aty, and in any case. wh~thcr they
are stipulated in the text or not, whenever the '"id condi1io ns
arc violated. ii wouW mean the violation of the treaty ils~lf
Tbus, this condition may be considered as the third 1h!cessry
article of a T ribute Agreement.
T he late scbola:r al-lli lli explai ns this point as follows in
his Tadhldrat-ul-Fuqahl':
"The second part of the conditions of a Tribuh: Agreem.:nt
includes mailers which ure not obligatory to s tipulate in the
text o f the agreement. but die acceptance and cxig..iocy of the
treaty make their execution obligatory. Such a conditio n in
eludes the abstention of the tributaries fro m ac ts which arc
contrary io the treaty aud to the asylum granted by the Muslims, such as deciding to fight the Muslims, supporting th~
pagans and aiding them in their fight against the Muslims, if
they commit such hosti le acts, the Muslims must rclliHt<!,
and this is incompatible with the agrc~meot"
Then. referring to the first part of the tribuh: condi1ions. b~
says: " If these two conditions of the Tribute Agreemeul an:
not observed, it would be laniamouul to th<: violation of the
treaty, whether they are stipulat~d io the tex t of the trea ty o r
noL"

Compatible Conditions
In addition to the above conditions, any other condition o r

106

Minority Rights

article which ma.y crea!e a responsibi Ii ly for lhe tributaries


depends upon 1he expedieacy of both sides and discretion of
the compelen! lslaroic goveirnment. Tl1e agreement may even
take 1he form of a sirople peace treaty (comprising tbe said
points and conditions) without any other reservations which
may involve d11ties for tl1e allies.
Here it should be pointed that the jurisprudeots have recommended on the basjs of certain Islamic proofs and high
interests of the Muslim society, that several conditions could
be added to the articles of lbe agreement and ils text. Allhough such conditions are not counted as impositicms on the
tributary allies, yet, they are requisites for solidarity of peace,
coexistence and good will towards the joint agreement. In
fact tl1ey represent a reciprocal respect which is necessitated
by the spirit of the treaty of alliance and formation o f a single
society.
Some of !11ese c.011di1ions are sta!oo by the lute scholar alHi lli in his Tadhkin1t-ul-Fuq11ilii' as follows:
"The third part of the arlicles in the text of the Tribute
Agreement are conditions suitable for insertion in lbe agreement. They are related to matters which must he avoided by
the allie.~ (tributaries), and arc briefly slated below:

1. Avoiding illegitimate sexual intercourse with the Muslim women

2 . Abstention from proposal of marriage with the Musliro


women.
3. Avoidance of any propagating activity which migbl deviate the Muslims from their Islamic convictions.

4 -. Abstention from robbery and molestation of lhe Muslim

Mino rily Rights

travellers on high ways.


5. Refusal of giving refuge and protec1ion 10 enemy's
spies,

6. Rel\1sal of aiding espionage activities of rhe enemies of


Islam ag:ainsl the Muslims, or guiding rhem in Ibis respect, e r
commuoicaliug news related to the M11slims or sending le tters 10 1he enemie.s of Islam aud refrain from divulging 1bc
secrets of the Muslims lo them.

7.

Abstaining from acts of terror and allempl 011 the lives


of ll1e Muslim men aod women.
Elsewhere be writes in Ille same hook: "11 would be fining.
for the leader of lhe Muslims 10 stipulate iu 1be Trib111~
i\grcemen1 whatever is in lhe inleteS1-' and cxallRlioo of the
Muslims."
The late Ihn-Junayd, a Shii1e jurisprudc.nl. says: " II s hould
also be stipulated i.n th~ text of a T ributary Agreem~nl that
the allies (1ribu1aries) arc 10 abstain from appare nHy abusing
our Propbe1 and every 01her Prophet and angel, as wdl <IS
every MuslilJJ. 1
Concerning heavenly religions, wbe1her Islam o r othe r divine faiths, they must not speak evil of them or slander them
and avoid nagraot aud unworthy acts of anli-religious na1ure.
T he la1e Mubaqqiq adds 1be following 311iclc which may
be added, according-to special circumslances to 1he text:
"The allie.~ dwclli:ogs should not be buih higher than nor1

ff such a crime is proved in the Tshrroic cou11s 10 ha\'t: bt:c-n co1nn1iHcd


against dhiouni(s), and il h9d been SL1'1cd in 1h~ teXI ur the tribute
agretm<:nt, it \\'ill be rega11ded as violating the agrcc111cnt. If it is nol
:;tated 'in (hc agree1nent, the crimiaa.ls will bctricd and ~cntcnc~d accord
1ng to the lslant-ic penal c()de.

108

Minority Rights

mal."
Obviously is article, like other previous recommendations,
can be binding if it is stipulated in the text of 1be agreement
with the consent of both parries and their signatur.;:s,
As the allies are not obliged to pay any voluntary mooetary
contri burion for any purpose, even if the allies foe! 1bey must
do so, it is invalid,' and so is any othec condition in this con nection. There.fore the ju.risprudents have excepted only a
si ugle case of this law, and that is in order to follow 1he ex.ample of the Prophet of Islam. 1 They say: " In case of expediency, it may be stipulated in the text of the agreement that
the allies should acr as hosts lo the Muslims wbco they or the
Muslim Mujabids pass through their quarters.''
Some j urisprudents think tbat 1be exp.:nditurcs for such
enlertaiumcots should be paid out o( tbe rrihutc, but mosl jurisprudeots aflirm thal 1he condition for entertainment should
be added to the miuimum sum of the tribute, since ii is possible that no Muslim may pass U1rougb their quarters, in
wl1icb case their Tribute Agreement will lose its financial
aspect. and wi ll thus lose its legal value willy-nilly on ac' In ,,/. W,;;;1 'if it is said, on the authority of Mu!Jnmnwd lbn Mu.<liim.
quoting th~ In1;inl ;tl-Baqir (.L\.S. ). concc;m1ng the 1ribu1ari,e:s, 3~kcd
'''hc1her ii can be lc\icd f'roiu tbern on their propcrtit:s Hnd cattle, olhcr
than the tribut.ry. he said: "No." A similr (!Rlfitli is rdotcd by .Sh
Sh~ykli al-Mulid, in his al-Muqni'nh, quoting Muoammd ibn Mushin.
Look
up
Was.i 'i/ush-Shi
11/J, Vol. 11, ch. 68 ofKitahul Jibah.
' In the tribute agreement concluded by the Messenger of Islam with
Christians of Najran. theno was stated tht the people Qf NajtRn must be
the h()Sl$ of the envoys of the Messen~er for a month or le$.,. According
to Sbaykh T~si in 11/- Mabsot, it was stated in the tribute grcemcnl with
the people of lylh that they m ust be the hosts of the Muslims passing
through their land, for three c!Ays.

Minority Rights

109

count of rbe ooo-paymeot of tribute. This view is supported


by the fact that io the agreemcors with the peoples of Ila and
Najran, the Prophet bad oot only stipulated tbc minimum of
tribute sum, but bad alw made it an ohliga1joo for them 10
entcrtaill the Muslim travellers and ollicial envoys.'
Obviously if tbe allies refuse to undertake such a duty,
then~ will be no obligation oo tbem. 2 but if in the Tribute
Agreement they accept such an obligation. i1s m8oocr aod
duration must be stipulated.
ln addition to the above points, Sbaykb-.:-Tosi rhfoks it
necessary to determine the nun1ber of tbe persons who are to
be entcrtaillcd by the allies, since every agreement should be
clear and definite io all aspects, 3 and if the dwellings of ricb
allies do not accommodate additional persons, the Muslims.
to whom this article applies, may stay in the houses of the
itllics who are not so well-to-do, but the latter have no obli
gation to entertain their Muslims guests.

Illegitimate Conditions
The proposal of th.: conditions aod articles of tho: Tribute
Agreement, both qualilativcly and quantitatively, depends on
the view and interests of the competen t Islamic government.
Naturally these interests vary in conncctioo with !he exigencies of time and other special cooditions related to the oe~ls
of the Islamic society.
Therefore tbc said conditions which have ~n recommended by some jurisprudents depend oo the above princi1

Al-MabfOt, Vol. 2, p. 38. Tdhkimw/Fl>qIM", Vol. I, p. 441.


Ibid.

lll-M.11>101, Vol. 2, p. 39 .

lbid.

110

Minority Rights

pie. There may happen to exist other conditions which are


more urgcot to be added, or some conditious to be disrt!garded io the lex I of the agreement owi og to special circumstances. or the sensitivcoe.ss or abseocc of religious fanaticism of the allies.
In s-horl, the dmies stipulat ed iu a Trihut~ Agreement for
tributary allies depend on tho interests ol' the Is lamic society
aud the vil!w and judgement of rite NSponsible Islamic society al)d the view and j udgement of the rcspousibh: Islamic
authority, as well as oii th e free commitment and cooseot of
the allies. Bui inspite of the originality of these rwo fouodatioos, in some cases it is forbidden 10 bind tributary a ll i~s 10
some duties and commitments. even if they show consent io
accepting th<!m, and ao agreement based on such uodenakiogs has no-legal value.
The Law of Tribute Agreements says on this couuection:

1.

Lt is

pcrmissibh: 10 exact a sum above th.: tribute


mentioned in tb.: agreement from tbc allies. and aoy commitmeDI st ipulated in Lb~ agreement in Ibis cooocclion bas no
val idity and is null and void.
Even if a tax ;, envisaged on the lauds o~cupied by tbem,
lhtiy will be exempt from the payment or tbc tribut.:. Similarly if Ibey pay the tribute. no tax must he levied on their
lands.
Muba1t1mnd-ib11-Muslim says: '"J asked the Imam: ' What
obligatious the lributaries shall have iu rc111rn for 1be iuunuoity and security which they cujoy wi1uiu the Islamic socie ty?' He answered: ' They must pay th<:: tribute. and if the
tribute is tl\keu per head from them, they arc exempt form
land tax, whereas if they pay land tax, they need uot pay
110 1

Minori ty Rights

111

uibute." 1

Moreover, the Islamic government cannot demaod any


other tftX from them such as income tax etc .. and if such 1111
obligation is stipulated in the agreement, it is uot binding at
al l.
Muhammad ibo-Muslim says: "I 11Sked 1he a~-~itdiq abou1
the tribute and what paymeols must the tributaries make, he
answered: 'Their rcspoosihility is limited 10 tile amounr 1bcy
have willingly agreed upon, and ft Muslim leader cannol d emand auylbiog beyond lhe triburc, and if lhis lribure is received per head, then lhe triburarics need not pay any rax on
their property, bot if the tribure is levied on their properly,
then they are exempt-from per head tribute.2
2. Tb~ financial obligation (rribure) which is stipul ared in
the Tribute Agreement most be equitable and proponionat.:
to tbe allies' financial conditions. Jr is forbidden to demand
any payment above their financi al ability. Likewise, that
there is no lina11cial obligatioo on women, childn.:n and tuna
tics (and all those who are exempt from paying the tribute in
the Tribute Agreement. This point wi ll be fully disc ussed in
the chapter related to tribute.
With the conclusion of the Tri llute Agre~ment, 1h~ lslamic soci~ty aod competco t Islamic government undenakc
certain rcsp0usibilitics {which will be discusso:<l lat~r). violating or ocglcctiog wbicb by the Islamic government would
mean a breach of agreement by the responsible Islamic
authority.

3.

1
2

W.sii'l'lushShi'nb, Vol. 11, ell. 68, bndith No. J .

Ibid,. b~dith No. 2.

t 1'.l

Minority Rights

T herefore any term or condition which is added against the


allies for the: purpose of disregnrding or neglecting the ar1i cl.is of the agreement, is null aod void.
4.
[f the Muslims fail to c.a rry out the duties which tb~y
have undcrfaken in accordance with the agreement, the allies
wi ll i ii their !U rn hav..i no responsibili ty, and 1hdr obligations
which arc: hascd on the Tribute Agrecm.:nt will 001 be binding, and if they had paid any tribute to a responsible Islamic
authority, it must be returned lo them.
5. lo vi..:w of the philosophy of the law of Tribute Agn.'1!
mc111 and in view of the fact that the purpose of l11c said law
is to grant lh<.: right of freedom and internal independence as
wdl as the possibility of a common lite and social and politi
cal alliance: in th.: cas.: of the: followers of heawnly hooks
(namely the kws. th.: Christians and the 7.,lrnastrians). ohvi ously any conditions aod commitments which do away with
the possibilj1y of common life for them or impose in1olerablc
r~strictions depriving them of repose and 1ranq11ili1y, arc
au1oma1ically null and void, since such conditions are con
trary to 1he nature of 1he Tribute Agreements and their en visagild conscqu~nces to the original divine laws.

l
Financial Undertaking in the Tribute
Agreement
The Tribute '
The frihute Uizyahj is a type of financial umkrtakiug by
lhe allies fdbimmisj in return for Muslim commitments. As
Muslim citizens act upon their social and religious du1ics hy
the payment of established taxes and by participation in
military and dcfooce duties for the purpose of the managemenl and defoucc of their uni1ed great socie1y composed of
Muslims and non-Muslims, lbe allies (non-M uslim c111zcns).
too, wbo benefit from the rights aud privileges of such "
g11arn11tccd sociely, must pay a special and 11illi11g lax as
tribute 10 the responsible Jslamic government instead of the
regular taxes, defence and mililary duties (uodc11ake11 hy lhe
Muslims).
The tribute. which is levied on non-Muslim allies, contrary
1

Our discussion in rc>pcct of jizya!t rcfors only 10 the legal p<Cl. A>
regards ics hi~tOJ'ical aspect, it is oul of our cor1cem. Rul in the lirsl p:5t 11

of 1his scrli;.s, the discussions concerning thi~ 10pic have bc(:n issued in 11
scpilmlc book untl1,11 the rttle "l~lltn1 11nd JJt.:11,~J'u/ Co-1..tx1:ucn'": 1n

which the history or lho jiq11// h~ ..... rclolcd in d<tail.

Minorily Rights

114

10 Lhe supposition of seU'-interested or ignorant people, bas


never been kind of punishment for nou-couvcrsiou to Islam. 11 is uot a. kind o f im1>osi1ion or toll which the viclors
force lhe vanquished to pay. This fact can be seen by paying
attention lo the three following principles on which 1be system of Tribute Agrccmcuts is based:

1.

The principle of reciprocal consenl.

2. The smallness oflhc amount of the. 1rihu1e, and consideral ion for the minimum financial ability of the allies ( 0011Muslim citizens).
3 . The exemption of the allies from all kinds of firn)ncial,
military and dd'e11sive dufres in 1he uuitcd Islamic society.
It is clear tba1 every orgaoised society is in ne.:d of a regular budge! in order 10 be able to meet its regui rcd cxpendi1ure
for con1inuing its life aud mauagiog iis affairs, order and
various relationships, as wdl as providing the governmeul
with the possibility to establish order. eoac1 1.be laws, and
maintai.n military and defensive fofce.5.
A considerable part of this budget must be provided
thro\lgh lhc taxes p~id .by 1he members of this society, and
these taxes are levied in proponiou lo tbc financial abili1y of
each individual and the b enefits he receives from social
privi leges, and then the du1ies of every individual is determined.
1n the grcal and un ited Tslamic society, in which the nonMusl im citizens (11h/ul kitilb) are considered as its members
according lo the Tribute Agrecmenl, the Muslims pay !heir
laxes in Ille form of zakiit, atonemen ls, kbwns to 1he compe1cn1 Islamic govcmmenl. The only 1ax Iha! the allies

Minority Rights

115

(dhimmis) are obl iged to pay according lo the 1J1utual agreeweot is lbe trihute which is levied in the way wh ich will be
explained later.
By paying the tribute, the allies become exe mpt from all
financial obligations, taxes, military and defence du1 ics. As
we said before, if t he Muslims fail to perform t.beir obligations, llieir alliei> will be exernpled from the paymeut of the
1ribute, aud if this tax bas already been paid to lbe responsible Islamic authority wholly or par1ly, it must be paid back to
them.
Jn Ibis case, loo, the Islamic law exbi.hits its brilliant humane visage and social equity, and places all measures o f
social, political aod ecooomic aspecls will1iu the. framework
ofhu1J1an values.

Does lhe Payment of Tribute Mean


Abjectness?
The system of financial obligation was common, bdore
Islam, among vario.u s natioos, such as the Israe lites, the
Greeks! the Romans, the people of Asia Minor aod the Irani
aos with regards 10 the minorities dominaled by lhem. II is
said that Allowsbir.wan, the Sassanid king of Iran, was the
lirs1 to draw up special regulations tor it and enforced it in
the sixth cenlllry A.D. According to some historians, 1he
jizyl!h, meauiog ' tribute' or ' poll-tax' , is 1be Arabicized from
of 'Gczyat.' which was used by the Iranians meaning the minoriti es financial o.bligations. 1
History shows 1bat the application of this syste m on alien
Shaykb Shibli an-Nu'cnaoi h:t$ don~ sor11 rcsean:li-:s in 1hi:i. rcsp~c1.
supported wi1b e\idence<. Al-Ma_nflr. Vol. 10, p. 291.
1

Minority Rights

116

minorities, or weak and defeated nations, was a sign of victory, power and superiority of the great and powerful governments, and was considered a kind of tax-collection and
exploitation.
But, while putting its signature to this system, Islam presented it in such a form which, besides showing 110 sign of
compulsion, prelensious superiority or exploitalion, as it
formerly used to show, 001 tu be seen in the Islamic jizyah
system, ii rather repres.:nts the most equitable way for peace,
solidarity and coexistence.
Bur that same apparent similari ty between 1be two systems
has led some ill-motive or ignorant people to consider the
Tribute Agreem~nt as a form of exploitation withoul payiug
11t1entioa 10 the conditions and special cooscqucoccs of the
Islamic Jizyah system.
The explanations given by some commentators abour the
vcrse No. 29 of surarul-Tawbah have not been witbou1 influence in creating the above error which was utilii..'<I by malicious people, and a means of deviation for the little informed
people.
Now we will first Slate what those commcuta1ors bad said
about the above verse, aod llren we will explain what 01bc.r
great jurisprudents and commentators have dechmxl aboul it.
The law of the Tribuh: Agrcemenl mentioned in the Qur'an
is as follows:
1 ' t /. ~ ~..:; c:Llil);.;
'</1'~ ,~,..:;- .

.a, --i'-

-,
11"' :::'.'!'' ,,,.-> -.,:;,,{ , ,,,,.
,,
Jll''I
/

.. -;:
!i'.J ~.:ii V:l<r''.:.t~~~::'! J .J.Al.)"'.).J..ill

(_,.,.."'ur~.J.r, ~.r.'fl.J~,~r~

>. " ., , ,. , -<: l'I -t>

~-

.;;..>.J.....,....l""'J :f!\iP~' ~.,-

"Fight those who do not believe io Allah, nor i11 the l11s1

Minority Rights

117

Day, nor do they prohibit what All!lb apd His l1!esseoger


have probibite</, n()r follow the religioo of truth, out of those
who baV!~ been given the Book, until they pay the tribute
banded (to you) in submission. (sor11tul- Tawbah / 29)
The law of the Tribute Agreement was enforced! for the
firsi time upon the people of Najran on the descent of this
verse in the eight or, llS some say, in the nio1l1 year after lhe
Migration.
In interpreting this verse, some have supposed tba1 ii implies a declaration of war o n .all those who have been given
the Book (the Jews, tbe Christians and the Zoroas1riaos) and
this war must go on until tbe result mentioot:d at the cod of
the verse is secured. The ultimate couseque1Jce o.f the war for
these groups is t() live in abjectness and misery aod pay tribute.
They have also expressed views concerning this state of
the tributaries, such as the following:
1 . The tributaries are dragged abjectly and forcefully to 1be
tax-colleelors' office to pay the tribute.
2. The tribute is taken from the tributaries while the latter
are standing and the tax-collectors are silting.
3. The tributaries are insulted and beaten at' the lime of
payment.
4. The tributaries are forced to stand in the suo at 1he 1fo1e
of payment
5 . The tributary is to bends bis bead, and the rcct p1en1
takes hold of the tributary's beard and gives him a blow on

I,

118

Minority Rights

the bead.
This strange view is attr.ibuted to asb-Sbafi' i.

Studying the ayah on the Jizyali


Ahhougb the exlrnvaganl views mentioned before not only
lack a trusted proof, 1 yet, originally, it is also contrary to ibl;!
nat1ire of the Tribute Agreement and its legal vestiges, and lo
the essential method of Islam with regards to 1be foreign re.
larions and tbe s11iri1 of eq_ui1y supported always by Islam.
The above verse is wholly incompaiiblc with tbe said views
and cannot be rnlied 11pon in this respect.
To explaiu this matter, the foUowiug points should be
studied in analysing the tribute verse:

1.

The first phrase which speaks of fighting those who


bave been given the Book does not have a legis-lative aspect,
and it bas been revealed in connection with the verses dealing
with jfhii.d, its manner and conditions, and these verses were
revealed before the above one which does not intend directly
t.o establish 1he hiw ofjihii.d agaios1 11hlul kirii.b.
The first point gi ven at the beginning of this verse concerning fighting 1be followers of heavenly Books is in fac1 an
explanation of auolhcr law related 10 rbe followers of heavenly Books. The true meaning of the verse is that according
to the rules ofjih.1d, in cases where fighting ah!ul ki!Ab is allowed, and 1beir a<:ccptance of the 1rib111e proposal mus1 be
considered as the end of boslilities.
Thus, it mus! be said thal those who 1ake the first part of
I 'lltc nanatiVO$ v,hich ftl'i: Cild in lh.iS rt:SpcCt by tht: S'unni jurispru_~
dents arc \Vt;;ak and unrcliii.hle fOr citation. In the. Sh iite. nanations there
is no1hini in supp<)rl of lhe said opinion.s.

Minority Righ15

t t9

the tribule verse to mean a declaration of war agaiDSl ablul


/dub, bavc commiued a big aod obvious error io their interpretation, since a study of the vernes rclalcd to jihAd shows
clearly' tbRI Islam has never resorted to the declaralion of
wai: as a primary step, even in tbe case o f the polytheists and
anti-religious groups. 11 bas considered the jihad as a duty io
special cases and under certain conditions in ordi::r to remove
the barriers io the way to the universal call of Islam and 10
liberate the oppressed natioos, and loosen the fcners of mental and poli1ical se:rvi1ude.
It goes without saying Lbat the exigencies permiuing to
ligb1 against ah/ul kitlib are included in 1he principles and
ge1Jeral rules of the jilJM. There arc n1any reasons for saying
that eveu if Islam did oot provide greater facilities for ii/J/111
kitab, it would never treat them more roughly than it treated
the polytheists and other pagans.

2.

The world 'paua'mcaniltg 'until' iu Arabic signifies the


end of a mancr, and the employmenl of 1hat word in lbc
above verse shows that demanding tribute from the followers of the beavcoly Books is oot made on the basis of power
and imposition, but the reason is that with 1bc conclusion ~f
the said irea.ly which is based on reci11rocal duties, the state
of clash, hostility, roughness and alienation may end and
mutual relations may be established on the basis of alliance,
peJ!cefulness and co-operation through the treaty.
Obviously ideological differences cannot be a permanent
barrier in the way of peace and establishment of the conditions which have bc...'tl agreed upon by groups having di !fer1

The lw ofjj/111d nd the relevant iiyahs will he S<:prntcly discussed in


tlte coming V(')lurn~s of this series.

120

Minority Rights

cot beliefs, and their execution has been guaraotced by both


parties.
Therefore, in the tribute verse the conclusion of a joint
treaty is considered RS the most essential and a jusl means for
preventing every hostile clash and putting an cud to enmity
and quarrelsomeness between the Muslims and the followers
of heavenly Books. lls implication is to forbid and condemn
every act which may lead to dispute and renewal of hostile
relatio11sbips aller the treaty is concluded.

:3. The words

yad in the iyab, which is used concerning the payment of the 1rihutc, refers lo the ability of ablu/
ldtAb in making the paymenl The word 'yad' somtJtimcs
means ' possibility' or ' power,' and sometimes 'superiority'.
The meaning of the last phrase of the 4yab is 1101 tbat hostili ties end on the payment of the tribute, since such hostilities
come 10 an end on signing the Tribute Agreement, where as
the payment is douc at the eud of the year.
Therefore in the last sentence the word 'yu ~o' meauiog
' they pay' signi fies their readiness to pay. 1 Obviously preparedness and promising to pay the tribute by hand, do not li t
in the context of the verse and the sense wo11ld mean notbiug
but that the readiness and the promise of a/Jiu/ killb for payment are based on their ability to pay. Further more by pay .:,.r.
an, it brings
ing more attention to the sense of
us to a clearer uuderstanding of lbc point. Had ii meant 1ha1
payment should bt: by band, the Arabic preposition should
have btlen used, and the word .i.. (band) should not have
~-1:!4
(ii!. by
come in singular, but in plural

'an

Al-MsbSO/, Vol. 2, p. 38.

Minority Righu

121

their h1tods).

4. The last two words of the verse, ( ::.,,;.i- I""') (in suhmjs.
sion) shows the second conditions and rhe essentia l basis of
the T ribulc Agreement' which, as we said hcfore, i~ st ipulated in the following way in the Agreeme nt:
"Tbe All ies must bind themselvc.q 10 lhe verd icts issued by
the competent Is lamic courts. a nd submit to tbc <:xecution of
the Islamic laws."
Linguistically, the word ,l-' - (in submission) is used 10
Arabic to mean a person who aclrnowlcdg,;,s his submission.
and smallness. aud as this is. iu many ~ases, accompa nied by
a kind of abjectness, many phi lologisrs and in1crprc1crs rook
it 10 mean 'a person who is content with al~j ecrness nod subjection. '2 But ii goes without say ing rhat actually the word
does not signify abjectness and this meaning is a figurative
addition to it. Naturally submission before the court which
issues verdicts according 10 1bc Islamic laws, and as lhos
point is s1ipulatcd in a joinl treaty guaranteeiug the iotcresls
of bo lh parties, it by no means uecessi1a1cs subjection.
The use of 1he word
,;.o....
is meant to show rhat the
participacion of the Jews, the Christi tons and lhc Zoroastrians
in the jo iot treaty aod their acceptance of the o bligatio n for
tribute pay.meat, and sub mission before 1hc Islamic legal and
j udicial laws and pr~epls arc based on consent and 011 free.
formal acknowlcdgemen l. for, lhc word
.,tL.o
is used of
a person who admi1s his submission and smallness"
Thus, the baseless and extravagaol views mentioned before
become o bvious, as lbe last sentence of th~ verse
1

Jawaliirul KN/1110. Vol. 2, p. 247. Al-MAbSO/, Vol. 2, p. 20.


' Rticr 10 al-Mufradilt, by ar-R~glub. conccming his iocm.

122

Minority Rights

( uJ.r''"'" ~ J)

which is the support of the said


views, besides signifying no insult, beatings or rough treatment towards lbe tTibutaiy allies, it implies no idea of abjecJness in any way of imposition.' This case is tnic of all joint
agreements where the c(lmmitments of neither party is considered as accep1Bnce of ahjectness by the other parly, especially as this submission and smallness before the laws and
regulations is true i.n the case of all Muslims and even in respect of the leader and tbe ruler of the Islamic society.
The lmam Ali, the second great personality of Islam, when
be was top in power as a ruler of the Muslims, w~nt to the
court before a judge because of a comp!aiol lodged by a Jew
against him, and he submi11ed to trial as an ordinary citizen,
and expressed his uneasiness al being shown excessive respect by the judge contrary to the Islamic injunctions.
5. Another meaning which is derived from 1he phrase
( .;.,_,il..:> I"" 3)
(iusubmission) is that receiving the tribute
should no1 be effected in such a way as to damage the supremacy of Islam or the Islamic socicly, since ibe 1ribute is
not exploitation nor financial aid which may cause such a
damage to Islam and the Islamic S<)ciely as this can have no
legal value.
Similarly the Muslims. cannot, iu return for the allies' financial obliga1ioos, uudcrtake duties wb.icb would offend or
damage tbe supremacy of Islam aod the Islamic society.
Moreover, no Muslim should be tried in the allies' courts.
The verdicts issued by these courts are valid ooly if both parties lo ibe case are tributaries.
1

A l-MabsOh Vol. 2, p. 38 . .hnv,1/lirol Ka/nm. Vol. 21, p. 271. A/JkAm


Al1/udh-Dhimmah, p. 34.

Minority Rights

Nevertheless, according to the Tribute Agreement, all


Muslims are bound to respect the religious laws and regulations of the allies in so far as they are oot coutr~ry to the articles of the treaty. But, as we ~d before, this dqes not involve any abjectness or subjection for either party.

A Talk with Self-Sold Westernised


Persons
In view of the ex.planatioos given concerning the verse No.
29 of si1ratul-Tawhah; as well as the ofher evidences mentioned in relation lo the necessity of stipulating the financial
commitment in the Tribute Agreement, there remains n<>
doubt that the tribute is. oue of the two principal articles and
conditions of that agreement, and without tl.tis article the
Tribute Agreement is not binding nor valid.
As we said before, this condition is not alterable with the
consent of the two parties, aud this mancr is equally true of
every tnl>ute agreement whether it be concluded hetwee11 the
Muslims and the three religious groups living within the islamic realm, or as a 1.reaty of peace .between a Muslim .government and other governments or the Jew, the Christian and
the Zorastrian nations. The abolition of the condition for financial commitment in each of the two above cases wi II render the agreement null and void.
It is regretted that some of the so-called lslamic writers.
bccllJ!se of their failure to understand ihe philosophy of the
Islamic system of tribute, and owing to their surposition tbat
this system is i u fact a confirmation of the tax system of the
great pre-Islamic empires bas.e d on the old system of slavery
and mutual treatment, have expressed doubt as to whether the

124

Minority Rights

tribute system is a stable, and unalterable legal Islamic order


as to allow its separation from the text of the tribute agTCemt:nt under present conditions and exigencies.
Or. Wahba Zu~ayli, author of Athiirul lfarb, quoting the
above doubt from his master, Or. Muhammad Salam, S1tys:
..The fact is that differences should be admitted in the articles of the Tribute Agrccmcuts. Where this agreement is related to the internal conditions of an Islamic country concerning the minorities living in the Muslim realm, no objection
may be made against the tribute system, since, in this case,
the lribute is nothing but a tax paid by the allied compatriots
in return for tbe duties wbicb the Muslims undertake. But
where the Tribute Agreement is used as a means of regulating foreign relations with other nalions, the tribute system
should not be taken as an authentic element in the agreements. Jt would be possible to draw up the agreements and
co:iclude them on 11 different basis according 10 the views of
the Muslim leaders and rulers."
In giving an answer to the above statement, it would be
necessary to consider tbe following points:

1. Even though the tribute system

ba.~ been used severely

by such great empires as Rome and Iran in their forcigo relations with wea.k nations and groups, yet, as we SRid before,
rhe si milari1y between tbe old and new order is only a superficial one. and they arc quite opposed in their nature and results. This bas already been sufficiently expanded upon.
2. The application of the legal terms of tbc law of the
Tribute Ai,'Teernent, respect of any agreement is possible only
when all the necessary conditions of the said law are Included
in the agreement. The mistake made by tbe above writer is

Minority Rights

125

that a peace treaty in the foreign relations of !he Muslims


may be concluded in the form of 'Hudnii' (truse) agreement
in which there is no financial commitment, and both parties
are perfectly free in Jhis matter. But such a treaty, even
though binding, does not possess the legal value and vestiges
of the law of the Tribute Agreement
It is true that a competent Islamic government in view
of its conditions, exigencies aod interests, may conclude a
temporary peace treaty of 'Hudna' or a permanent Tribute
Agreement in order to establish peace in its foreign relations
with religious govemmenl5 aod nations of ahlul ldtlib, but
this does not mean that the Muslim rulers can 11lter tbe Tribute Agreement or apply it in the case of the agreements
lacking the necessary condition.

3.

Contrary to the supposition of the said writer and bis


teacher, in the present conditions of the world and extensive
international relations, !he tribute system is not only unalterable, but in view of the reciprocal undertakings of governments in international life, tribute may be considered as the
smallest and the most trifling responsibility that the allies
may undertake in return for the duty of security and over all
defence that the Muslims undertake.
In the .present W<?rld where the exploitation of weak and
small countries tak<;s place by powerful governments through
various forms of legal and official agreemt!nl~. and the military and defence treaties are concluded for the protection of
the security of weak countries at the cost of the loss of abundant sources and infinite nacural wealth by the latter, and
where big powers use all kinds of pretexts and scenes to drag
other countries and nations ioto taking part in such agree-

..

Minority Rights

126

ments, the tribute system is tbc fairest, and tbe most peaceful
and humane method in international relations.'
A survey of the internation.al treaties and joint military and
defensive pacts concluded with.in the framework of tbe western and eastern blocks with the Third World can serve to
clarify this uodeniablt: point.
From the viewpoint of international law and rights of aliens and minorities too, the tribute agreement bas special advantages and genuine superiorities witll which the reader bas
already been acquainted through previous discussions, and
they will be elaborated in the next chapters.

Measure of Financial Commitment


Financial Ability -- Consent
lo a/-Mahsuf Sbaykh 'ftlsl writes about the measure of the
financia l commitment wllicb is stipulated in the Tribute
AgTeement.
"Tribute has not a fixed measure and amount. The determination of that measure, in view of the financial ability of
tbe tributaries, depends on the judgment of the Muslim leader
wbo may either levy it on cultivable land or on per bead basis.
"According to our narrat ions, the Imam Ali bas stipulated
1

AlQanun ,1d-Dawli al-"Am, by Dr. Junayh, p. 132.

'

Minority Rights

1,27.

48 dirblll11S annually for the well-to-do, 24 dirfJRJDs for the


middle classes, and 12 dirbams for those with low income.
These amounts were either based on the past considerations
or on the present interest"
Here we come across ano1her manifostation of justice in
the law of the Tn'bute Agreement, since the measure of fi ..
nancial commitment is determined on t.h e basis of the. two
following just principles:

1. Consideration of the economic condition and 1inancial


ability of the allies, and the power of paymeol of each one of
them io proportion to his financial standing.
According to a true narra1ion, Zurara says: "I asked the
Imam ~-~adiq about the amount of the tribule and whether
this measure must no! be exceeded. He answered: 'This depends on the judgment of the leader of the Muslims. He fixes.
the amount in proportion to a tributary's ability to pay and to
bis financial standing, They are a group wbo have undertaken
to pay the tribul~ in order to be saved from captivity and annibi.lation. Therefore this tribu1e is paid by tbcm in proportion to their financial ability. "1

2. The view of the responsible Islamic government concerning the amount of the tribute is stipulated on the basis of
the consent of both parties io tbe text of the agreement. This
agreement may be reduced to the minimum financial ability
of the allies. For example, in the early days of Islam, in maoy
Tribute Agreeients, the annual amount fixed for each person
was one diniuwhich was the equivalent of 5 grams of gold in
price. Sirni.larly the kind of the tribute as to its being in cash
I

WaS4'ilush-Shi'tib, Vol. 11, CIL 68

11

128

Minority Rights

or in the form of goods was arranged by mutual cooseut.


Here it should be poiotcd out that the goods paid to the
Muslims as tribute, must not be of a kind having no monetary
value, in Islam such as alcoholic drinks, pigs, musical instrnments and any tools or ulensils used only iu illegi1ima1e
ways.
But if the tribute is paid out of the ~ale of the above commodities by the allies. it is acceptable, with the reservation
that any respoosibility accruing from it will be the allies'. 1

The Duty ofthtl Tribute Collectors


lf the commitled allies declare indigence at lhe lime of
collecting the lr ihute, or refuse to make payment, they are not
to be lreated rough ly, oor wi ll their property be forcibly conliscaled. Muslim agent~ arc duty-bound to treat them leniently.
The imam Ali in his ios1ruction issued to Malik ibo alAshtar, concerning the act of collecting tributes and 1axes,
said:
"Jn collecting tribute make your inquiries io favour o f 1be
tax -payers since iu amending lbe laxes and arneliora1iog the
condition of lhe tax-payers. the 01hers will be io a greater
tranquility, and without this reform and improvement the
others find no peace of mind, for all people live oo taxes and
tax-payers. Your thought must tum more to the prosperity of
the land rather than to collecting taxes, since taxes cannot be
obtained without the prosperity of the land. He who seeks
taxes without thinking of making the land nourish, will, undoubtedly, ruin the cities and destroy the state of Allah's scr1

Ibid., Ch. 70, h wnhiml Kal.!m, vol. 21, p. 261.

Minority Rights

129

vaots, and this condition can last only for a little time. Therefore if the tax-payers complain of such things as their heavy
obligations, or of plagues io their fields owing to being coveced with water or ruined because of the lack of water, you
should give them reduction to the extent of giving them the
hope of improving their conditions. Do not ever take ii bard
to make their burden li.gbt, for such ao extenuation will serve
as savings wbicb will be retum.e d to you in the form of subsequent r.esult in ma.king the country prosperous and your
rule beautiful. Moreover, you Cl.lo io this way win their appreciation aod gratitude, and feel happy and satisfied for
having enforced j ustice~ After such ao extenuation and mitigation, a situation may arise when you will need their aid,
and tbeo they will be quite willing to accept a heavy burden,
for then, the couulry can bear every type of responsibility. A
country is often ruined as. a result of people's indigence,
which is lo its tum caused by the eagerness of the rulers in
amassiug wealth, !heir doubting the durability of their rule,
iheir indifference to the councels of time, and their neglect .in
learning the lesson ofhisiory." 1
We have quoted this fine charter here to show that the
taxes about which such just instructions were given include
the tribufe which is levied oo minorities and tributaries. At
the same time the sp.irit of the Islamic justice ~lid indifference
to the wealth amassed in this way are inherent in th.is charter,
as well 8S' endeavour to achieve the prosperity of the country
and the amelioration of the tax-paying conditions of the taxpayers, and spending the funds to make the realm flourish, as
well as m11ny fine points about the coacttrient of taxation
1

NllhjulBa/4&fJBh, Letter No. 53 .

130

Minority Rights

Laws, collection of taxes and spending them, all of which are


for ever au honourable document in favour of the Muslims.
By mentioning the charter of the .Imam Afi, we are re.minded of aootber charter of his, issued as a directive to taxageots concerning the collection of tax.es. This charter which
is mentioned as the fifty-first Letter of the Imam Ali in Nahjul-.Baliigba, gives the following instructioo lo government
tax agents:
"Remember that the duty entrusted to you is an easy one,
but its benefit and spiritual reward are great. If there were uo
punishment for the injustice and oppression which are forbidden by Allah, undoubtedly no one would have an excuse
in avoiding oppression inspite of the fact lbat a reward is
promised for abstaining from injustice and oppression.
"Show eqnity to people and fortitude towards their needs,
for, you are the keepers of their wealth and lhe barristers of
the UmmalI, and the deputies of the leaders. Do not enrage or
put Lo shame .anyone for bis demands, or prevent him from
fulfilling bis wi"sh. Do not lead them astray by your instruction. Beware of seizing and selling their summer or winter
garments for the sake of exacting tributes and tax.es, or confiscating their quadrupeds which they need in their work, or
taking back their slaves. Do not beat anyone for the sake of a
dlrltam, aud never encroach on anyone's property, wh.ether a
Muslim or au ally, except taking a h orse or weapon which are
used for aggression against the Muslims."'
Some historians have quoted a similar charter related to the
governor of Alcbara, as follows:
"When you p_o nie upon them beware of selling their gar1

Ibid.

I
~

Minority Right~

131

ments for the tribute even if it is summenime and they may


oot need those garments, uor should you sell their provisions
and quadropeds, I do oot permit you to whip auy ooe of them
even a single stroke for the sake of a dirham, or k~-ep them
standing in demand of a dirh11111. "
The above agent says: "1 said to the Imam /\li: 'What
should I do if I bad to return emptyhanded by following this
order?' The Imam Ali answered: "Woe upon you! We are a
group commanded to show forgiveness and benevolence. "
In view of the explanation we have given about the reality
of' the tribute and its amount, we can understand the worth of
the researches o( some orien1alis1s who have considered 1he
tribute to be an imposed tax and an abuudao1 source of revenue for an Islamic governmcor, and as a decisive means. of
conv.e rting the 1rib11tarics ro Islam for the. sake of cs~itping
from the payment of tribute. '
Whal is m.ore surprising is thal Julius Wclhauseo and
Becker. 1wo famous orientalists, in their relcvat)I research,
insist lhat th;: tribule was not a rax on the tributaries, and that
what the jurisprudcnls bad described in ibis Con11ec1ioo was
not true, as They bad forged ii in order t< conform the e~o
nomic system of their time with ibc period of victories.
Daniel Sident, an orieotalisl, in bis book, Tribute in /s/;1m,
refers to the above orientalis1s and says "The fact tha1 a
scholar sbolild refute the entire mailers obtairicd from a certain source and consider them forged, deserves alteo1ion. but
it is not underslandable lo take a part of au unerancc as 1rue
and the rest as untrue without giving a good reason for it. "2
1

Jizyah JD Islam; Cl. 1.

' Ibid. p. 14.

Tribute or I.And Tax?


ribu le and land tax are 1wo Islamic j urispruden1ial
terms cacb of which is 11sed in special cases with a
special seose in lhe a111bcotic documenL~ of the Islamic law, But there are two main errors in tl:e discussions
made related 10 them:

AJ-Baladburi in Futiibil-Buld110, the judge Abu Yusuf in


Al-Kbirlj and some other writers have used (tribute) in relation 10 land lax in some cases, and khiriij (land tax) for per
bead toll and ba'le employed each of them in lieu of the
otber. 1
The result of this carelessness bas been that some ori~ntal
ists have in their researches concluded that these 1wo lcrms
are synonymous and both mean imposed lax.
Welbousen, affirming the above view in his Arab Govcrorncat aad its Collapse, claims 1ba1 the lax levied hy the
Muslims consisted of two kinds, namely land tax and p.:r
head tax., but the Muslims did not distinguish the difli:rcncc
1.

,Al BIAUlluri says: "A land llRble 10 jizynh of 1hc non-Arnb land"
Abu Yusuf. in his alKhirii;; says: "'J11e khirnj per capi1a", 01hcrs l>O
sid: "Jizyh on 1he land."

134

Minority Rights

between the two and were ignorant of it.


But such obvio11s errors o f the o.r ientalists are essemially
due to the fact that in their studies they do not refer to the
original sources, and even in the questions related to the Islamic law and jurisprudential terms they confined their Jesearches lo a supefficial survey of historical books and presented their conclusions as real research in Islamic branches
of knowledge. For instance in the case of the tribute and laud
tax which are cardessly and figurati vey interpre1ed, they
have taken them as synonyms to mean imposed tax.
But a snidy of the authemic legal and .iuri sprudeu1ial Islamic docume111s clearly shows tbe difference between the
two.' The jizya/l (tribute) was used as per head lax stipulated
in Lbe tribute a greements, while the khiraj was used for laud
tax.
More<iver, the tribute was used only in the case of the financial commitment of the ttibu1aries whereas Lbe land tax
WllS used for both lributaries ' commitment aod rent of the
lands placed by a competent Islamic govemmen1 111 the disposal of lbe individual Muslim or ooo-Muslim .
Sometimes land tax was stated in the Tribute AgreemenL~
in lieu of tbe tribule (per bead tax), and the tributaries undertook to htmd over a parl of their crops 10 lhc gove.rume111 in
the place of the annual land tax. That is why these two terms
became occasionally interchangeable.
2.

Some of the Sunni jurisprudcnts following tbe example


of the second caliph have recommended the use ofbotb terms
of lrihute and laud taxes to be stipl1lated in the Tribute
1

W1JS&'j/us/J-!>]1i'IJ11, Vol. 11 , Chs. 68 and 72.

Minority Rights

135

Agreeroeots which the tributaries undertake lo pay.


Some orientalists, without heeding the evidence and vie ws
of other jurisprudcots, have considered Ibis matter as an indisputable Islamic fact and have concluded that the heaviness
of the tribute and land taxes on non-Muslim farmers COmpelled tbem to adopt Islam in order lo be exempted from perhead (tribute) tax.
But, according to some authentic narrations recei ved ftoni
the religious leaders concemiug this question, the tributaries
are obliged only to pay 1he,jizyah (the tribute). Neverthe less,
both parties may state the khiraj (land tax) io lieu of tbe tr ib
ute in the agreement. Therefore. the uibu taries froancial obligations can be decided according 10 either of the said fonns.
Whenever they accept lo pay the jizyah (tribute) they will not
nave to pay the khirli} (land tax). But ff both p arties agreed
up on the laud tax, fbc tributaries will be exempted from
paying the tribute.'
When land tax is agreed upon by botl1 sides of the treaty,
its amount is determined in the same way as the tribute on the
basis oftbe financial ability of the tributaries, and since these
tributaries are, i bus exe mpted from the payment o f auy other
tax, it is clear that tbe tributaries would, aftel' their conversion to Islam, have a !,'Teater finaocial commitment, since the
Muslims in the ca!.-e of Zakiit alone have a greater financial
obligation than the tributaries, and this tax is only one of
many taxes the Muslims have to pay.
The conclusion drawn by some orieotalists in this conoec1ioo, if we think optimistically and refraio from sayiug that ii
was done on purpose an for imperialistic ol~]ectives, is uoI

fbid., Ch, 68.

"

136

Minority Rights

doub1cdly due 10 one or two exceptional historical 1ncideo1s.


One such case is related 10 the repon of the governor of
fgypl to 'Umar ibn Abdul 'Aziz, the Omayad Caliph, saying:
"The tributaries are rapidly turning to Islam, with the result
that tbc tribute reveuuc bas diminished cousidcrably to tbis
extent that I was compelled to borrow twenty 1housand dinars
from al-Hlirith ibn Thabi1 for administrative expenses."
Another case is related 10 the govem<Jr <Jf Iraq, Adiy ibn
AtJat, writing to 'Umar ibo Abd11I Aziz:
"TI1e people are luroiog to Islam in groups, and I fear 1ha1
tbc govemmeol revenue from lributes may dccrcas~. "
II is uol clear wby lhc orien1alis1s, who have coosidcrcd
these reports so importao1as 10 base 1heir rcscarch~s on Ihem,
bavc failed 10 follow up the story and ign<Jrcd lbc aosw.:r and
the reactions to the report~ of the law-ranked government
agents.
The history which mentions these exceptional cases has
also spoken of lbc sharp renctino lo them by the rulers of the
lime. For example we read 11ftcr th~ repon of lhc governor or
cgypt which was received by umar ibn 'Abdul 'Aziz, 1hal
tbc lalll:!r wrote the following answer augrily:
"I made you governor of Egypt and know your wcaku..:ss. I
have ordered my envoy l<J deal twenty lashes of the whip on
your head. May Allah disgrace you for your in h:nlion! Do
not demand tribute from someone who has converted 10 Islam. Allah has sent Muhammad for guidance, 001 for collecting 1ribu1cs aod wealth."
He answered lhc rcporl of the goveroor of Iraq i11 1hc following way;

Minority Rights

137

"I swear by Allah lha1 I (as a ruler of the lime) love to sec
411 people converted to !slam, so that you and I eugagc io 1j/.
legc and get our bread by our labour."
Concerning land taxes in the fonn of rent s1ipulated by llw
oompetc nt Islamic government, we must point out that this
kind o f tax bas no connection witb the tribute and the T ribute
Agreement, and when the tenant o f such lands is a oo nMuslim. bis conversion to Islam does 001 exempl him fro m
land tax unless be transfers the laud to someone else.

Who is to Pay the Tribute?


As a Tribute Agreement is coocludcd with an organised
group, it may also be concluded privately with au indi viduRI.
In either case all those who are included in the agn:ement are
liable to pay the tribute. But in cases where tbc tciblllc is lo
be paid per head, there are several gro ups of tributaries who
are exempted from the paymeot o f the tribute e ven tbougb
they benefit from all the righL~ and privileges of the agreement

Tl.u:.. fir.st G~<mp;


These are the children and under-age persons as d epend
eots of their fa1bers, and as long as they have not reached che
age of puberty they are exempt from cv~ry such respousibil
ity. But on reaching tha1 age they arc expected to distinguish
proper ways through in1el1~1 and reasoning, and if tb.:y d e:
cide to follow the creed of their parents. 1hey arc d ircclly and
personally bound by the terms of the Tribute Agrecrnco c.
other wise tl1cy must leave the Islamic realm.

136

Minority Rights

The...Secon.!l Group:
Women have no tinaocial responsibility, and by depending
oo their husbands they benefit from the privileges of T ribute
Agrccmcot. Wo.men and girls who are have no husbands may
take part in the Tribute Agreement and benefit from RU its
advantages without having a financial rcsponsibili1y. The
Muslims cannot exact anytlliog as tribute from them. and
every agreement involving financial commilment for women
has no legal validity.
The late scholar al-Hilli. afler explaining 1be above poinl
in TadhkiJatul-Fuqahli, says:
"Wh..:n women offer to pay the tribute, they should b~ informed 1bal t hey have no obligalion in llLis rcspccl. nnd if,
inspite of knowing that women are exempt from the paymcut
of the tribute, they desire to pay i1, the Muslims may accept
the payment as a gifl. not as a tribute. lo any case they w ill
have no obligation whatsoever, and if Ibey change their mind
before payment, Ibey w ill not be compelled to pay.'''
T.h~.. Third

Gu1up;

T he poor and the needy, 100, are exempt from tribute payment according to a number of jurisprudents includ ing asbS baykh al-Mufid and l bu Junayd, since tribute is like the
:t11kiil which becomes obligatory at the beginning o f every
ye&r. Thus a poor man who bas no ability to pay bas no obligation.
Some jurisprudents have considered the poor of 11h/ul
}(j/iib liable to tribu1e payment io accordance wilh 1be Tribute Agreement. Tbcy argue 1ba1 lbe tribute is paid in rc111ro
1

Shaykh Tflsi refers

10

this in RlMabsOf, Vol 2, p. 40.

Minority Rights

139

for security_and Iesidence in lhe Islamic C-Ounuy and 01ber


privileges granted to 11ie tributaries by the said agr.eement.
Therefore both the rich and poor are equally liable to pay it.
Sbayld1 Tu~l. affirming. ibis view in A.J,M1rbsU.t says:
''There is no reason for oinitting the lrilmle in the case of !he
poor, since they are included in !he general.ity of 1h e verse 29
of soratul-Tawbab. Therefore if any member of the committed group is unable to pay the 1ribute, be remains 11 debtor
until he is able to afford paymen1." 1
l:lut there arc the two following re aso ns for supporting rhe
first view:

1.

rn view of the analysis given before of vc::rsc:: 29, chapter


Immunity, the last 1>hra..<e shows that the responsibility for
tribute payment depends on financial ability, since lhe word
' yad' does not mean ' band' bnl ii means ' abilily' upon which
depends the payment.

2. In some narrations ii is explicitly stated lbai

the amount
of tbe tribute is determined ou the basis of the measure of
individual wealth and abilily to pay.1 Therefore, bow can
those who lack financial ability be in a posiliou to pay, since
their ol)ligation to pay even a trifling sum is beyond what
they can afford'!
Here ii must be pointed oul th~t it rarely happe ns for person to pay a tri!ling sum annually, and if in accordance wilh
lhe secood view the poor are obliged to pay lhe tribute, its
amount will be in proportionate to the ir minimum ability to
pay.

I
2

Ibid.. P 38.
WnSii'ilushShi'ah, Vol. 11, Ch. 68.

140

Minority Rights

.'rh~. F9.UJ:~h. Gt.o:up;

The aged and the feeble among the minorities are exempt
from tribute payment on account oflheir willy-nilly for being
under protection. But there is no unanimity among jurisprudents on this question., and although these groups of the aged
and the crippled are secured on the part of the Muslims if
they do 001 engage in fighting and carrying weapons, yet this
is 001 an adequ11tc reason for being exempted form tribute
payment, and they a.re considered liable 10 pay it according to
their financial ability.
Thus even if these persons are feeble and uoable to work.
there is no reason to exempt them from payment since they
benefit from all the rights and privileges of the Tribute
Agreement like other tributaries, and the Muslims undertake
certain obligations towards them. Therefore they are liable to
payment in propor1iou to their financial ability. But if they
are so poor as to be unable to pay, they fall under group
three. lo such case they may even benefit from a share of the
Muslims' public fund.
History illustrates this manifestation of human justice io
the following example:
"On his way the Tmam A li saw a distressed old man who
was begging from people for aid. He al once inquired about
his condition. They said be was a Christian. The lmam Ali
cried 0111 a.ogri ly:
"O' Muslims, you have imposed so much labour on this
man until be has become old a1Jd feeble and then you left him
to his helplessness and privation'. He then ordered to pay bis
allowance out of ibe public fund." 1
I

Ibid. p. 49.

Minority Rights

141

Ffth.G.ro.UP.:
The priests, clergy, mooks and the others engaged in Lelig
ious services are included in the Tribute Agreement without
bearing any financial obligation. But some jurisprudents
doubt about this matter and con.~ider those of them who have
financial ability Liable to pay the tribute.
In view of the immunity enjoyed by this group, even if
they do not participate io the T ribute Agreement, and owing
lo the undeniable and explicit fact which is mentioned in the
Prophet's 1reaty with the Christians of Sinai, they arc indeed
exempted from tribute payment
The sentence wriuen in the Sinai treaty is as follows:
"Judges and monks are exempt from ld1irAj so are those
engaged in worship.''
What is meanl by khiraj here is undoubtedly the '1ributo:'
since khiraj in the sense of "rent" the lands committed to the
tributaries related to monks and religious men is no11sc::nse.
Moreover, the .said treaty has uot used the word in the taller
sense and in many cases of its use it always means the
' tribute'. 1
The late Sbaykb TUsi, in Al-Mabsut, iaspi le of weakeni ng
the view concerning tbe exemption of tbe lancr two groups
from tribute payment, has confessed that there is a narration
concerning their exemption.2
Tl!.~...S.ii;;O:t.G:r9.YP;

Tbe lunatics and those who have lost their senses or aro: n::gardcd among the s1\1pid or those who bear no obligation and
are exempied from tribute payment.
: !,oak up 1be 1ex1 oftbe Mid lreaty.
Al-M~bsof, Vol. 2, p. 42.

Minority Right

142

The Imam a~-$Adiq was quoted to have said: "lslam's tendency is that no tribute is to be levied from the madmen and
those who have lost their reason and the ability lo understand."'

Exemption from Tribute Payment


Tn additioo lo the above-mentioned groups there are several cases of exemption from tribute payment, i1Jcludiog the
following instances in which the Muslims have no. right Lo
demaod tribute from them:

1. In conditions where the interests o f !slam and the Muslim society necessitate a closer and friendlier relalioos with
the Jews, the Christians or the Zoroastriaos, as binding them
to trib\1te payment may cause them to take sides with the
enemies of Islam, or exempting them from the tribute may
augment their interest iff Islam and their conversion to lsla.m
and join the rank of Muslims.
2. Whenever the Muslims fail 10 perform the duties stipulated in the Tri bute Agreement, the obligatioo of tribute
paymen1 will automatically be removed from the tribularies
since in sucb cases the Tribute Agreement becomes automatically null and void.2
3. When lhe Mu.slims are in need of the milifary assistance
of lhe tributaries, the laner may be exempted from tribute
payment tlHougb a joint treaty of de(euce. 3
4.
1

Every 1ribulary who explicitly acknowledges the two

W.s/J 'ifus/i-S/Ji'al1, Vol. I l, ch. 51.


' Af-Khimj, p. 139. Futtihuf Bu/don, p. 143.
) For eviilences refer lo FutfJJwf Bufd.1I1, pp. J 66 and J 68

Minority Rights

143

religious priociples of Islam, namely testifying to the oneness


o f the Creator of the universe and the true worshipped One.
as well as the ordai11meot o f the Prophet of Islam by J\llab,
and is thus formally convened to Islam, is automatically ex.empted from tribute payment since tbc Tribute Agreeme nt
becomes lhus null and void, and bis duties aod rights will be
similar to tbe olher Muslims.
Clearly the exet)lption from tribute payment in this case
does not absolve a tributary w ho is converted to Islam from
the payment of tax.cs to a responsible Islamic government so
as to ~rea1e tbc impression that the monetary obligatio n in lhe
Tribute i\grcement has been used indirectly as a means of
ioduciug conversion to Islam. For as we have already said,
though the conversion of the tributaries nullifies the agreement and tribute payment. yet there follows no mitigation of
their financial duties by this means. On the contrary, new
duties and financial commitmeols arc thereby added, such as
the Zllkll which is much heavier than the tribute, and other
rcs1ric1i ons which do not ex.isl in the ir free cond itions o f immunity. '
As the tribute is exacted annually , if a tributary is convertec.I during the tribute year, some jurisprude1ns consider
him exempt from lhe whole of the annual tribute, and if tbc
tribute of that year bas no l yet been paid, and if his conversion to Islam bas oot been for the purpose of escaping payment, Shaykh Tusi aod some other jurisprude ots consider
him exempt, where as the J\llamab Hilli and a some othe r
1
Other explanation$ in this respec1 hAVC fonncr1y been telttted \1t'h1ch
disclose. 1he ptejudicc of so1ne orient1:11is1s v.1ho spent 1hcir Live.s 1n <l1~

tonin&tho facts of Islam.

144

Minority Rights

j uris1m1dents thiuk that bis conversion absolves him in every


case from tribute payment altogether. Concerning the tribute
of the past year which is considered a debt, they said: The
tribute is demanded for a special reason, and when the reason
is removed, the obligation to pay becomes automalically nu ll
and void.
Moreover a narration quoted Crom the Imam Ali (A.S.)
states: "No tribute is imposed on a Muslim. T herefore there is
no di fference between the tribute of previous years and the
pr esent, and also between a case when conversion is for the
sake of eJtemptioo from the tribute or not at all."'
fakhrul-Mubaqiqiu, quoting the above view of some j urisprudents, says in its support:
"W here all the vestiges derived from un belief and atheism
arc removed by conversion to Islam, the omission of the
tribute altogether is proved even more evideotly, 2 as is
shown by the following narration o f the Prophet of Islam
who sai d:

"Islam uu lli(ies wh atever is related to pre- Is lam."


5 . T he dec.:asc of a tributery b.:fore the payment of 1ribute
is d ue. caus.:s the omission of 1he tribute.3 But so me j urisprudeots are of the opinion that be is liable to pay that portion of 1be tribute which is related to the time when he was
st ill livi ng, and this must be paid ou t o f bis patrimony. But if
1

TadhkiratuJ Fuqahn: tbc Book ofHJ.Jihad, p. 442.


liefn/Jul Fawn 'id, Vol. P. 3~6.
' Ibid., p. 387.

M inority Rights

145

he has no patrimony. Ifhe bas left nothing, then the tribute is


rendered null, and his heirs have oo obligation to pay the said
sum on behalf of the deceased. If that lributery has already
paid his tribute, it is 10 be restored to bis heirs, and if bis
death bas occurred during the year, the amount related to the
remainder of the year will be re.s tored, according lo the second opinion.

"

The Tributaries in al-.flijaz


ccording to some narrations mentioned before,
nou-Muslim subjecls (the 11ibutaries) throughout
!he lslamic realm have 110 financial obligation or
taxes to pay exc.:pt the 1ri1Jule in re1um for the freedom and
privi leges they cojoy in accordance with the join! Tribulc
Agreement. Tiiere is however o nc cxceplion to this by which
the tributaries must pay a special tax on the basis of aoo1bcr
agreement.
This ea.~e is related to the time when an individual or gro up
of tributaries enter the land of al-~lijax and stay there fo r the
purpose of' commcrc.c or other legi1imal<: activities.
Owip,g 10 the rcspecl and sanclity 1lrnt lbc laod of al-I~ija~.
possesses in Islam for various reasons, this exception is
automatically stipula1ed in 1he Tribu1c Agreemen1 tha1 1he
non-Musl.ims even if they are allies and confederates, are no l
1
allo~cd 10 reside permanently io al-IJij&z.
Consequently, lo enler al-l;lij az and eogage in commerce
1here, lhe tribularies must obtain an official permil from 1hc
competent Islamic authorities. This permi1 is oot given gra1is

WHSA 'ilus/1-Sl11"h. Vol. 11, Ch. 52.

fs!A111 "'" llu9flq-eMilal,

p. 198 ..

148

Minority Rights

and applicants must pay certain duties for it.


Shaykb Tilsi explains this point io the following way:
"Tributaries may engage in commerce in all Islamic realms
except in al-l;Iijaz without any hindrance, since they have
perfect freedom io this connection. They can reside io those
realms as they wish, but they must oot enter that part of alI;{ijaz which is sacred and as for other parts of al-l~ijaz, Ibey
must obtain official permit to enter, and if they enter al-l;Iijaz
without permit, they will be punished according to tbe law.
But Muslims have oo right 10 kill them for entering prohibited zones or imprison !hem since they are immune according
lo the Tribute Agreement
If the tributaries desire to enter al-l:lijaz, their purpose and
destination must be investigated. If they have come to sign a
pact, or if Muslims' interests and the Islamic society's needs
require it, they may eotec al-I:Iijaz without any financial obligation. But if tbc Muslims do not need them, or if they intend
to stay in al-1:Jijii7. for the purpose of commerce:. this is not
possible without paying the prescribed tax.
On entering the land of al-~lijaz, the tributaries are 001 allowed more than three days' stay in each town of al-l;lijaz.
and if they enter al-J.:iijaz without au official permit, they
must pay the prescribed floe. Some said that in such a case
nothing was de.manded (rom them. Such a view seems likely
since they had oo obligation in this matter. This involves
their immunity agaiost any imposed lioe. Others declared
that such transgressors will be treated in the same way as the
Muslims who enter their couotrics, are treated.
If the tributaries engage io commerce in al-l;lijllz. they
must pay au annual tax, unlike non-committed aliens who in

Minority Rights

149

case of eog.agiog in comme.rce in the Islamic zones are required to pay tbe prescribed tax every time they leave 111c
country since their right of stay in an Islamic. counlry is a
temporary, and there is a possibility of their 001 retuming to
the Islamic land after leaving it.'
The !ale 'Alliimab al-Hilli, after relaliog Abu Hanifab 's
theory about "recipmcal treatment", by way of refuting it,
says:
"Wheo the lraosgressive tributaries are ncalcd iu the same
way as their corcligiooists treat the Muslims io forci gu countries, as reciprocal, ii will. iii fact, be as if an innocent persoo
is punished in leiu of the criminal. If the Muslims, howev~r.
were lo apply the reciprocal method. tbey must, as the others
do, kill their confederate tributaries wbo live under their
protection. "2

' AJ-Mabsai Vol. 2, p. 49 ..


' 7adhkiratulFuqabs ', Kitabul Jihad, p. 444.

Chapler Five

Muslims' Commitments
A Survey of the Rights and Privileges
ofthe Minorities in the United
Islamic Society

Part one: Inevitable commllmenls


Part two: Commit.able Responsibilities
Part Three: Closed Boundaries (Illegal
Commllmenls)

I.

Reciprocal Responsibilities

and
The Duties ofthe Islamic Society
Towards its Allies

ccording to the Tribute Agreement, in return for


the trilling duties arranged for commi11cd allies, a
number of responsibilities and commitillcnts arc
prescribed for lbc lsfamic society which mus1 ncc<)., sarily be
fully carried out by the competent and responsible Islamic
government wilh all its possibilities.
Although the Tribute Agreemem is apr>areut ly couchtdcd
on the basis of mutual commitmen\s, yet in view of lhc bcavy
weight and value ol the commitments undenaken by 1hc Islamic society, which is incombcnt on the res.ponsible and
outboriscd Islamic goveroment to perfonn, in rdurn for lhl!
acceptance of the p erfectly nomlal condi tions already me ntioned by the followers of heavenly Books, 1his fac1 becomes
more evident 1ha1 ls.l am prepares rhe ground for peace and
o-existence even by accepting h~avy conditions and ahuo aut obligations. In order 10 give a legal vaJidiLy to 1his one-

'

Minority Rights

154

sided commitment. and iospitc of tile valuable advantages


graoted in this way to the said groups, Islam oflers the proposal of peace combined witb lbe preservation of freedom
and human aspects in the fonn of a joint treaty and bilateral
agreement on the basis of mutual consent and recip~ocal rcsponsibi lilies.
ln such a system even peace is not imposed on tbc adverse
groups, nor is it granted Lo weak groups and nations or to minorilil!S as a bounty or gift which is natun1lly .:oupled with
some kind of abasemanL On the contrary, in view of all human ~peels and with a kiud of broadmindedness. tbe said
groups arc invited to conclude a treaty in which reciprocal
obligations are undertaken. But in order to remove .:very
barrier, it reduces the conditions for peace to its lowest normal level and diminishes the duties and responsibi lities of the
allies, and at the same time undertakes great obligations in
return for the light undertakings of the confederate allies
which comprise m any rights, privileges and freedom for
them.
Tn general, the responsibilities unden aken by the Islamic
society by means o f a 1.ribute agreement may be divided into
three groups:
1.

Duties which arc binding for Muslims

2 . Responsibilities that a compctenl Muslim government


may undertake pending exigencies and agreement.

3. Conditions and illegitimate obliga1joos which oo


authori ty may undertake on behalf of the Muslims in a Tribute Agreement.
lrrespectjve of 1he latter conditions, stipulating or non-

'j
Minority Rights

155

stipulating them would be veid of any legal value, concerning two types of the above conditions, it must be said that the
first group of duties must be stipulated in tbc text of the
Tribute Agreement, and its non-stipulation in the agreemcnl
would never absolve the Muslims for the responsibility wi1h
regard 10 those conditions.
T he secoud group- bec.o mcs binding only if it is o;:x.plicitly
stipulated in the text of the agreement and agreed upon by
both parties. In that case all Muslims must observe tbe s11.id
obligations and the competent Islamic government must
guarantee its execution and uodcrtakc it to the limit o f its
power.
Now we will deal with the manner and deta ils of fhe tl1rec
above duties aud cooditioos in so far as the size of the hook
permits.

...

..

Part one:
Unavoidable commitments of the
Muslims

nee lhe unity and the solidarity a:re established be1ween lhe [slamic society and the .society of lhe
followers of 1be heavenly religions ( ablul ldtlib)
tbrougb the conclusion of a Tribute Agrccmen1, a number of
duties and responsibilities will be imposed on lbe autliorities
of the Islamic society wbicb must be accepled. These duties
will be discussed here under lhe title of unavoidable commitments of Muslims.

L An Overall Immunity
The first duty of the Muslims the Tribu1e Agreement imposes upon them is to o!Ier an absolute a.nd overall immunity
to the tributary allies on the basis of which the life, property
and honour of the allies are completely protected by the re.sponsihle Muslim govemmenl, and they arc allowed io enjoy
these privileges like olher Muslims.
This guarantee is bolb inlernal and exlernal. Internally, all
lhe 1ribu1ary allies throughout the Muslim realm are protecled

158

Minority Rights

agai11s1 every transgression upon lbeir life, property and houour and other legilimate and legal rights. 13xtcmally, the
Muslims undertake the defence against the aggression o f
outside enemies from beyond the Muslim borders, directed at
the allies, as to be defending the Islamic society wi lh all 1heir
migbl and possibili ties.
As we said in the analysis of the verse 29 of suratulTawbah, the Tribule Agreement is considert:d by the Qur'~n
to be the end of hostilities, and tbus every hostile act by the
Muslims against tbc li fe, property or honour of the allies, is
condemned and punishable.
Therefore every Muslim or non-Muslim who commits
murder or injury or molestation against an ally is punished
according to tbc judicial and pena l laws of Islam and th.: Islamic courts and responsible executive organisations are
duty-bound to investigate such matters and carry out the enacted puoishme1.J1.
Similarly if theli or trausgress ioo is committed upon tbc
prop.:rty or financial rights of the tributaries, tb.:ir complaints
are investigated like those of the Muslims according to the
Islamic laws and regulations, and the guilty is puuisbcd. In
the samo way, any offense agains l the honour of tbc: tri bu'inry
allies is legally deal! with and the guilty is puoish~d.
A narration of the Holy Prophet says: Beware that if anyone treats an ally (a confederate) unjustly or viola1es bis 1iact,
or forces him to work beyond bis eapabilily and possibility,
or takes something from him contrary to his wi llingness. 1
will call him to account on the Day o f Judgment"'
Tbc Prophet is also quoted as sayi ng: "I le who molests any

Minority Rights

159

tributary does nol beloug to me nor is lie among my followers.''


The Imam Ali say in this <:onnection:
"Those who conclude a treaty with us, pay us tribute in order to have their property protected as ours. and their blood
respected and immune as ours."'
In another narration the Prophet said: "Anyone who kills a
tributary will never breathe the smell of paradise."
Al-Mawardi gives the following quotation in al-AhkamusS11haniyyah: "The last word rccommeoded by the Prophet to
the Muslims\vas: Preserve my memory in my pacts."1
In th.e treaties concluded by the l'rophet with the followers
of heavenly Hooks, the commitment of an overall guarao1ce
for the tributaries has been explicitly stated lo the following
two ways:

1. Abstention of the Muslims from any kind of aggr~siou


and injustice against life; property and honour of 1be tributary
allies.
2. Protecting the life, property and honour of the tributaries
and defeuding them against foreign aggression:
Concerning the property of the tributary allies we should
add the point that the word '11roperty' does not only include
their goods which have a value according to the Islamic law,
but also a financial guarantee for anything which they legally
flbssess and which is considered valuable to them. For example beacon and alcoholic dri.nks and other kinds of flesh
the consumption of which is forbidden in Islam as well as
.' ."Nafb1u-Rtiyah, p. 381 quoting Allwul HttJb, p. 729.
2
AlAQ.ka11111s-Sulta11iyah. J>: 138.

160

Minority Rights

commodiLies the use of which is prohihittcd in Islam, when


tb"'y belong to the trihutanes, arc immum: like any other
propaty of theirs, unless in the text of the tr~ty reservations
and restrictions are sti pulated in connection with them, forbidding their use and buying and selling tbcm or making a
publi~ oiler or th-:m.

Uailatcral Defence Treaty


lu fact, a Tribute Agreement is a ki nd of unilateral defence
treaty by which the responsibilities of the Muslims arc
greater than those of the unilateral military and defensive
pact>
In order to realize the humau value of this agreemeot aod
the genuineness of its spiritual and co-ex.is1co1ial aspects, HS
wdl a.<; tbc wonhles~ocss of its !inancial and material bo:no:!its
for the Muslims as & con1rac1ing pany. it would be sufficient
to have a took at the tcnns of the mi litary arn.J defcosivt: treaties of the present world which boasts of having conquered
the space.
A study of these so-called defensive pacts can be of interesl in two respects: Firstly io our view, it is in retom for huge
sums received as compensation from a government, that is
protected by the other party according to the treaty. The
countries which po.~scss abundant underground resources
such as oil, mines and other precious elements lose the
greater pan of their national wealth through such defensive
treaties.
Other small aod weak countries which possess strategic
advantages, become a military bas.: and arc sometimes oc
cupicd oo the pretext of defending them by the forces of the

Minority

Rights

161

other contracting government.


Secondly, coueernfog the manner of defence, the main
danger which generally threatens a small allied country is
from the very government which has uodertaken i1s defense
in return at a heavy cost. It bas often happened mi the scene
.of int~roa1ional conflicts that wbeu such small countries hav.,
been attacked, no effective reaction bas been shown i:>y the
committed defending goveromenl, and the laller bas abstained from performing its defensive obligations on various
pretexts. The only bcDefit of such military and defensive
pactq is that whenever the very contracting country is in danger of being attacked, the Sm.all allied country is required to
support it, even ar the cost of the latter's total destruction in
some cases.
The pacts concluded by Hitler's Germany with its n..iighbours and others, as well as the irrepacablc l\lSScs sufti!rcd hy
small countries in the first and second World \Va.rs owing to
these defensive pacts iu which these countrics placed their
hopes. and tbc kiud of treaties coocludl!d hy the two Superpowers wiLb the oil producing c'ountries. and considering
what was going .on in Vietnam and the Arab Middle Eas1, can
all be clear and ac.tual examples of fbe bitter fact that the era
of the conquest of space bas. become the most disgraceful
page in the human history.
Undoubtedly those who think that colonil'.ation is dying out
io the wocld arc quite mistaken. II is true that the form and
peculiarity of colonization has undergone som~ chang~s in
the last half of the century, but its nature !ms ubt only remained unchanged under the deceptive mask of military and
defensive pacts, but its power and danger too !rave hccn

162

Minority Rights

augmented.
If yesterday's coloni:t..ation has made ils exit through lhe
door, today' s colonization bas surely entered through the
window. Even if it is closed by the exigencies of the time on
colonizers, they will enter through another inlet with a fresh
mask fitting the spirit of lhe era of space conquests to plunder
the wealth of the nations.

"

2. Religious Freedom
slam coosiders the .acknowlegemeot of the rc~lity of the
heavenly religions au<l the chosen divine propbets and
the respect for thdr creeds and laws as a part of its basic
bcliefa. The Qur'an has in many of its chapters and verses
drawn the aneolion of the people to this p1'iucipk aud has
explicitly declared .a belief iJJ former prophets- 10 be coordio.atc witb the belief in the Prophet of Islam.
The Qur' an Says:

;:;.;;;;~f;J.#~_:a.:11.J)i:;:,wtJ} ~;;,~t:1: !}_;.


,,,;. ' ..--. .r,i

lc , ''" \t-.i.c.';;,) ..

~~~~,,i.l"! ~J':';:' ~,

..1~...t~.r~J

..,_,.,,.....

~..,

...:. _.:.~.s;:;
.,..-).......,,

~ >1 >-:'.S~~~

..

"Say: We believe in A/Mb rwd (in) tlwt which h11s been n:vealed to 11s, and (in) thal which w11s revealed 10 lbrah1i11 1wd
Jsmil'il and lshoq and Ya 'qilb and the tribes, and (io) what
was given to Musil and 'l~ii, and ir1 1ba1 which was given to
the prophets by their Lord; making no distinc1ion ,1mong
tbc:m, aod 10 him we aresubn1itting". (silr11t11I B11qarab I J36)
1,1 says also:

164

Minority.Rights

'The Messenger believes in wJJat bas been revealed to him


from bis Lord, llOd (so do) the believe.rs; they all believe in
Allab and His angels and His boo.ks tEDd His Afesse1Jgers; we
do not di/Terenciafe between '!DY of His Messengers. "
(siiratu/ Baqarab I 285)
In some verses lhe QUI' an speaks or lhe past prophets as a
model and as an encouragement to th e Prophet oflslam.

"And everything we re/ate to you of tbe history of the


Messengers is to fix your heart therewith. " (sfJratu Hud I
120)

"Therefore be11r up patiently 11$ the stead fast Messenger$


did forebear: " (suralu./ AhqiifI 35)

"And if they call you a liar, truly Messengers before you


were called li11rs. " (sfiratu FA/ir 14)
lo some verses where the distincl qualities of the Prophet
of Islam are described, be is referred to as a confirmer of
former messengers and bis creed and Book as a testimony of
1hc truth of the former heavenly books and creeds:

165

Minority Rights

,, , ,1 . .. . . ,,.~.... ... .. /J >.:ili;.;J1Jj\1..r,~&J.Aj,i

"He revealed to you tbe Book witb truth, veri/yiog that


which is before it, aod be re.vealed the Torah aod the Gospel
aforetime, a g11idaoce for the poople, BTJd He revealed the
Furqiin. " (soratu Ali'lmrii11 I J)

~.:;,;: ~q~} ;;~tJ~~f~ cl:J~'.;jtrs,Jt


"And thal which we revealed to you of the Book. that is the
truth verifying that which is before it." (suratu Fii)ir I 31)

"0 you who have been given the Book, believe tbal which
we have revealed, veriiying what you have." (silra/un - Nisa'
1 47)
The Qur'lln spares not11i11g in praising the. true followers of
the prophcls and lhe divine religions in so far as they have
been worthy of ii, 1 and bas elevated and sanctified lhe lofty
position of the past messengers over the above what their
followers believe, an bas considered them free from every
error and pollution.
Similarly, contrary to wbal is in the bands of their believers, and said to b<: of these heavenly creeds, rbe Qur' an consid..:rs these religions free from all charges. of false and im-

'Al.i ' lmran/5(), 75 and 113.

'166

Minority Rights

prop<:r mattcIS concerni ng the divine propbc1s.1 and in general the religion of Moses and Christ are introduced as
something of a high spiritual level filling the sanctity of divine revelation, and it can by no means be compared with the
misinterpret.e d creeds of the Torah and the Bible.
This io itself speaks of an undeniable fact th.at Islam has
shown a deep, fair aod actual respect for heavenly creeds and
their mcsscngeis, and regarded believing in ii a part of 1he
belief of every individual Muslim.
It goes without saying that this respect for. and belief in,
the freedorn o f religions and their followers can b..: valuable
on ly when they are combined with an admission of the truth
fulncss of 1hose religions, howevet proportional it may be.
We see this respect and freedo m in Islam with respect 10 rhe
three well-known creeds aud their followers. especially so.
siucc Islam considers its spiritual bond inseparable from 1bc
actuality of the divine religious.
The Qur'iin says:

"We do 001 make any disrioclion be/ween any of'rltcm. nntf


to Jlim do we submit." (.fDtRfu/ lJaqarah I 136)

The Torah in the Qur' an


The Qur' an considers the

Old Testament a.~ a hcavculy


Rook of revela1iou containing true divine laws. AyRh 44 of
Snratul MA'idah explicitly Slates:

Genesis, l 9/J0-83. Samuel, Ch. 2.

Minority Rights

167

"Surely we revealed tbc Torah in whic/1 was guidance 1wd


light. "
And in the ayah before it , it says:

1"~1:~1(~~
Sil''""~~
-.Ji\'C">
f"'"'r.!
~
~ ~ -~
"And how can they choose you as a judge wbcu tbcy have
the Torah wherein is Allah'sjudgment?"
In ayah 111 of Sf)r11r11l-Tawbah, the Torah, 1be Gospel and
the Qur'iin are 1akeo to be on the same footing:

'\4 promise which is binding on Hirn in tbe Torah and the


Gospel 1t11d the Qur'iiD. 11
ln 1be several ayahs mentioned before,. the Prophc1 of Islam is referred to as the confirnler of lbe Torah. and ibe Torah !be l1erald of !be mission of Islam's Prophet:

"Whom they fiod wrillen down wirh !hem in the Tora/I aod
the Gospel (.5uratul A 'rilf1 157)
In refuting those who denied 1be revelation of 1he Qur'an,
it speaks of the Torah of Moses as ~ living testimony:

Minority Rights

168

"When they say: Allah bas revealed nothing to a humBD


being. Say: W.bo revealed lhe Book which Musa brought, a
light and a guidarfce to men? You make into (scp111ate) sheets
wbic.b you show while you conceal many?" (sorarul An"'ii.m I
91)
Further lo this verse are mentioned the alterations and improper pilforings committed by the false supporters claiming
10 uphold tlie creed of Moses. and in other verses they are
severely criticised and berated for such ao unforgivable guill
and treason:

"The likeness of those who were laden with tJ;e Torah,


then they did not cany it, is a.~ the likeness ofrhe ass carrying
books. "(silratul JunJIJ 'ah I 5)

1; .,.xf ~>-:~1:11.11.<,::~
'.,.,_,

r.,..1 ~- ,,._ <1'-1~ '1J;.,:~


l-11'"

~~~ ~~!>'.J~~

~~Zit
.:;6~.Jit ,<~:J-:'<~t..r'r~1!.l.t At-j
~ ...... :..:.11"1.J . , .. ..U"-'Jn
\iio' ...""ii
,,
J

. . .,,, >1".' ....~...,~.


~' s'rJ&- ,.,,.,,-: :J'-".J.'1' v=
,.~ "';.ti'~>.

"Have you no/ seen those to whom a portion of the Book


bas been given? They buy error l(nd want you to lose your
way. And Allah .knows your enemies better and Allah suf..
fices as a guardil(O, aod Allah suffices as a Helper. Of those
who arc Jews there are those who after word5 !Tom their

Minority Rig hts

places. " (sOnuun - Nisa I 44. 45)

. .. .
!,

'!

~ > ... .>1~


...........
; 1 ,,...i~;:
. . J, \: . ": ..j

1 .. . ~

. :;-: I/
..........~
r- '~.~....... 1.......,...,
i :,..

J.J

~\j_A~ ~;1 ~:i_;j~.; , 91_;;~:#==J(/.

"!;Jut 011 account o[th~1r bre11ki11g their cnvenaf// we c:111~'~xl


them nod made their hearts bHid: they niter words Ii-tun tlt..,ir
p lttces and they neglected 11 portion of what they were 1c
minded of." (snrarul ltlfa'idah I I J}
Thus 1bcy were considered as lackiog wonh aud \J'ue fai1h
from 1bc day they failed 10 follow the 1r111b of the old testa
ment and carry out its injunctions.

J....t-{\; i!.~~J(i_,~ -~ J;..:.s"i.(..:.J~i j.;,"~ji


''.'iay: 0 li.>llo wcrs of the Ronk you follow no good till y ou
k eep up the Towra1 and the lojeel " (rnnuul Mii 'idah I 68)
Jo these verse.~ the Qur'an has pointed 0 111 tba1 wba1 i> lch
iu the hands or the Jews and the guardians of th e Jewish fa11h
is 1101 tho true Toraho f Moses, and owing to the rcpcat ~<l ul
terations and misinterpreta1ions produced th roughout history
'by the Jewish traders in religion,' nothing is left of 1he Tomb
but a name.

The Gospel in the Qur 'an


Tbc Q ur' an considers the Bible as the! di vine &iok of J <.'sus. son of Mary, tbc grc11t Mcss~ngcr and con firm~r of th~
Torah AS a divine light and guidance:

' Ali ' lnir~1J t~7. Al-Twbah/9. An-Nahl/05. Al Da<tarhi'.''), ~CJ. 174

170

Minority Rights

"Aod we sen/ afler 1bc111 io their fools/cps Issi/, SotJ o{


Mtuy11m. veriljting whal wRS before him or the TowrAt 11od
we gave him the lnjee/ in which was guidance and light."
(sliratuf Mii 'idah I ./6)
As we have seen in lhe above verses. the Bible is presented
wi1h lhe Torah on 1hc same footing of the Qur'an and a 1es1imony of the truth of Islam's mission. lls followers are recommended to refer 10 their heavenly Book and act upou its
i njuncti on~, tb.,reby guaranleeiug their salvation through observing them properly.

"Aud iftbey had kepi up !he Towrat and the lnjt..:! 11od 11Ja1
which was revealed 10 lhem from their Lord, Ibey would
certainly have calen Ji-om above them and from bcne111h !heir
feel; there ;~- a p11r1y of lbcw keeping to tbc moderate course.
and as lbr mos/ oftbcm, evil is that which they do." (sumwl
MA 'idah I 66)
T he Qur'iin considers polytheism and trinity as deviation
from the teachings of the 13ihle of Jesus Ch ris t, and pr.:scnts
Christianity as a crc..'d of munutheism.

Minority Righ ts

171

"And the Messiah said: 0 children of l~racl! Serve God.


my Lord 110d your Lord. Surely whoever associates mh~rs
with God, then God has forbidden lo him the garden, and llis
a/Jode is the lire. and there shall be oo be/per.~ !Or the 1wj11st. "
(siirslul Mll 'idah I 72)
The Qur'An has also de<:larcd the heavenly book of Isa, son
of Maryam, to be the only sioglc Bible whid1 bas disappeared, aod the various Bibles which appeared later were
produced by the makers o f the then current Christiaoity;

_-,;.: ,,~i 01r;/.\~ll)~.:::::;.J!~;


;.;\J.:il(6~!.~;t..~~~~~ui;:t;1~
~ ~~

.. ,, _.~~ ''\"'>-!
..~~ .,....:;,,,.,.
........J ~ .........,.." ~>!
--~.
;t,ft<;...sr--.)
:-.i,) ~

-.:.,J~ I.JI

"And wirb those wbo say, we u e C11ri.~1ia11s. w" made a


covena.111, but they neglected a portion of' whlll Ibey wen:
reaLJded of. thcref'ore we Excited among them enemity and
haired to thedayofResunection, aod Allah will inform them
of 1vhat they did. " {Siiratu/ Ma'idah/ 14)

t."' ,,,, .":r""t' "~'.,,.


... ....,..,,,
.1 i ~ "'.-(

f"f. .;,~l
-- > , ..,
.I

... ~ ... ...

,)"'"'

'-". v-;'_,.

...

,,,,.. , ,J ..i.;;;
J.... >

~~
. ....
~
... \..U, .:,
....
... ;.. 1,,,,1'..:...J,.u\
.. ,,.. ,,,
, v,,,.

.
..
..
,,.
5'
(''~-~i ~ :'". ..(,1, ! ~ ~,~ ~1.or-~
~ -rs-'-':'-'-'r-r...
. ,('"""' '-'='-"
7-:.

l-

"Woe, lhen, to those who write the book with their bands
ad then say: This is from A/lab, so th111 they may take for it
small pn'ce; so. woe 10 them for what their hands ha1re
rillen and woe to them for what they eam. " (siiratul
aqttrah I 79)

'

Minority Rights

Invitation and Propagation on the Basis


of Logic and Reason
To uoderstand the atti1ude orislam towards the freedom of
th0\1gli1 and belief, we may srudy tbc manner of Islamic invitation and propaga1ion which is declared as a general duty in
cbe law oflslam.
Ck.ady, every scbool of tllouglit wb.ich adopcs Ille spread
of it-s ideas and principles as a goal and duty for its followers,
cannot mak~ i1s claim acceptable if it ;ecommcnds every lcgitimacc aud illegitimate m.e ans for the promotion of its goal,
or considers all regulations violable iu this way. Much as
may declare itself as a supporter of tlie freedom of !bo ught
and belief, it cannot be acceptable, since all values in such a
school arc 1iroportional, alterable and open to interprecatioa
according ro the criteria of expansionism.'
l\ school which respects human values and conside,rs the
spread of ideology and its values as necessary for lbe realisa1ion or1h<:! autlie ntic val ues mus1 only make use of rcasou and
logic. and condemn resorting lo force aud ~very means which
do ntll correspond with human values.
ln this respect Islam is a model laith and school, and since
it is deeply i.ule rcsled in spreading its failh and law in the
world. i1 does 1101 allow lhe use of unnatural means which go
cnolrary lo tlic legi timate freedom for tl1e sak~ of the promotion and anaintJ1o::n1 I<) the above goal. le relies ouly ou lJutb,
logic and reason as tbe guarnnlee ol' ex.:culion iu actaiuiog lhe
ullimate ob.iective.
'l.'hi~ subject is seen in such school:.l ~s Conunun1Stn, Z io11is1n i:1nd M~

clliavelisrn. Ii has futthor been practiclly proved by the repealed els


1100 the history of these Shools.

Minority Rights

173

Based on 1hc principle of condemning force in mailers or


belief, fslam explici11y admi1s tbat 1be question of faith and
helieffnusl be fulfiJle<l tbrougb free will and comprehension.
It 'does not only condemn imposed be.lief, but also considers
wortbkss a faith which is not based on logic and reason. but
adop1ed only lbtough imilluio11. The Qur'an lrns in muy of
its vcrse.s. r~proached those who have thus lbllowcd !he religion of1hei1 fore-fa1hers.
The respect shown to th~ freedom or belief may wdl b<::
seen in the ,1yith No. 256 of soratul Baqarah:

"TlJC1'C is /JO comp11lsio1J io reJigino: truly, rectJfude h;1.


//ccomc d1:wi1ct fi'Oln lillsd1nod calli11g 11eo11le lo the true
lait.lt aod pro1Mgati11g truths s11.11ilf1r In spreading knowk d g.:
only thmngll logic a.nil re11so11. The 11/litudc of' the Our'iln in
this cnnoecrioo may be understood limn th.:. lb/lowing
verses:

''CIJ// w the way o/your Lord with wisdom 1md good~y exhorlaJion, and 11rgue with them i11 I/Jc best mmwer.." (sfJrn/110
- N11{11 1 !25)

174

Minority Rights

"And say lo those wbo ha ve been given the [)ook, and 10


the illiterate: Do y ou submit yourselves? So if' they submit,
t/Jeo indeed they are guided; J!nd if they turn back f/len upon
you is only the coo vey11nce (of tlw message) and/\ l/tJh is Oh
swva11t olthe servRJJIS. (sumtu Ali'fouiio I 20)

rJJ;;r :!: (\;,~Ji ..;~.:,.::.1~J~-t1.,:: <_

ji~1\i !.-~~_;

<
: ~,'-,:.:ii-~'~!,
l'(;J1j.
"; '1~:..1~-<d
u"'_y,.;J
,----..,.. J~'-'
~b.iititi:
,
"And do not argue witb ablul kita.b, save in the best, m11n11cr except those of them who act unjustly. a11d s11y. We believe in what .has been .revealed to us and J'cv1mled to you,
and our ,11hlh 1111d your /lllah is One. and to Him do we
s ubmit." (s1ira111 J411kahfTll./6)

"/Jut iftbcy turn 11w1ty, wc ha ve not St'nl you 11s a g1111rdi11n


over thi:m; 011 you '' r111~y 10 dolivc1 (tbc: me.~snge)."
(srm1t11sh-Slumi I 48)

"!I nd if'your Lord had ple11sed. s urely HJl tbo~e wbo arc i
the earth would b11vc bc:Jieved, a// of tbem: will you then
fore;, m en to b~omc believers?" (silralU Yn1111s I !19)
T he Qur' ao recommends gcullcoess and Hffallilily nnd
peaceableness iu religious ~rgumenls and in ~alling people I

Minority Rights

175

the religion of Allah, because it considers such a call aod religious disputation the only worthy' way for man in seeking
truth and discovering facts. Moreover, since the creed of Islam in based on undeniable truths and is supported by iotellect, reasoning and logic and on man's pure disposition, it is
in need of no illogical means.
This method is followed more clearly and humanely by the
Qur'an wirb regard 10 ihe followers of heavenly hooks who
are closer 10 truth. It resorts to a br-0ader and deeper vision in
acquainting tbe01 with greater truths related 10 rbcir ioherent
belief in the Creator of the universe, about which all th~ followers of the prophets arc unanimous, and using it as a lurning110iot in incliuiug to Allab.
The following heavenly and e1erual call clarities this fact:

"Say: 0 fol/owe1:~ of /be Rook, come to ii word common


between us a11d you !hat we shall oot worship wy (god) but
A/lab, and tbal we shall not associate .wy1hi11g wit/J Him. 1111d
tba1 some o[ IJS sh1ill not take one another as lords besides
ADah; but if they /UJ'IJ away, then say: Beu witness tb111 we
are s11b01ittiog ones. (suratu itli'Jmrao 164)
A study of the Ways of tbe Propbet of Islam in inviting
various groups of ,?b/ul KitAb who live in the Arabian peninsula or neighbouring zones, as well as the recommendations
:h e made to the missions, official envoys and messengers a&
shown by the contents of the leuers, message~ aocl texts of
treaties, can Ieveal lo us the exteot of the respect s bown by

176

Minority Rights

Islam towards the beliefs an.d convictions of v11rious groups,


especially the followers of heavenly Books.' T he questions
of freedom, respect for helicfs and condemnation of compulsion and imposition were not lim ited 10 religious beliefs, hut
they also related fully to practice. !slam considers auy use of
force in the p<!rfomiance of the Islamic rites by nou-:\11L~lims
wrong aud condemus it. The late Mu~.aqiq says iu bis
Sharayi'i that a Muslim husband who bas a Jewish or Cl1i>1iao wi fc cannot compel her to perfom1 ghus/,

Free Discussion
Islam docs not only respect the beliefs of the followers of
heavculy Rooks, but it has also prest:rvcd for 1 h~m tile rigl\I
10 djscuss religious beliefs with Muslims witlliu the framework of intellect aod r~asoniog, anti defcud tbdr own conviction> freely and wit hout prejudice, and engage in arguments concerning lbc Islamic belief's.
The lloly Prophet s howed much respect w the envoys,
scllolars 1111d dcrgy of non -Muslim groups who visited alMedi ua, and pcanith:d them lo express tb.:ir idc11s, criticism
and prnhlcms fredy. He himself' engaged iu rca~ooing aud
discussion wi1b them, provi ng the truth and the rightfulness
ofTslam 's divine mission.
')101ilarly the Imam Ali repeatedly anractcd those who
came 10 him 10 argu..: o n rdigiou~ ma11ers by hi s logic and
lu fty Jl(ISition as a spiritual man of lea rning, and couvinc..:d
1bcm or conv.:rsiou lo Islam.
During the time of other religious leaders, too, great scholars and clergymen of ahlu/ Kitltb came lo discuss religious
1

Rl!"fco":r tu C"'h 4 of h;/;un Hnd /'>'cacefu/ l 'oc.vis1en(:t:.

Minority Rights

177

matters with tbe Imams of the Prophet's household, and some


of those sessions were held in the presence of tbe c11lipbs of
the iimc and disting11ished personalities of various religions.
TI1e'Islamic leaders engaged in discussiotis with Jewish and
Cbristiim religiotls leaders aod ill some cases they dispatched
their own companion for this task. t
The Qur'An states the law Qf Islam in this connec1ion, in
the following verses:
,:,::;.1,::~).iy.<i,P,.;
"And ,1rgue with tbem in the best manner. "
.)....:~l~J~ ~t~Cc.1\;i#-1;
"And do 001 llfguc wilb ahJul kitiib excepr in 1ht;1 best nwnnar" (~fmuul 'Aok:alwt 1 46)
TL must be remembered that Islam itself invites its opponents to discussion to seek the Lrtllll and in cases where uo
possibility exists for disputation and disc11ssion, it ..:ncnuragcs
people to reflection and meditation concerning mailers of
faith in order Lo find tbc right way and discowr 1be true
creed.
There is no doubt tba1 the coutiouation of free discussions
among religio\ls leaders and scholars within the hounds of
logic, intellect and reason is the best way for hringin& co111rary views closer to one anMher and produce uni1y of
Lhougbl ~nd faith, and at least at a lower level, to result in
mutual uudcrstauding and w~ahn or destroy fanaticism.
As rcbrards prepaing the grounds for free discussion, ii is in
iLsel f oue of lbc goals of Islam in the tribute law and 1he
conclusion of international p~ace trea1ies, Lh<::r~ being no
1
The J;ite. TabrAsi in_hls J,flt[jHJ: rchttcs uiany cxat11plcs of I.he discu~.
slons of lb~ Proph~I (S.A.) .and the Imams of Ahlul Bayt (A.S.) wilh the
opponents of Ishun and N1/ul Kii,1b, '''hich 1nay he re fer(ed ro.

178

Minnrity Rights

other way for ihc fultilmeot' of ibe aims of Islam but this aud
10 make i1 worthy of the universal ideology of Ibis divioe religioo.
Obviousl:y I.be righl o f free discussion do<;s nol mean 1ba1 a
lribule agreement may be used as an excuse for anli-lslamic
propaganda and for causing doubt in people's minds or for
poisoning public tho11ght. Since ihe Muslims cannot engage
in religious discussions with their opponents except through
in1cllcc1, logic and reason, Islam, loo, recommends tbe followers of' other religi.o os uol 10 use illogic1,1l methods, to
criticise Muslim belielS in the name of religious freedom, and
in Ibis way mislead lbe public who may Lack the power of
menial analysis, or quench the llame-of hatred and prejudice
by seditious propaganda.
Tbe kind of free discussion Iba! Islam considers lcgi1ima1e
in a tribute agreement, for its opponents is a discussion which
is devoid of every kind of obstinacy, haired, l'ancour, demagogy. unfairness. fanaticism and every other self.-iuterested
motive, aud is based on intellect aud reasooiDg l!nd seeking
of truth.
Thus all misleading propaganda, demagogic dispu tes. and
seditious arguments are nol only considered an ofle.nse and
forbidden by the lribule agreements, but Tslam is also fundamentally opposed to such illogical activities leading 10 rio1
and sedition, and considers tl1em a crime bigger than murder.
The Qm" l'ln says:

''And sedition is wor.se lhan killing. " (silratuf B11qM11b I

179

Minority Rij;hls

191)
()oe o f the real aims of lhe Islamic jihlld is 10 eombat such
seditious and treacherous acts and all Muslims have 1be tluly
to guell tbe seditions.
The Qur'iin Says:
~ ~ ~t.i\/~
,A .... ~.-:--y-:; .:, -: ... .. .-) -; ..
,4llVJJ
, - 0 . ~~v_,,v.1.)::....~
,
" I
,"Lt .

is

"And fighl wilh ibem until there no (more) sedilion and


religion becomes A/lab's (nlone) (soraru/ Baqarall / 193)

The Forbidden Argument


Arguments over religious r.natlers are divided in10 1wo
types by the Qur' iin according lo the ir basis and objectives.
The one which is called "Argument in the hest mauner'' is a
general and kgitimate way of seeking religious 1rulh,

roe way ofyour Lord wi1b

wisdom and goodly exl10rlntion and.tJig1111 with /hem in the best mlim1<~1'. "(S1ln111111N,101JIJ26)
The other ou.c which lacks logic and reasoning and is based
ou wrong and selfish motives, is considered an unforgivable
sin.
We come across many verses iu 1be Qur' an each of which
condemns such an illogical argument in a particular rnann~.r
and severely criticizes those who engage in it.
In one verse i1 reproaches those whQ in Ihe ir ignorance engage in arguroeots without any logic or reasoning. 11 says:
"Calf to

Minority Righ-15

180

.,, ~"!/ _-:>. --, ~>


"'
-1 -~" / :;i
.<J)l~.:.U.J'=...&!-)
.'
""'1
,.,
....
.
r ..
...
.. ;.... . ..:...>.. 'a.:> ' ;;.:/..Ill
"";>'"""-.

,.

,,,

..

..,.

~~..Ji
7L;l~~(EC:
:i.ll~i"''1:
<ci)(.J:.,,'
,~
>-. ~(.r
..
,
~ .:.!:.. ~

..;

"Those who argue concerning the sig11.9 of All.?h without


any authority given to them; greatly hated is it by Allah nod
by those who believe. TJJl/s does. A /lab sci 11 sen/ over /he
heart of'every proud. haughty 011e." (Sfir11tul Niu 'min I J5)
E.lsewbere ii speaks of those who intend to vanquish 1r111b
by wrong means, and says:

"And chey iugued by /al5ehood to pcfi1tc by i1 tht:J 1n11h,


therefore I dcsuoycd them. And how my punishmenl was!"
(Suratul llifu 'min I 5)
In anolher llya.h it say;, abou l exposing 1bc plots a11d seuinteres1ed mo lives of such arguers:

"And if' they argued with you. say: Allah kno ws beaer
whnt you do" (Stirntu/ /iP.fi I 68)

':'.'-<!~.
T:::J{..,11 ~ > , , ....-:'. t ;' f 1\' (
i'"',., . -~ .J .:;.urr.~ .;
"And the Satans s11gges1 to their !Tiend.\ that tl;ey should
conteot with You." (Sura Ill/ !lu 'iim I 122)
Then ii speaks of'lhe ('al e ofsucb uusu~cessful individuals:

Minority Rights

181

"Have you oor seen /hose who dispute wj 1h n:spect to 1hc:


comn1unicalions of (Jod: How are 1/Jey 111med away"
(Sor11rul 1\411'min 1 69)
Conceroiug those obstinate fanatics who continue their
<;<ontention and perversion, even after the appearance of the
truth. it says:

"They argue wi1h you about thr: lmlh afler it has become
clear, 11s if they are driveJJ to dc11rb wbik they ;ww it."
(Soraw! An/iii 1 6)

Freedom of Children
We have already said that compelling otb<!rs 10 acce pl a
faith is condemned in l-~lam which considers thi s ii v io lation
of the freedom of Lhought and belie f. Now we must also say
thal [slam docs not only forbid such a 1ransgression. hu1 it
also condemos every step taken in lbis direc1io n hy other religious groups.
Therefore, as the und~aged childre n are not suffi cicu ly
mature, fhcy lack the readiness 10 accepl a faith lh rnugh intellect .and reaso11ing. The religious freedom of commi11ed minoritie,s is not a reasoo for them 10 impose their own faith on
their immature children, since, 8$ we l1avc sa id be fore, s uch
an act is a transgression againsl righl of freedom o f' 11Jought
and be.lief of the others.
Commitled minorities s hould absiaia from ~very illogical
compu lsion and propaganda as far as !heir children are con-

Minority Rights
ccrucd and they should lei them choose a fai th after their
coming of age 1brougb intcllcc1 and reasoning.
T here is no doubt that a human being whose iuna1coess is
pure and free from me ntal pollution wi ll hi mself !ind tl1e
right palb and faith. Therefore, if a child is not subject to
de viating ideas and suggestions and if his character is allowed to develop freely and naturally, and he does not lose
his Sffunduc,~s and steadfastness, upon allaining maturity and
growth, his inualc nature, will reflect bis true and proper faith
and lead him towards l(uth.
This fact has clearly been slated in some verses of the
Qur'an 1md in Islamic na-n'ations and ulleTances of the rcligiou~ lit11de rs:

;tr#~&~1~5~ ;8r;_bJr~r~~
"The natuml disposition cre11ted by Allllh. There
ch11nge in A llah 's cieation. " (Suratur - Rum I 30)

1s

no

T he fmarn a~-~adiq, explaiag the above, s ays: ' This unchangeable natural disposi1ion is mono theism and Jslam." 1
T he lmam al-Bi\qir quetes the Prophet saying: "Every
ucwborn child is bMn with that natural disposition." 1
Another narntioo tells us: "Every new c hild is bo.m with
the na111ral disposition. but its pare nts make a Jew OT a Christian OT a Magian of it."3
According 10 thi~ fact, Jslaru considers ii a great sin for religious groups hl d eviate aud mislead innocent and pure childre n.
1
2

tl~fJ/u/ K11fi1 ch. On "Crc11ting ihc crealur~s on rnono1hcis1n'".


Ibid.

' Wx.<ii'i lush-Shi"l1/J, ch. 48 on nl -JiMd, (lndit/1 No. J .

Minority Rights

183

If tb.e 1ext of 1be trea1y stipulates abstention from ll1is act,


cwry step 1al<co by the committd minorities lo compel children lo follow their religion is considered a viola1ion ortbe
agrccmcol aod is punishable. The lmam A li threatened the
tributaries of 13aoi-Taqlib who had committed themselves in
this respect, wilh severe punisbmeuL 1

Freedom of Religious Rites and


Ceremonies
Among the fr~d.oms granted on the ha.~is of religious
freedom accordiog to the Tribute Agr..:emenl 10 conuninoo
religious minorities, namely the Jews, the Christians and the
Zoroastrians, throughout the Islamic realm, is their frc0dorn
to perfol'tll ibcir rcligio11s rites and c.eremouies.
They can benefit from ibis kgitimate right of holding th<:!sc
rites and religious devotions io perfoct security. By ibis
privi lege which the Muslims must folly observe. the said
minorities are allowed to hold 1besc ccremoni~s individually
or in groups in their holy cenlers aud no one bas the right to
moles! tbcm.
Of course, io case of some religious demons1rntio11s. certain Testrictious may be envisaged according to lhc articles of
the Tribute Agreement. However, the freedom 10 perform
religious riles is pre.served for the commilled mi11ori1ics as 11
indivisible rigbL
This becomes clearer if we consider the spirit of the Tribute Agreemem and the couditious of co-existence which are
an ins0parable basis of international 1reatics, and by a survey
of the 1ex1s of treaties which were concluded by the Prop he!
1

f<Hn.1"11 'Umm,1/, Vol. 2, p. 304.

184

Minority Rights

of Islam and the practicular methods adopted by the religious


leaders in this connection.

Security of Temples and Sacred Places


Undoubtedly, there can be no separation between respecting any religion and payiog due respect to its temples and
religious centers. This is a principle which is affirmed in 1bc
Tribute Agreement and its observance is tbc duty of all Muslims.
Thus all the temples and sacred places of the committL'<I
religious minorities arc respected by the Islamic society a11d
they dnjoy perfect s~curily aud immuni1y. Auy moles1a1ion of
sucb centers by either the Muslims or uoo-Muslims is n punishahle offense. Some j urisprudents have even cousid~rd the
e utry or Muslims iu the holy centers of the Jews aod the
Christ ians, even for the purpose of devotion pending on the
permission of tboS<: in charge of these centers.
Irrespective of the exigencies of reciprocal agreements in
regard lo resp~ing those places where the Cr.:aior of the
universe is worshipped, and in view of the fact that such
cen ters arc not placed on an equal footing with th e temples of
idolaters am! polytheists, we have made a full survey of this
mancr in the lex.ts of the Pro phet's treaties wliich are ahsolutdy explicit.
The Q ur'an considers the protect ion of the places of worship as an o bjective of jibAd a sign of legitimate defense, a
result o f social security and a product of co-existence between various nations. In this connection verse 40 of Sttratul
~lajj is worthy of uoticc:

, a:.

Minority Rights
>

,,, .... . - , .."' ' "'

, ,,.

:-:!1

~"':". >-:-"".,~\'\~\":"'~:i"

~_,.:..:,i.;:._,cr,,&-~r-'.,,..~ 9

~ ,,. ..;.jr..,U\.._!..tli1~.:,.0
't.~\"''..-,.t ,,, > ""'!\~A,;:
. ?"'~.. c
..r;r
AM '-,!..> -:.J 1~,,.

e ..,._,

, ..,, rr~.~~:'
~ r- ~~

"Ifnd ir 001 been for A 1111/J s rcpelliog some p6'0plt: l>y


some orbcrs, ceruunly there would ha ve been pulled down
cloisters and churches and syoogogues and mosques in wlticb
A //ah 's 011111e i5 m uch remembered: 11od A l/11/t .-uppons him
wlto supports Him. /I/Mb is strong. Migb1y . "

Newly-Founded Places of Worship


What bas been said abou1 1he temples of committed mi norities is a necessary and inevitable result of thl! Tribute
Agreement, sod thus. au overall p~crvation o f the security
of their sacred places and their property and endowments is a
pan of the Muslims ' duties aod responsibilities.
Bui tbe granting of further freedom such as cslablishiog
new religious organisations and founding n..:w places of worship depend trn conditions and texts envisaged in the Agr..,cment
Jurisprudcnts have divided Islamic realm into 1bree divisions:

1 . The lauds which bavc been rendered bahilablc dir..:c tly


by the Mu~lims as well as the towns and villages build by
them. Should 1he commi11cd minori ties n:side in s111,;h area~,
they arc not 10 establish churches, cloisters. synagog11cs or
temples since the.sc lands heloog to lbe Musli ms and the minori1ies have no right to 1hem. So, if tbe Jews. 1h.: Christians
and 1he Zoroastriaos take steps towards establishing such
centers of worship wi thou1 the conscot of the Muslims, there
wi ll be no immunity for them on the part of Lhc Muslims. In
any case, such an act is illcgaL

186

Minority Rights

The late ' Alllimab Al-Hilli says in Ta{lhiratul-Foqaha ': "If


an agreement is sig!led with the Muslims io this coonectioo,
it will have no validily." 1
The late Shaykh Tusi states this poinJ more explicilly in his
al-i\l/absii.t ':
"A Muslim leader cannot allow the tributMics to build
churches, cloisters or other centers of worship in the said
lands, and if s1.1 cb a treaty is coocluded, ii is null aod void.
There are oo di1fereoces of opinion on this point" This verdict is also true of the lands whose inhabitants arc converted
to Islam."

2 . The lands and countries w hose inhabitants bad engaged


in war with the Muslims after the victory, lbese lands were
forcefully occupied by the Muslims. According to the law of
the jihad, such lands belong lo all Muslims, and therefore, the
ahove three religious groups may not build any churches or
other places of worsbip tbere.
But with regards to the churches, syuagogu~ and temples
which have remained al tbe time of occupation of these
towns and lands, they ace considered intact according lo the
Tribute Agreement and enjoy perfect securily and immunity.
lbn-Abbass says: "No non-Muslim may bui ld a temple io a
town built by the Muslims, nor are they to loll the belJs, drink
wine or keep pigs. But a town built by non-Muslims and occupied iu a conquest by Muslims, may enjoy all the privileges granted by the Agreement. "
lo addition to what Ibn-Abbass bas stated, the late
'Allamah al-Hi Di resorts to the actual method of the

' Tadhkiratul Fuqnho', Vol. , p. 446.

Minority Rights

187

Prophet's Companions and other Muslims to affi rrt) rhis


view, and he considers the retaining of such temples in the
Muslim lands as ao unanimity of the Muslims about lbe
maintenance of tbe such temp1es in the occupied lauds. These
arguments are put forth against the view of Shaykh Tosi couccrniug the invalidity of the treaties which involve the maintenance of the said places of worship. 1
3 . lfbefore a connict takes 1>lace, 1h e people of a counlry, a
town or the inhabitants of a region sign a treaty of peace with
the Muslims according to wbieh the lands are ceded to the
inhabitants in return for a tribute alone, in such a case, 1.hc
inhabitants of these places bave the right not only to preserve
their existing centers of worship, but they may also freely
build new churches and temples.
[f the peace agreemeot is such that the land is declared as a
possession of the Muslims, and the inhabitants arc required to
pay tribute in return for their residence there and for the
rights granted to them by lh.e Tribute AgNcmont , Ibey may
only have the right 10 keep tlieir existing places of wor.:hip.
in peace conditions. l\s for the right to build new places of
worship this depends on the conditions and articles explicitly
stated in the peace treaty. If an agreement bas bc..:n reacb~d
about it betweeu the competem Muslim leader aud rbc
committed allies, then the question is settled. Bui if rhc
agreement prohibits such a measure. then every Slup laken in
"Ibis direction is condeinned. 2

Ibid.

~ Ibid.

Miaori Ly Rights

188

Apostasy of Religious Minorilics


To conclude lhis disc ussion, ii is necessary to poi nl out that
the apostasy of the commiUcd mioorities and their c hange
from o ne l'ailh to anothe r will automatically make the Tribute
.A greeme nt null aod void and abrogate lbc individual o r 1l1e
group immunity granted by the agreement.
if the aposlasy is in the form (lr conve rsion tn Islam, ihcy
will tbc n nalurally be nefit from the legitimate rights granted
lo all Muslims iu au Is lamic society. But if lhis change of
fa ilh is 1o wards other lhan Islam, ahhougb there will he oo
preventio n againsl them, on 1bc basis o f freedom of faith, yc1
th..:y shall lose the priviteges and rig l11s g ranlcd by lhe Tribute Agr~,.:mcnt having now accepted a fa ith whic h they had
forme rly declared inva.lid and wro ng al the 1im..: o f the conch1sio n of the ;1g rccmc ul.
T he Qur' a n says:

"!1.od whoever desires 11 rc/igioo olli<'f 1/J11n l.~IJJm, it ,,half


not b.r:: ;1ccepted from him. and in the Here;J/ic;r ht: ,,h11ll bi: Of
the l osers. " ( S11rat11 A li 'fmran I 85)
Th e Prophet bas explici tly declared lhat c hanging 1m..:'s
rdigion was a reason for w ithchawing immunity:

, ._,r.;l.i ~~ J~ .:,.. ..
'Tk wbo changes his reli,s>ion sho uld Ile killed. "'
~ome
1

jurisprude nts C()nsider the Trihute Agrccmct1t valid

T,1dhkimtul A/1ki1111, Vol. 2, p. 647. M.nsiili/.<ut Afl111111, Vo l. I, p. 4111.


JH11'iihirul Kii/,1m, Vol. 21 , p. 3 J4,

Minorily Rights

1119

when aposrasy results acnong the three religious such as conversion from Jewism 10 Christianity. They hase their opinion
on 1be idea that infidels arc ~oosidered as one oat ion aud are
regarded equal by the tribute law in lslam.1
We will discuss this matter further iu chapter six of this
book under th~ title, "The Lodir~cl Violation or tlie Tribu1c

Agrcemco t. "

Ibid.

3. Freedom of Dwelling

reedom of dwelling and choice of residence in the


case of the committed religious minorities mean thal
the said groups a!ler acquiring ci1izenship through
the lreaty, 1 can, like other Muslims, choose their tksircd
place as a permanent or temporary residence in tbe Muslim
realm, and this right includes the freedom of leaving an Islamic country. But io the latter case, the Tribute Agreement
will automatically lose its legal value and this kind of citizenship is naturally cancelled.
T he question of freedom of dwelling for the committed
minorities may be summed up uudcc the three following
principles:

1. Tbcce is oo necessity for the above three rdigious


groups to have a permanent residence. the choice of which
depends on their own will, and there exist~ no imposed obligation in this connection except io exceptional cases where
the conditions of the Tribute Agreement or the interests of
both parties occessitate the choice of a particular residence
for them.
1

lsl11rn nnd /111en1ntio:1al Rig/Jts, p. 147.

192

Minority Rights

2.

T hc res idence for an acquired citizen (co mmitted religious minori1ies) may be several.
3 . The residence for the said groups is 001 a pcrmancnl
math.:r, and they C<tn al any time cbauge 1hdr residence or
leave Muslim lands.'
In view of wbal bas been said concerning the freedom of
dwdling. ii becomes dear lhat lbc commillcd rdigio us minorities ar" free to mov" about withi n tile Muslim realm and
lo i.:nl.:r in, or tlcpart from, the lslarnic counl ry. llowcv.:r entering lite couniry depends on lbc conclusion of 1he Tribute
A6'T<:emcn1 .
lier.: we musl 1ioi n1 ou t chat whal is cousidcrcd as freedom
of d wd ling and a necessary and iucviiahle part of 1h.: Tri hut.:
i\grccmcnt, wbicb must be obscrved by thc Islamic socicty.
is the ngh1 of residence which , in some ca~cs. may b.: limil..:d
and restric1cd.

Prohibited Zones
Jn 1hrcc cases the freedom of dwelling is restricted in respect o r !he religious minorities.

1 . In the case uf' lite zoucs wh..:rc 1u..: lrnnsit or stay o r a


perso n o r pcrsous of' the lribularics is cxpli,i1ly IOrbidd..:n in
1bc T ribu1e Agrccmcnl. Obviously as !be Trihute Agreement
finds i1s legal valu..: due lo !he cons.:ol and signalurc of both
parli cs, lhercforc 1hc rnmmi llcd allies must rcspccl ils arli clcs. includi ng the arti cle rela1.:d 10 the prohihil cd zone;;.
2. Muslim m11squcs al any place and und..:r any <:ondi11on
ar~
I

among the Lones

lbi<l . I" l 98

wbcr~

th..: 1ril)Ularies ha w no righ t of

Minority High ts

193

passage or rcsideucc and Muslims' pertnission in this ma11cr


is of no avail. Concerning the mosque o f Mecca, jurisprudents, bo.tb Shiite a nd Sunni are unaoimous in !heir ' agreement on this point. 13ut coucemi11g other mosques of al-Hijaz
and others, some Sunni .iurisprudenrs are o f th.: opin ion 1ha1
the prohibition oftraosit aad n::sidence of non-Muslims io 1bc
said mosques is related to occasions wbeo oo pcrmissio o has
hcco ohraioed Crom the :Muslims. But there is uo di Cficuhy in
wbeu permission is granted.
The late Shaykh Tilsi in connection to 1his view hy 1hc
Shiite jurisprudea ts says:
"The bdicf of the Shiite j urisprmknt.s is that the nonM.usl ims ucvcr bavo:> 1hc righ1 to ente r into th~ mosques anti
no Muslim can grant such a pennission to rbcrn."1
To explain this point we muse say 1ba1 rrom the vie wpoint
of tbc Islamic jurispr11deuce, mos<IU<'S call tor speci<tl regulations which muse be observed careli1lly e ven by the Muslims.
For example the Musljm who is pol hued with iufcc1io us filth,
or if be is in a stale ofjaniib,1b or if he doc-5 io the mosque
acts incompatible with worshipping, or obtrusive 10 1he devotion~! acts or others, has no righ1 10 enter or stay iu the
mosque. T herefore, prohibiting 11011-Muslims fmm usi ng Is
lami.c mosques must not he regarded as a rc!ili'icli Vc net
which deny them freedom.
Moreover, the mosques belong 10 Muslims and asc reserved for devotion and worship. T bus, 1he observance of
Islamic re!,rulations is nol possibk wi1hou1 h.:li.:ving in lsl~m.
The late Allirmah al-llilli snys 1ha1 the deputies o r rdigious groups cannot be received hy th.: Mus lim kadcr in 1hc
1

Ibid., p. 47 .

11

194

Minorily Rights

mosque nor aUow 1he m to stay there.' The Shaykh Tosi, although approves of such an act, adds in the end tbal the
Muslims bad belier abstain from it.
Some jurisprndcnts,, supporling lhe former view aUowiog
non-Muslims; e ntry into the mosque by means of official
permissions, say: "Tbe Holy l'rophel had aclually in some
cases allowed non-Muslim religious groups to enter the
Mo~quc. for example, be received the depu1ie~ of T baqif iu
lhc mosq_uc aod pennitted lhe m 10 stay there. He also order.M
Thumamah ibn Aihal to be tied to a pillar in the mosque, and
allowed Ranil Qurayzah and Danil Nacjir captives to stay for
some lime io tbe mosque.

3.

Al-I;Iijaz, which is divided into lwo pans froin a legal


and j urisprudential viewpoint: Part oac: The (111r11m quar1er
which includes tbe city of Mecca and its suburbs. This zon.:
e njoys great respect and importance since the first and greatest center of monotheism, Muslims' QiblH, the Holy Ka 'bah
and the Sacred Mosque arc situated lbere, and also because it
is the original cradle of tbe Islamic faith and lh<:: home: land
of the gn::al Pr<>phel of l slam where lhe fi rst divine revelatio ns was revealed. It is io fact tbc hcarr and center of tb<:: Islamic world and thus, it enjoys a particu lar security and irom11ni ty. For this reason, the name Jlaram (Sanctuary) is given
to this zone.
As long as a M uslim lives in this zone, be enjoys securi1y
and immunity. All lightings and bloodsheds arc forbi dden
the re. Not o nly the human beings, bul even the non-domestic
animals a re immune the re. Killing of animals there is pro-

Tadhfdrt11u/Fuq1t!1a: Vol . I. p. 445.

Miaority Rights

195

hibited and certain [mes arc imposed for such acts.


Concerning the. Haram zone, juris11rudents are unanimous
that non-Muslims are not permitted 10 enter there for either
transit or stay, bul 1be Muslim l.:ader may graol lhe right of
transit to non-Muslims and if in such a permit the matter of
payment of a duty is stipulated, i1 must be observo;:<l by 1bose
non-Muslims who pass 1brough.'
T his regulation is also applicable to foreign envoys and
non-Muslim messengers and missions who wartl 10 enlcr 1h..:
zone 10 concfode an agreement. Therefore sucl1 mi.ssions and
persons may engage Muslim individuals for 1his purpose, or
the Muslim leader or his rcpresen talives may m~ct tl1e above
missio or persons outside the sacred zone.' According to
this Jaw, the commilled religious mioorilies are forbiddco \~)
stay in 1hc sanctuary and musl obtain a permit for iransil.
Part 1wo: Olber zones of al-l:'fijaz including al-Medina,
Yamama, Ya11buc, Kheybar. F'a<lak and neighbouring districts are also probibi1cd zones. with the difference lhat tbe
non-Muslims a1e allowed to pass throu.gb for a duration not
exceedi.ng three days, but the right of rcsidcoce belongs to
1he Muslims only. Accordillg to this law, the enforcement of
which was strongly advised by the Holy Prophet in lbe last
days of bis glorious life, the committed religious minorities
cannot stay in the land of al-I;lijaz. But Ibey can obtain entry
pennissions from responsible Muslims a111boritles inlo all:fijaz for a limited perio<I for the purpose of commercial activities or other legitimale tasks.
' Al-Mabsa~ vol. 2, p. 48. But ash-Shahid !h.'J11Ani In al-!vf.?s~lik, says:
"They a1e absolutel)' 1lot -allov..cd to c.ntcr the flaror11.''
1
Ibid.

196

Minorily R:ights

The late Shaykh Tusi says:


"The tributaries may enter the la.n d of al-l:lijaz (wi tl1 lbe
exception of the Han1111) wi 1bout a permit, but I hey are uot
allowed more tbao lbrec days' stay. They may move on from
ouc lawn 10 another and stay three days in each iown." Jn
cases when their arrival is for lbe purpose of mediatfoo , delivery of a message, coucfosion of a lrcaly aud the like.
which arc requ ired by the Muslims, the permissio n granted
them will be gralis. Bui if their arrival is /hr 11crsoual reasons
or affairs which are not rdated 10 Muslims' in1ercs1s and lhey
apply for permissioo, this permit will not he given free of
charge and they mus1 pay a sum to be agreed upon by both
s id<;!S. Tr an entry is made wilboul official permission. responsible authorities m~y through a previous uotice demand
the recruired payment. In cases of indispositions. sucb as illucss, which may prevcl)I lite departure of the ttihularies from
al-1:1ij az. 1hc stay permit may be granled for more than three
days. ff Ibey die, I hey may bo; lmtied in al- Hi,iaz bu1 i I' 1his
death occurs in lbc flannn zone. their buria l there is probibi1cd and 1he cdrpsc of a non-Muslim must be carried outside
1he zouc aud buried 1here.
Although 1bc non-Muslim wmneo are exempt from concluding a tribu1c agreement and lhe paymeot tif 1rib111c and
can benefit free of charge from all the privileges of 1hc 1rihu1c agrccm~nl in lhl'.! Islamic realm. ycl they. like olher indi viduals of Ille religious groups, are prohibi1cd from entry and
s lay in al- 1.Jij~z and lhe flar1101. Tbcy mus1 also ol11ai11 p<:rmissior1 li>r ~llll)' and pay the afore menlioned su111. 1
In coocluding lhis discussion, it must be said that in som~
fadhki1~111/ Fuq,/Jil ', Vol. I. p, 445. Rd<:r 11 lso 10 C h. 4of 1his book.

Minority Rights

197

narrations the Arabian peninsula bas been mentioned as' a


prohibiited zone, and .accordingly, non-Muslims ara ro be expelled from it. Although jurisprudents have lix.ed 1he timi1s
of the Arabian peninsula to !be lands siluated belween Ade'O
and lbc Persian Gulf io its lengthe, and between 1'ihlima and
Syria in i1s width, as affirmed by al-A~ma'i, Abu-' Ubayd11
and other geographers of the early Islamic centuries, yet Ihey
have declared thal what is meant by the Arabian Peninsula is
the land of al-J;iijii:l, since the Arabi.an Penins11h1 includes
Yemen, whereas 1bere is no prohibition for tbe residence of
non-Muslims in Yemen which is con finned by pra<lice.

.,

judicial Independence

here is no doubl 1ba1 1be granling aod rccog11i1io11 of


a rigbl or rigbls for people wilbouc a guarantee o f
execution cannot safeguard lhe desired goal and r~"
sull. Therefore, although the righls of !he eommilted re ligious mioorilies have beeu guaraulecd through the Tribu1e
Agrecmenc, the right of judicial appeal for !hem in cases
wb ich m ust nece.ssarily be redressed has been envisaged for
!hem and they are allowed 10 benefil from this legilim11te
right in the following cases:

1.

Whco !he trib11tary is a plai111iff aud lhe defcudaot is a

Muslim.

2 . When Muslim is a plai111iff and the de fendalll is a tributary.

3.

Wbeu both parties o f the dispmc are tributaries


(religious Minorities).
In !he firs1 two c ases, the crihutaries can apply to the Islamic judicial courls and lhe dispute is considered according
10 judic ial laws in lhc Islamic courts and cbe verdict of compcteoi j11dges is given. There will exisl oo discrimioacioo in
~

200

Minority Rights

1he laws, verdicL~ aod tbei.r execution. Religious minorities


will be treated io the same way as 1-foslirns. If the verdict of
1he competent Islamic court is against !he Muslim, he must
accept it as tlte tributary must.
(11 che thi rd case, religious ruioorities, too, c an plead co 1hc
Islamic courts for justice, but there is no compulsion on
!hem. Ar che same time the Islamic cou rts are noc compelled
t<> accepl cbc ir appeal.
Concerning the duly of lhc Prophe t and other Islamic
judge~ lbc Qur' au says:

-:~~; ~

., ., .,~-- Z' \; .!\ >t:;:. . ~

~v"<f' .> ~r-

.,.. '

"TbcrdiJrl'. if" they come 111 you, judge (wtwet11 them or


turn aside li'om tbcm. " (Siin1111/ ll!fil'idah/ 42)
Juris pru<lencs have in1e q1rc ced the phrase 't urn a;:lde' In
rneau ' abstain from judgment hetweeo rhem. ' [n s uch a c ase,
they s ho uld be referred to the ir own courc~ and ooc lcf1 10
t hemsdv~s in Ch>.!ir dis ptllcs. ' The !ale Mlrhaqqiq Arde bili
says: "Th i's view is accepted by Shiite j11risprude nts ... i
A number o f jurisprude nts have consi dered ii o bligac ory
for Islamic cour1s lo accept the appeal
1he commilted minorities and it is a d.uty for 1hcrn to hear their cases if' 1hey
clcsir..: so.
ln this vie w lh.:y rely on verse NO. 49 ofSOrnlul MA' iclah:

or

-:s;1J:fr:.,
>'." -<--, i. \'
./ ,.r-r.::
~ I:/"
''. . .judge hwwccn !hem by 1vh11t A llah has n:: ve:iled, "This
' lbi<l., vol. 2, p. 652.
' Ayillul A &~<f!ll, p. J92 (hthgrnphic c<l.)

Minority Rights

201

considers judgmcnl a binding mancr. and 1hey argue tbcr.,by


1bat Ibis v.:rse ahroga1cs the pr~'Ceding verse. ' f11cy have also
given anolher reason: undoubledly 1hc removal of ii1ius1ic.: is
a hiudiug duly for lhc Muslim leader. and judgi ng bc1wcc11
the 1ributarics, 100, is one o f 1bc judic ial du1ics of 1bc Muslims.
Bui 1his rcai;oning is wrong b.:cause 1hc lslamii.: coum can
nol forcefully summon lbe li1igan1 pariies 10 1bi; courl before
the 1ributaries lodge an appeal for ii. Therefore 1his v~TS" bas
Ille same meaning as verse 42 of1 hc same s iirah .

.::,. b

.. ,..,..

~~ii.~ ~;.1\.)1
.

... ..

6 - '.;.~~
;jt ,.~ ., t--~ \;~.)1.:-J'

$.;

"llod ilyou j udge, judge betwee(I t/Jcm wi1b equi1y. surely


Allah loves 1bose who judge equitably."
T he purport of both verses is that if i1 is necessary 1ojudgc
be1wccn 1be non-Muslim groups. lbcn ii should h<: accordrng
to justice and divine rcvdaLion. and 1bus the V<!rsc 42 of
sorawl MA'idah does 1101 refer 10 lhc duly of preliminary
j udgment. TI1 c phrase al lbc cud of 1h1s verse, saying. "!lad
do oor fi>llow their whims" is a good 1cs1i111ony 10 this foci.
which is similar in meaning lo the vcrs.: w~ quo1~d bcfor~.
name ly:

'Therefore:. if they come to you. judge between lhi:m or


turn aside from them.

202

Min!)rity,Rights

Why Do the ls l.amic Courts Have an


Option?
To find a definite answer to this question as to wl1y the lslamic courts arc free in accepting the appeal of 1be minorities
or referring them to their own courts, we must resort to Olher
verse~ of the Qur' iin.
Verse No. 43 of stir.Yiu/ l\4ii 'id11h gives us 1he followiog auswer:

"A nd how do /hey make you a Judge while /hey have /he
Torah wherein is Al/Rb s judgem enl ? Yet /urn back nl/er 1h111.
nnd /hey 11/'e 1101 believers. "
Thus the Qur' au expresses surprise at the Jews for appealing to the Pro phet for justice, whereas they have the T orah,
their religious book, in hand, and can see the verdict of Allah
in ii coocerniug their differences; but since Htcse verdicts do
not correspond with their desires, they come lo lhe Prophet
for justice though they have no faith in revelation and bis divine Book and his propbetbood. Whal kind of an appeal is
this?
T hey would even tum aside from lhe Prophet's verdict if
they found it contrary to their desires. They have no bdief in
their heavenly Book, the Propbel of ]slam, his judgment and
verdict, nor in anything at all. Accordingly the Qur' ao has
Jell it 10 the Isl amic courts to decide whether to accept the
minorities' appeal or not, so !bat Ibey would accept the appeal if they fell that the verdict given hy the court would be
considered binding by the liligaut parlies. Rut if they realise
that there exists evil in1e11tion, disbelief and plots against 1he

203

Mino1ity Rights

vetdic1 of lhe courl. they can refuse the appeal.

Fair Judgement
11.1 any case, the Islamic CO\lrts have the duty to judge fai rly
1
in 1be di.splltes and differences betwecn Lhe non-Mus.li01
gfoups, as they do i.n 1be case of 1he Muslims, and avoid
every unjust d iscriininatian and partial judgement.
T he Qur'an gives an empbalic command 10 the Propbel of
]slam in Ibis connection.

"And ifyou judge, between them with

eq11i~y; $11rcly

1\/!a!t

loves I/lose wllojudge equitably. " (Silu/11/ /14/i. 'id,1h 1 42)

"And when yo11 j11dge be/ween pepplc, you judge .wir/J justice. " (S11rat11n-Nis11 ' 1 58)

"fudge he/ween them (followers of books) by wh111 Alhth

has revealed, and do not follow their whims. "

(Surawl

,\J$'id11b 148)

':'>o judge l>ctwcc11 men with jusrice ,wd do nor fo/!o w the
wbim. " (Siiraru Slid 1 26)
Thus religious minorities can with assurance refer

10

1.he

204

Mi no rity Rights

Islamic courts to sellle their differences and benefit from the


imparti al verdicts of Muslim j udges. The Muslims and their
j11dgcs arc duty-bound nol lo transgress over the limiL~ of
j u~tice, and lhe ill conduct and tyrannical acts of some individ11als of the minorities should not cause tbc Muslims 10 do
injuslice or ri;sor l lo retaliation.

~~~~ 1"c ~:.,..;:; 'IJ ~ ~~ 5~~{ .A~~ij)'!;;1:.::::::i~h'.;.~

0)' :'i.;.".~ ;.:;.;i ~~1!,';J1;~'Ay_;.ll~l}~1~..jf ~~


"0 :rnu wbo bclicl'e, bt: uprighr for Allah (aod) lxwrcrs ot
wirucss 111irh justice, aod fer nor h11rrcd ot a people iucirc you
oor fo acf equirably. ;tel cquirnbly. 1ha1 i.f oCRJ'CJ' 10 piery, and
s u11rd ng11i11s1 A llah s wrath. Surely Alf.Yb is 11w1ire of wl111I
you do. (Sora tu/ Mli 'jdah 1 8)

Third View
Another vi<"w is expressed concerning the appea l of the
non-Musli m groups lo Islamic coUJ1s according to which Is
lamic courts arc bound 10 accept the appeal of the commillt!d
rcligio11s groups for justice, whereas they can refuse tbe ap11e11I of the uueommint:d ullicd groups.'
Tbc supporters of this view resort lo tb.e fo llowing argumcot:
The T ribute Agreement and joint treaty which is concluded
between we the Muslims and the three religious minorit ies,
m Rke it necessary for the Muslims to take the requin.:d step in
removi ng every inj ustice aud redress their legitimate rights uf
Ii fo, prnpcr1y and bvnonr.
Undouh ted ly, the performance o f such a duly in the case of
1

1i11.<in1/ Manilr, Vol. 6. p. J 94.

Minorily Rights

205

the disputes between the said groups is oot 11nssihlc ~cep1


through submit1ing them to the Islamic coul'ls and the fai r
judgment iind settlement of s ucb cases.
Upon thi~ reasoning they claim that the verse which says:
"Therefore, if they come to you, judge bctwc<:n t!tcm or tum
asjde Jj'flm rbem. " is no1 applicable to 1hc 1ri hutaries, but to
other non-Muslim allied groups. This is suppcined by the
purport of 1he verse which was descended about 11tc Jews
around al-Medina, since tho;: kws of Banfl-Ndir and naniJQurayzah meant by the verse were a llies hut had nn l t'<>ncluded a tribute agreement with lbe Prnphcl.
Replyi ng this argurncnr. tile late Muhaqqiq Ardd>ih says:
"First ly, the purport o f 1hesaid verse shows, in conneclio n
with 1he verSes co ming before and after, that it is rclakd 10
the tributaries. Scco udly. 1b.;: rnmoval of inj usti ct! w[iceh~r
from a Muslim or a no11-Musli 01 is 11 ohliga1io n whether we
are commilled to defence o r not. Third ly, if we rdt!r lb" li1igan1 parties to lb<:ir own courts, th~y wil l not b" trcah.:<J 1111justly either by us or by their <wu co urts, si11<.:c such an as signmeot corresponds with their view, and thus it is rr,.de
binding for tllcm."1
To explaio tbe lirs1 J)a rt of the answer given hy the lat..:
Muhaqqiq l\rdcllili, we must add that though the .Jews of
Ranu-Na~ ir a11d Banii-Quray(,ah paid 110 tributary and joined
the allies of the grea1 Muslim society hy means of the first
lrcaly concluded in the early days of the Prophet 's migration
10 al-Medina, y<:t the treaty co ncluded by the l'rophe1 wi th
the said Jews contains the s~mc lega l rcsuils a> a tribute
agreement, aud the Prophet lrnd guara111ccd 1hc ir1111'1t111 ity ,, r
' Ayatul Alikiim. by Ard11bili. p. 392 .

206

Minority Right!<

the Jews against every danger and aggression.'

The View of the Shiite Jurisprudents


The Shiite j urisprudents have declared, in support of the
ahove verse "Therefore, if they come to you, judge between
th1:m or tum aside from 11Jem''. 1ba1 thtJ acceptance of tbc
no n-Muslim groups' appeal, whether coouninl!d or nul, depends o n the discretion and judgement o f the Islamic courts
and the Muslim judg..:s and ha ve rel'ut~d the compulsion of
tho: Islami c courts in judgement, in the same way as the compulsion o f the tributaries in appealing to the Islamic courts. is
rc l'uled.
Muhaqqiq Arddiili and other Shiite jurisprudcnls. while
q uot ing the ahcwe ash-SbAJi'i ' s view have considered ii in
agrci:mcul wi1h 1ha1 of the Shiite jurisprutfonls nd there is ;1
uu auimily of o pinion o n this matter. The late Jaza' iri says:
"O ur uarralioos. too. confirm thi s point "1
Slrnykh Tbsi quorcs Abu-13asir who q uoles 1hc Jrnam Mu
hammad al-Haqir saying:
"Wheo the followers of 1bc T o rah and the Gospel come 10
the j udge for 1rial, he has the oprion whether 10 judge between th.em or nol 3
O n the basis or the above reasons. the Shiite jurisprudcnls
admit no difference between !he religions of lhe li1iga111
gro ups i11 their disputes. Whether rhey fo llow the snmc creed
or a differ eol o ne, they are considered .:qua! bcfor.: the lslamic courts, and in both cases the court can abstain froo1
1

()11/ii'idudUirfr. by al-Ja?.A'iri. p. 378 (Lilhogr>phic ed.)


' Tntflubul A ilk..1m quo1ing 1hc fonncr 1-cfcn:ncc.
' Ibid.

207

Minority Rights

heari ng them.
Some of tbc Sunni j urisprudents believe th 111 wbeo the li tigant parlics beloog to different creeds, the Muslim judg~s ttre
duty-bound lo judge betweeo them for I.be litiganl parties du
001 recognise their own religious courts, and arc 001 wi lling
lo be tried iu a court opposed to their religion. In s uch a case
the dispute between lbem may produce mischief and injus-

tice.
But considering the Cltplicit purport o f the verse No. 42 of
sOralul MA' idab, it must be said 1ba1 in b01ll cases I.be vcrdic1
o f the verse is the same, and 1be above rea~oning could be
correct if 1bc view which is op posed 10 the acc<1plance of tbc
minoriti es' appeal is rcjcc1ed, whereas acco rdi ng 10 1be view
of option, in cases where the refusal o f litigant parties to be
tri ed in !heir own courls may produce disturhances, mischie fs
or inj os1ice, the Islamic courts wi ll accept !hei r app.:11! for the
sake of social expediency. The above reasoning is 00 1 the n:fore incompatible wi1h !he view of !he Islamic courts' <>pt ion
with regards to !lie minoritjcs' appeal, and is in pcrfecl
agrolemcot witli it.
This option is also tru~ in a case where o ne sid.: uf 1bc li tiganl parties is a tributary aud the o ther side, an ally or a
member o f uocommined !,>Toups. Similarly if bulb sides a re
optio n for the
a llied, or immune or uncommiu ed, the righ1
reasons mentioned befor~ is preserved, a1ld in nu e ase rhe Islamic judges are forced to accepl any appeal without the need
o f an expediency.

or

201)

Minority Rights

The Jews' Pleading for Justice in lhe


Prophet's Presence
During the life of the Prophet, the Jews of al-Medina repeatedly came 10 lhe Prophet for judgment and the sc1tkrncn1
of their differences. There was no agreement among th.: Jews
of al-M edian uhout 1hc punishments of adultery Hild bloodmoney, which led to many dispu tes among them. The .fews of
Bani1 Na<)ir w ho relied on 1hcir (lWn power, no bili1y and SI
pcriority, demanded full payment of mulct frotn lhe killers.
But the k ws of Bano Qurayzah who were wcak.:r could on ly
colh:ct half of the sum. Thus when the slai n and slayer belonged to two dif!i:rent 1ri hcs. there naturnlly ATOse clashes
between them resu lt ing in very uuplea$ant happenings. So io
order 10 se111c the old-slaucling dispu1cs, bo th parlies begged
lbe Prophet for arbitration aod verdict. The Proph~l. relying
o n the priuciplc of equali ty and rejec ting every discrimination and force, issued the verdict that the kilk r, disregMtling
his tribe musl make full payment of the blood-money 10 Ille
1
concerned lribc.

Freedo m of lhc Minorities in Choosing


the Courts
lnspite of haviug the fight of appeal 10 the Islamic courts.
the rcligiuus minorities also enjoy tbc right o f freedom in 1bc
manner o f ple11ding, 1ha1 is 10 say, Ibey can ai>stain from laking their cas.: to the Muslim courts and submi t it 10 their owu
judicial ;1nd religio us autborilies. T hus we may say 1ha1 Islam
has pn:s..:rved the right of judicial independence for its allil!S.
1

111fs1ru/ M11n,1r. Vol. 6, p. 394.

Minority Rig hts

209

In the first aud second cases where the rigb1 of a Muslim is


in question, o bviously there is no nece~sity of referring to the
non-Muslim courts, and di ITerences are settled impartially
accordiog 10 the jusc laws o f tbc Islamic courts.
Islam considers This right of plcRding and judicial independence, w hether explicitly sti pulated in the t.:x.t of the
tribute agreement or 001. a necessary and legitimate right of
the allies and re ligious minorities residing in the lslaoiic
r.:alms. and fonnally recognises the wnliccs issu~'<I by th.:
minorities' j udicial couns in che above cases.
In fact this should he consitkrcd a privilege rat!Jcr than a
right and respect for freedom, sine~ che grnnling or sud1 a
right is nn admission to a kind o f internal independe nce for
the non-Muslim groups within an Islamic society, whereas
today, independent councri es avoid. as far as possib le, grnncing such a privilege to the aliens.

Capitulation
Capitulation is a lemi used for treaties aaccording to w l11ch
a foreign government is granted some rights of sovereignty in
auother count1y , lhc mos t impor1an1 o f w hich is Che righc o f
judge me nt and e nforcement (If punis hmcn c from whic h the
citizl!n~ of the foreign govcromcot benefit. Capi1ula1iuu is an
unusual s tate o f affairs which is iocompacib le with iudependcnce and national prestige and contrary to tbc principl es
prevalent among civilised. 111dcpcndcnt nnd fr~ nations.
In view o f w hat Islam has resolved concerning the judi~ial
independence o f the religious minorities {who ar<.' noc formal
citizens of 1hc couutry), the legal value of lhe sys1em or c u' SpeciNI lnlcmtionl !Ng/its, pp. 9 1-94.

210

Minority Rights

pirnlations becomes clear, since such a treaty io so far as ii


corresponds wilh lhe above Islamic laws, is a lcgilimate rigbl
which has been given a legal value by means of 1l1e tribute
agrcemc111.
The only point to be added bere concerning capltulation is
related lo the otfonscs and their penallies which do not correspond al all with the Islamic penal laws atJd regulations of
1he tribute ag.reements. For if the religious minori1ics coo1mi1
such acts in the lsl.atllic realm which are considered au offense hy Islamic p~nal laws and for which certain puuisbmcuts arc envisaged, they will be punished according 1n these
Islamic. laws. T here is only one exceplion to Ibis, namdy,
when the said act is permissible in their religious creed and it
does not couse any damage to the others, and also if such a
case has not been stipulated in the text of the tribute agreemenL Moreover, if ooe of the litigant parties is a Muslim, no
courl bul an Islamic one is competeot to try th~m.

International Court or Arbitration


Regarding relation among nations, the world of today
considers international arbitration as a peac.e ful means of removing diflercnce.s be.lween glivemmcnts. Arlick 38
the
first Hague Hgrcemcnt of 1907 th.'Clarcs:
"lllternatioual arbitration means the senlemeot of disputes
between governmeots through arbitratMs chosen by 1hem.
1
wbo judge on lbe basis of n:spect for legal pri.ocirl<!s."
Thus a person or persons selected for Ibis purpose act as
impartial judges between lhc 1wo b()stile parties. and both
sides must, with good will, carry out the issued verdict

or

Ge1m.;1/ Jntcm111ion.vl Rig/tis. Vol. 3. p. 140.

Minority Rights

211

Such an arbitration bas been envisaged iu tbc law of Islam


and is ac tually practised in some disputes be tween Muslims
and noo-Muslim groups. 1 Examples of this is see n in the
arbitration of Sa'd ibn Ma'adh who was chosco by both the
Prophet and Jews of Baou-Qurayzab. Likewise tbe1arbitrations, agreed upon io tbe battle ofSirtiu.
The system of the selected arbitration is not o nly accepted
by Islam as a means of peaceful settlement o f international
disputes. but also in the system of local difTercoces. According to this system, both sides are allowed to choose a person
as arbitrator, and thus remove the need of referring to tbc of~
ficial courts. Sucb a person is ci1llcd the ' arbjtratingjudge' by
fbe Islamic jurisprudence.
It should, however, h e remembered that in the law of l.~
lam, only a single person may be c hosen for arbitration possessing tbc merits and qualifications for judgement and he 1s
ro judge o n 1he basis of truth and equity.
The Qur'an says:

~~1)i.;~'.:h; :..-:'it1f;:.1Jt~~;li(

t.1
<
,,, '""'6':.~1. ~ t-~'.<,W "'i.\'t-.r.J Gii
~ ~'"' -u:.z.~~ ..... u1.':l!..i..Jl ,,.,.,..,.u...,.;.
"Surely 11/lah col1l/JJ1wds you to hund over the tmsts to
their owoers 1111d tb11t when you judge between people, you
judge witb j ustice, surely Allah admooisbcs yoJJ wilh wb11t is
excel/cot; surely Allah is Seeing, HeMiog." (Siiratun - Nisli
158)
ll1c Qur' an rejects the arbi1ra1io n of incompetent and un 1

The dc1Ailcd discussion cont<: ming 1h.: 1n1terniHional ubitral ion :i.ysh:111
in the Islfunic h''v is oul of 111<: or'iginAI 1li111 of 1h1s book. An expanded
discussion of :uune \.\1ill :>cpan1tely be pl'CSCntcd later to 1ht conc~rncd
readers.

Mi nori ly Rights
fair pe rsons and forbids !>leading by such (alsc judges:

"They desire ro litigate to the raghut 1houg/I tf/ey were


,ommanded to deny him. '' (Siir11/11n I Nisa I 60)

Another Privilege
The religi011s groups living io au Islamic rea lm uodcr a
Trihule Agreemt!UI aud having differences wilh Mus lims, can
in so far as lbe condilions of lbc Trlbulc Agree111e111 and reciprocal commitments permil , beueli1 from lhe law of arhi lration: This is possible if a demand lbr arbi1rn1io11 is mad.;
before applying to judicial cou.r1s of the Muslims. Bui once
the verdict of 1be competent Islamic cour1 is issued co11ceming the dispute in question, the coofcdcratcs must respect a11d
obey it according to their undertak ing in 1hc Trihu1c Agrecorco1. For as we. stated in dJap1er four, lbc acc<::p1'mce 01: and
rcsp~cl for, lhe Islamic laws and regula1ions of Muslim
cour1s is a delin ite duty o f the committed religious groups
and tbcy cao1101 disregafd 1his Jespoosibility. la personal dispules, too, cvc.n when on~ of the parties is a Muslim. 1hcy
may agree upon Mu.~l im courts and choose a pc rsoo or persons to arbitrate and settle their differences.

5. Freedonz of Economic Activ ities and


Commercial Relations

slam anachcs much importa nce IO c-cono mic acti viti es


aud commercial mallers as R vital necessity on w hich
depends the indiv idual and socia l intcNsts and has in
many cases emphasised the expansion o f legitimate .:co nomi c
activities.' Islam considers ii a duty for all individua ls to engage: in such ta.~ks which provide individuol livelihood aml
rum tho.: wheels of society, and bas even considered it r1..-commendab k 10 expand such activities beyond the limit of
urgent needs.'
lslarn docs no t allow a person to leave bis job and abando11
economic acti vity and as a result become a lnirde n on the society or o n otbcr indi vidua ls. In s uc b cases, relig ious le ade rs
have great ly rcproacb.:d s uch persons. ' WJ1cm:vcr the holy
Prophet met a young man, be began hy asking him about his
ob and profession. Lr he was johtcss. the Prophcl us.:d to
urned away from him, but if he was active and industrious
WaSJr iJ11shSl11 'n/J, Vol, 12, chs. 7, tOand 2.~ .
Ibid .. chs. 4 , 9. IS, 20, 2 1-23.
Ibid., ch>. S nd t 8.

214

Minority Righg

he encouraged him, sayiug tbai the worth of a human being


depended on his job and profession.
Those who give up work in order to engage i.n worship and
spil'imal man.::rs are not acting according to the method of
moderation in rslam. Islamic leaders have declared about this
mailer:
"Those who aba11dc1n the world for the sake of tbdr hereafter, are not of our followers." 1
"Make so mucb effort while you are living as if you will
live forever, aud endeavour so mucb for your salvation on the
day of Resurredion, as if you will depart the next day" 1
"Weallh is a good aid to piety ... J
Islam has 11ot only real istically cousidered economic activities as a natural and legilimat<l right of the bumau beings.
but also as a duty and necessary mailer for the surv-ival of
man, family and society. This matter does not apply only to
the Muslims and the Islamic socie1y. but also lo the al lies a11d
non-Muslim groups who become members of the I~lamic
society, since. according to lhc law of the tribute agreement,
the commiucd minorities are allowed to engage in economic
and commercial activities, and cooperate in the economic devclop111..:u1 of lhc Islamic society, rtnd in these tasks they
b..:ue!it from security aud freedom.
Ownership right of the Committed

Minorities
Tbc general order of the Islamic economy is based ou
(bid., ch, 28, b,1dJi/r. J.
Ibid., {IRclillr. 2.
' Ibid., (Ind/lit. 3.

1b~

Mincnily Rights

215

principle of owoersliip and respect for imlivipual ownersl1ip,


and accordingly, all kinds of economic activities, trade and
deals have been arranged on this basis. This system is appli cable and recognised wilhoul any fundamental change wilb
respect lo tho non-Muslim allies in the Islamic society (tl1c
committed religious. minorities). Thus, their right of C)Wtiership is immun~ and respected legally like that ol' th~ Muslims. As we have already stated about the lirsl responsibili ties of the Islamic society concerning the commitments of tbe
tribute agreement, tbe life, property and honour of the tributaries are 11erfectly secure and protected by the ISiamic society.
The right of owning land. too. is preserved for the minorities, and they can own land, buildings and other kinds of
property through 'legal dealings. On the basi.s of respect for
private owne r.s hip, Islam docs uot allow a:ny inlet'ference in
the property of1l1c commil1cd minorities, and any s uch inte rference in the properly of the tributari"s <le r "1nds on tbc latter's previous agreement and assent. Tbi~ applies IO hoth
movable and immova\llc property.

Freedom of Conuncrec
Io tbc secure eovironmcnl which is crcakc.l th rough th"
conclusion ofth.e tribute agreement belw.:.:n thi;: Muslim~ and
the other religious gro11ps, lslam permits every kind o f ctonnmic activity including commerce for these' 1iliuorilies and
guarantee their freedom in this field.
Whal is worthy of nolic.e is that the meaning of freedom o f
comm<:rce is not thal religious minorities have the right to
engage in every ly.pe of coinmercial ac1iviti<:s. It rather means

2 16

Minority Rights

1ha1 Islam docs not compel lhem 10 follow ils economic


regulations. They cao engage in such activi1ics according 10
the regulations of 1bcir own creed.
Bui when one par1y of a dea l is a Muslim, lhc 1ransac1ions
which 111c not in accord wilh the Islamic criteria wi ll not be
formal and valid from a Muslim's poiol of view. lu such
dc:als hoth parties must agree 10 make it conform with the
ls!Amic economic rules.
/\s a free economic rda1iooshi p usually occcssilt~'S a kind
of proxi mi1y and friendly underslaoding. ii will produce desirnble resulls from an Islamic viewpoint. Ju praclice most of
1hc Muslims' successes and rnpid progress of Islam in various societies were due lo such contacts, aud commercial relalions have beeu au cff~tivc factor in the expansion of Islam as revealed by Tslamic history.

Usury is Forbjddcn
It is sl ipulatcd in some of the trea1ies 1ba1 the Prophe1 had
concluded with lhe religious groups of his lime tbal the alli es
01us1 abslain from usury. Though lhis condition which wa~
agreed upon hy hotb sides seems 10 place a limital ion on the
r1hsolutc freedom of trad ers and merchants of religious
groups. ycl it m usl be remembered 1ba1 lbc imporiancc of this
mailer is due 10 its being a part of the decisive policy of
comba11iog usury adoplcd by Islam in the economic sys1em
of the Islamic sociely.
The dang~rs aud evi ls or the system of usury are 1<>0 clear
IO need fu n her explaoa1ion, since 1his ruinous ccouomi c mischie f: which is dragging lhc deadly feveri sh world economy
towards dca1h, is lbe cruclcsl type of coloniu1iou and lhc

Minority Rights

217

mos! disgraceful kind of profi1eerit1g imposed upon actively


productive classes and a factor of many misfor11111t!S in various aspects of social life rcsul1ing in the dcstruClion of tho
economic relations and productive act ivit ic.<.
Islam bas considered it necessary to lighl usurers lo the
exten t of declaring war on them 011 behalf of Allab. 1 Such a
decisive combat is not seen iu any Islamic prohibitions, cxccpl io polylbeism. Thus we see Iha! fighti ng usury is 011 the
same level as (igllliog polylbcism which is an uhimat~ goal
of Islam. To uproot this economic cancer, l slam bas not only
resorted 10 a n<::gative aspect, but has also p(lsitivcly fought it
by makin& use of profitable methods.
The Q11r' an considers the probibilion (>f usury as a p.:nnauent law of all divine religions, and for this reason the Jewish
usure1-s are strongly berated and lhreatened with painfu1 di' pums
. I1ment.2
vine
Therefore the emphasis laid on the prol1il>itioo of usury in
the text of the tribute agreement is nothing hut ao agrcx:mcut
upon abstaining from an illegit imate act wbicb both sides
have considered as au offense. Thus such religious restrictions i.nclude no imposition.
Moreover, disregarding the inevitable urgency which necessitates the pro hibition of usury under all c-0nditioos, aod
c.onniving at the fact that this prohibition is in accord with
other divine creeds, this poini shoul.d not be forgolten that
Islam, with its realistic vision and its profound estimation of
the dangers and deadly and rujnous losses that usury brings,
cannot rema in indifferent to such consequences which
I

Re: SfJ.rRlu/ BaqlUah/278 and 279.


Re: S11ri11un-Nislf'll6J.

218

Minority Right~

threaten the Islamic society through a system of commerce


adopted by the Muslims' allies.
There is no doubt that Islam is interested in the soundness
of the economy of the Islamic society, therefore it bas the
right to prevent the pollution of this economy. On the other
hand, freedom of usury for the minorities, who arc members
of the great Islamic society and whose economic activities
are related to, and miogloo with those of the Islamic society,
would naturally and irreparably eodanger the economic
soundness and order of this c(1alescent society. Therefore the
Muslims have the right to prohibit an anti-human system of
usury for both sides io the treaties they conclude with tho religious mi norities.

Agriculture and Farming


The Minorities ate free to engage in agriculture and farming on the Islamic lands. the same as the Muslims. The lands
that the tributaries use for such activities may be acquired
through purchasing or renting from the Muslims or the government. Io some cases tile land is turned over to them as
private possession according to the terms of the tribute
agreement. The advantage thal the tributary fanners have
over the Muslims is that the latter must pay a special tax
caUed zakiit, whereas the former are exempt from ii aud tbey
only pay the tributary and in tbc case of the tribute lands, the
tributary paid by the tributaries stands for the rent of the land
given to them by 1he Islamic government for cu ltiva1ioo.

Free Economic Relations


Tl should be remembered that the guarantee of freedom of

Minority Rights

219

coromerce and economic activities is combined with freedom


of economic relations. The Muslims are allowed to establish
free economic relations with the said groups. The only restriction for the Muslims in this connection is related to the
dealings and transactions which are prohibited by the Islamic
law aod aunouuccd by it be invalid.
for example, a Muslim caunot eogage io the transaction of
sucb forbidden commodities as pigs, alcoholic beverages,
musical and gambling iostruuiems. or participate in illegitimate acts. These regulations are not confined to the economic
relations of the Muslims with the religious minoritii;;s, but
they are general and universal
Thus the Muslims may deal in the needed commoditil!S
with the tributaries aod lease lo them any propeny or rent
Crom tllem. They may form partnership with them for commercial aclivities and take or give loans, and establish economic rela1ions 1brougb mortgage, deposit, crop sharing,
compromise, limited partnership, attorncysbip~ surety, money
orders and the like. The Muslims may also employ them or
be employed by them for legitimate tasks.
In view of such free itnd friendly rdatioos in the Islamic
society helweeo the Muslims oo the ooe haod aod the religious grou11s 011 lbe other, it must be poinrcd out that i11 this
society, there is no question of a sdect minority or any discrimi11a.1ioo among the members
the bigger lsl~mic society. AJt the members including Muslims, committed Jews,
Christians and Zoroastriaos act as compatriots aod a9 one na tion, as it is called in legal 1em1inology, to c<H>peralot sincerely for strengthening the economic and social strucmrc of
their united society. The practical method adopted by the

of

220

Minority Righls

Holy Pmphel in bis relations with lhe allied Jews and Cbrislia!ls is a good example of Ibis economic, social and political
scheme of the tributary law a! an international level. Th~
Prophet camoo on transactions with lhc Jews of al-Medina
and received loans from them. The Imam Ali bad similar
dealings with the tr ibutaries 10 the extent of hiring himself
out 10 them in fanning as a wager. He mad<: no distinction a
Musliin and tributary in this respect

Trade Taxes and Duties


As tributary traders arc free in choosing and prachsmg
their commercial dealings. Ibey also are quite free in choosing tb~ir site for such activities in any town or district As
said before, they pay no tax other than the tributary and their
commercial goods arc not liable 10 tax or duty in lraosportation.' The only restriction imposed on the tl'ibutaries is their
er.try in10 al-Oijaz zone which point we have already explained. Here we.may add that 1he issue of official permit of
colry for the tributary merchan1s by compeleot Islamic
authorities to this zooe is possible on the paymeni of a special
duty which must be clTecled annually by tributary trader.;.
Shaykh Tnsi gives tl1e. following explanation about this
matter:
"lf1bc tributaries engage in trade in the Islamic lands o::xcept io al-l:lijaz, they face no molestation since trading is free
for them. They can stay in 1be place of their choice as long as
they wish. As for al-~Iijaz zone Ibey must oot enter the sane1

111e question of c ustom duties anti iaxe.s etc., are out of this book. The
co1n1nercial obligations of the tributaries follO\V the general cconontic
policy of the .Islamic stale.

Minority Right$

221

turary zone. As for the o ther parls of ibis zone, tbey may not
enter them without an ollicial permit. If they do, 1hey will be
liable to punishment. But this punishment should not end in
death o r captivity due tn their conclusion of a joiol 1rea1y
with the Muslims. When they enter al-t]ijaz with an ollki~J
permit, their intcntioo is suh.iecl to inquiry. If' 1heir entry is
for the purpose of such mauers that are in accord wilh Musl im interesls ~ucb as the delivery of a messag.: or acling iis
depu1y for concluding tribute agreements, or carryi.ng provisions needed ~y the Muslims. they may enter al-J:!ijilZ without paying duties. But if their entry has nothing to do witb
lhe Muslim interests, or if they intend to engage in commerce
in al-l:Iijaz, they may not do ~o wi1bo ut paying en1rauce durie.~.

Jf the tributaries enter al-l.;lijiiz without a pcnni1 and without the paymeot o f duties, they will he requ.ir.:d by the Muslim leader to pay 1he duly as is 1be case with those who have
a permit Some jurisprmlents are of the opioioo tbat it1 such
cases the tributaries are exempt from the paymeot of obligatory duties. This view bas won a strong suppon and the reason given i.s tb81 since they have had no commitm~nt in this
mauer, they are not liable lo such payments. It is als.o said
that they are lo be lrealed in the same way as the Muslims arc
in non-M uslim counlries.
If tbe tributaries engage in trade in al-l~ijaz zone, they
have to pay an annual tax accordi ng lo the terms of 1be commercial treaty concluded by them, and there is uo dilforcncc
of opinion among j urisprudents concerning this matter. But if
ll1e uncommined minorities who have 110 pacl wi th 1he Muslims engage in trade, ii is advisable to require th~m to pay

222

Minority Rights

trade duties every time they enter ao the Islamic country,


there 01ay not be a second time.'

as

Taxes on Land Transfer


On the basis of freedom of commerce in land transfer. in
so far as there is no political danger. no legal check exists for
such transfors between tbc Muslims and the committed minoriiies. Laod transfer in the form of buying and selli ng or
other ways, which would give the right of possession to the
committed minorities is pennissiblc, subject to the official
regulations for transactions. 13ut according 10 tbe regulations
o f the (Kh11ms) in such cases o f land transfer, the tributari es
must spend ooe-liftb of it for the purposes envisaged in the
said regulations.
Jurisprudeats have considered this duty on purchased land
by a tributary as something obligatory in the Islamic jurisprudence. But if this transfer takes place io a way other than
purchase. the mailer is qut.:Stiooable and do ubt fu l. As a caution, they have recommended that 1he M usli ms shou ld s1ipulate in tbc act of transfer Ihat the tributary buyer sho uld pay
1hc o ne fifth tax. Tbcy may also agree that the Muslim seller
s hould pay ibis tax at the time of the transaction . lu such a
c11se the tributary b\1yer w ill be exempt from 1his payment
But when the seller does no1 commit himse!r to thi s payment.
and 1he tribu tary buyer refuses 10 pay ibis tax 11od transfers
lhc land to another trihulary or to another Muslim iucluding
the original Muslim seller, tbis one-Ci llh tax must be paid. In
a case too, o f rescissio n or annulment of th\! deal hy 1he
buyer and seller, thi.~ law bolds good aod rhe Klm ms must be
1

A lMHb.<0/, Vol. , p. 49.

Minority Rights

223

paid by anyone who talccs possession of the land .


Even if the tributary buyer converts to Islam after lbe purchase of the land, he will not be exempted from paying 1he
said tax.
The above duly is r elated to land transfer, bu.t when the
lrausaction is related to a building and the like, the transfer of
land is depcodeol on it.
Allhough some Shiite jurisprudents have considered 1he
Khums as a definite malter, 1 and others have even claim~d
uuaoimily. 1 01ber jurisprude ots, such as the author of 1Jf1Wadarak and ash-Shahid albTbaoi have considered the
tributaries exempted from the Khums on land purchase. '
Although the 'Allamah al-Hilli, in his T.1dblar11tu/-Fuqaha '
bas considered the payment (lf the Khums ob ligatory from
the Shii.te viewpoint, he has declared io 11J-Mukht1tliflhat past
jurlsprudents such as lbu-Juneyd, Sell!r, al-Mufid, Ibo A.bi
'Aqil and A bu-Salal.i said nolhing o f Ibis type of 1;1x.
The only evidence of 1his verdict is a oarra1ion of 1he
Imam a~-~iidiq quoted by Abu 'ubayda al-J_ladhdhii', who
said: "When a tributary purchased a laud from a Muslim, he
will have to pay 1bc Kbums'. l n this narration the land referred to is a land 011 which a len percenl ta.:ic has already been
imposed. Wbeo i I is purchased by a tributary, anolher len
percent is added making a Iota! o f twe nty percent tax, i.e. the
Khums. Therefore, it is likely that 1he question of th~ K.hurns
is 001 a fix.ed sum to be paid by the 1ributary, but a kind of
lax. which is within the powers of the c0mpctcnt lsla1J1 ic
1

Tttdh!drttruJFuqo/Jo ; Vol. J, 1>. 253.


' Gbunytt/1 quoting Mi1"'1J1u/ Fnqili, Kitabul Khums, p. 132.
' Ibid.

224

Minority Rights

authority.

Freedom of Jobs
Ill addition 10 commercial and economic activ ities, religious minorities are free to choose any job or profosslon which
is 1101 contrary to lbc tribute agreement and does 110 1 CHusc
mischief and disorder in the social system of 1bc gr..:a1 Islamic allied society. The 1ypcs of jobs aud professions fo r the
commined religious minorities include productive aod industrial occupa1ioos, Medicine. teaching and the Like Ahhougb
the right of engaging in these professions is a pHrt of the
1ribu1c agreement which 1he Muslims must guaran1cc, ye1 its
details and cases arc subject to changes to be agreed upon in
the 1cx1 of lhc agreement.
T hus this right is preserved for the Muslims iu c11scs of expediency and accordfog to the judgment of the leader of the
Muslims 10 close the door of some of these professions to the
c;ommittcd religious minorities. Such an excep1ion and limi1atioo may also be made iu commercial and economic matters, to be stipulated in the 1ext o f the agreement in the interest of the Muslims and the Islamic society with regards lo
tributary individuals or groups in their economic or commercial activ ities. Aul wbcu such maHers are not stipulated in
the agreement , 1hc relig ious minorities will have full freedom
in these activities and io 1bc choice of professions.

6. The Execution and Recognition of


the Minorities' Civil Rights
be minorities who have joined the great ~!lied Islamic society through a tribute agreement, are not
bound to follow the Islamic laws concerning their
civil rights, such as marriage. divorce, inheritance etc. The
laws and regulations which are in this connection enacted by
the said three creeds are recognised by the judicial and executiye orga11isalions of the Islamic society, and the followers
of these three creeds may act according to the laws of their
own respective religions.
What is meant by the laws and regulations of the ~aid three
creeds lire those laws which are at present recognised by the
followers of th~'Sc religious, even though they may be contrary to tbe true divine laws and regulation~ of the said
creeds.

Laws of Marriage ofNon-Mus.lims


Every religion and nation ha~ of course special laws for
marriage with certain legal wstiges. Evco those groups wbo
do not follow a particular religiou and l1ave oo religious be;

226

Minority Rights

liefs, have diviscd certain rules for marriage which they follow.
Islam's realistic attin1de always regards such facts and
evaluates them and consequently to this ease it has, witbout
any prejudice, recognised the laws and traditions of various
gr011ps and creeds which are accepted by them conccmiug
marriage c-ontracts.
TlJe Allamah al-llilti says iu tlJis connection: "The mar.riage of the iu.fidels is legally right, and their status remains
intact on the basis of that marriage eveo when Ibey are converted to Islam or when they appe11l to an Islamic cour1 for
justice. 1
lo the Qur' au, in the sOrah of Abu Lahab, where AbuLahab and his wife are berated for their hostile acts, v.crse 4
says: "A.od his wife, the bCMc1 of kindling. " In this verse
there is an implied recognition of the propriety of the marriage between Abu-Labab and his wifo, in the same way what
is stated in another silrah 1he legality of marriage of Pharaoh
is recognised.
We may say io support of the al>ove view that the nonMuslim men and women who appeal to the Islamic courts in
their marrfagc problems, are lried according to 1be marriage
laws of ibeir own creeds since such a marriage is legally acceptable. If both of the noo-Muslimscouplc convert to Islam,
their marriage will be considered legitimate as bdore, since
if it had n ol beeo legitimate before convcrsiou, JlO change
would be legitimate after 1beir conversion.
Some Sunni jurisprudeuts, such as Miilik. say: T be marriage of infidels is not valid shice they have nol observed reI

Ti1dhkitntlll fi1g.1h.1 ', Vol. 2, P 648 llnd 650.

Minority Rights

22'7

ligious laws and verdicts, but hecause of 1he agreement, a


non-Muslim couple arc not sentenced to scpara1ion when
they appeal to Islamic courts, and if Ibey convert to Islam,
their marriage i~ legally recognised as an extenuation and
pardon. Some other Sunni j urisprudents claim that tbe marriage of tbe infidels before their conversion t(l Islam is neither wrong nor right.'
But ihe Shiite jurisprudeots believe that the marriage cm1tract of tbe infidels if made according to their o.fficial criteria,
is considered proper by the Muslims, aud there is no dist inction here b~tween the tollowers of l1eavenly books, idolaters
and others. If the c ouple convert to Islam, !heir marriage is
considered legitimate as before, unless tba1 01a1Tiage bad
been concluded in a way cootr ary to Islamic criteria such as
incestuous marriages.'
A well-known 1.radi1ion says: "Every people have their
m arriage [customl", is a reference to the fact tbal marriage
law is bound within the customs aud traditions of peoples and
nations, and it is recognised excep1 inces1 which has round
r ecognition by some tribes and people insipitc of its strict
prohibition in the Islamic law.
Consequently all the committed religious minorities have
the right to follow their own laws aod lraditions in resp~ct of
marriage. Such marriages which accord with the said laws
are fonilally rec.(!gnised by the Islamic courts and executive
authorities aud, according to the /,Jaditb: "Bind them by wbal
1hey bad hound tl1emselves," alttb<: differenyes 1ha1 are taken
AlFiqh 'a/ii Madhiibi/J al-Arb 11. Vol. 4, p. 200.
' Wasllal1U1N.;ja~ Vol. 2, p. 256. Talmiul Wasilah, VoL 2. p. 422.
Tadl1kiratu/ Fuqal1h '. Vol. 2, p. 648.

228

Minority RigJ>ts

to the Islamic cpurls or courts of arbitration 1 are settled according to the laws of their own creeds:2

Marriage of the Minorities with Muslim


Women
Marriage is a law of human creation and one of mao's
natural and instinctive desires. Islam considered ii as an inviolable right of the commiued religious minorities. As we
have already said, Islam considers legal the marriage of 1he
minorities which have been concluded according to 1heir own
laws. But at t.he same lime, iu the Muslim marriage law, this
ri~ht and freedom has been limited to members of lhe same
.religion. Muslim womeo are not allowed to marry nonMuslims men. According lo lbe same law, the marriage of
the non-Muslim men even if they are commiHed tributaries is
forbidden with Muslim wm.nen and such a marriage is ronsidered an offense. Jn cases whcreiu accordance with tribute
agyeemeot, lbe ab.steution of the tributaries from molesting
Muslim women proposed and conclusion of marriage with
them bas been forbidden, the said offense makes the agreement null and void.
In order to base marriage oo an authentic spiritua l fouodaliou and make the j.oint marriage life mentally ban:nooious,
peacefu l and based on co-<>peration, Islam believes io au
equality of a ma.o aud woman to make marriage real. But this
equality is not measured by apparent and material criteria.
Therefore, wealth, ra11k, liueage, race, fami ly stalUs, social
1

On ~iis subject refer 10 the chapler on "Judicial lndepe1)dence' in Lhi;

book.
2

Ibid.

229

Minority Rights

position anc1: the like do no1 determine the equality of a husband and wife. The only criterion for the equality o f the
couple in Islam is faith aod belief, and this pri nciple makes a
man wo11by of. and equal to.' a Muslim wom:111, and vice

versa.2
This fact should not be forgotten that in married life a
woman is subordinate to a man's will owing to a number of
psychological and social rcasoos. Even if we do not acc.ep1
this fac.t as something natural, we cannot deny it as customary in many marriages in most social environments.
Naturally Islam cannot i!,.'DOrc this fact and be indifferent
to ifs consequences. Allowiug the marriage o f a Muslim
woman with a non-Muslim means being indifferent to the
Muslim woman belief in the fa~ of the daog.:r that threatens her. It also opens the way for her deviation towards iofi.dclity aod thus a large number of Muslims would fac.e apostasy. Obviously this bitter fact is wholly contrary to the
authentic goals of Islam and cannot be accepted by a religion
which claims to have u niversal mission.

:s

A Wife's Conversion to lsl3m


When lhe wife of a non-Muslim conv~ns to Islam, the legal aspect of lbe marriage c hanges iu this way 1ha1 if from
the time of lbe weddiog uot il lhe conversion of lb.: wife 110
~extual intercourse bas taken place, the said marriage con1rac1
is automatically nullified, and from moment 1ba1 lbe woman
1

Sbartl /'u/ Ahk/lai

w lwal1irol Kflliim, the book of marraige, the first

question of the C-OnlrltCt~s supP.len1enL

The Qur'an re fe1'S 10 this question by saying: ..And ~ed not (believing.
\Votnen) to idolfltors until they believe; for cenainly a believing slave is
better than an idolater,. evenclhough he should please you." (2c22)

230

Minority Rights

is converted, !he previous marriage loses i1s legal vestiges.


But if the wife is converted to Islam after dcfloration, her
non-Muslim husband is given a period of grace to decide lo
separate or cont inue tbc marriage with his Muslim wife.1 If
he, too, converts to Islam, 'the marriage becomes automatically legal, unless it has been of a ki od forbidden by the law,
such as an incest, in which case it is nullified toge1ber with
its vestiges. B ui if be remains non-Muslim at the expir.y of
the grace period, the marriage is considered nullilied as from
tbe date of bis wife's conversion.
According to some jurisprudents, the tn'butaries have a
greater advantage in this matter, that is, when the wife converts to Islam aud her husband remains non-Muslim, 1be
marriage contract remains intact to the exte.ot that be can stay
with his ~fuslio;i wife during t'be day, but they must sleep
separately at night 2
To suppon thls view, these jurisprudents have relied on the
following hadi1h:
!- Jamil ibo Darraj quotes the Imam Muhammad al -Baqir
or the lmam Ja' far a~-Sadiq through a friend' s narration,
saying:
"lf the wife of a Jew or of a Christian or of a Zotoas1ria11
co11ve!'ls to !slam but not the husband, their marriage cootract
remains intaq, but Ibey will not be allowed to leav~ lhe Islamic land." l
2. Muhammad-ibo-Muslim quotes the Imam Muhammad
al-Baqir, say ing: "T he mactiagc of the followel'S of tbe heav1

-111e sai<l period, according to Lhc iJrditli and 1h..: jurists sH1teu)eo1.s, is
tho SHn1c .as 1ha1 for divorce grace.
l Sliar:i i''u/ AJ1k,1J11, 111e book of mrnge, ch. 4,
1
WnSii '11ush-S/li 'oli, Vol. 14, p. 420.

Minority Rights

231

enly books and all those who have a lribute agreemenl wilh
ihc Muslims remains legal if one of the couple is converted
to Islam. Bui lhe husband bas no right to take his Muslim
wife out of the Islamic realm, and Ibey cannot sleep together
at night, though in daytime they are allowed to. resume tbeit
common life. But in the case of the polytheists such as the
Arab idolaters etc., U1eir marriage is suspeudcd uotil tbe
termination of the grace period. If by that time lbe husband
bas convetted to Islam, his Muslim espose will remain bis
wife. But ifbo bas uot, or if conv~rted after the ~xpiry of the
time limit, lhey must separalc and husband will lrnvc 110
claim on his Muslim w ife."'
Most jurisprudents have weakened this view and have expressed do11b1 about bolb the .above (jadiths owiog 10 the fact
that they bad been quoled as "mw:~al'; (111di//1.5, some of
wliom arc unknown. To prove 1heir view, they have relied on
the following ayahs of the Qur'aa and other Tradi1ioas 10
show the identical verdict issued on lhe trihulary cou1>le.~. and
011

non-tributary .couples:

a.. "God will by no me11ns give 1he di.1believe1:~ 11 w11y


against fbe believers. " (sur.11110 - Nisii ' I 141)

b. "Neither these (women) are. lawful for them, 11or 11re


1

!~id., p. 422, Taltdhibul A.bkam, Vol. 2, p. 439 (Lithograpluc ed.}.

' A mursal 1J,1ditl1 is that whose claim of narrators I$ in1e.,,reted.

232

Minority Right~

they (men) /11wful for them (women.)" soratul Mumlahioah


110)

c. "Hold not 10 lhc mauiagc lies of the disbelieving


(womcof "(Suratui 1'1umta~inah/JO)

d. Ahmad-ibo-Abi Nasr says: I asked tbe Troam-Ri<la about


a man whose wifo was a Christian converted to Islam,
whether be could live with her. He said: "fr the wife bas c<rnveried lo Islam. she is not allowed to live with her infidel
husband. I repeated that the husband bad converted lo Islam
atler sometime, and asked if the marriage was intact. He answered: 'Never unless a new marriage contract must be concluded between them,' 1
c. Some .iurisprudents, including Sbaykh Tflsi in bis alKbi/af and ask-Shahid atb-Thlini in bis Al-masiilik' claim
that the Shiite jurisprudcnts arc unanimous abou t I.h e corr<:ctncss of the above proofs.
Bui sbaykh Tusi, iospite of his verdict concerning the absolute invalidity of the above marriage after the eitpiry of the
time limit, offers the opposite view in his books of anNibaya, at T11bdbib and a/-l~tib$1lr, saying that the marriage
remains intact alter the tributary wife converts lo Islam.

MaSfl/jkul Aflllim, p. 490. WaSli'ilushSbi'Hil, Vol. 14. p. 417.

Minority Rights

233

Conversion ofl3olb Esposes 10 Islam


When hotb non-Muslim esposcs conven to Islam, undoubtedly their marriage remains intact from rbc Islamic
viewpoint. unless this mllrriage is incestuous, or if it is polygamous with more than four wives. and the like which are
contrary to the laws of Islam. In rhc first case, they must
separate. and in th" ~econd case the newly conwrt~ husband
must choose up to four of his wives. while tl1e mHrriagc of
th.: other wives will be null and void.
lo cases which do not correspond with Ibo.: law of null ification, no question is asked about th.: marriage. and the Islamic
couns must consider 1be marriage of the ocwly-convcrted
couple legal and correct, 10 wba1ever crc<.>d they had formerly
belonged.

When the Husband Converts

lO

Islam

When the husband converts to Islam, nd lbc wil\: remains


unconverted, the following two cases arise:
I. 111e wife is a follower of the three crecds of ablu/ ki1iib.
2. She may be th<! follower of some other religion .
Jn the first case tho marriage is c1.m sidcrcd legal and th~
newly-converted husband can cootiouc 10 live with his wi f~
who is a follow~r of ouc of the above cr~'eds. except 1f she is
of th.: Loroastrian creed or a near relative to h~r hushaud, in
which cases the marriage is not recognised.
lu the second case, if 1hc husband 's conversion has tak.::n
lace befo.re going into her, the marriage is nullili~: and if it
as taken place afler that, the marriage is recognised on
ooditioo that the wife, too, converts 10 Islam by the end of
e time limit. It is however oulli lied if she refuses In convert

234

Minority Rights

to Islam.

Apostasy of the non-Mus lim Couple


With the apostasy o f one of the tributary co upk, if their
marriage is illegal in their creed, their marriage is broken off
But iu cases where this marriage is considered valid by their
co-religionists after the apostasy of one of the couple, some
jurisprudcnts have allirmcd its legality, while the majority of
the jurisprudents consider tbe m arriage of the apostate null
and void. since iu Islam apnstasy is fundamentally rejected
aod results in lifting immuni ty. Ash-Shahid ath-Thani arg11es
in his A f-maslilik. "Our verdi ct of invalidity is qui te wro og
since iu the above case one of the couple is a follower of a
religion according 10 which th~ir marriage is legal, ll!ercfore,
although the other apostate has no life-immunity so, as long
as be is alive there is no reason to nulli fy the marriage.

Marriage of Muslim Men With


Non-Muslim Women
Mus lim men arc forbidden to marry non-Muslim wumcu
who are not followers of the creeds of Moses or Christ. lsl~m
is quite explicit on this point
The two following Ay11h~ describe the above l11w wi1h perfect c larity:

J, "And do not marry /[11: idolatresses until they believe.''

(Silr11tu/ Baqarab I 221)

Minority Rights

235

2. "And bold not to tbc ties ofmarriage of the unbelieving


women." (Sor111u/ M1m1tahin11b I JO)

Marriage of a Muslim man with Jewish


and Christian Women
Different vi ews a.re expressed in the books of jurisprudence concerning lbc marriage of a Muslim man with kwish
and Christian women, th~ most well-known of wbicb is prohi biting preliminaiy permanent marriag~. and pem1i11iog a
temporary ouc. Some jurisprudeots, such as a~-~aduqayu
and Ibo Abi Aqil have absolutely, allowed ir and ash-Shahid
ath -Thaui, in bis ma.511/jk 111 Afliaw and .~11siilikul 1\fb/101 Lhe
author of Jewabirul-Kalim were incli ned 10 supporl it. The
arguments offered for this view is as follows:
The ayah No. 5 of soratul Mil'idab cxplicirly pcrmirs rhe
marriage wi1b 1he women of ah/ul kifllb, and cousi1lers it
similar to marrying a Muslim womao:

"And the c/Jnste from amnog the believing women 1111d 1.be
chaste from among those who have bet:n given 1bc Book b<>
fore you. .
As for lbc narratives, some of them d"nole an Ahsolute
pcm1ission, while olhers l\lrbic.l it. In some oarrnlives ii is allowed in case of exigency' and in otber 11Arra1ives it i~ pcrmined with the s imple-minded women o f ahlul kitatl and in

1
1

Wasii 'ilus/1-S/li'b. Vol. 14, 1 412.


Ibid., p. 414.

236

Minority Rights

01bers, as a 1einporacy marriage, t and lastly when the husband converts 10 Islam while the wife remains a Jews or a
Christian, their marriage remains intact. 2 In several o1her
nacra1ives, the marriage of a Muslim with a Jews or a Cbrisllan woman is allowed in case he has no Muslim wife. 3 In
another narrative the probihi1iou is conditioned 1ha1 bis Muslim wi fe would nol permit him to marry a Jewess or a C hristian womau."
The supporters of the prohibition view base lhdr argumenl
on 1bc above 1wo ayabs 5 forbidding marriage wi1b tbe poly1heis1ic and infidel women, and concerning 1bc llyahs which
is depended upou by the believers in the permissibilily of lh<!
marriage, 6 is relied on for believing ci1e a numb~r of oarra1ivcs1 to believe that the two said iiytdi.~ have abroga1~-d the
ayah No. 5 of s1iratul Ma'idah, and they support lht"ir argument by lhe purport of lhc said narratives.
But those wlto supporl the view of absol.ute p.:rmissibility,
have rejected the subject basing lheir argument 011 the fact
lbal soratu/ M1t 'id,,f1 w11s tbe last revealed silrah of the
Qur' lin, consequeo1ly, this sorah may abrogate earlier s1lral1s,
but not i1se_lf. Moreover the Prophet bad ordered the Muslims
lo consider what is )la/iii in this sorab is IJ11Jiil and wlrn1 is
bar/Im in i 1 is (111rii01.8
1

Ibid., p. 415.
' Ibid., p. 416.

'lbid., p.418.
' Jbid., p. 415.
l SOrffflll Bil(jP(iJ!i22 l ~nd Sorntul Mumta.(111m11hl I 0.

Sor,11u/ U1 'id,1/115.
7
WnsA )'/ush-Slli'ah, Vol, 14, p. 410.
' The Prophet is quoted lo have said: ''SQrHtul Ms 'ido/twas the las1 re vclcd of the Q ur'An. So, allow i1s /)n/ltl and forbid i~< [wniru." Al-

Minority

Right~

237

Moreover Sayyid Murte<}a. in bis lreatis~, the Muhkau1 and


the Muroshiibih bas quoted the Imam Ali sayiog that the iiyab
in soratu/ Mli'idab abrogates the iiyah 10 of siirnlul Mumt11hioab aod 221 of siiratul Bnqarah. The first iiyilhs
soraful
Mii 'idah too, testify to the fact that this snrab completes tire
Qur'an and contains the last divine commands and laws. Tiu:
opening part of tbe said H.ynhs says:

of

'i.~\I { 1~ ~i'\;.\;' ~ '61rr tj-~i\'

.J':'. ,

"'-' U!,

'

.. !"""'7 rr:

'.>'['' , <'-'i'1-':;!~. -c-~1'1"!<'1


~.S.--1~ . . ' ..... ~....-i.r.:-r-~Jr.

Tod11y (It!/) the good things 111e allowed to. you, 11od the
food oftlwse who hove beeo given the book is /nwliil for you
andyour food is lawful for th~m; and the chttsfe from ilmoog
the believing women ..... "(sor.110/ Mli'ida/J ./ 5) Shows this
matter 001 to be abrogatable.'
Another point is tltat if we consider the term "polytheist" to
cover ahlul kitii.b, the said ayahs will not contradict each
other, and so the iiyab of sorttfu/ M11 'id11b will act as a confirmalion, whereas according to the prohibition theory one
Tbrasi, quoting al-' AyyasJ1i according to bis authorities, and 'Isa ibn
Abdullah, quoting hi< father on the uthority of hi.s grandfather. quoting

Arnhul Muminin (A.S.) 1u have said: "1lle Qur'iin used to abrogah?


A)'11h;, and this WAS r<;ceivtd from the Prophet (S.A.). the n
the hist l'C\'Clation ws Simttul Mil 'id.h which brogted the previous
(~lC\anl) Ayiths, but itself \VR.s nol 1tbrog~U:d. It \\'H~ tevealed 10 hitn
'vhilc he '''as on M gray shcn1ulc, and the revelation \\'HS so he:11\'Y tha1
she stopped and her sto1nach hung do,\-n cill ( s.a''' hi:r nHvHJ ahnos1

some of its

touched the ground, nd the Prophet (S.A.) fainted. pulling ht> hn<I M
Shybah ibn Wahab ibn l-Jumal)i. Then the Messenger of Allh (S.A.)
c11n1c to and roecilcd 10 us .~01~11u/ M11 'id,1ll. S.o , he acted accordingly, and
\\.'\)did, too..
1

l3y observing 1he \Votd "this day0 v.hich JJUttchcs 1bc s.11111..: as in thi:
previous Ayah, the subject v.iII he exrlaincd.

238

Minority Rights

bas 10 accept the abrogation. When there is a doubt between


confinnation and abrogation, undoubtedly confirmation has
.

I
priority.
Ahhougb this discussion requires further elabornlion, here
lbe size of the book compels us to refer the reader to our
1rcarise, Ilisiilalul-Wnjiza which discusses 1he mau.:r at
length.

The Divo rce Law


The present Torah, as is now available to the Jews and the
Cbristiaos considers divorce permissible except io the following 1wo cases:
1- When the husbaud claims that bis wife had 001 been a
virgin at the time of concluding marriage and her Cather displays 1he sign of her virgiuity.2
2- If a man rapes a virgiu be must marry her and can never
divorce her. 3
Among the divorce v.:rdiclS in the Torah is 1ha1 if a man
divorces his wife because of a defoct and expels her from his
house, sbc can choose a husband for l1erself. Aul if sbc separates from Ille s<icond husband, the first husband cannot
mArry her for the second lime. and he is coosidcrcd an unckao man.'
lo the Gospel we come across tbe following poi111s about
divorce:
"The Pharisees came 10 Jesus 10 1cs1 him aod asked him:
1

lb11i. princ1plc is a basic 1'Ulc: \Vhich hsd been so 1nuch di:i;cussed. For

1norc i;xplAnations rcfCr 10 l11'llf11iul KHIA111, tht! rclcv~nl chapt..::r.


2

Al-J/11d.i i/,1 Di11il MusfPi. Vol. 2. p. 289.


l Oltl Te.<tH111c1ll, Oeu1erooo111y. 22-29.

' Ibid., 24,

I
Minority Rights

239

Cao a man divorce bis wife for any reason'/ Jesus answered!
Have you oot read tbat He who created first. created a mao
aod a woman. for this reason a mao leaves bis father and
mo1her and joins bis wife and both make a sioglc being.
Therefore, after this unity, they are oo longer two, and man
cannot separate what God had unilod." Tbey asked: "Why
then did Moses will that a woman should be rdeascd by
means of divorce'?" Jesus answered: "Moses allowed this because of your bard hearts, bu1 it was nol so at lirs1. I tell you
now, whoever divorces his wife, for other tbao adultery, then
marries another woman is an adulterer.' According to these
lexts, lhe Christians believe 1he man who divorces his wife is
not allowed lo remarry, and the divorced wife cannot remarry. Oivorc.: is only allowed in case of adult.:!)'.
As a matter of fact such questions have been s1udied by
some of 1bo Christiao leaders for 1h~ purpose of modifying
these laws, which are still among the problems facing 1h~
Coun of the Vatican.
In any case, the divorce. regula1ions lik.: the law of marriage, is carried out according 10 1he belief and creed of the
minorities, aod whatever is done in Ibis cou11ec1ion wi ll be
legally valid. In cases of any diffcrcoces in these matters, the
problems are settled in the minoritie~ couns, and as we said
before, they can also refer to the I.shunic couns to settk their
disputes.

Inheritance Law
Religious minorities, owing 10 their relationship 1hrough
lineage and 01arriage, act according 10 1bcir own law in mat1

Mathew's, ch. I'>. 2-10.

240

Minority Rights

tcr of inheritance and such owucrsbips are rcspt>cled.


In the inhc1-iti111ce law, a. iu the current T o rah. the sb1r<: of
inheritance of a deceased s son is two limes lhRl of the dcceased" s' brothers, and when there are brothers. oo share is
given to the daughters. When the deceased is cbildll!ss, bis
bro1hers receive the inherirnuce, and if there arc uo brothers,
the heirs wi ll be the dcccas<i:d's uucles, and if uo uncle eidsts,
ocarrclativ.:s will be the heirs.'
Wheu mioorili<!S submit 1beir differences in the malter of
inbcritaocc and i1s sharing to the Islamic couns, 1bosi: persons who are rcla1cd 10 the deceased by marriage or near
rcla1jves can have no share in the inherita ucc.3 But some jurisprudcu s have perolilled this inheritance to parental relalives, even if ii is through incestuous marriage.' Other jurisprudcnts have considered both lbc lineage and the marriage
rela tives' enlitled to inheritance wbe1her lbe marriage
was proper or improper by iuccst, if the matter is acc.:pted as
correct by bo1h begucalhcr and heirs. 6

Old 7htmcot, Deuteronomy, 1-7.

Ibid., Nunib<:r 21, 8- 12.


' Furii "uf Kllfi, Vol. 7, p. t4S. SharaTuf A11kArt~ Ja1nihirul KIAm.

Tabdhibul AhkP11<

Ibid.
' Lineage rolativc are those who have blood rcl'lionship, and the Other
poup are re!Ativcs by marrlgC.
According to this opinion, if the heir is a rela11vc by bolh lineage ond
marriage, inherits on this basis. similar to lhc Magion Law eooccm1ng
the man who marries bis mother, if the wife dies. he will inherit her as a
son and as husband. For further details refer to Jawahiru/ Klllm Md
T.1hdhibul l1(1kllm, Vol. 2, p. 438.

7- Moral and Social Relationships of


Muslirns w ith the Minorities
lie sul~jccl of free moral and soci al rdationship
which are necessary for the individuals and groups
io 1b.;, social li fe of a society, is anolher impo rlant
matter which must be studied in the survey of lh<: legal effects of a tribute a1,.'Tccmcn1.
The Peaceful environment and condiLio11s of co-o:xisten""
which are aulomalically created as a result of 1bc couclusiou
of a tribute agreement between the minorities and the Muslioi
society, necessarily resuh in a series of fr~e moral aod social
relationships. T his is one of the most significanl resul1s of 1be
1ribu1e agreemcui which allows religious minorities to live
alougsidc the Muslims 3 $ co mmilled allies and as mE;mbers
of the greater Islamic society.
Consequently, such free moral aud social relationships are
inevitable iu the social life of 1be minorities with Muslims,
aod this is tbc di rect result and legal exigency of that ai,>reeroeot. Our discussion here is confined to the limits and qualities of these relationships to show the extent 10 which this
freedom expands and in what cases it is restricted.

242

Minority Rights

Expression of Moral and Human


Feelings
Islam considers all mankind as human beings, from wbale.v er group of religion they may be and as belonging ro tbe
same rool and as a single Ummab. On lhe other baud, ii regards moral feelings, fl oe human emolions and virtues as
necessary for every perfoo1 human being, and the possession
of lbei>e noble qualities a~ a requisite of I rue Islam and obedience to the Qur' An.
The school of elbical and spiritual education of Islam is
based on lhese two principles. They have been employed in
founding the moral and social organisa'1ions of 1he Muslims
on an international level.
vezy Muslim who is educated in this school expresses
these moral feelings and fine human emotions, not for lite
sake of individuals or because of his .own interests in bis relation with others; nor docs he follow this ethical school as
au artificial and eruply pretentiou, but as sowelb.iug deep,
real and dynamic from lhe deplh of bis soul, manifesting itself in his acg and conduct towards others. Such uoble qualities have become a part of the nature of a person educa1ed in
lhe moral school of lslam aod have become an una voidable
second nature.
Thus it becomes easy to des.c ribe a social scene in which
these educated individuals have joint responsibilities lo mroing the. wheels or a big society where those who have similar
convictions and allied commilled groups co-operate.
The prospective of such a society will be a model human
one in which the rela1ionshi p of individuals is based ou 1be
lofiiest moral and human characteristics which act as the lu-

Minority Rights

243

bricatiug grease for the social machine, resulting in tbe accclaratioo, propriety and right production of the whole system of the allied Islamic community.
A Muslim is benevolent, kind and sympathetic in bis social
re!atious, possessing the quality of fine demeanor, gentleness,
pity, flexibility, purity, sympathy, chivalry, optimism, honesty, sincerity and love for serving his (ellow-crea1t1res. He
sbo ws no trace of violence, oppression, injustice, cruelly.
quarrelsomeness, ambition, ingratitude, unmanlir1ess or being
a time-server. He is not only so with his co-religionist, but
this is a oarur~I revolutionary result of h~viog been educated
by the moral aod educatiooal school oflslam. 1

Social Customs
Jn their relations with the commiued religious minorities,
Muslims do not only -act according to moral principles -and
human duties, bm also expand good relationship to the extent
of respectiog the customs aod traditious of miooritic.~. As
they visit tJ1eir co-religionisLs in time of illness aod help them
in ditlic11lties, th~y bebav in a similar maoo~r towards minorities, tJ01 ouly towards tlte living but also towards their
dead, and do oot ahslai.o from payiog the custo1J1a1y tributes.
TIJe holy Prophet whose words aod acts arc models aud
examples for all Muslims and criteria for the Islamic injunctions and duties, acted iu 1he following manner with the religious minorities who were 1mder Muslims protection: He visite.d the sick, took part in the funernl ceremonies of their
1

1'<.1 b1: brief v.e refrain fronr slitting the llya.hs and .na1TI1tivcs c;;onc..:1ning tho dcfai1s of lhC Isla1nic ethics. The reader n1ay rcfCr to the relevant
books on ethics aild elhical (111d11h:..

244

Minority Rights

dead, received v1s1tots cheerfully, sympathised with them,


and atrended their feasts.' I'or ex:ample on the death of Abd ulfah-ibo Ubay a Jriend of and a collaborator with the Jews
of al-Medina, and a stubborn coemy of Islam, the Prophet
attended a mourning session which was held by tho:: Jews and
expressed his condolences to the dccc-ased's sous a:nd lo the
Jcv..s. ~
.l?.hir-ibn-Abdullah says: "A funeral proces~ioo passed oear
us. T he l'rnpbet rose and we, too, stood up. We said: O
Messenger of Allah. This is the cprpsc of a Jew. He answered: 'ls it uot the cor pse of a human being? Stand up to
show respect whenever you meet a corpse."
The Imam a~-~adiq saw a mao iu one of his travels who
had fallen hdpkss and exhausted in a corner. 1-le said to bis
fellow-traveller: "I think this man is thirsty. Go and give him
some water." His friend wcot to the mao but returned soon.
The Jmam asked if be had quenched the man 's thirsL fle answered: ''This man is a Jew whom I know." The Imam said in
astonishment and anger: "So what? Iso't be a bumao beiog?"
Dr. Duncan Ureeolez writes: "The great nobility aod indulgence of this religioo (J.slam) which approves of all di vi lie
creeds will alwliys be considered a li ne heritage of humanity
and upon such a foundation indeed can a universal faith be
laid_"

Observance of Social Etiquettes


In their svcial contacts with the minorities, the Mus lims
observe the rules of etiquettes and customs which are sigos of
1
1

.Rr-ihud-Dini/./s/Rmi, p. 21i2 (The Spirit oflslam).


/s/1m1 nd Pe1rceft1/ Co-existence, p. t05.

Minority Rights

245

mutual respect From an Islamic viewpoint. di ffcrences of


opinion and belief are no excuse for disregarding the mies of
sociabi lity and oo-existencc. Islam believes in a reciprocal
right in social contacts and even in heiog lc llow-travelkrs,
and the observance of such rules is the moral duty of a Muslim witb a respectable non-Muslim in travel and elsewhere.
When the Prophet of Islam, the highest personality of this
faith on meeting the envoys of Na,iran Christians. takes ,,ff

bis cloak a.nd as a sign of respeCI and <>h.servance of custom


spreads it under their fael, the duly of ~very Musllm becomes
clear in observing such tules, for. the conduct o f Lhe leaders
of religion is an examp le for us all. as is shown in th<:: following sto.ry:
In the days wh~n the .Imam Ali was the ruler of th" whok
Islamic realm except Syria, Kufa wils tl1c capital or th is powerful government. One day the Imam on his way 10 Kufa
came across a man of a religious minority. Th~ir way bdng
parlly 1he same. they agreed to be travelling companions. Thi!
dis1a11ce wa~ covered soon with talk and di!<cus,ion . Wl:n
they reac hed a cross-road, the man noti.:<I 1!1:11 hi' 1i:1 w llm n
companion did not lake lite road lJding to Kufa a11ci C1)111ln1.!Cd hl ac-c.u1npAny ltin1. II~ a:'kC:c.I iu ~.HtpJi:;l' "f)itl II'' ~.r... ,

say 1ha1 you were going 10 Kufa-r' Ills comr amon answcrod
it1 n friendly manner: "Yes". The man. who wa, 110 1 sati<Jkd
wi!h 11!!$ answer, asked again: "Wh:; lhcu arc you commg
this way? The road to Kufa is the 01bcr one."
Tbe Imam l\.li, with a friendly toue, said: "1 want to escort
you for a part of the way. Our Prophet has said that when two
people become travelling companions. they will have a claim
upon each ot11cr. Now. you bavc a claim upon me. a.od for

Minority Rights

246

that re11son I will o:scort you a few steps and will then resume
my own way."
The man who was either a Jew or a Christian, moved like
the one who has discnvered truth, said: "Ob! II must have
been your Piophet's generous nature which enabled him 10
win such an influence and power among the people lo spread
his faith so quickly in the world."
Thal man's amazement reached its height when be discovered later that his travelling companion had beeo none but the
powerful caliph of the time, Ali-Tbn-Abi-TAlib. He wa.~ so
overcome with deep emotions that eventually he hocan1c oue
of the most loyal and devoted friends oftbe tmam Ali. 1

Favour and Benevolence


lo addition to all the rights and privileges that th.: religious
minorities have io the united Islamic society, tb.:y are also
treated w ith favour and be nevolence by th.: Muslims. The
idea that benevolence must be shown only towards a Muslim
oo-rcligionst is nol compariblc with an Islamic allilude. It is
rather considered 11 universal conduct towards All those wbo
have no quam:I wilb l b~ Muslims, from w hatever cr.i~ds they
may he, since such a conc.lucl is worthy of a bumao being.
The Qur'an. describing this, says:

J;.J);'t~(_j~)~rJ~.j~~-1
Z,.L
;'jf.e.......,
.! .Oi!)'
..J1H '~' ?..:-"= .~.~,., .
., ,, l'J;"~J....-..1~.:.i ...,r.,.:.=

"God does not forbid you respecting those who h11 ve not
made w11r against you oo accouut ofyour religion. 11nd have
/Jot driven you out otyour homes. that you sbow kindness
1

U$utut-K111i. Vo l. 2, p. 670 (quoting DilSllinc R11>tna. Vol . l, p. 12).

''

Minority Rights

247

and deal wilh them justly. " (Suratul Mumtaflinah/8)


Kindness aod heoevoleuce fo the religious mioorities in
elude financial assistance, too. Indigent and aged Jews,
Christians and Zoroastrian.s '"ho cannot earn a living, are
supported from the p\tblic found, and the united Islamic so
ciety has the duty to render assistance to such oeedy persons
who are Muslims' allies.
The Imam Ali, on comming acioss an old and focblc
Christian ordered that the man should be granted an allow
ance from the public fund. When be was told that 1he man
was a 'Christian; be answered in imnoyance: "As a young man
you made use of him in work, now as be is old and we~k.
you dcprj vc him of help aud kindness'!"'

Remission and Indulgence


Io the establishment of good relations between the Muslims and the religious minorities and the creation of the most
peaceful conditions of co-cxist~nce, Islam does not only in
strucl. the Muslims to avoid improper couduct and rough
treatment, it recommends kindness, beneficence, a11d friendly
co-operation, and it even goes a step farther to say Iha! in
cases of imprnper conduct and violence or unfriendly a1tempts on the part of the trjbutaries, the Muslims are warned
against retaliation aod undesirahle reactions, and they are
asked to assume iodulgeoce .and remission and 10 show fortirude towards their rancour and unpleasant behaviour.
Concerning a number oft.he Jews and the Christians who
wished to mislead the Muslims and were envious of Islam's
advance, lbe Qur'iio makes the following recommendation:
I

WRsii'ilusb-Shi'ab, Vol. 11 , p. 49.

,..

246

Minority Rights
f./;.1~~Yrs;: .- .1..:.:;( t-'' ~:,\~{ ' :I : ~- L~
~' ,. -"... -~~.> V'J ~ - ~-.....:..r~ '.J
111(;.~-i'
< ( i'
~t:::i1.,t:<.,1;:_.:;;;.'-le..
.;, ;:,-.~ '> ~ ._,... !"*' ~ . ;:,:~ - .:.:

,,

....{'"l" ' -'1.

'-~u

J.~;i.r~~ ~ ~;,t:.~;,

"MatJy of ahlul kilii.b wish they could turu you h11(:k into
disbelieves afler that y ou arc belie ving out ol envy from
thomse/ves, CVCIJ Hiler that the truth had becom" n11wi/Cs t to
tbem; ncverthe/es~; pardoo and forgive (them) until A llah
brings about His comm11od: Allah is capable of(doing) everything" (Sura1u/ /Jaqar11h I 109)
And in another ayah it gives a general instruction, preforring pardon and remission 10 ro:vcngc:

"AtJd i f you punish, tbco p unish the same RS you bad been
puoished, but ifyou be11r pHtiently, it will certainly be best
for the pa1icnt. (S11ratun-Na'1f I 126)
Many fine e1tamplcs of pardon and connivance arc reponed from the Prophet towards the Jews of al-Medi na,
showing bis deep interest in preseiving good rdat ions with
lbc allies of the Muslim,5. Once an auempt was made by a
Jews on the Propltet's li fo in the House of the Jews, hy off~r
ing poisoned food disregarding 1beir joint agreement. 1he
Prophet did not allow the slightest puuisbmeot for this serious crime.'
On another occasioo. A 'isbab. tbc Prophet's cooson, was
si ning by him when a Jew entered and instead of the custom
ary s11l u1a1iou of "as-sa!Amu 'a/aykum" he said: "as.~llmu
't1lnykum" (death to you). Soon after another Jew arri ved
1

U~Mul-KA!i,

Cb. On ForgivenSS, /.lad//J1 No. 9.

Minorily Rights

249

using the same expr~sion. This showed Iha! ibere wa.~ a plot
by the Jews io hurt the Prophet 'A' is!rnb cried in 11ager;
"Dea1b upon you and ...." But the Prophet advised her 10 ke.:p
silence and said:
"O 'A'isbah, Refrain from abuse, since abuse, ifemh-.xfo:d.
assumes an ugly shape, whereas ge11llencss and fortitllde
make lhings beautiful and embellish !hem, while t11eir absence diminishes their be~uly. Why was you angry?"
'A'ishah, who was surprised al the J>rophe1's forli1ude.
said: "O Messenger of Allah, you not see wilh whal impudence and shamelessness they abuse you insl~-ad of gr..:~ling
you?" TI1e Propl1et answered: "Just wn'111Rykuni' (and lo
you) is enough."1
[o some cases. the imJ>Udcnce and shamelessness of some
mi11ori1ies who enjoy privileges under ibe Muslims pmti;:ction, bad gone beyond the lin1it, and this insolenc~ was 001
only shown to ordinary Muslims but also towards Muslim
leRders. But this rancour did not prcvcnl the Muslims from
acting upon their du1ies on 1he basis of !heir joint greemenl
and conniving al hos1ilc behaviour.
You have Iead two examples of lbis connivance by 1he
Prophet. Now we offer you another example of lhis conduct
in an encounter between a non-Muslim and lne lmam Muhammad al-Baqir (A.SJ, the tifib Imam of the Shiiles. In order to insult lhe Imam, the man said: you are 1be Baqar (a
2
cow). The Imam very calmly replied: "I am no!;; Baqr, my
' W.1.<5 'Hus/J-S/Ji'a/J, Vol. 2, I'- 2 I 2 (quo1ing Dilstan-c Rlistiw, Vol. I, p.
ll 1.
.
1
The c: hristinn u1isused the \\1ord ''Bilqlr", iwh1t.:h is dcrivc,;d tion1
"baqar... which 1ucans: ..to cle.ave", !;}$ he use its othl;!r 1ucaning, i.e.
~C'!)\\'" ,

250

Minority Rights

name is Baqir." The non-Muslim. instead of feeling ashamed.


began to iosull the 1inam insolently and said: you are the son
of a woman who was a cook." The Imam simply said: "That
was her job. Work is no disgrace."
The man showed more impudence and said: "Your mother
was black and ..... " The Imam, without getting angry said: "If
all these things you ascribe to my mother are true, may l\.llah
forgive her, and if 1hey are .a pack of lies. may Allah forgive
you for your fal~ehood and imputation."
Seeing so much forbearance oo the parl or a man who was
in a position io punish the m<tn severely, was enough to produce a radical spiritual change in that man and attract. him
towards n creed which bas ~ducatcd sucb a great personality
and lofty character. Nol long alier, this man knell before this
diviue and humane school and became a Muslim. 1

Showing Affection. and Friendship


Io view of what has been related about 1he moral and social relationships of Muslims with the religious miuorilies,
there would be no need for further explanation that Muslims
are never prevented Crom showing kindly and friendly behaviour to their allies. The iiyah No. 7 of suratul Mumtahli1Hb
states:

"It may be that Allah will cause friendship between you


and those of' them you LreMed as enemies" (shr11tul Mumt11hi-

oah I 7).
1

Bi/ufrul Amvilr. Vol. 11. p. 83 .

Minority Kight.s

251

Two poi nts require an explanation bcrc:


1. The deg ree of kindness and friendshir towards the minorities depends completely on their alt itude towards the
Muslim fai th and their actual behaviour towards their Muslim
fellow-creatures. Those groups which arc closer to ltbt> Islamic tho ught, action aod character, and show a mutual
friendliness with !he Muslims, naturally receive more affection and friendliness from them, as the following ayab of the
Qur'an reveals:

1 / -:.... ......-..
~~t
. .. ,,, -~ ... jn~1:
&.ili
,
,. ......-~~~:... . :::11ii1L;
... , . .. - ~;:;
.r ~..~,

,,,< ,
' ~ " l-:
! ......... "'' """ ~ -. ... t f ~ ~.;
-..;..>~JI;_;.:. <.;./).11, >,.:f;.11r-' .J.~iJ:..S....;131....:.u~
---T> J

.:,.G..:;. ..~'j
"~ f"i! , , , ., .. /
-
\J.J. .
- ...-+' J ~.)J ~
~

"A11d you will cerlain/y /ind 1bc oc11res1 i11 frie11dship 10


those who believe, !h ose wbo say: We arc CJ11is1ians; !his 1:~
because !here are prieslS and monks among !hem and bcc11use
Ibey do not bcbtweproudly . * (suralu/ Ma 'idab I 82)
hi this brief bur meaningful sentence, three factors aro:
mentioned as the reason for the closen"'ls of the Christi1ms
and their g reater frie.ndsbip:

First Fact o r:
Some o f .the Christians are priests who arc the clergymen
and !he theologiao of Christianity. The presence of such
people among the Christians is the gr~ factor in elTcctiog
closer 1ies of friendship between the Chris1ians and the MusJiJns, since as clergymen they are wcll awRrC oftbe mallers of
religion and ils facts and trntbs. blam, which relies ooly oo
intellect and reasoni ng, cao bcocfi1 grc111ly by thes~ learned
men of religion, whereas those wlJo lack spiriluality. know!-

252

Minority Riglits

edge mnd perception c11naot m1dersU.nd tlae tr11tl1 of the ls!Amic fui1h ms ii is.
Pa.~1 !~isf()>!"y. too, tes6iliies to 6bis fmcl. The irs1 groups
winicb were OO!!Ver'loo to llliam. roilowing their survey lll!ld
i.nw~uig!!i1ions, were. Cb.ds1ian l'riests and meu of learnicig,
1md lheir i.:ouve:r,;inll WllS quali1111ively of great value to lslam
wl1icl1 is a religion of i111cilcc1 mid r~-asoning.
Oct tlile other hnnd iGis cieiir 1ila1 when 1tiem exists a greKter
dt!gree of knowledge and spirituality, lhcrc will be k ss
pre_ji1dice, eomily, rancour, violence, a111i-human and nntilogica! behaviour. Thus file presence of sucll men of religim1
and knowledge proves very lieoelicial in 1he estahiisilm<!aJI of
good friendly rela1ions. Natllfl!llly, p~eudoclergymen &fl! oul
of our discussion.

Second Factor:
Ano!ber factor for closer frieodship helwel!n lh.: Mus lim$
amd 'the Christians is tbe group
monlks ;iid as.:l.!~ics wl:o
have given up worldly motives a11d mu11d~m: iMcr.:sts foi Ilic
sake of devotion aod s.ervice 10 God. The n::ason for lhis 1s
ctei1r since they are very close lo erutllr. and are bcticr prer aroo
lo ccicournge Gbe spirit of frie1111lship mod lhc elimina1io11 of
rAHlicoll!r and e11mily. Knowledge 11111d practice arc 1wo s1n1ng
pillars of the happinL>sS and progress of cYery soci~1y.

,,f

Third f actor:
Having no pride, arrogance or obstinacy againsl ltuth undoubtedly manifests 11 greater readiness 10 accepl lhe truth
and reality and cause flexibility of co-existence Wi th others.
2. Wb'at is meant by affection and friendship here is uol a

253

lru.: l'r1cndsbip which bus ils source in in1im11cy Hod uniqU<!


ocss of will and desire, since ~uch a mallcc ; , 001 p<-siblc io
view of di!Tcrc11ccs of ideals, beliefs, a11itudcs aod goals; 11nd
Islam h~ never suggested this type of frie1_1dship.
WhH1 WC und,rsumd from the u lamic leachings is lo disn:
gard lhc-sc difforcnc.:s in 1hl! S<1ciHI con1act b..-1wce11 1hc Musluns and 1h..- minuriu..-s. ~nd 1101 10 abs1ain from friendly expn:ssions and cond uc1.
llut Ma!II docs 1101 only r"jl!CI thHI kind of frieudship
w hicl1 iovolws loss of f><.!r>OMlity aod indepcndeoc.:, or ac-

ccp1anc<: of olh....rs ' tl1,mioalio11, or xcnophilism and rcli11oco:


on 0011-MusEms. bu1 i Strongly opposed lo il und w:trus lhc
Muslims agaios1 ilS c:o oscqllcnces.

Sclf-Sunender and Xenophilism


The goal of joint pacts aud 1ribute agreements and its legal
vestiges ha-.e ctcver beco inleoded that lhe ideological identi1y and intellccl ual and actual personality of one or both
sides should be sacrificed for the sake of e-0-c~is1encc, Although Islam believes that the cooclusiou ofjoin1 agreements
may pftve tbe way for logical and wise development of the
lslam1c l.leliel' Hmong lhc opposing groups, yet Islam doo:s not
regard ~11ch pacts as th1: means of a scheme for do:stroying
such groups or consider such a motive as the dir.:ct and legal
result uf the trcli~.
The conclusion of 11 joinl treaty whi ch is bas.:d on mutual
grecmc111 is ia itself, au cvidt:nce of IUI? recognition of the
1deo1ity and per.moality of the other groups. This is true of
both Muslims und non-Muslims.
An agreement which m11y endanger 1bc entity, personality

Minority Rights

254

and i udependencc oflslam and Islamic socie1y, or is used as


au excuse for the penetration of foreign policy, has no validity. Tl oevcr allows the M uslims to lose their iutelleclUal and
spiritual identity for the sake of the allies irnd the committed
religious groups, and become so united with lhcm as 10 follow 1heir ways aud accept their do mioa1ion.
Islam slrongly rejects such a friendship and forbids the
Muslims from engagi ng iu such a treason. Herc we may seo:
wbal 1he Qur' an says in this coun~clioo:
.\~f. - t'<: ~~ -.1~1 I ;1 : ~'~ L;'
:;tct-t-.,-'
r--~~/ ~("""-'_) ~>' > ,,,
~ .......:J,J_'-;---- .J

"M11oy of' 11.blul k it1ib wish th11t they could tum you back
into disbeliever.; aflcr y our faith. (silra111l IJ11q1m1h 1 109)

'i'I Party o[ Hhlu/ kitllh desire that they could fi;ad y ou


astray , aod they /C11d not 11stray but thems.cl vt:s, aod they do
not pl:rceivc. " {.5ilrtllul A li 'JmrDn 169)
~i ~:Qi.
n
.,_.,'' I' ' A ,-< ~~i;.s .~, . . <~.r I ';;_~;.s1
'-'1: i.!.P
< 1i(<~
~ ~ 4 ('7'... '..J,j.J ')'~r"""-" ~ .J ~,,\~~ ~ '.) ..
.J ,,_.
"i: .
~ < 1.~~.l:'., ': ,..~;.~1\!' "' ....,.{"
~ VJ"+M( "'~

(""""~..la#

-~-e>,1,. ..>,

, ' Jr'UV.Jr-t'"~
. : ~.-- . ; 'f:.
r-J,...t.....

ot-! - .- (v1 _..

r-.i-:!-. ;('1'M ,y ;1,.:.ii.r.


"O y ou who bdievc, do oot 111ke for imirm11c friends from
.1mong other thrw y 1111I own p eople: they do not fill/ ;-ho.rt of
iollictiog /o.~s upoo y ou: they like what distre.o;.~es you; Vehem ent hatred has 11lre11dy 11pp t:11.red Jiom nut o ftheir m outbs,
and what thr:ir cht:Sts concca/ is g rt:atcr s ti/J: indeed, we ba vc
made the 11yahs c /e11r to you, if'you could rt:llSOJJ. Look, you
do kwc tbem while they do not lo ve you. " (Ibid. I I 18-119)

255

Minority Rights

"0 you wbo believe do not tllkc my t:nemy .and your coemy for friends: Would you offer them love while they dc11y
whar bas come to you oftbe 1ruth?" (soratul Mum1a/linalt 1 1)

"If Ibey find you, rhey will be your enemies. and will
strc1cb fortb 1ow1uds you 1beir b1111ds and their lnngues with
evil, find they ardently desire I/ta/ you may disbelieve."
(lbid /2)

I., .

~')'i\1' ....:!S::.ii l ._,; t <'Y/ . j\~-~


r-1: :i;
.. j~'
'.Jt-tl.) ..;.:-- :J > ... ~ .J!~-::::. ..!'.~ ~
,...tt \ =-~ii ~ >~ , >\ ....;:;.'1"~
... ......, .e .. ~.. ,~ r.. ~~ -:- ...
~ ..,.--P""J
.Jt ~""'-',-- -JJi.l",r--<J:

"Neither those wbo disbelieve from .1mong ahlul ki111b nor


the polytheists like tbat any good should be seat down 10 you
from your lord. " (silratul Baq11n1b I I 05)
And lastly in the ay ah 7 of sora1ul-Towbab I 8:
~\.l' '"~1">- ...~~>c ;);, .>~ ,~~ .\':., ..i .. <:
.~~J! \

. ~'-'>-'

/ ~ -: --~!~"'" ~,...:.i.
>>, -~~ .. ~..... '':l ~- ,..,,.(.: ...:, ..
.....,_,_,...,.,, (""!
J~j> r--"_,..;..r. .... , >J
"How can ii be while if they overcome you, will rhey honour any pact or obligalion with you?; they please you wirh
their mouths wbilc rbeir hearts refuse to and most ofchem llrC
transgressors. "
In other flyah.f the Muslims are reminded that th~ir o nly
guardian, helper, friend prote(;tor, suppor1 and refuge is Allah, and if the stretch their friend ly lrnnds tQwards the non -

Minority Rights

Muslims, Ibey will be showing a fault in belief which never


accords with the belief in the Islamic monotheism.

"And AUab kno ws your enemies heller and A ll11b s uffices


11s 11 g 1111rdian, nod Al/ab s111Tice~ as 11 supporter''. (silratu11NisA 0I 4.>)

"llod you ba ve oo Guardian or s upporter bt:sides AU,vlJ. "


(soratu;;h -Sbur11 I J I)

"ADd God is tbe Guardian of tbe believers. "


Ali'lmriiu /68)

(silraru/

Pf'
"L :J(J' \"".t':<-j'
'.Y'-"' . ,
~J 'J

1 "'

_L11.......

/ ,,. ~'1 '! ( .-t..,.., ..


> ..
>,~t"'1K"'(~:
..;,..:...>~ J ~~_.>~:-O''JJ~~,---~JJt,,;.1

r---

"Aod do nor Jeno on those who do wmng, lest the Fire


should touch you. nod you have no Guardian besides 11/lnh.
then y ou shall nor be supporrcd " (siir11tul I Jud I 11J)

" What do rheu those who disbelieve think that ibey c11n
tllk1;: My servanrs ro be g111udians besides Me? Surcly We
/Jave prepan..'<i Hell as 11 lodging for ibe disbelievers. "

Minority Rights

'f.5 7

(snratul Kabr1 102)


In tl1c following Ayah the Qur'iin considecs Allah and llis
Messenger and his successors and honest believers who are
leaders of the Muslims as lbe truc friends and bdpers of tbe

M11slims:

"Only Allah 1:~ your (}u11rd1;w find Hi,- Messc:ngc:r 11nd 1/wsc
wbu believe, those who keep up the $fl/lit and pny the zaknt
w/Ji/e bowing. " (sor11tu/ 111n 'idah I S5)
Io another ayah ii considers re.al friends and guardians
!hose Muslim men and wome11 who support one another:
"'.:>\"'1"'" > _: -";('
~..:..::..O.J-'.J..:>_,;..,;..'.J
,,~
.~>. ~-:-\t /" 11 \;"
~ ifLJ_,o.ft-,,J~--- ~~.Jv"' . ....~
,.l > . , f

r.-.;r "-:- .. ....

-,,.b.j
).J

"Aod ,ts .for the . believing men and wom'n, th"'Y are
guardians of each otlnr; t/Jey bid the good a11d forbid the
bad " (Silratul Tnwb11/J I 71)

In another iiyah ii rega.rds 1bosc Muslims who hav~ tako.!n


part in the holy war and helped cmigrauls and shdtered 1bem
as real frie nds and guardians:
t "

~., :.. .. ."l("\,i >.-, ...... \ ., ... ~.. , ~ ...,:~:3\ ~ \

~..Jf't"';" !J-""1";y

> !J~j '..If,

:.r-- - ..,,
.. "':.'"11 ">! .,. t.;\1i-'.> '~~ t '"1; ~ j\'" ~t
~ '?;)~ . ~ !J..r.4'J~J ~ .. '-' ..
!J

''.'iun:;fy those wbo believed and migrated 11nd w11rred in


Allah's way wit.b tbcir properly and their souls, and 1/iosc
who gave shc.ltei and helped, tbecse 1ue friends of 11acb other. "

Minority Rights

258

(soratu/ AollJI I 72)


The Qur'an as seen in 1bc previous iiyah for lhe prcservatiou of the Muslims' independence, persooali1y, prestige,
leadersbi p, devotion, unity and solidari1y in OLder to prevent
some weak and 11ex.ible Muslims from 1urning 10 selfsurreniler, self-losing, reliance and acceplauce of the leadership of non-Muslin;i gwups, aod lastly, to preserve the spirit
of monotheism and Islamic brotherhood says:
' ' > ,,.,, ,~,1~r/ ;"' ,,.. ~-,...._, . .{!'1 ._
,i'"'1' t:"f ,,..,,.- ~ ;_,,,....~ _, ~ ~ r
"YJJ.ul ,.....,.. V'...:.>J>!J:~ ~.r.'.J,U~.;..;...>_,....~ ...J'~l'

'"'"i""'".J_
- :-".J."\ ,,;'1"';
',,.,
=
~.)J~.ul ..:ft.)
.,LJ!}l
._

.. ,-,,,-1~{'
."}..
..... .. (""";~.
~\k.Y.J

"You will not find anypeople wbo believe in Allah and the
L.'ist Day showjog affection far the one who acted in opposition to Al/Rh and llis Mcsscngc1; even though Ibey were their
own filthr.:m,; their sons, their bro/hers or their kinsfo/.k; these
are they into whose heaJ'/s Hc has inscribed faith, 11od suppoJ'led them witb 11 spiril iiirm Him." (siiratu/ Mujiidi/;ih I
22)

r:~:;roJ1~:,"Jit;;~1h~1t;;,:~JrC::tr;

-:--. :, ... ,,,~


....,.1

~I

---

""'-' --:,i,tf -> >:.\:.:~


-:.,,,,,. ...,...,.Go .,,,-u' .t
i$'.,,;.,,
I .,

.1
7T:
u.~"'
'J-'.,<.r.>~ _,,

"O you who believe, do not Mke the Jews 110d. tbe loristinns fJS guardians; they arc gi1111di11ns of each other; and
whocvc1 11a10ngs1 you makes JJiends witb them is of them.
Allah does 001 guide the wrongdoing people." (s1i1a111/
J\l/ii'id11h I 51)

iJ.JGJt,;Q';~~~!f.li!~Ji\/~~i,;:;1; [(i1.'~
'

;~~.t: 'il~'f',.ah~rr-k:. -;:<r(

~.,. f"'.Jl'..J> !Y" ~. -~"

1'..H:'~~

''()you who beh'eve, do .n ot ta.ke. !br gwudittus those who

Mintirfty Rights

2S9

Jake your religion for a mockery nod a joke, from among


those who were givco the Book be/Ore you and tbc disbelievers, aod tear Allah ifyou /lre believers." (siJratu/ Mii. 'idab I

57)

"0 you who believe do oot take your litthers .1nd your
brothers /Or guardians if They prefer disbel/el to belief, .wd
whoever oryou take Them for guardians, .m 1 wrongdoers. "
(sllrtUul-Tawbllh./ 23)

/ ,,.A,

:>i' >

-,

'<'.

,~.,

> .-. ,

.ff

...:..>~l~_;..,1,;i_,,~~g;1.;1~i.)J 1.:-~ ~::!!

"Those who take the disbelievers for guardhws iusread of'


1/Je behcvcrs. Do They seek digui('I lhrough them'! Theo
surely {Uf! dignify beloog lo Allali." (soraruo-Nisa 1 139)

.:;_,~ji&_.;.~l.;.f,,n~~j&~l\/1:-~.1 i~l~Zi:Jliili;
U~"<
:-~..1'1_;1"{.,'\
.:..
\
. .. , .
"O you who believe do ooT take llie disbelievers as guardians iostca<I of the believers. Do you wanT w gfre A l!a/J 11
clear auiborily ,1gainsl you: " (Ibid I 144)

; .- 1~~1,
< c'.1.t-~~11~-1:~ J1(~b:
~ J' 'J'.J-' """ ~- '1:
/W._:#~:~~~i
~Cf;Ai~~lL..::~
""'"'
i..r-~~
.., ,,_r ~--

.,'.r ~.

"

"O You ivho believe do 001 befriend a people with whom


Allah is angry; iodeed Ibey de.spaiJ' of I.he Here;i/ler j11s1 as
the disbelievers despair of 1be people of lbe.gl'flves. (siJralU/
M111nlaf111011b I 1J)

Minority Rights

2.60

I'

An Ignominious Slander
Some purpos.eful writers aod so-called naliooalists wbo
have Cimsideted theiT forefathers' conversion to Islam as
conuary lo the spirit of nationality and race, make lhe following judgement i11 their study of the expansion oflslam among
various groups and nations of different n:ligions <:sp~'<:ially
with rcgltrds 10 the Jews and lhe Chrisliaos:
"Jslam bas based Muslims' relations with tl1c followers of
otlicr religions oo the expression of enmity, hatred and insuh,
aod bas s1rictly forbidden making friends wilh them."
The evidences !hey offer for this ignominio us accusation
and judgement are the ayah which we !Jave quoted cooceru1
ing the friendship with dishelie.vefs and ahlulkiUib.
Suuh sophjstry and distortion are shocking' T hey have
wholly ignored the tribute agre<:ment which was fully discussed in the previous chapters and 1hc acceptance or gr..:al
responsibilities hy the Muslims in return for trifling obligalious ou the pan o f the committed allies and all 1hnsc rights
a1.rd privileges enjoyed by the 1ribu1aries. T hey have relied Oil
a li:w llyahs which they have misinterpreted, whereas lhesc
iiyalts give no indication al all of insull. enmity and hatr<XI
towards ahlul kifllb.
We have already discussed i.n detail the manner of good
relaliooships between the Muslims aud ahlul kit/lb the endeavour o f Islam 10 establish good conditions
coexistence. peace and friendship in the social rclalions of the
1wo allied groups, tbe way adopted by the holy Propbcl of
Islam and the religious leaders towards the tributaries. and
the latter's insults and hostilities towards the Muslims. Whal

or

J':;JnHtiti.11111

Rad Jndulgc:nc" /j(,(1t c1;:n C1uistinnity and /SIH111. pp. 36-8.

261

we wish to say here is the unchiv.alrous misinlerpre1a1io11 o r


t&e said llyah;,
These ~yalt.~ never prohibit friendly conducl aad sincere
Jcindness towards the 1ribularics who arc Muslims' a Ilk s,
They o nl.y give a warning against 1be acceptance of sell~
surrender and subordination of the M11slims 10 01!.icrs .
The words wali. lawal/j ;1w/~ya which an: used in 1be
Qur'iln in connection with idolalty. too.' as wdl as the w<rd
wali used in the ayab about the succession of the Imam Ali 2
as a caliph and leader of lhe Mu slims, show ..:l~arly that 1hc
said words do nol have 1he s ense of a s imple fri.:udshi1>. ~iDce
Ibey cannot mean the friendship of idols wit11 a person i.vlm is
~ l~dcr of lbe Muslim.5.
Raghib says rn his '~'.falfadiU''. "The words af-waM ax>d Iii
lawali are used in cases where 1wo Qr more 1hiugs arc so
welded 1ogctl1cr 1ba1 no1bing comes lie1wee11 them, and 1!t..:s.:
words arc meiapl1orically employ.00 1<> sb(W proximity If
place, re!ationsbip, religio11, friendship, assis1a111:c .and hec
lieE"3
Thetefore wben 1bis proximity is rels100 10 s upport &ml

assistance, it means a h.::lper. If ii is used in 1b.: scusc of a:n


ardour and afTectionale a~soci11tion, it means 'beloved' wl~osc
demapds o ne c anno 1 resist: and has but 10 o hcy him . This i~
lite kind of wala' and &ffoction aboul wl1ich it is sa i.d:
~.,,._; ~ .,,_i ~1 ~I!

""""I ,:.... t- ~lo


1

The snmhs ar-'Ra' di 16, Zumar/3, Ja1hiyahll 0.


' Snratul MA'idal1'55.
' Quoted 'from TMsi1vl Miz.fn. Vol. 5. pp. 402-R.

'I

262

Minority Rights

whot(ler roves a people he is ofthem.


"A man is (counted) with those whom he loves.
The lypc of friendship which is forbidden iu the said nyab
is of the last kind, namely atlection which produces spiritual
atlractioo, depriving one of one's and moral impr~ssion, aud
causing s ubordination to foreigners or seeking their belp and
leadership. Obviously such a friendship by the Muslims
would involve the loss of iudcpcodcnce and leadership in favour of others, transformation of the Islamic morals and
ways, and inclination towards those of the non-Muslims, and
ultimate perversion.

8- Minorities' Freedom in Social


Activities
here is no doub1 thal co-operation is one of the main
pillars of the formation of soci,ety and its advance
1owards order and evolution. The more efforts
shown by the individuals and tbe groups. which form the society, in their co-operation and development or co-op.:ra'tive
spirit, 1he greater the measure of power and social discipline
of that society, and the greater its speed 10 evolu1ion.
Though the commilled religious minorities may bave
goals, ideals and beliefs which are difleren1 from those of the
.Islamic society, yet since they have undenaken the responsibility of forming a united society and a joint life in the Islamic realm, they become in fact members of this society,
1
and both sides agree to the principles of common life.
Accordingly, the Muslims iu their social life will be faced
with a wider environment a1\d greater relationships which are
the result of the participation of the committed minorities in
the formation of Ibis larger united Islamic society. With the

'lbc principle of a co1IUJlOn-life contracl is Lh~ c;onfext of the iHU'ibutc


agrmcnl, 'vhich tul')' 001 be vlolilt'ed. except 1:x.c<:p1ionAlly.
1

I.

264

Minorlty Rights

extcnsioo of ibis society and its relationship, tbe social organisations of the Muslirils fiod a greater scope, covering the
whole of the great united Islamic society.
We can, therefore, say that the need for the expaosion of
co--0peralion and its spirit is the inevitable and na111ral cesuh
of the joiot tribute agreemenL
The matter which must be coosidered here is: Wllat
method and what goals should be adopted for co-operation?
We mus! returu oucc more lo the study of the role of the cooperation in the establishment and evolution of the society in
order to answer the said que.<;tion. Without a doubt, cooperation in a society, no matler in whal course aod for what
rurposc. will re,~uJI in the strenglhening and growth of that
society towards that goal. ff the individuals and lhe groups
which form the society adopt the way of social welfare and
honorable living at a higb buOlan level and make use of coO)letation for that objective, the prngTess and evolution of
that sociely will oa1urally be toward.s lhat goal. Bui iI' lh..: individuals join hands for the purpose o f gaining 11ro!i1 and cooperate iu leading society towards deviation, misery and rerversion, this co-operalion will result ill a downward retrogress, pollution and corruption of ihe society.
Similarly in a society where the spirii of cooperation is
used for a greater gra1ificatiou of material desires and physical rleasures,. and 1bc indi vidual and social forces are employed to attaining Ibis objeclivc, such a society will devdor
and grow towards that very goal (lDly. But if an organised
mass create a society where alongside legitima.te material
cnjoymenls and goals lhcy adopt genuine spiritual and ideological objectives to satisfy the moral needs of man, establish

Minority Rights

265

a harmony between these two goals similar to the harmony


that CllislS between body and spirit, and benefit from cooperation in allainiog these goals, they will achieve !rue perfection and human growth at high level, fitting the lofty position ofhumaoity.
Islam bas offered the plan of such a society 10 the humanity as a whole on a larger realistic and more humane scale in
accord with the authentic goals of such a society, it bas developed the principle of co-operation in two phases of harmony, namely material and spiritual life, th us giving this vital necessity a greater human wonh.

The Qur'an's logic on the Principle of.


Co-operation
Inspire of the clearness of the indisputable principl~ and
deep-rooted social traditions, and even of what is related to
the cretion of the universe, it has been inevitable for human
beings to fall into error cooc~ming the iotcrpretatiou of these
principles and traditions. The plentiful differences wbicb
have aiisen io this connection ue the best proof of this error
and me.11tal dcviAtion.
Wherever the Qur'an remi ods the thougbtful manki nd of
these priociples a.od traditions. it concentrates on the ambiguous poials which have produced erro r 1md diffcrcnCt.'S, and
the rea.'l.on for tbis is quite o bvious. Io the mauer of coopcra'i'ioD; too, the Qur an shows its goal and course and docs
not atlJ'ibufe a genuine value to it, but considers the evaluation o'f.fJi_goal and course necessary for the evaluation of this
nat11L11.priociple and craditioo of society.
Wl\ere co-operation is employed in tbc way of human 's

..

266

Minority Riglits

honourable goals and social happiness, it .is regarded by the


Qur' ln as a public duty. But when it is misused for human
con'Uption and decadence, the Qur' In strongly rejects and
forbids it:

"Cooperate with 011e a.aotheri11 benevo/eoce ad taqwl aod


do oor cooperate <me ll8otber io vice and aggressioo; aod
bee</ AUah; surely Al/ab is severe i11 punishmcot" {.fUrtllu/
Ml'idab/2)
Thus it recommends co-operation in ~nevolence, continence and protection of di vine Jaws and injunctions, propagation of faith and good deeds based on virtue, but forbids it
in oppression, aggression, transgression over the rigblS of
others, deprivation of the safety of life, property and honour,
and warns of sever punishment in such cases.
In another verse it describes two high objectives of cooperation which are worthy of bum an society, namely, chastity and righteousness:

Z&i;';"p~~~:H~~~ ~jJ~l_;.:J
"it is 11ot beIJevolence to tum your faces towuds tbe East
a.ad the Wes~ but benevo/eoce is that ooe should believe io
All11h Rod /be L11St Day and tbe 11Dge/s 11Dd tbe Book ll11d tbe
prophets. " (Soratul Baqarab I 177)
Thus benevolence is not paying attention 10 the appear-

Minority Rights

267

ances of religion, such as making much ado about a change


of Qibla. bu1 to profound matters mentioned in the ayah and
such good deeds as being generous with one's w1.;altb, for
God's sake, towards kiusfolk orphans, the o~edy, llOOr and
mendicant. and emancipating slaves. observing the $Rfllts
paying the z 11k111, being loyal to one's promise and c-0vennls
all showing fortitude iu unpleasant events, in sickocss and
Other difficulties, and perseverance and forbearance in war.
Such people are truthful in their claim of bcocvoleoce and
faith and are truly cautious and observe faqwa.
T his is the meaning of aulh~nlic human co-operatiou 10
wbicb the Qur' an invites a11d by which it guarant~s evolution, growth and real happiness.

Co-operation on a Universal Level


Co-operation in the sense used by the Qur'au as a means of
producing goodness and chastity is not confined to Muslims
aud their society. 11 is cmpba:sised on a world level by 1be
sacred Teligioo of l slam. It coo:;iders it a duty and general
responsibility of all human masses disregarding their in1ellcct ual. religious, racial and ideological differcuces. It has
strongly advised every human being to co-operntc in the ~x
pausion of goodness and abstemiousness.
In explaioi ug goodness and cont ineoce. the QtJI' m addresses the Jews aod 1bc Christians who consider those qualities in conocction with apparent matters of rc:ligion sucb as
direction one faces in praying and not matters related to the
depth of faith and real goodness, and thus create ditTereuccs
on that accounl. In view of Ibis point and lhe cxplttnation of
the Qur'ao about the qualities of goodness and righteousu~ss,

' ''

268

Minority Rights

we realise the extent of Islamic co-operation at an intematiooal !eve! and greater human society.
Therefore, we may surom!lrize lhe authentic geals of universal co-opemtion as viewed by Islam i1110 the following
genera! iai111-cipies:
1. Intellectual co-operalion concerning 1be philosophy of
creation of Ube u11iverse and the discovery of the facts of tbe
world of existence.
2. Co-operation in the solulion of the ideological differem;es aud difficulties.
3. Gener.al co-opcraiion in the teaching of religious and
intellcc1ual facts and educating human beings 011 t!iis basis.
4. lnlernational co-oper111ion concerning clu1ritablc purposes aud activities.
S. Establishing intemational organisations for corobatting
poverty and ptotecling the needy 1111d the helpless.
6. Co-operatio111 in &iding the !tomele.~s and 1be wayfare.
7. Worldwide struggle against imperialism 10 liberate the
individuals aad the nations from i<ervitude and csp1ivi1y.
8. Co-operation in the proper worship of Ibo Creator and
onserva!lce of submission before heavenly injunctions.
9. Co-operation in tbe expansion of the ethical principles
and uiversal commilment of loyally towards treaties aod
every legitimate undenalcing.
1-0. International co-operation in the solution of world economic and political di'fliculties in order to do away with !he
causes and factors of these problems, unpleasant events, war
and bloodshed.
11. World wide co-o.peration in combattiog disease and its
causes.

M;nority Rights

269

12. Spiritual readiness and fortitude in facing difficulties


and b&rdships. combined with hMmony on an iotemational
level.
These twelve principles comprise tbe two qualitie;i of
goodness and taqwa for wh_ose expansion the Qur'1Au calls
upon the world and the Muslims to co-operate. It says:

Cooperate with 011e another io l>eac:volen" 11Dd taqwl


(SOratu/ Ml 'idah 12)

wAod coofer about beevolcoce and taqwa tmd lJecd Allah


to wbom you will be crammed. (Sl1r1tul Mujadila/J 19)
These vital principles require being i11 quest of faith and
line qualities and good deeds, to which lbe Qur'iin has in

numerous lyahs invited the human society.'


Obviously co-operation at a world level on the basis of 1bc
said principles helps to create international understanding and
diminish the differences and bring about a general inclination
towards a unity and a co-existence based on a peaceful common life, nd promote the expansion of the Islamic ideology
and acquaint the people of the world with the logic of Islam.
These valuable results are among authentic human principles
for the futiilmeiit of which Islam employs all its fore~ and
potentialities.
1

Further 'Yllbs stal'tiog with "W.boevcr bo/iow:d and did good deeds ..or
"0 t/Joso who believed 11od did g()Od doods ; MC used to refer to.

,,

270

Minority Rights

Minorities' participation in Co-Operative


Acti vities
In the united Islamic society where minorities arc formally
cousidcrcd its members, co-opera1ion 0 11 the basis of the two
general principles of chastity and righteousness rela1cd to the
above twelve principles, has bcco viewed as the mos1 impor
tan! relationship iu Islam, so that the Qur'an has dealt more
1ban anyth ing else with the principle or co-opcra1 ion a1 the
level of Muslim relationships with the commiued religious
m inorities. Cooscqmmtly, the minorities may pa rticipate io
social ttctivitics on the basis of co-operntion accordi ng to the
said principles and for the sake o[extcnding 1bcsc principles.
Undoubtedly, the role of the minorities may be considerable in promoti ng the true goals of the .Islami c cooperation
and good understanding 1hrough these activities. That is lhc
way adoplcd by Tslam in its relations with the minorities to
which ii anaches great value.
In view of the above cxplanatious. it becomes c lcAr tl1a1 the
mi nori lics play a significant part in social ac1 ivities. They coopcrale with the Muslims in cuhural, hygienic, m.:dical
fields, in aiding the needy and iodigcu1 , in fighliug poverty
and social prob lems, or even acti ng independear ly iu such
fruit ful lasks.
T bc reason for the participation of 1bc minori1i.:s in these
activiti es of the grca1 un ited Islamic socieiy is not only llecausc non-Muslim religious groups enjoy a freedom in thcs.:
fields according to tribute agreements, hul rather 1h.: facl thal
from a social viewpoint and responsibi lity of a joior li fe in
united and voluutary soc iety, 'it musl be rcgardt:d as a uecessi1y, in the same way that Islam regards the duty of co-

Minority Rights

271

operation amoog the Muslims a.~ something ess~oliaL


Concerning the bounds of social freedom.~ and possibilities, it must be said lha1 the minorities are free individually
aod collectively lo engage in any kind of ac1ivi1y based on
the above twelve principles, and any other task which may
promote the social, moral and ecoonmic amelioration of lhe
united Isfamic society, and every acti vity which is not contrary to the in1ercsts of Islam and to the articles of 1be tribute
agreements aod other cxisring treaties.
As discussing tbc minorities' participation in the legal organisation of tbe Musli llJs aud in tbc govemo1co1 as well a.q
the political activities is relaied to the prohibillcd section of
Muslim undertakings, w.: postpone it to another opportuni1y
aod confine ourselves 10 this brief explanation.
Of course permissible social activities for tb.: committed
religious minorities, though described briefly here, ac1ually
comprises all types of tasks which cao be tlcvcloped in accortlancc with varying conditions of lir:ue and era.


I.

.,
I

...........-..., -

Part Two

Committable Responsibilities

t the beginning of the chapter oo "Muslims' Responsibilities 011 tbe basis of the Tribute Agreement," we divided the commi101cot of the Isl3mic
society into three distioct pans: the first part of which we
discussed adequately under the title "Inevitable Commitment". Now, we will deal with the second pan, namely
"committable responsibilities," and discuss it from both the
qualitative and quantitative vicwpoiors.
The tirst point to mention is the limits and measures of the
rights, privileges, options and freedoms which we fully discussed in part one. Though these rights and freedoms are
considered the necessary conditions of the. tribute agreements, wliich must be observed inevitably by rhe Muslims, it
does not mean that they come under such a verdict with all
their details and minor points and in the wide seose described
before so as to make it binding on the Islamic society.
We explained in those discussions that the limit~ and
measures of the above rights and freedoms, both quantitatively and qualitatively, are predictable io the tribute agreement, aud Muslims may take into c.onsideration in the text of

2 74

Minority Rights

the joint treaty their limitation or extension. Therefore the


rights and freedoms discussed in part one which were related
to inevitable commitments, will also be related to part two of
the commitment with regards to their Peculiarities, limits and
manners.
O bviously, tbe tribute agreem~nt cannot be obscure oo
general and incxplici1 in this connection, and all its peculiarities and limitations must be fully stipulated in the text of the
agreement. This is exactly what the Imam Ali advised io bis
famous charter to Malik al-Asbtar, saying:

JWI ~ .)~ 1..i.k .a..:; ":/..J"


...:;_,:111.,

4\::J1 ~ J_,J .:,....1 ~ .:,)~ 'J.J

"Do not conclude a treaty io which diverse iutcrprelations


and pretext find their way, aod do not rely on the interpretation of vague wo1ds a Cler its conclusion and confirmatiou. " 1
Therefore, conditions should be stipulated in the tribute
agreement concerning security, religious freedom, choice of
residence, independence uf j udgment, right of appeal lo the
Islamic courts, expansion of commercial and economic relations, civic rights of the minorities, social relations aud
greater social activities for them. all of which are binding on
tbc Muslims, too.
For example, in the question of the minorities' right of
immunity, uuder conditions necessitated by the Muslim and
1

Nnlljul 8nlilglla/J, lcllcr No. 53.

Minority Rights

275

the Islamic i!ltcrests, the Muslim society undertakes that 1be


govcromeot should always or at the request of the commh1ed
groups, place agents to protect their lifo, properly or fami ly,
even though there may exist to danger, and 1be step is taken
as a precaution. As the said responsibility applies also to
cases where no danger exists, if if is not stipulated in the 1ex1
of the agreemeot, the Musfims will have no such obligation
towards them.
Similarly iu the mailer of religious freedom related to 1be
freedom of churches and performance of religious ceremonies, ihe Islamic government may accept further obligations,
or abstain from stipulating the minor ities' )imilalions in lhe
text of the agreement, since io such a case the miuori1ies will
liave a grealer freedom, aud in engaging in Lhe said rcslrictions, some of which were described before, they wi ll on ly be
rebuked or puuish9d according 10 lbe regula1ions, whereas if
t.l1ey are stipulated in 1he 1ribu1e agreement, ii will be violation of the treaty.
In their free choice
residence, 100, Ille Muslims may
guarantee the residence of the minorities iu 1beir own realms
and house~ stipulating details, or perroil1iog them to cross
forbidden zones (such as the laud of Hija:z), or owing 10 certain exigencies provide facilities or extraordi11ary privileges
for the settlement of the minorities.
Similarly iu judicial maHers, tbe Tslamic governm~at may
guarantee tbe minori ties' right of appeal to the Islamic
courls, even though such courts are fundamentally free lo refuse the minorities ' appeals.
In the expansion of the economic and commercial relatio-os, in so far as oo damage is done 10 the Muslims ' high

of

276

Minority Rights

inlercst and independence, greater freedom may be granted,


and a compelenl Islamic government may in the agreement
undertake lo allow the expansion of economic activities of
the minorities, purchase of their goods and products, or sale
of the commodities needed by them daily-or commercially.
Concerning marriage, divorce, inheritance and 01her civic
rights oftbe minorities, conditions may be inserted in tbc text
of the agreement to provide greater facilities for them or
facilities !bat may be dem1mded by lbem, and thus the Muslims guarantee these.
Concerning the conduct of the Muslims and obs.:rvance of
social customs, too, cooditions may be agreed upou by, both
sides in favour of the minorities, such as the necessity of tbe
Muslims' participation in the minorities' circles' or tbcir
non-participation in them, or recognition of certaiu customs
which arc in the interest of the minorities aod arc 001 damaging to the Muslim interest aod prestige, If lhere are greater
possibilities for participation in social activities, the minorities may offer proposals to tbe Muslims, such as selling up
special establishments, agencies, institutes, universities,
hospitals, schools, recr~alioo centers of public welfare, scientilic, hygienic and economic centres, or impose certain
burdens on the Muslim budget. In such cases the Muslims
may accept the obligatio1J io so far as the interests of Islam
and the Islamic society permit.
Naturally if any o f the above obligations do not ftccord
with the matters which will b.: explained in l'~rt Three, they
have no legal validity.

Part Three

lllegal Commitments
b~

facilities and privileges 1>rovided by Islam and


the heavy responsibilities underta~eo by ii in rc1urn
for tbe minimum reciprocal obligalion of 1be religious minorities through the conclusioo of a treaty of peace
and alliance, are unrivalled in international agrecmenlS to
which the hostile parties rarely agree. In view of the fact that
the tribute agreement is concluded under the conditions
where the Islamic society enjoys every power and superiority
and can impose every kind of terms of the religious m inorities, the legal worth of this system of agreement and its role
in the establishment of a d urable peace which no other positive humai1 law o r treat bas rivalled so far. we will not have
resorted to exaggeration in this connection.
A survey of lhe political agreements and peace treaties in
history between governments and nations in the pasl and present, will show that s uch obligations undertaken by !be Muslims in the tribute agreements are accepted only by governments which have no altemat.ive but to surrender to a victorious enemy.

278

Minority Rights

1n fact it is the law of Islam which for the first time and for
lbc sake of peace bas ignored the principle of equality and
balance of reciprocal obligations in the treaties. It has not
only connived at exploiting inte.ruational pacts in its own interest, but bas preferred the establishment of peace to the
p.rcscrvation oftbe rights and interests of the Islamic society.
But inspite of all its Oexib.ility and self-sacrifice in the way
of peace, it has never oeglccled the following principle which
bas- been stated in one of the Imam Ali's charters:
"Do not rejecLany peace which the enemy proposes to you
and wbicb is to Allah's satisfaction . But I warn you that after
making peace you should beware of 1be enemy's cunning and
lreason. T be enemy may often approach you in order 10 Luke
you by surprise. You should always take the ini1ia1ivc in 1bc
events and never abandon caution nor be deceived by your
imagination or ignore your feeling of suspicion."'
Moreover, Islam bas never ignored 1he goal~ aud the essential principles on wb icb the universal call of Islam is
based, and bas with being perfectly realis1ic and with forsigtbedness considered fundameulal goals inviolable under
all conditions of peace and war.
Thus in a survey of the law of the tribute agreement, w e
come across cases where Islam considers some of the responsibilities inacceptahle and their commitments illegal. Jn
th.is way 1be authority of the Islamic society and
its rulers
bas been l.imiled in committing themselves to certain undertakings which will be explained here under the tiile of
"Tilegal colllJllitmeots,"
In general lbe limitation of the Muslims' commitments in

or

Jhid.

Minority R.ights

279

the tribute agreement and boundary of the Muslim rulers'


authority in accepting obligations may be summarised in the
following general principles:
I. Commitments which may eodaoger the Muslims' independence
2. Commitments which may damage the Islamic leadership.
3. Commitments which are contrary 10 the Islamic laws
and general precepts.
4. Acceptance of conditions contrary to the sripulatiuos of
the tribute agreement
5. C(lmmitments contrary 10 the freedom of the lslamie
call.
6. Commitments whiGh may result in the divestment of the
territorial sovereignty or violate its integrity.
The above cases are, io fact, the closed bow1darics which
no Islamic authority un transgress iu tbe conclusion of a
tribute agreement, or accept them. A description of these
boundari~s will al~o help 10 clari fy the extent of the committable obligati ons mentioned in Par1 Two, since these general
principles explain both the limitations and the extent of freedom of tbc Islamic society with resp~ to obligations.
Now we will discuss the said boundaries and limitations.

1. When Muslims' Independence and


Sovereign.ty are endangered

be term "sovereignty", which was used for !he firm


tjme by lhe French jurist, Jean Rudin, is cmployt:d
usually for 1be free will of govcn1m~n1s and their
iodepeodcoce in taking decisions without lhc inkrforence of
another power or beiog subordinate 10 a similar one.
Some j urists who follow the opinion of ehsolutc sowr
eignty, believe that a g nvc romeul has 11 perfo~I and absoluh.!
polilical independence. and its acts end dl?(isions cannot b.:
limited in any maner or by any power.
As a government bas an intcroftl and cx1<:roal political
authority its sovereignty, 100, gives the monopoly of this
political right in both ies aspcclS 10 the government ~md a p.:t'
fllCt freedom in its relations with tbe nation and 01her countries' to carry o ut any d ecisio n which i i consid.:rs ndvisablc
without aoy restriction.
/\h hougb some j urists rej ect the idea of the unlimited sovereignty of governmeols, and show douht abo ut its accord
1 ll!ually. the 1enu " independence" is used for "exlc"'111 <ovcreognty.
and some legal expclls use 1hem as synonym.

.I

282

Minority Rights

with realities, yet their doubt is due to the fact that they consider it contrary to the formation of intemaiional organisation, to their authority and to iotcrnational law.
Thus the limited sovereignty which is accepted, means that
the sovereignty of the governments depends on the rules and
decisions of the United Nations Organisation and the international law, for, the social solidarity of nations and ~)(igeu
cies o f the iuteroational society necessitate the limitation of
sovereignty of governments.
Article 14 of the declaration of the rights and the duties of
the governments which has bee.n drawn up by the Comminee
of Intematioual Law, stipulates that "every government must
act in its relatjons with oth.:r governments according to the
International Law and to the observance of this principle that
the sovereignty of a government is subordinate to international law." 1
Here the theory of Alvare7~ the USA jurist, is quite op
posed to lhll opinion o f absolute sovereignty, and according
to him, even maners related to national interests should be
determined by competent international autborities, such as
the Security Council, tbc General J\sscmbly of tbe United
Nations Organisation, and the [ntcrualional Court ofJustice.
Jean Jacque Rousseau, io his Social Coatfac~ while defending abSolute sovereignty and its indivisibility, says of the
source of sovereignty and the power which possesses this
political quality, thai sovereignty is absolutely a monopoly of
the nation .
If we consider the government and its power as something
derived from the will aod desire of the nation, sovereignty
1

Geneml fntcm.11ional Rig/its, Vol. 2, p. 45.

Minority Rights

283

cannot be regarded as an inherent quality of a government.


since its power and will arc subordinate 10 the will and desi re
of the nations.
This point cau be understood more easily in cont1cction
with internal sovereignty.
But if we are dealing with the question of sovereignty in
relation to oilier governments and investigating the two views
of limited sovereigory and unlimited sovereignty, we mus1
remember tbat tbc.: inevitable necessity of 11ccepti11g obligations auiomatically, voluntarily and legally limits the sovereignty of governments. The arguments offered by the supporters of the idea of limited sovereignty as well as tbc prcseut exigencies of the i11teroational society, and the solidkri1y
aod conditions which have been created thtough lbc membership of governments in Lotcmational Orgaoisa1ions. make it
necessary for tbe governments to have a limited sovereignty
owing to their commitments to other governments and 10 in ternational orgaoisarions.
As commitments have their source in the will and authority
of govern meats, therefore the limitation of sovereignties will
not be outside tbe power and will of tbc govcrnmcu1s and
ultiu1atcly of oatioos.
Obviously, a compulsory and non-compulsory limitation
of the sovereignty of govemmcnt.s beyond the bounds of lb~
iotemational commitments aud treaties, especially in the way
stated by Alvarez, and subordinating the rccognilion of tbc
national competence of government to the decisions and
regulations of international organisations which would provide a pretext for the domination nf great powers and fulfilment of their purposes and iuteresls, is nothing but a new

Minority Righls

284

cypc of colonisation, in tt:e same wr.y t!iat absolute sovereignty, too. air.rooc be 1tnaglnable iD view of the necessity of

11cce11ting oblig-111im:is.
A$ we bavo now become f&maliar with the meaning of soveireignty on t mnde:rn legal basis. we muse draw the 11Ueo!ioui
of lhe reader lo ll s~nrvcy of sovereignly from rhc viewpoicu
of lidamic lor.w and its logic.

Sovereignty in the Islamic Law


recnot~

from legal terminology we will


discuss sovereignty from tbc vicwpoinnlf the lsb1m1c law on
tbc assumption tlial sovereignty is a quality of a govcrnmcot
In o rder

001

to b<!

ant.I its poli1ical 11owcr. Therefore. we roust lirst Ol.'CGIJ!c


fami liar with the sense nnd the political nature of k government io Che Islamic logic, and then deal willl t!Lc n1ci'>111ng ol'
sovereignty.
Although the lemt :ovt'1llruca1' is not seen in the exts
mid sources of llie Islftmic law' yet if we wish 10 .:mploy ii io
an Islamic sense and Jtccording 10 Islamic legal criteria, w.:
mny ca.II an Islamic govcrnmcnl nn or.ganise<l Islamic society
wi!h a di:linile 1c1ri1oory A11d a definite politic11l Jll>Wcr.
As 1iilc guidc1ine and criterion of t!ic nit!ion~I. iinaoy of ll
populntion in 11n lslamic society is 1he acccptmnce or lbc lslamic law and tdeology and ol>edienc.e lo divine will and law.
and smce 1he meaning of government is ootbing hut the cooIn kgiil discus:;ion, then: ""' different definition~ given to
..govem1nent'', Taking those cJcfinition!; inro eonsider1uion, it 1nay be
"11 id 1ha1 A "stale'' consi$1S of n group of individuRls \\'ho ftrc permane ntly nd ord~rly sl&lioned in" limited re11lm, obeying "" indcpcndcn
po wer o r government. Thu . tho olcme nlS o f which stKtc consists o
1

re: people. reabu and polil icMI p0\\1er or a govcmJucnt.

Minurify Rights

28.$

fo1mi1y of the law of lsl!!m and the exp&nsion of social juslict? l!CC4l1di111g w diviille lnw aod will, 1110 Islamic law an<l
ideology ml!\y be considered as d:le main element i.n lhe for-

ma'lio111 of ~be !s!IWli~ government


111 fact a people who have volunlarily accepted to follow
the id eolois'Y and the l3w of Islam, and 10 cJtrry it out, establish ao Islamic goverl'Jmeol atid Cfeale the necessary clements
tor the forll\ftlion of a legal government
Moreover, as ihe perfect execuiion of the Islamic law is inSCIJ>llf&ble from lhe fori:natioc of ., government aod the ~rC<l
lion of a poliliclll power, therefore .a n obligation to carry out
the Jaw o f lsfam wili i1u1ou1alice1ly supply tliis element of
governmeot, loo.
Thus, ii becomes clear lhat 1be role of tile Is lamic. law and
ideology in ao Islamic govcrQment is not ti:<: only role d "'tcrmi11ing the system of govemmeni. but tbere are a lso other
mRin c:rifcrill lbal fonn lhe elements of a govemmen1, 1 for in
an Jslamir.; governmeol !be indicator o f na1ionali1y, territory.
fron1ier, polilical pow~r ~nd government is nothing but tl1e
lslamic ideology and lnw.
This poinl c ao be ellplained in another way. Since the acceptance of the ideology and th.: law of Is lam by the pco11!c
fopning the government is based on tile perfect freedom of
will and choice, and tbus the free w ill of th~ Muslim nation
determines fhe form of the rule aod poli1ica l power of its own
socie'ty, the main indicating element lo the c reation of govemmcnl is the free will and joint wisb,e~ of tho: individuals
wh11 have a~i;eptcd the rule of the divine law.
I For further explanation pleare r-efier to Jsliin1 ma /n(t:rtMliott~I Rig/Jls,
Chs. 2 and 3.

286

Minority

Right~

Thus we may regard the govemme11t as derived from the


union of will and want of the Islamic society and the wi ll of
Allah, or the perishing of the Conner will in the latter's, since
the other two elements, 1Jamely the territory and govetnment,
are created with tlie mingling and subordination o f thdse two.
In tliis way the Islamic concepts of independence and sovereignty, too, become clear. Their indicator. too, is ootbiug
but the law of Islam. Tn other words, the lslamic government
has sovereignty and independence only within the hounds of
the Isl11mic law, and its competence, freedom of will and
authority both with regards to the measures taken witliin the
froniiers oflslam and its decisions and acts rela.ted to foreign
and in1ernational relations, are limited to tbe regulations of
the h la1J1ic law. Au Islamic government does not possess
such a freedom of will as to lake every step or every decision, or disregard the established duties.
Clearly this does not meao divesting the individuals and
tbe peoples of tbeir fre.,dom or violating their free will This
is something that is accepted by the free will of the nation
itself aod is undertaken by it. Tl1erefore. even the limit ation
of the sovereignty of' the Islamic goveromeot, too, is derived
from tbc free will of the nation.
Another kind of limitation which rcstric1s the sovereignty
of Ilic Islamic government, is the legitimate obligations
wh.icb it undertakes fornially accordi.ng to the Islamic law iu
inte.rnalional relations or in relation to other governments,
groups or individuals.
Tbe above cases are tnie if we consider the sovereignly of
1he Islamic govemmenl to be absolute. But if we consider the
lslamic government as bouod by the law aod 1be legitimate

Minority Rights

267

obligations in its relatio1Js to other governments and similar


powers, then independence and absolute sovereignly are undoubtedly among the manifest qualities of tbe lslamic governments. It cannol be in nuenced by, or dependent on, any
power. Io other words, the Islamic gowmmeol bas complete
freedom and competence in the establisbme1J1 and the o::xecu1ion of the Islamic law itJtemally and exlemaUy, and no uooMuslim individual or government can impose a hmitaiion on
the Islamic government or interfere in its affairs.

'I

Principle of Sovereignty According to


the Islamic Jurisprudence
The independence and sovereignty of the Islamic society is
one of the most fundamental and necessary principles of tbc
Islamic education and politics, whose importance is due. to its
direct connection with the high interests of Tslaon which may
never be forgone, as to forgo them would produce irreparable
diunage.
This principle. is so impor1an1 that it overshadows many
other injunctions of Tslam, and where the independence of !lie
Muslims is endangered, some individual a.od less-important
regulations are di;.Tegardcd for the sake of its protec1ion and
many forbidden acts become allowable. (!)
This type of action aud reac1ion within the ~nactment of
the law takes place on 1be basis of giving priority 10 the more
importanl over the less importaut, in case of th~ rivalry of tbc
regulations. Consequently in cases where 1he preservation of
independence is not possible wilb keeping other regulations
and injunctions, their in11uence, even though they may be
important in Islam, will be lesseoed because of the priori1y of

I.

288

Minority Rights

the principle of inde1>cndence.


Of course there are rules and injunctions iu Islam too
which are more imponant or equally important as the said
principle. But our pUJpOse was to show that owing to the importance of independence, the fact that many other Islamic
injunctions may be overshadowed by this priuciple, indicates
the care and assiduity of the legislator of Islam concerning
this principle.
lo jurisprudential discussions we find roauy cases and ex
amples of this rivalry in which the priority of the principle of
independence has been clearly stated. In such cases the jurisprudents. resoning to the phrase: to case of being axious
about the independence of Islam", have considered it nec..:ssary to employ all military potentialities and human forces to
fight against such a danger, and bave even recommended a
change o f the rules of jihiid when defense necessitates i1.
They have further suggested a negative comba1 wheo there
are no adequate possibilities for lighting.
Principally. Islam bas paid at1eo1ion to the ind.:peodencc of
the Islamic soci.:ty, namely .xlucational and political. and bas
emphasised the irnportance of both. We will now discuss its
political aspect.'

Muslims' Political Independence in the


Qur'an
Jn order to preserve the independence of th<: Muslim society, the Qur'aa has s rrictly prohibiued every dependence on
1

A.i the question of the independence of the lslsniic sockty. from the
education I od ell1icttl spccts l<ss ~ lrcMly h<:en discussod in thh book.

logelher v.ith the relcv11nl lly.1/Js.. there will be no need 10 rli!p-:ac s.cuuc,.

289

Minari!)' Rights

non-Muslim clements o r being obedient to them in so far as it


is related 10 religious and political interests, as shown in tbe
Ayah 113 of Soratu Htid:

0:~ijt\;:01;
.,. t . > .. _'L'i.1 ...... ,,,~,..#t'-;-..-:r
..;,.:....>~ J ~+Q_j ~,Ul9J'~,_--VJJ._:.,\r--/.

> "" ~<t ,, {,.--,....

''And d" 001 depend on tlJ().~e who ue uojust. lest the Hrc:
should toucb you. and you have no guardians besides All11h,
tbco you shall not he sopportcd.
If we rc:collcct that this liy11b is addressed 10 the Prophe1
and hi s followers, and the matters related 10 him and his
Ummab arc rcligiolL~ facls and teachings as wdl as queslioos
of social life. governing and leadership oflhe Islamic society,
lhc prohibi tion of dependence, in the above ay11h m~ans a
hcAJIY inclination to rely ou tbc unjust in matters of religion,
its facts and lifo affairs.
Reliance in religious matters takes shape io this way 1ha1
those religious facts which could be exploited by 1he unjusl
would be propagated. whereas those parts 1he revealing of
which might be incoovcoicnt to them, would be connived al.
ln matters of social li fe, 100, reliance on the unjust would
mean permitting them to in1ervcoc io the social mailers and
assume the role of rulers o r exerting au innuo:nc" which
would alter thl! religious and worldly asp~cts of the Muslim
.
I
society.
Such a rl!liaoce would ccnainly mcao divcs1ing 1he Islamic
society of its religious aod political independence, follow.;(!
by foreign intertcrcnce and innucocc, and subord ination 10
their will and wislJ. T11e prohi biti on by the Qur'ao io h is
' A l-Mir.nn, Vol. 11, p. 53.

Minority Right~

290

connection clearly shows its fate as accompanied by political


deviation, too.
The above ayah is a remioder that if tbe Islamic society is
deviated in this way, its deadly flame will afTect tbeir society
and set it on fire, iu which painfol case they will bave.no aid
but Allah, and will be deprived or this aid because of having
committed such a treason and crime.
Today the countries which submit to the big and powerful
governments l\lld lose their own political independence for
the sake of keeping a regime, or, under the excuse of benefiting from foreign security, place themselves uuder the protection of another country's military power, or to secure economic aids, or those imperialistic governments wb.icb plunder
other nations, and usurp their wealth and eights by employing
their military forces and international influence, try to cooceal the ugliness of such crimes and treacliery under the deceitful mask of international friendship and cooperation, and
in ihis.way save themselves from the wrath and vengeance of
nations..
It is this seemingly friendly imperialism against which the
Qur'iin warns the Islamic society and informs the Muslims of
its serious consequences:

G;i;~9jpj~.J.s~~ ~~1 i;;1:i.:~ili.~


:~ i('. -t'[~t:,\ >'.t'_:.i' ;~"It 1t

t..;!"""' ~r'~
1

..~- !) .. ~ ..n:-~

'0 you wbo believe, d<1 oof take my enemy aod your enemy .1s friends, oflering them afl'ection, while they disbelic11e
in wh;u has come to you. " (So.iaf11/ 1\!fumrli})in11h I I)

291

Minority Rights

--~"G\.t1i~'<"'-n~:- .JI
'-'~- ~.~..,,
r~r:f~ "
1 ~-; il'>-_d.t':.11-1
~>!<':Ii ~ -- :~it

~.Y~'..Vv- ~

!Obey should encounter you, they would he your enemies


a.od stretch lo you their hands a11d their tongues witb evil.
T/ley would h'ke to (see) y ou disbelieve. (Ibid. I 2)

,.., ,,. , ,

,.., .t, ,k"r" , ,

., ,

-'r

..;.,i_,;\-:,1~.:,...;.:n,;._,,;r,~,,,U1.:t~1,:,_, ~- '!~

.....,.
>=..
_,.... ,,
'..J!!1.',,1<'-'
'f:r
.,,

_,

.. , , . ; # ,,,,.,

~'' ""

'Those wbo tak e disbelie11en as friends other than the believers, do they seek might with them? Might rests entirely
with A llah" (Siiraum-Nisll ' I /39)
~.,). :;;.q-.....:;s::j( .,, : I '~'<"',.,.. ~i~"i;
~-,~

j.

~~~~1J ~

..

~~'
' J':-1
,-,!-'.J.:~U! I t= :1
~
:,....,.;,,'
4

--

"Neither those wbo dirhelieve from among ahlul kirab nor


lhe pofylbCiStS. fike that good Should he .ren/ down OD }'OU
from your lord.# (SiIIatul Baqarah I 105)
The point which is worthy of notict: in the logic of the
Qur'iin concerning politjcal independt:nce is that 1his independence does not only involve foreign non -interference, bu t
also every inclina1ion by 1be Muslims towards foreigners in
tbe form of reliance oo ibcm is f<)rbiddeo cveu if the reli ance
does not lead to foreign interveotion. Islam has made i1
obliga1ory for the Muslims and tbe Islamic government 10
rely on themselves and keep their indepcodcucc in religious,
social. economic, military and political mancrs. and avoid, io
their relations with foreigners and other governments relying
on them.
W~ have already d iscussed io detail 1he qu<)Stion of the
Muslims' social, economic, military, political and inle rna-

292

Minority Rigllts

tioual J'elations with the foreigners, and the wide possibilities


!be Muslims have in this field. Dul all these cases arc possible
only if these relations do not take the form of reliance on
them which would be contrary to the Muslims' independence, bul 10 be based on freedom, equality and independence.
Another point worthy of oolicc is that Islam does 1101 only
consider keeping iudepeodence as a defini te duly for the Islamic government and the Islamic society, but ii also extends
it lo cover the individuals, allowing uo Muslim to be jo his
own affairs dependent on tbe foreigners, aod that be and the
government should have the same look at the foreigners, as
depending ou aud attachment to, the foreigners, l>otb the
governments and the ind ividuals, are forbidden.
According to tbis vital command, the individuals, the
Muslim society and the government must rely oo 1beir own
powers and possibilities in tbc solution of difficulties. performance of duties, facing hardships and io their economic,
military and political aclivi ties, and rely on the organised Is
lamic society 0 11 the basis of co-operation, and strengtb~n
lbcir hearts with the hnpe of AUab' s victory which bas been
promised to thew in ihe Qur'an:

~I
"Other than Allah you ba.vc no guardi;w ;md no helper. "

(Scinlful Baqarab I IO 7)

Agreements Contrary to the Principle of


Independence
Treaties and agreements whi ch are somehow contrary to

Minbrity Rights

293

the principle of sovel'(:.ignty and violate the independence of


tllc M11slims aod the Islamic goveniment have oo legal validity from tlhe viewpoint of (slam and no authority has th~
power lo conclude and sign them. This is a poi1~1 whicb we
oould easily gather from lbe previous discussions.
Clearly, evecy legitimate agreement. automatically neccs~1tatcs some limitations of competence. froodom of will and
sovereignly of both sides, but sucb a limitation is 001 re
garded by the Qur'in contruy to the principle of sovereignty
or a violation of independence.
Only those agreements by which the Muslims or lhe Islamic government must rely on foreigners or give forei~ncr~
the rigbt of iotcrfereuce in Muslim affairs, arc forbiddei!I and
oousidcrcd invalid.
This is a general Islamic law domiaatil1g all iotcmztiond
treaties in various field~. some of which we will cite helow
I. Political concessions and privileges gran100 to forc1gn
individuals or non-Muslim Mtions through rril:ure agr..-cmeats or any other m1ernational pact, ccsul1ing in th~ dependence of the Muslims on rhem, are considered legally 1i11ll
and void.
2. Agreemcots whicl1 result io lbe dependence of Jslamlc
govenu:nelll 011 foreign pow~rs and their pcot.:c1io11 in lbc
1J1J1nagemco1 of its internal anilirs or foreign policies.
3. Military pacts by which Muslim forc,-s become subordinalc to foreig11 military powers.
4. Commitments by which the Musli m [oforma1ion Organisations become dependent oo foreign espionage activities.
5. Economic dependence and any agr~emcut which hands

294

Minority Rights

over Muslim economy and commerce io foreigners or becomes dependent on them.


6. Cultural dependence and any cultural ai,rreement wbicb
subordinates Muslim culture to that of foreigners.
7. Judicial commitments by which the Muslim judicial
system becomes dependent on foreigners.
8. Any treaty by which foreigners are allowed 10 interfere
in ooe of the above aspects related to the interests or L!1e
Muslim society in both internal affairs or exterual policy aud
relations.
What is meant by interference is tba1 a foreign individual
or foreign government exerts influence in the internal and
external affairs of the Muslims and duties and competence of
the Islamic government in order to compel i1 10 ac1or abslaio
from an action.

Principle of Non-Interference

Foreign infl11cncc and interference io the seuse described


above is, from the viewpoint of the Qur'An, intolerable for
the Muslim society, and Islam bas stricaly forbidden it.
Ou the ba.~is or this general policy, foreign interference
even when it d()es not involve dependenc.e is declared illegitimate, and thus the question of non-interference is considered a general principle in the independent policy of the Islamic government, and the Islamic meaning of ~ovcrcign1y
and iodependeoce can thus be spread.
Though the ayahs quoted before may se'ero inadequarc for
proving this principle, yet the iiyah 141 of SfJratuo-Nisii'may
be quoted as an evidence proving this principle:

Minority Right

295

"Aod Al/ab will never give the disbelievers It way against


the believers. "
The words "oever" is used in this iiyab to indicate a permaoebt neg~tion aod shows an emphasis deooting lhe strict
commaud of Islam.
Another in1erestiog poin1 in the above ay11/J is 1be word "a
way" which means "aoy kiod of a way", denoti ng every type
of innuence, impression, impositi01,1, compulsion, suggestion
and interforence. Thus the above ayah prohibits every act
which may mean the domination of tbe foreigners over the
believers' lives, auc;I evczy agreement and commitmeot which
may grant such a right to foreigners.
Therefore, 1he tribute agreements cannol envisage aoy
right for the committed minorities in governmental aod judicial appointments or any kind of leadership aod directorship
which may ICSUlt iu their domination over the life, property.
honour and other legitimate rights of the Muslims.

'

f!

2. Commitments Contrary to the


Principle ofSo.vereignty

slam :allaches a great importance to the sovereignty of


the Muslims and the eminence of the Islamic society,
and stric1ly forbids any kind of foreign sovereignty.
Jurjsprudents state this principle in the phrase
<;k~Y J ~ ~i>...11.
as a legal rule' io various cases of Islamic law, and is quoted as a l,vidil/i in the
books of iradition.~
Tbe sense of tbis legal rule and tradition which speaks of
the oecessity of the Islamic leadership and eminence, anc.l the
abolition of any auti-!slamic leadership, can be gathered from
tbe following ilynh:

"Aod lo Allah belongs the.mighr aod to bi's Messenger and


to 1be believers, but the hypocrites do not koow. " (SiJraJu!
' JnwA//irul /(11/Am, Vol. 21. p. L\6.
' f<.apzul 'Urnmal, Vol. 1, p. 17.

298

Minority Rights

Munafiqon I 8)
The reason for the hypocrites' iguorancc is that they seek
mighr and leadership by means of the foreigners, and. as they
have nor followed the truth of Islam, they do not un~erstand
its leadership and the might of its prophet and the !Islamic
society, as if they are seeking these among 1be fordgnt!rs and
accept the latter's leadership. Tbus they carry rhis heav.y load
since they are hypocrites and 1101 true Muslims.

The Sovereignty of Islam


Sucb a sovereignly is not obviously a kiud of racism or superiority of a nation, since might, honour and sovereigniy do
not belong lo Muslim individuals and nation, bur 10 the
authentic belief and ideology which they are following. 11 is,
therefore, an acquired sovereignty which can be acquired by
every individual, group, race and nation of any land. The ultimate goal of Islam is 0<1thiog but giving fl1e hon()ur of true
sovereignty to all human masses and expand it to the whole
world, and not to give superiority to a group, and allow itself;
while rising lo combat racism and racial discrimination, to
create aoother kind of superstitious attirude by this means.
This fact can be explicitly seen in the said rradifiou: "lslam
surmounts,_ not surmounted", and in the above iiy11h: "And to
Allah belongs the might and to bis Messenger and to the believers." This is due to Lbe mission that Allah bas granted to
the Prophet.
If the acceptance of foreig11 sovereignty is prohibined. ii is
because the establishment of foreign sovereignty over the
Muslims would mean irs domina1ion over their thought aud
belief, i.e. all Islam. Similarly when it is said rbat tbe Mus-

Minority Rights

299

lims and the Jslamic govemrocut roust endeavour for 1be sake
of the honour and the sovereignty of the Islamic society before other societies, government~ and 0011-Musliw groups, it
is for the sake of showing the sovereit,rnty and the hooour of
Islam to the people of the world.
Consequently the Islamic Society must be a model and a
witness over the nalions. The Qur' an, addressing !he Muslims says:

"And thus we bave'mHde you a TIJOderate nation that you


may be witnesses ovar the people Md that the Messenger
may be a witness ove1 you. "(Sfmt111I Baq1Uilb I 143)
Clearly, being a model for, and witness over, oilier uations
is not due to a racial, territorial or blood superiority of the
Islamic society, sioce this society is composed of different
races, bloods and territories.
The only criterion that makes the Islamic society and the
Muslim Ummah a model and a witness is the application of
the law aod the ideology of'lslaro io the said society. So long
as this society does not have harmony wiib. the legal, cco.nomic; political, military, cullural, c'duc11tioual and moral
systein of Islam, and so long as Islam does not govern all aspects of this society, it cannot assume the proud title of
'Model society' or 'mode.I Ummah. ' The efforts of th~ Muslims in an overall obedience to Islam in the above fields arc
in fact intended to wiu sovereignty and honour for the Islamic society.

300

Minority Rights

Any damage done to this sovereignty is treason to Islam


aod to the Muslim society, aod no Muslim bas the right to
commil such a treason.
T hough achieving such a sovereigoty will willy-nilly result
in the sovereignty over other nations, too, yet such a res11lt is
natural for every advanced society and powerful righteous
nation. The kind of sovereignty we have considered oecessary for the lslamic society is the sovereignly equal to the
other nations', not over the other oat ions, even if it cuds u 1timately in the latter form.

Preservation of sovereignty in
International Commitments
Thus the preservation of 11Jc Islamic sovereignty is one of
the general du!ies and !he Islamic necessities, the violation of
which is outside the au thority of the Muslims. aod international commitments cannot cancel it.
Therefore, the pri.ocipk of sovereignty must be observed
as sometbi11g constaot io all the international treaties which
Muslims conclude, sign and ratify. Whatever terms are contJary to tbe s11id priociple io these agreemt!nts will have uo
legal validity (com tl.te viewpoint of'Tslam.
I bis law is true, also, of the tribute agreements without
any except ion, aod consequently granting any political. economic, military, j udical and social privileges to the three religious groups of tributaries, which may injure tbc sovereignty of" Islam an.d the Mu~lim society, are wo.rtbless and
invalid.
O n this basis a number of j urisprudents have considered it
a duty of the tributaries lo abstain from constructing build-

301

Minority Rights

in gs higher than those of their Muslim neighbours (if these


were not built before the conclusion of the agreement), and
avoid such acts which may be offensive to Muslims and hurt
their sovereignty, such as adultery with Muslim womep.
Evidently, a tribute agreement has uo competence tp grant
the religious minorities the right lo interfere in mauers related to j udicial and political professions and whatever may
violate the MusUm sovereignty, since such ao ioterferencc, in
addi1ion to violating the principle of sovereignty, produces
serious consequences and irreparable dangers for the Islamic
society owing to ideological incompatibilities.
The Qur'An gives th.: following counsel in this connection:

~\~~
~t.q-~.
.. t\1..i;IJ>i.o.~~11>.'1:&ili'~lr;
~.,,...
C""":"-'"., LJ!.
...
,,....
..... '1: ..

J)J~;,; ~~~10.f~r;;Jr~~:ii~ .:.;;~\,';;


' >.,'<'~K

,.<;r,~ 1~'' .~ >'l~N > >

<.>};.Nf- .:.t:-' ~ ~ 'r ~...uJ.-> 11""J-'.I.,.>


you wbo believe, do 001 tttke for ialimzte frieads from
among otber tban your owo people; /hey do oot fall short or
iaflietiog Joss upoa you; tbcy like wh<11 Jistre.<.>es yo11; vc/Jc.
meol b1111cd bas already appeared out of their mouths, 1wd
whal t/Jcir chests cooccal 1'.~ even greater; indeed, We ha ve
made lbe Ayabs cleat to you, if you could reason." (Suratul
NO

Ali lmrA.o I 118)


Wbco befriending non-Muslims produces such unpleasant
results, and gives them the chance to do mischief and carry
out hostile plots, aod feel happy at our pain and suffering,
and not abstain from creating uncasin.:ss, and, inspih: of their
attempt ro hide their mental opposition rancour and hatred,
unconsciously their 1oogues to give way 10 slander and Citl-

302

Minority Rights

umny. Nevertheless, 1heir bcaris will remain fill~d with hatred, enmi1y, satanic plans and ill-will, wha1 would be the
consequence of th~ir sovereignty over the Muslims if they
were in charge of governmeutal, political, military and economic posts'?
As the Qur'ao does not advise personal aud iul imutc
friendship of 1bc Musl ims with the non-Muslims in view of
i1s consequences, and explicitly forbids it, ii is undoubtctlly
more vehement iu opposing tbc entrusting of posi tions and
ranks to ooo-Muslio1s which would rob the Muslims of tbdr
sovereignty and subordinate the interest and destiny of the
Islamic society to non-Muslims.

3. Commitments Contrary to Islamic


Decrees

n legal discussions ii is customary to cousidcr the subordination of the governments' forci{:o policy to the iu
temal laws as one of tbc priuciples of modern international law, so that the principle o f external sovereignty is regarded as somclhiog derived from iu1cmal sovereignty, and
the! lancr is oothing but the! sovereignty of law.
In any case from the viewpoint of the Islamic law, 1bc
connection and dt:pendcncc of fordgn policy o n the lws and
decrees of Islam is somc1hing inevitable and inviolable. The
necessity of this principle becomes more evidenl wl1eo we
sec lhat the ul1ima1c goal nf Islam is to expand lh~ Islami c
ideo logy and law iJJ the world.
Obviously every system which is dependent o n a par1iculu
go al aud rules and its o bject ive is summed up in the dcvdopment of that system and its rules. can not, lor the sake of
temporary interests or evc!n for the anainment of its goal. disregard its distillc1 ive qualities ftnd decre.:s, since such a tim<J
serving policy mean$ 1he violHtioo of its own goal Rud prin ciples, or a kind. suicide.
Consequ ently the commi1meuts of an Islamic socicly l<I

or

'

304

Minority Rights

wards its contr acting pany in interuational lfcaties and tribute


agreements must not be contrary to the general decrees of
Islam and violator of the legal regulations of Islamic society,
and auy commitment of that type is considered invalid.
What is meant by such commitments are the acts J..hicb arc
undertaken by the Muslims to do or not to do. But, if according to the agreement, the contracting parti.:s arc allowed to
commit acts which are considered illegitimate by Islam, or
allowed to abstain from acts which arc regarded as binding
by Islam. and the Muslims commit th.:mselv.:s to them
(except the cases mentioned in the closed boundari.:s), the
above law is oot applicable. For ex ample, if on the demand
of tho: committed religious minorities the Muslims grant them
such rights as freedom of buying aod selling alcoholic drinks
and oth er commodities the transac tion of which is forbidden
in Tslam, or their consumption is forbidden by the Islamic
law whereas they arc permitted in the religion of the contracting p1trties, or their right of non-participation in obligatory
Muslim gatherings, and these righls are stipulated io tbc text
of the agreement. s uch cases are beyond the scope of our discussion.
But if a competent Islamic government underlakes iu any
international 1reaty to abstain from execut ing penal punishment or canying 0111 judicial laws or performing religious
obligations, or guarantees the commitment by Muslims of
any acts which arc considered a siu aud a crime by lslam, or
if the Islamic courts issue a wrdict contrary 10 the Islamic
j udicial law or aoy other such mc11Surcs, all of them ate without validity from the viewpoint of Islam, and beyonil the
authority of an Islamic government and come under the IHw

of closed boundaries in the Mu~lims' international relati ons.

4. Commitments Contrary to the Law


of the Tribute Agreement

be principles and regulations which arc vaJ.id and


binding in the text of the law of a tribut~ agreement,
together with ibc commitmen ts .and cooditioos
stipulated in that agreement are not violable, <md oo commitmeuts by the Musl im society iotended m cancel chc said
regulations can have a leg.11 worth.
This principle does not apply only 10 the tribute agrcemeuc
or other intcroariooal trcacics, but also to all pacts whether, of
tbc economic kiod, sucb as purchase and sale. rent or mortgage or related to civjc rights such as marriage and divo rce.
If any conditions arc inserted in the agreement by either or
both pan ics of lhc contract contrary to the regulation~ of the
said a'greement, tbey will possess oo validity. Jn the Islamic
,;urispruden~e such commitments are investigated under the
title of "condi tioos contrary lo the exigencies of concluding a
pacr", to see whether the invalidity of tbe said condicioos
would oullify the agrcemeut itself. or whelher only Lhe said
cooditioos lose their biudiog quality and the agreement itsdf
mi.nus the said condjtioos would have a legal v;1lidi1y.

306

Minority Rights

What is certain is !hat cooditioos coo1rary 10 the rcg11lations of all agreements are not binding, and this is true of
tribute agreemen1 and other international 1reaties, too. For
example, carrying out the judicial verdicts of Islam in the
case of the committed religious groups when one of the par1ics in 1be case is a Muslim. and financial obligations of the
tributaties are among the inevi1able regulations of lb<! 1ribu1e
agreement
Accordingly, if the Muslims undertake io a tribute agreement not lo carry our the verdicls issued hy lhe judicial Islamic courts, or guarantee the rigb1 of referring 10 the tributaries' speci.al courts (of Jews, Cbris1ians or Zoroastrians)
even when one of the parties is a Muslim. and at1ribu1e oo
compeience to try 1he said religious groups in the Islamic
courts and consider it only within 1hc authority of 1be courts
formed and managed by the minority grnups, such undertakings have no validity and arc ou1side the competence of 1he
Islamic goverum\!DI and every other authority, and are null
and void.
The modern jnrisls, too, have considered 1his case. which
is called 'capi1ula1ioti'. a clear example of inequality aud
viola1ion of the sovereignty of ibe commiucd government.
Consequenlly 1he said antina1ional and imperialislic syslern
which had been set up after the Cirst world war in some Asiaric and African couo1ries owing 10 the establislHneu1 of imposed governments by force recognized by the international
rclalioos, was nullified after 1he gradual awakening of rbe
na1ions and people of'tlmse countries and lh~ commencement

Minority Rights

307

of i.ndependencc movements. '


In the case of the tributary, too, if its non-payment was
confirmed by tbe Muslims in the text of rhe agreement, the
said agreement loses its legal validity. But if cerrain facilities
are envisaged in the agreement as to the -sum oft he tribute, or
after its conclusion on the basis of payiug the 1ribute, some
interests and expediencic;s oecessitate its non-payment, the
competent Islamic authority can take necessary steps, as. for
example, the Prophet of Islam exempted the people of Bahrayn from rhe payment of tribute.

The Genc1:1/ lntc1n11fionI1l Rig/us, Vol. J, p. 3 J Thi~ iJnp.:rillli_.;IJc


yoke, on the basis of Tur~a1nan Chai Pact . \VAS ii:nposed o n Jra-~ lh(n, 11$
a 1-esul1 Qfthe.prcssurc of 01hcr big pov.1i!r~. <he ngrcen~nl of th.: t apicu.
lation\vas further i1nposcd on lran. LAter on, this disl'lg.r11ccft1l bn1nd \V1-1Sre1novcd fro111 tbc forehca<ls of 1he ltalli;'ln people. th.0~1gb i 1 ,,As rdpeated rn the contetnporary tin1c.

'I

I
~

..

5. Agreetnents Contrary to the Islamic


Propaganda

uri og our previous discussroos we have repeatedly


referred to 1he value and importance of the uni versal mission of Islam as a general du1y, and have
poio1cd out tbc need of free Islamic propagation
wbicb is one of the autbcotic goals of chis universal religion
and the role of this principle in cbe philosophy of the Islamic
emancipa1ion jihad.
W hat we wish to discuss now is the effect of chi~ on international treatic.~ and 1ribu1e agn.'etllent The mano~r of this
effect may be gathered Crom wha1 was stated about the importance of this principle and its role in legislating tbe j ihlld,
since the said principle requires the drawing up of the io1crna1iooal treaties on 1be basis of free call to Islam. aod avoiding any undertaking which may deprive tbe Islamic society
of this legitimate right, or creating of restrictions and obstacles wb.icb would be co111rary to 1he goal of the univcr:<>al
missioo oflslam.
Wbftl is no1eworthy here is lbc legi1imacy of the international pacts and the philosophy of their imporiancc iu Islam,
since Islam. in considering peace as lhc essential basis of

:!10

Minority Rights

foreign policy, irrespective of its vital necessity, and its being


the genuine ideal and ultimate goal of Islam. regards the eslablishmeat of peace by m~an~ of lbe international agreeroeols and the creation of an environment of security and coexistence a pro11er way by which the Islamic society can engage better in the performance of its duty and mission of universal call to Islam. This is an evident result for a peaceful
policy ofl slam in the foreign relations of the Islamic society,
but it is considered important in Islam.
Ou the other hand, as the philoso11hy of lbc iu1croatiooal
pacts is the creatioo of good understanding, closeness and coexistence among oatious, auy commitment which serves as a
harrier in the \Vay ol'intellectual ex.baugc and familiariiy with
the Islamic faith and ideolo:,ry by other nations of the world,
is, in itself: a negation of the effect of the treaties aud loss of
understanding between natioos.
Moreover, the contracting parties which oppose 1bc proposal of freedom of the Islamic call and lherehy pul a1) obstacle in lbe way of t he ptomocion of the Islamic faith and
attitude, are, io face, opposed to peace aud co-existence and
hostile to the Jslamic ide<Jlogy a.ud thought. This would, lbeo,
be C()nl.rary lo the inlernationa.l paclS, and such pacts cannot
last long.
Thus, il is clear that Islam cannot alfow 1he Muslims to engage in commitmenrs which are opposed to lbe universal ca.II
oflslam and lllcreby set up a barrier against the ex.pausiou of
lslamic ideas and heliefS, or conclude trealies which are
based on hoslility to Islam aud opposition lo lhe beliefs oftbe
Islam ic society, and on the spirit of hyp()Cricy, remoteness
and mental opposition rather than oo lbe spirit of peace, coexistence and understanding.

6. Commitments violating Territorial

Integrity
he terms realm', 'land', or 'territory. which arc a
basis of the formation of a society aod government
as used by l.l)odem law, are not synonymous with
their senses in the Islamic law. Their basic differences which
produce differcut results in many legal questions should not
be neglectod.1
The difference between the two, like many other legal
terms which assume a special form ~n Islam Od bave their
root in the Islamic ideology. is that an Islamic realm is a
territory the i1Jhabi1ants of which have accepted the faith and
law oflslam aud obey tbe domination of its inj unctions.
In other words, the frontiers of an Islamic country and its
territorial realm are where the law and faith of Islam cxis4
and thus with the expansion of this faith, the frontiers or an
Islamic land extend automatically, and with tbe conversion of
the people of a region to Islam and obedience to the domination of its law, they automatically joio the Islamic society.
Under such conditions the Islamic govcrumeu4 using its

312

Minority Rights

potentials and beiog aided by the people 0f tbe uewlycouverted region, defend$ its indepe11deoce aud the leadership of the oewly formed Islamic society, blocking the way
o f influence and fotecference of foreign governments. The
people of the new real01, loo, owing to lbe faith which Ibey
have accepted, cannot accept the rule and leadership of oonMuslims, as tbe Qur' au says:

"Ao d A /Mb will by oo mews give the disbelievers a way


against the he/ieveF!I. "(SiJ.ratun-Nisii' I 141)
Wl1en the t>eople of the oewly converted region are 001
able to defend lbeir independence and leadership or dismiss
tbe aggressive forces, and request other Muslims to help
them, it is the duty of all .Muslims aud the Islamic government 10 use aU their possibilities 10 aid !hem unless !bey have
already concluded a non-aggression pac1 with th~ nonMuslim disputing group, or another lrealy according. lo wliicb
tl1c Muslims are deprived of 1he righl of giving military aid
to the dispu1ing Muslims.
The Qur' an says in this connection:

''And those who believed 11nd did ool migp1te, you owe
tbem no guardianship until they migrate and it they seek 11id
/Iom you io the mill/er of religion, you bave to t1id {1hcm),

Mino rily Rights

313

exccpr t1gt11iJ,r a people berweco wb1Jm and you rberc; iJ, 11


Jreaf)~ 111/d A/11th see~ whar you do." (Snr11r11I Aflfiil 1 7.l)

In cases wbcrc the Muslim minority do 001 11ossess 1lic


11owcr 10 defend their faith, aud 01ber Muslims
caonot assisl them owing 10 a joint lreaty or mili1~ty weak
uess, if 1hcy lack freedom of observing lheir religious du1i..:s
and rites, they must cmign1e 10 lhc free Islamic realms.'
Now aOcr becoming familiar wi1b 1he Islamic meani ng of
the Islamic realm and h:rritory. we can see 1be reason for 1hc
necessi ty of pro1ccting the U.lamic lands and dcfend111g 1h~ir
territorial in1egrity, since the transgression over them and
violation of ibeir iutegri1y would mean lrespassing over lb.:
righlS oftbc Muslims, in which case thto defense nf1hc realm,
if 11ossihlc, is a general duly of the Islamic society, aod as 1bc
nec~ssary

Qur'lln says:

"Permissio!I (rv fighr) is given ro fh1J>e who /Jave 1>1xn


wronged; and surely A/Mh i~ able In 11.w:fr 1hcm''. (Somru/

ljnjj I 39)
Therefore tile Muslims would ocvcr agree to the viola1i,iu
of the lcrritorial integrity of Islamic realms. and any co mmitmeu1 which would iovo lvc this violalion of their sovereignly and 1crri1orial inlegriry is 1rcasoo and transgnissiou
against lbc rights of all Muslims aud musl be condemn~ and
considered invalid.
This principle does not apply 10 uninhahincd lands which
beloug 10 the Islamic govcmm~nl or lo Muslim individual~.
' .l1twilhin1/KIA111, Vol. 21. p. 270.

Minority Rights

since 1be govcrnmcnl and iodividuals owning 1hcse laods


may transfer them to a no n-Muslim govcrome111 or ind1vu.luals. In lhis case depri va1ion of ownership does 1101 mt:an a
violation of the 1erri1orial iotcgrily we menlionetl befor..:. Bui
such a 1ransactioo is legal on the condition 1hat il does nol
damage the intlepeudcucc and leadership or 1he Mus lims and
lhe Muslim government. and docs not reinforce 1hc enemies
o f Islam. In any of the above cases, the transfer of such lauds
is not legal ly possible even in international 1rca1ics.
Concerning the inhahilled lauds where Muslims scuk
(even if these lands hdong 10 Muslim individuals o r to lhe
government in which case lhey may transfer 1heir l~uds lo
oh~rs), if this transfer involves the ex pulsion of Mus li ms or
lhc domiua1ion of foreig ners ov..:r the Muslims, s11ch a 1rnnsac1ion cannot have a legal validi1y whether ii is made indepcndcn1ly o r thTOugb in1crna1ional agreemen1s.

Chapter Six

Annulment and violation of the


Tribute Agreement
Securing the Guarantee of Legal
Enforcement of International Tribute
Agreements

I
'I

Non-Fulfilment ofthe Commitments


of the Tribute Agreement

n a discussion in this book we r.nade a brief surrvey of


the violation of lhe it11.e rna1ional agreements and thdr
results. But as the abrogation of the commitments of a
tribute greement requires a more elaborate discussion, we
devote this chapter 10 ii and will try 10 avoid repetition.
The necessity of fulfilling one's promise is the first legal
result which is derhed from 1be conclusion of a tribute
agreement, and this is equally appli cable to both c0111rac1i ng
panies, without any discrimination. Thus, ii is carried ou1 as
fTom 1be s1ipula1ed date, and if no date is slated; it is binding
from the moment of concluding i1, aud both sides mus1 do
their best lO put it into force.
As the legal duration of a tribute agreemenl is uoli mi1ed.
therefore aU Muslims, and especially !he Muslim gov.:rnmenls, are responsible for the execution of the comm i1mcnts
agreed up00 by them with the committed religiou.~ groups
within the realm of Islamic rule for an uu limiled period.'
1

We hxvc Blready declared lhftl ln thi< book wo discuss only Tribute

Agreement$ whioh a con1pctcnl lslaniic govern1ncn1 concludes \Vich the

318

Minorily Rights

In fact the Islamic govemment uodertakes always to see to


the fullilmcot of the terms of the treaty by botb sides. This
point will be explained further in a later section.
According to tbe priuciple of "the necessity of the l'ullilincut of a promise", any violation and anoulmcut of' a tribute
agreement is forbidden for both sides, and is considered an
offense and treason . Both "annulment" and "violation" bear
certain vestiges wbicb will be dealt wilh below.

Annulment of the Tribute Agreement


Whal is meant by the annulment of au agreement is considering it invalid and div.:sting oneself of th~ responsibilities
in carryi ng 0111 its tem1s. T his annulment way be mad~ in the
three following ways:
I. Its annulment by both sides through a bi-lateral agreement.
2. Unpredicted unilateral annulmeoL
3. Unilateral annulment which is envisaged in the text of
the agreement.

Undoubtedly, the first lyt1e of the annulments, can he legally cffec1ive, siocc a trib1uc agreement, like auy other p1ict
which has been concluded wi th the agreemen t of holb iutcrcstcd parties, can also b.: considered null and void upon a
fresh agreement by both sides.
Di-lateral annulment bas been accepted in ls lao1ic jurisprudence (under the term "!qi/ab") as an accepted principle:, and

religious nainorilies 10 dv.ell '-''ithin the: hmits of the 1.shunic 1ca.hn. Afr.
regards other tribute agrec1nents v.hich an;: concludecd as 1nto 111atinn~I

pCIS w11h a state fottowfog the three nfliciI religions, will b di>cuss.:d
in

fl

C('Hrting occasion.

Minority Rights

3 19

it is considered true of the 1ribu1e agreemeo1, too. Whe n 1he


Muslims reach an agreemenl wi1b lhc commi lled religious
groups for 1bc a11ou!mcn1 of lhe 1ribu1e agreem enl , ibis
agreemcn1 loses i1s validity and is nullified.
Th e second ty pe of a nnulment may be regarded from twu
points of view; uni laleral annulmcn1 hy the Muslims. and
unilareral annulmco1 by rbc commilled reli&rious groups. As
the tribute agreement, on 1he part of the Muslim~ is binding
and permanent pact, it is considered irreversible by 1he Muslims, that is to say. tl1e Muslims cannot resort lO the unilarcral
1
auoulme ul. But the comm itted rcHgious groups may make a
uni laiern l annulment by j ust dc1Jarti11g from Lb" Mus lim
realm which renders i1 prac1i cally null and vo id, iu 1hc sa me
way 1h111 the conversion o f 1rihu1aries to Islam automaiitally
invftlidMcs the tribute agreements.
1

Conl<mponuy legI eP'"-< usually regard lbc changing of 1hc ,11u..

tion - whicb ha.$ not been predicted at the conc;lusion of 1he agre.:1ncn1
- ~ penn1$$inn for unilateral annuln1cn1 of lhc intcm.ariooal agr~e111cn1s.
~c,.use v. hen rhere appears a contradiction bct,vi.:c-n a c..urrent soe:utl and
polillcul situAtion, and the agrccn1c nt 1n <1u~slloo, H <:11nn(H re1r11n 11$
conslsh:ncy ond finnne~s su1c(! ii docs nol go 10 ltltn uvny \Vhh 1hc 11.::
ruAli1tes. l'herefore, tbe sl1Hc \vhich is h11niH:d by 1ht: vRlid 11y o f 1hc :-.nid
agrt:i.:1ncnt i.s ll lll)\\>'Ctt to an11ul ii rl'Oll l its i.idc, So, lhc C(lUTil l'IC~ \\'hich
rcsorl 10 the unilateral annuln1en1 nf the in1cn1a1ional flgrtc1ocn1:... c:l1.:.thc s.11id principle, using it to tO\'er 1hc1r hcuaya.I 3nd 'iohH1on of "
1

CO\"\!tUHU .

Abu 1IAnifah. antang. the Muslirn jurisprodi:n1~. pn:SCnh:d " 1'i1t11la1


theory, \\ hic b hHd bo:11 cri11c1?..00 by All other jurispruc.1.:nt~. 1\hu lilin1.
fah bclic\'C) lh(lt ~hc;OC\'l!t th~ 1nr ~r.:~ts of the Mu.sli1ns pc!cl!x.;;11A1e< 11,
the lcaJcr
die Musllnis Is C.OltlpelCnl to un1hH\!ntlly annuli 1he 11\ICI
nt111onttl 1tgrc<:n1encs. (Look up /\//utrt.1! ~of.?tb). /\':> 10 1hc Shi'tth Juns:p1\.I

or

dents, they did not aLJo\v', cvc::n the next lc11dcr. on the p rctl.!iU lhhl It \\flS
concluded by JOn11t:r lcAde.r , 10 annul or viuhtlc it. {J1111'Ahi111/ Khlllltl,
Vol. 2 1, p. ~13).
-

320

Minority Rights

Therefore, when a tributary converts to Islam before 1he


payment of the lribute. be is exempted from payment, according tu a narration saying: "A Muslim never pays tribute"' aad
according to another oarra1ion, "It is 001 beco ming of a Mus 1
lim 10 pay tribute. 2
Mure(lvcr, according 10 a rule saying that 'Islam severs all
its anlcccdent."' Actually, Islam negates one's conducts before adopting Islam, including, of course. the payment (1f the
tribute. 1
As for the third type of annulment (predicted unilateral annulment), this question must lirst be asked whetbcr the right
of abrogation is allowed to be stipu lated in the tribute agreement, wbcth~r the m~ntiou llf such a condition on the part of
the Muslims or 'by hoth sides' is not contrary to thc exigencies of the tribute agreement, aod whether eve1y condilloo
which is incompatible with the cxigeocic~ uf tbc lr<!llly must
have 11(1 validity.

Effects of the Annulment of the Tribute


Agreement
Wbem:ver th<: an1111 lmen1 of the tribute agrccmcn1 takcs
place lcg ilima1 cly. the cou1rnc1ing piLrti es an; lhcr.:by freed
from the previous rt!Spoosibilities and comnutmcnts ol thc
tribute agrccmcnl. Consequently. lbc righl of res idcnC<:: of 1hc
1hrcc rdigious groups (Jews. Chri stians and i'11roas1rians)
ll-M11<1adn1k. Ch. (,J on a/-j111nd, (lail11h No. 34
Al -ll>IL1q1' , .'i11nan, Vol 9. p. 193.
I h M//I / lhu111nl. Vol. I , p . 17. A lKhj11'1~11/K11bl'll, Vol I . p. 249 AlN/U>JJlo// ,k, C'h l S, 1he 1ns1ruc11on> for 1he month of RmA(IAn. hNdllh.
'-:o, 2.
' Jnu ,;/11rul K11 /fi111, Vol. 2 1, 1>. 25'),
'

Minority Rights

311

requil'es 8 ucw agreement without which they cannot cootiuue 10 settle iJJ the Islamic realm and enjoy polilical immunity, securily and observance of their rights there. Thus, if
they do not agree to ou a new a.greemen1 , they must leavt:: the
Islamic realm immediate ly, aud the Islamic governi,neut has
to guide them lo a safe land of their choice, and guarantee
their safety during th is period.
~'hen the annulment is unilateral and il!.:gitimate. it must
be considered invalid, and ii has no cfkct on 1h~ 11gr..:..:ment,
and the other committ~d side can 1101 annual i i ou th~ grounds
of its annnlme111 by the otb"r parly.1 This may be mAde Legal
by means of a bilateral agreemen1.
Tbis is possible if the aunulmeot of the treaty du<:s not lead
lo the actual violfftion of the agreemeut, sincc a violation of
one side of the treaty may rrovidc th~ grounds for ils violaciou by 1.he o rbcr side.

Violation of the Tribute Agreement


T he violatiou of 1bc tribute agreemen1 meaos abstaining

from the fulfilment of its commitments or <!ngaging io acts


which shou ld be avoided according to the lenns of 11Je
agreement This violalion of 1hc lribulc agreement may be
disussed ip two forms:

1.. Violation by !he Muslims:


from lhc viewpoint of 1he Jslamic law, no Muslim or ls"l'his principle is tn1c to all ag:l'eernen~ hecll;i~6 tbe jJlcga I ~nnullnent
of an agreen1cnt \vould no[ affecl ic, n11d the- 01her p(1rly \viii lu:ivc 10 :1d-~
here 10 the agrecn1cnt. The ne\v Jntetnationa l Rig,tus, ho,vc,c.r, grants.
bcnh parlics the right that, in case of the unlltil~ral annuhu..;nt, lhe othe)'
1

pariy <::~n annul ll also on ifs side.

322

Miao.rity Rights

Jamie amhority bas tbe right to violale a tribu10 agreement


whic!J has been eoncluded legally and correcily, and refraining from its observance is considered a great sin and o ffeuse.
Tlierefore,. oo competent Islamic govemmeo.1 may lake the
lead in ils violation, and any responsibility in violaliug: it is
on this go:vcrllnlent.
But if these comroi11ueu1s are not fulfi lled by Lhe Musl in1s
eilber voluuiarily or forcibly such as being unable lo do so,
lhe tribularies. too, may acl in lbe same manne r mid praclically viola1c the agrc..:meot.
Io such case~. if lhey have fulfilled their linaucial dulics
(pay ments), 1hc Is lamic government mus1 refond 1be payme nts to them.
On this genera l principlti, the atera1ion of conditions, inadvisabi lity of continuing 11.ic agreeme n1, o r its harmflil conseq u<:nc<:: for the Islamic society cannot ht! accepted as a legal
grounds foJ' the violalio o of th<' agreement by lh~ Muslims,
since the il!,'Teemenl does not depend on the expediency of'
the Is lamic society. The refore, it must be regarded as a permaoent i11tern~tioual 1>ac1, biocliug for rbe M uslims.'
vVith lhe exceplion of Ahu Hanifa, all j urisprude nts have
cousiclered the tribute .agreement inviolable, and even io
conditions when the re is a certain evidence aboul the danger
ils violation by the commilled minorities, lhe Muslims are
nor advi sed to violate it.
T his view has !Jc.en q uoted iu Alhii.r-ul-~:rarb p. 359. qtio ling Al-R;idii.yi'. vol. 7. p. I 09, f athul-Ghadir Vo l. 4, p. 352.
an.d A l-Badayi ', vo I 4, p. I 08, supponed hy ;tf1W11b,1dhdh11h, vol. 2. p. 263, and Al-Mug hni Vol. 8, p. 363

or

' Jnw.11i;,11/K,1/J1m, Vol. 21. p. 294.

Minority Rights

323

says follows:
"TI1e reason for the probibilion of violation in the above
case is that the tribute agreement l\SSumes the li\rm of n obligation on the proposal of a non-Muslim&. and so it is not
violable for fear of tt eason, because a lrca.on hy lhe tributaries is reparable as they are obedient to the Muslim ruk. The
iiy;th 58 of sruatul Anfrll says:

"Arid ifyou fear treachery Ii-om ti pr.1ople, conliv nl them on


the same tenns, 1' is related 10 the tempomry 11gn.Jen1cn1 of
'Jiudna~ and is not applicable io the tribme agrcea\enl.
T he late author of a/-Tnwabir, afler quoting the above ayah
and stating the necessity of declaring the Huduii agreerneol
void iu case o f feeling a definite danger of' its violation by
non-Muslims, says:
"T his does not apply to the tribute agreement since lhis
agreement is the legitimate right of thoe religi ou~ minorilic.s,
and the Imam of l/tnnMh musl welcom~ such proposal frorn
tbcm, e ven ii' he is in lhe position of power and auth<lri1y
over tbem. Moreover, the tribute ai,>r~emcnl include~ financial obligatious and is not free of charge. Furthcrmor~ the
tribute agreement is a permauenl ooc, aod in lhose respects it
is not on an equal l<::vcl with the Hudn a agreem<!nt which is
tem porary. Tu view of t11e above explanations we can ~ay that
if modem jurists permit the violation of international treatks

.,

324

Minority Rights

io such conditions, 1 wi1hout a doubt Ibey will by Ibis meaus


cause a great damage to lbe conllnualion of pcac~. inlegrily
aod legal worth of international trea1ies, and thus 1bey pave
1he way for trai1ors and provide 'au excuse for lime-serving
opporlunisls.

2. Violation of the Agreement by the


Conunitted Minnrities.
According lo the undeniable principle of "the n.:cessily of
fulli lmcnl of a promise" which is accepted by all nations and
religions as the mai.n basis and g uaraolee of execution of all
agreer.neots, lhe violation of au agreement by the commiu~d
religious gro ups is an unforgi vable offeuse aud treason.
T he violation of the tribute agreement by the religious minorities is possible io lbree cases as viewed by all jurisprudents:
A) Rcf11$al lo pay the tribute. The Imam a~-Sadiq says: "If
the men refuse lo pay the lribute. they will he regarded as
violaling che treaty, aod rbercforc rbey eojoy no immunity of
r
lw~
a.ucI property. .,,
13) Re fusa l 10 acccpl the Islamic judiciRI verdicts. as described in the clrnpler o n Minorities' commitme nts.
C) Armed uprising against the Muslims, or collaborating
with tbe enemies of Islam for a Hacking 1be Muslims.
In ofber cases of defaull and offe nse by the commi11cd
minorili~s, such as violal ing lhe honour o r transgressing over
Muslim prope rty, espionag<:: for the enemies of the Muslims,
I Gencnd lntcmation.~J Rights, by Dr. s.fdlll'i, Vol. I. p. 190. 77ic Comp1'mti1e [t111~ by Dr. Iladra,vi, p. 178. Public /111e11u11ion,1/ LJtn~ p. 457.

' Wm;,v'ilus/J.S/1infl. C h. 18. bd1th No. L.

1\.1i nority Rights

325

shelte ring spie<;, ins ulling lhe Holy Prophel of Is lam and
other Muslim leaders, llagranl ifTectation Towards The forbidden acTs in !slam, building n-ew centers of worship and, mis leading their own children, if 1bey are s tipulated in 1hc lex.1 o t
1he agreement 1hc s aid om~use will mcau viola1ing 1be tribulc
agreement. But if no stipulation is made aboul avoiding $uch
offenses, commitling 1hcm does not result in the viola1ion of
the agreeme nl, and Ibey will only be liable 10 1he re levant
punishments .'
111 some of tbe above cases, jurisprudcn1s' views di ffcr. For
example. Sbaykb Tusi cons iders that the open prac tise of the
forbiddco acts by the tributaries, e ven if this o lfonsc: is s ripu la1ed in 1he Lexi of 1he agreeme nt, will not b~ a vi0Ja1ioo o f
1he tribute agreement, and it is li~bk only to penal 1>unis.hm ent.

Indirect Violation <if the Tribute


Agreement
The re li.g ious minori ties can beneli1 from

1h~ l<1w o f 1he

1rihu1c agreement and ils privileges when they iollroduce


themselves as the followers o f one of 1hc recognised religions
(Jewisrn, Cbris.t ianity. Zoroaslrianism). Conseq u~ntly if' a
follower of one of these relig ions changes his rdigioa 10 another one of the above religions, such as a Jew becoming a
Chri"srian or vice versa, the trea.ty holds good and rc m:.ins
valid. Sbaykb Tos i considers this view righ1 and d e ar frnon
1bc Shiite viewpoiu 1.
Hut if he changes his religion from a recognised ono:: to any
religions, other than the said, this will aulonrnli~ally aud io.11

/.wiilii111l K"!tim, VQI. 21, pp. 267-.276.

,,

J26

Minority Ri!lhts

directly violate tbc agre<o:ment.


l f the newly-adopted religion is Isla~ he will become o n
an c:qual footing w ith other M uslims in all the iudividual and
social rights and privileges. But if he has turned to another
unrecognised religion, be must leave the Muslim rcatrn. o th~rwise ifbc is unable to hcue fit from the law o f immunity, he
is considered an eo~rny aud will have no immuni ty.

Consequences of Violating the Tribute


Agreement
When the tribute agn:~r.ncut is violated by tbc com1Jlitted
mino rit ies, it naturally loses its leg,111 validity, and th.:: Muslims will have nu obligatio n nncl no respoosibility to wards it.
Thus they lose all the rights and privileges H1ey had o btained
tb roug h the tribute agreement and will be deprived of tbe
rig bt of immunity of life and propeny. They will also need a
new permit for staying in the Islamic realm. Therefore, they
will have to renew ano ther tribute agreemen t wi tb fresh
conditions. o r leave the JslR01ic Land.
The only responsibility that the Islamic go vernment has
towards such religious minorities is to lead them to th<!ir own
tcriito ry or to a land where they can live in salt:ty, and 10
protect their rights during this peri(1d, since their arrival in
the Muslim land had heeu dependent on au offi cial immunity
permi t, and now as the agreement has beeo annulled, their
safety must be ensured down to the time of their dcpanure
fro m the M uslim realm, aud no trcasoo o r decei t shou ld be
rcs1ir1 ed to against them.
Some jurisprudents have attributed no such rig ht to the
violators of ll1e .agreement, especially if the violatioo of tbe
ag reement bas been due to an armed upri sing against the

Minority Righls

J27

Muslims. and as they themselves have acted trecherously.


they must be regarded as enemies and deprived of inununi1y
of li fe anu propcJ1y. 1
T he l111e author of aJ.Jawahir has confirmed ibis cx1r~111d
view concerning the. violators who have broken 1\Jc 1rih111..:
agreement by 1h.,ir armed uprising agaiust the Muslims, nd
has considered the absence of immunity for them as something propcr.1
But Shaykh Tflsi aud the soholar al-llilli consid.:r it the
duty of the ~uslim leader to lead the violators to their land.
Fakbrul Muhaqqiqin, too, has quoted this view a ~ompa11ble
with thus.: of tbc jurisprudents.'
l\J; all the conditions which muy rc~ull in th..: vio l111 ion o J'
tbc tribute agrcE:n1cllt are 001 prcdictahle, 1h~rc!Orc whal can
he said of violation and its effects in gem:ra l is 1ha1 t.h" t<:xl of
the tribute agrccmeol and its s1ipula1ed terms aud condition~.
as well as the view of th<! competent l.:ader of the :vlu>lim<
and the verdict of the Islamic courts arc always the criteria
for disti ngui shing the question of violalion and its punisbments.
Accordingly we see that in a 11artic11lar case the Prophcl issued a dcillh sentence against some1111c who had abused and
violated lh.: tribute agreement and in another caso;: hll co11nivcd at the punishmcot of a Jews wbo had made an allcmpl
1
on the life of H1e Prophet by offering him poisoned met .
1

JawH/Jirul Kalm. Vol. 21. p. 277

Ibid.
' Ibid.

A$Sir111ul {Jnlnbiyy.1h, Vol. J, p. 170.


5 Nshlul Au1;11~ Vol. 8, p. 62, quoting lr<un Ahnt~d'l) Hnd Muslin1 ~ .~H ...
lulis.

328

Minority Rights

Some jucisprudenls have considered it probable in the lirsl


case that .avoiding abuse and hostile acts were stipulated in
lhe 1ex1 of the treaty, and in 1be second case oo such condition was m entioned. Thus . the first case must have1been 11
violation o r the tribute agreement, while 1he second ~me was
not,
But as au attempt on the P rophet's life is a great crime,
even though it has oot been stipulaled in 1bc tcxl of the lribule agreenicu1, ii is a clear and manifest cxamjlli:! of hreakiug
a promise, so, this in1eri1reia1ion seems weak, showing the
role of 1he Judgement of the Muslim leaclcr ilud 1he interests
of the [sliJmic socit:ly io dis1ioguishiag vio lation aod de1crmiuiug its puu ishrnen1. T h<::refore i1 is clear 1ha1 Islamic
cou rts and competent j udges, iu their rum, have an effective
role in de1ennioiug punishm~nts and execution of pena l verdicts in the case of" guih y 1ributat'ios.
Here it must be rcmcmbert:<l 1bat though the 1rib111c agreement may be concluded collectively with the religious minorities, yc1 its couscqucnces -atlect an individua.l or iodividuals who violate it, aod ii remains bind ing for other members of the contracting group.
T he fact 1ha1 the violalillg and treacherous Jews of Banu
Qurayzah, Banu-Na<)i.r, and Baun Qayuuqa ' were puuishcd as
a group for breaking promise, wa.5 because all o( tbe1n bad
hcen engaged ia plots and lreasonahle acts againsl Islam. Bu i
other cases, loo, may be found in the Islamic history where
violat ing confederates have been punished individually.
The death of ka' h ibn Al-Ashraf i_.; au example of' lhe individual pu oishrncut of lbe promise-breakers. Me was a Jewish coo fcderate of 1he Prophet who bad com11oscd faceiious

Minority Rights

329

verses satirizing the Prophet and moles ting Muslim wom""


Eventually be joined some enemies of Islam in armt.:d actions, and wns killed at the o rder of the Prorh~t. for his trescln and violation of the paci. 1

Conversion to Islam aflcr Violating the

Pa cl
We <aid that hy violating the tribute agrccm~nt the committed minorities arc deprived of thdr rights and privikg~.
and they arc treat<!<! acconhng to the offens>! which has lh.-..,n
commined.
Hut if in ~uch cases tb~y formally conve rt 1.0 l~l"m. they
will enjoy equal legal and mora l rigbts aml pnv ikgcs w1 1h
other MusliUlS. sod can settle, like them, in the Islamic realm
and bene fit hy rbc social advntages.
nut be11e fillit1g hy such II kgaJ righl d Cp C11cls llll th<.: t1H1diliOa that no verdict has yet been issued about their violarioo
by the Muslim leader and the Islamic courts. If a violating
tributary bas been coodcmn.:d to imprisonment. ex>!Cution or
payment of damages, 11.tc Stt id punisbmcu r wi ll be cnrricd o ut
io his case, and no pardon is pem1issiblc.
The above rule of exemption is applicable only if the violating tnlrntary is converted 10 Islam b~fore the issue of the
verdict. and s uc h a co.ovvrsion mus t he io gc>od fairh i11 order
to negate the verdict.
Nevertheless if bis violat ion is of a kind of offense which.

Al-BukhAri'S $~10, Vol. 4. p. 64. As-S1i<?tul /{fllIJ1yyh. Vol. l, p.

170.

330

Minority Rights

on the judgement of the [slamic courts and judges, necessitates retaliation or penance or bail, bis conversion cannot affect the execution of the verdict.
Clearly the first and third cases arc related to the public
rights, but priva~c right cannot be disregarded except with the
constmt of the claimant. As for the secoud case, all jurisprudents are unanimous about its being a private riglll which
does not prevent tile execution of the punishment due to con version to Islam.
Sbaykb Tusi says in this CQnnection:
"Our companions have 11auated that a tributary 's conversion to Islam does not ouUilY his legal punishment" .1 This
shows that the related narrations have reached the stage of
being renouned or unanimity by the jurisprudents.

.lawAhi111/ Kn/Rm, Vol. 21 . p. 278.

Precepts Concerning the


Tributaries
(Religious Minorities)

''

I.

Precepts Concerning the


Tributaries
(Religious Minorities)
Exlracls form Tahrir ul- Wasila by the
Imam Kho.mcini 1
be tribute agreemenl belongs to th~ kws, the Christians and those who probably have a heavenly hook,
namely, the Z.ornas1rians and tltc firc-Worshippe1s.
The vari.ous sects of these religions, such as the Catholics, tb<:
Pro1estan1s etc., have the same standing in the ap1llication of
lhcsc prccep1s. Th.,ir dif'forcnccs of belief~ as di l'ferc111 ~ccts
of the same religion. will have no cfkct.
Those who consider themselves frllowcrs of 1hc prnphc1s
with heavcoly books, such a.~ llirahim (i\.S. ), will not fall
under the prntepl of the tribute agre<!ment. ;;nd similarl y.
1bosc who haw followed the a bow thrc.: creeds a lkr the ri~c
of !slam, arc outside th.: 1rib111arics' concli1i o11.

Vol. 2, pp. 497 507.

Minority Ri&hts

Every non-Muslim individual or grour who follow heavenly books, will be accepted and no tesrimony is required for
this claim.
Women aod children are exempt from 1bc payment of the
1ribu1e. The needy Rre allowed a period or grace to make
lhdr paymenl if' they cao afford it.
If a coodi1iou is stipulated io the 1ex1 of the tribute agreement for women lo pay the tribute, it will be null and void,
and women 's dcmaud 10 pay tribute will 001 he accepted.
If after the conclusion of the tribute agreement, rhc lullowcrs of hea venly books refrain from the paym..:111 of the lribut c. th..:y will be despatched to a safe spot without any mokstation or surprise.
There is no lixcd amount for tbc tribute, as ils amount is
d<!h:rmiued by the Islamic government, depending on the
conditions and expediencies. T he manner of 1hc paymcnl will
he d..:cided by 1he Is lamic guveromcn1 wirb 1hc agrc..:mc111 of
l!Oth parties.
The tribute is colli:x:ted annually like the z1tkli1. if no ddinite date is lixcd for paym.,nl. it will be colli.:ctcd at th.: end
o f the year. Out if 1bc tributary is couvened 10 Islam be for"
1hc eodB,f th<:: year, no 1ribu1.: will be demaudcd from him.
The lrihulc agr~~meul is coucludt:d by the impcccalilc
lruam. and in his absence, by his deputy. A 1rib1111:: agrccm~nl
concluded by the uujust rulers may be considt:rcd proper. The
rcvcDUC from the tribute, like other Islamic laxes is us..:d in
tb..: interests oflslam and Musl ims.

Condi tions of the Tribute Agreement


The ft11lnwiug; condi1ioos must he undcrlakcn in lhc con-

Minority Rights

335

clusion of a tribute agreement by the followers or heavenly


books:
I. Agreeincot to pay the tribute.
2. Refraining from acts contrary to 1be immuni ty and the
tribute agreem,'llts, such as deciding an armoo uprising
againsl the Muslims. and helping the enemies o f blam and
the Muslil'.l\S.
J. Avoiding opco practising o f1bc ac1s forbidden in Islam.
4. Respeetiog the verdic1s of the Islamic courts and uccepiing them.
5. They must refrain from molesting 11te Musli ms Rnd such
acts as adultery with the Muslim women, lheft and espionage.
Penal sentc uces on lite lribularies will be carried o ut according to lhc Islamic laws, if Ibis is slipulated in the text of
the agreement
Tributaries musl not build houses overlooki11g th e neighbouring Muslim buildings, hut 1berc is no ob.i.:ction if they
purchase such buildings form the Musli ms. Similarly ii' a
Muslim builds a hou.~e lower than that of bis 1ribu1ary neighbour, no difficully arises. There is no oced for the neighbour's consent in this case.
Non-Muslims are oot permitted to enter the Mosque of
Mecca, even as 1ributaries, or to enter other mosques, this
rule is also true if tbe .enlry of iofidels is 001 for a show of
disrespect to tbc mosque:~, aod the Muslims may 1101 giw
~ucb a permission to the non-Muslims.
Residing of the tributaries in the Islamic lands is permitted,
except in al-Hij az, but they cao pass through iL
The tributaries have no right to ch ange their rdigion. and
if a Jew becomes Christinn, or a Zoroas1rian becomes an

336

Minority Rights

idola1cr, h.: loses his sta1us as a 1ribu1ary. but if he returns 10


his original religion he will be accepted.
(f the lri butaries commil acts which are forbiddcu in Islam.
hey will 001 b<! molested if 1hey do not do them o penly, but
in ca5c. of' practisi ng them openly they will be puuiNhcd according lo lite vcrdic ls of lb~ Is lamic courls.
Trib1naries' 1cs1amcnts will uot b.: carried (1111 by 1hc Muslims iflhey are conl rnry lo lhc re l.i gio11s cri1cria of Islam, bul
lhcr.: is no objeclion 10 11lcir being fullillcd hy lhc tribularics
themselves.
Infidels and 1J1c tril:tu1arics can ool engage in propaganda in
the Islamic realm and lands for purpose of misleading the
Musli ms, o r publish 1heir such publications. II is 1hc d u1y or
1h..: Islami c govcrn mcu1 IO slop their deviati ng propaga nda.

Glossary
Ahlul Bayl:

The progcnGy of lhe l'ro1>he1 ol' Is lam


(S.A. ). covering his da11gh1cr, hi!imah
(AS.) and 1he 12 lrnams of'1hc Shiite.

'A llacr1ab:

We ll-ve rsed , scholar, knowkdg<::ahk.

A.S. :

S1a11d for Alaybis-Sa liirn (peace he upon


hi m/hcrf I hem.)

dhimmi :

A nou-Muslim (of heavenly Books)


(Pl. dhiuunis or ablul b-Dhimmah)

tribu1a1y, who conclude a t1ibu1e


agreemen1 wi1h 1hc

Mu~lin1 Slate.

di oar:

A gold coiu of 1.be Islamic era.

dirharn :

A silve.r coin of lh..: lsl;unic em.

nu

Minority Rights

ghusl:

A ritual washing of the whole body.

1,iadith:

A narrative ascribed ta the Prophet


(S.A.) or to ahlul b11y1:

).lalal:

rdigiously lawful.

).larAm:

religiously unlawful, or prohibited.

bi.iAb:

A barrier. /\ women's bead-covering

janAbah:

/\ s1a1e of impurity of men and


women couscd by sexual iuterco urs~.
even wi1bout .:jaculation, or caused by
ejaculation in any way. The one in 1his
state is called junub.

jihad:

/\ holy war, nowadays, ddensive.

jizyab:

Tribuh: paid by 1be uoo-Musl.ims


living in th.: Islamic realm and lhe
protection of 1he Islamic goveniment.

Ka'hah:

/\cube-like sacred building in the


center of the Great Mosque iu
Mecca, to which all Muslims lnwc 10
direct faces when performing th..:

Minori ty Rights

339

Io this case it .is called the


qiblah.

$Rlilfs.

Khin!j:

Taxes on the crops.

Kbums:

A 20% tax on on.,'s pro fits, other th1m


the zaJ;111.

Kur:

A pr<!scribed <JU&otity of wat~r with


which a mu/ltnlljjis cao b~ n::ligiously
purified

mutanajjis:

Anytbing wbicb bas btlcome


religiously impure because of
effective ly touch iog a 1111,iasah.

oajasab:

Anything which is regarded by


religion intrinsically impur~, and it
cannot be made religiously pur~.

najis:

Adjective from nnjns11h.

qil>lab:

Re. Ka 'b,1h

~alai:

Obligatory worshipping ritual acts and


reci1iog to be (lerformed five tjm.:s a
day.

340

suub:

Minority Rights

A chapter o f the Qur' au, which


consists of 114 sordhs.

The state of being religiously pure.


taqwil:

Avoidi og doing wbatev.:r may


displease Allah.

Um mah:

Tbe Islamic nations.

ZakAt:

S tatua ry Islam ic levy on s1>ecilkd


items, to be used for th.: Mu~ lims '
welfare.

References
Commentaries on the Qur'an:
Talsir M~ima 'ul JJay,10
Tafsir al-1\1ixlin
Tat.Sir 11J-M1mlir
Ta fsir al-Tabari

Shiite Jurisprudence
A l-Mabsfli Ii fiqhil-lmiimiyyah
Asb-ShRrayi '.
Al-Qnwll'idby al-allau:rnb al-Hi lli.
lir/11b11/ Fa wli 'id.
T11dbkir1111J/ Fuqa/IA'
Ad-Duros by a.~b-Sbabidul Awwal
A 1-1,/aql/ 'iq11n-Na.yiriyy11b.
Jawabiivl Kallim
Al-Masalikby ash-Shahid a1h-ThAoi.
Millabul Karamab
Ta(lrirul Wasilah

142

Minority Righ ts

Books on the Ayahs of Precepts


Precepts Ayahs, by the late Ardabili.
MllSA!ikul AibAm Ii sbu/1 AyAfil A{J.kam
Qalll'idud-Durar, by al-Jaza'iri
Al-Jami'Ii A{J.kiimil Qur'lln, by al-QurJubi

Sunni Jurisprudent
Al-Kbiraj, by Yabya ihn Ada m and Abu Yosuf
Biday11rul Mujtahid wa Nihayarul Muqta~id. by the Imam
ash-SAfi' i.
Al-Ashhah w1111-N11Ziir'ir Iii F11n1', by As-Suyuti
A l-A hklfm11s-S11/Jiioiyy.11J, by al-1' arra'
Al-Ahkiim11s-S11l/ti11iyyNh, by al-Mawardi
Al-M11ghni, by Ibo Qudamab
AJ-Turuq al-Hulaniyyab lis-Siyasab ash-Sha 'iyyah, by lbu
Qayyim al-Jawziyyab
Abkamu Ablidll-Dhimmab. by the above author
KirAhul Jihad wal Jizyah wa Abkamil Mu}JAribio, by aJTabari

History
Al-Tahari's Tarikh
Murujudh-Dhahab by al -Mas'udi
As-!>i'rah by Ibo Hisbiim.
As-Sirab by al-!Jalabi
Furubusb-Sham by a/-Wlqidi
Al-lmam11h was-Siyasab, by lbn Qutaybab
FulO but Buldau, by al-Baladhuri
Rusu/11/ 1'111/uk, by !bu al-Farrii'
.litw11mi'us-Sirah by Ibn Hazm

Minority Rights

A.I-Kimi/, by Ibo al-Athir


History ofEurope by Will Douraot
Tllllladduo-e Jsltu11 wa Ar11b
TArikb-e Siyasi-e Jsl11m
f.iaylit Mubammadby Hasaoayo Haykal

Al-Hat/llI1l!JJI lslamiyyah Iii QIUD u-Rabi'il Hijn


Tln"kbul Aodalus by Abdullah Affi.11
Ad-Da 'wlllu ilal Islam, by Sir Thomas Arnold.

Shiite f:iadiths
NalJjul Baliigbllh
Al-Klli
Tabdblbul Abkiim
Wasl'ilusb-Sbi'llh
Must11drakul Wasl'il
Al-Wlfi

Sunni f:iadiths
Al-Bukhiri's '$11flip
Muslim's $ai;Iip
Ibo Mijah's Suoan
Ad-Darqutoi's Suoan
Al-Bayhaqi's Sunan
Sbub Muslim, by ao-Nawa wi
Shub $$'1 al-BukbKri, by al-' Ayoi
NayJul A wtAr by ash-Sbawkaoi

Miscellanious
Dl'iratul Ma'iirilil Js/11miyyab by Farid Wajdi
Ri$'8/ltul Islam, Magazine

343

344

Minority Rights

Wuka/lly-e Diidg11s11ui, Magazine

International Rights (Isll'"'ic)


As-Siy11S11Wsh-Shar'iyyah, by Muhammad al-Uanna.
Jotcrnatiuoal Relations in the Islamic wim, by . \ Ii Qara' ah
Islam and ln1cro111iooal Relations, by Mub amm ..d Shaltol.
lntero111iooal la w in Islam. by Najib aJ-ArmaoAli
Prioc:iplc.~ of Public !01ern111ioonl Law in l>'lnm. MuhA01mad Abdullah Dara:t
Public ln1ernn1ioual Relations in !slam. by lhrabim Abdul
Hamid
Religious Co-existence in Islam. hy Musa al-Arab
Arhil.ml (larb, Or. Wabbal1
War and J'eacc in ls/nm, Muhammad K.hadduri

International Rights (Now)


Public lnternatioottl Right, by Dr. Safdari
Privntc luternarioual Rights, by Dr. Nasiri
Public RigblS of tbc Nations, by Dr. Hikmat
Public fnlcrnatio011I Righ1:;; by Mushirul Mulk.
lutcrn111inn11./Right.r a.11d state P11c1s, by Amiu Arsalau
Public /nremation.1/ Rights, by Ali Mahir
The Cnnccments, by Muhammad Hafiz Ghanim
Private ln1crnarional Law. by Ahmad Salim
Public /nlernationnl I.aw, by Dr. Janyah

., .

II I'
iI

I~

I!

.1

MINORITY RJGHTS
The writc1; considering the conccptli of
the International Ltw from an Islamic viewpoint, thoroughly deals with the q\Jestion of
religious minorities from two aspects:
He,. firstly, tries to bring abour a better
understanding of minority right,~ by
describing tl1c rights ai1d libert:ies granted by
Islam to th.e m, and tl1en refuts the uiijust
accu~arion of rhe West regarding the religious
compulsion.
It is explicitly discussed in this book tlut
tl1e attraction of Islam, and its logical
mei:hods of conversion, rbe negation of
imposition of religion, and tlle' spirit of
cocxistcncc as well as peacefulness granted is
in a way mat there has not been so much
conflict berween the Mus.Jim people and
minorirjes in the Islamic lands.

ISBN 964-304-060-7