Ахмедов Айбек Шухратович : другие произведения.

Origins of Law of Religious Minorities in Islam

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  • Аннотация:
    The rights of religious minorities occupies special place in Islamic law. The status of religious minorities in Islamic state has always been a matter of concern for Islamic authorities as well as jurists. Nowadays, when the majority of Islamic scholars as well as critics call for the harmonisation of Islamic law and international human rights standards, the special attention in this connection deserves the question of equal co-existence of Muslim with non-Muslims in Islamic countries. In the contrast, traditionalist scholars (ulamas) claim that Islamic law cannot be harmonised with any other legal systems of the worlds, since it is God"s law, emphasising its immutability and sacred nature.

   Origins of Law of Religious Minorities in Islam: Evolution of Concept of Dhimmi as Portrayed in Early Sources
  
   Aibek S. Ahmedov?
  
   Introduction
   The rights of religious minorities occupies special place in Islamic law. The status of religious minorities in Islamic state has always been a matter of concern for Islamic authorities as well as jurists. Nowadays, when the majority of Islamic scholars as well as critics call for the harmonisation of Islamic law and international human rights standards, the special attention in this connection deserves the question of equal co-existence of Muslim with non-Muslims in Islamic countries. In the contrast, traditionalist scholars (ulamas) claim that Islamic law cannot be harmonised with any other legal systems of the worlds, since it is God's law, emphasising its immutability and sacred nature. There is a ground, however, for such claim which explains the unwillingness of traditionalists to change and modify the principles of Islamic law. Strikingly, it is Qur'an that makes most of rulings in Islamic law exempted from any change or reform. If one would compare the provisions of Qur'an with international human rights standards today, one would, surprisingly find that they are incompatible due to the religious character of Qur'an and secular nature of human rights.
   The concept of religious minorities did not emerge out of nowhere, but there were preceding events that affected the formation of the concept. First of all, it was the revelation of Qur'an to Muslims as guidance in the daily lives; second, it was establishment of first Islamic community in Medina; and the third; the most important, rapid expansion of Islamic empire, which in the short period of time would include the large territories from Indus valley to the borders of Spain.
   Why would someone call the abovementioned events as significant factors in formation of concept of religious minorities? There are several reasons for that. When Muhammad started to preach Islam in his hometown Mecca, then Medina, he encountered the followers of such religions as Arabic paganism, Judaism and Christianity, with whom he had to deal for the rest of his life. Remarkably, in the beginning of his ministry, he would find Jews and Christians friendlier towards him, rather than pagans, who were mainly his tribesmen. However, one the Muslim society was established in Medina, Muhammad faced the issue of co-existence with Jew tribes, residing in Medina at that time. As his authority expanded, he saw strong opposition on the part of Jewish tribes, which were strongly condemned by Qur'an for their unwillingness to cooperate with Muslims. It was then the combination of Qur'anic provisions and Muhammad's own law making process that would lay the foundation for religious minorities' concept.
   The religious minorities are called dhimmi in Arabic and literally mean protected people. One should trace the origins of the concept in pre-Islamic Arab tribal customs which granted protection to anyone who would be eligible within the tribe. However, someone should not be misled by such statement; the concept of religious minorities was alien to pre-Islamic Arabia, since no religious minorities existed then. The atmosphere of full religious pluralism was inherent to pre-Islamic Arab society. Moreover, pagan Arabs did not see Jews and Christian Arabs as aliens but they viewed them as equal members of their societies. Nevertheless, the concept of tribal protection should have been adopted by Muslim Arabs as the foundation for dhimmi concept.
   In this article, an attempt will be undertaken to examine the documents adopted or drafted from the period of establishment of Islamic society in Medina towards expansion of Islamic empire by Umar from the historical and legal perspective. The documents like Constitution of Medina, Treaty of Najran and Treaty of Umar together with the sacred book - Qur'an will be scrutinized in order to sketch the contours in frames of which the legal concept of dhimmi had prospered. This article does not have the aim to prove that the attitude towards non-Muslims was tolerant, neither it does not have intention to prove that it was discriminatory, rather it will attempt to analyse circumstances under which concept of dhimmi was formulated and how far those documents effected or did not have any effect on the legal status of religious minorities in Islamic history.
  
   Religious minorities in Qur'an
  
   The unique approach in classification of humanity or an-nas is illustrated in Qur'an. It divides the people into three categories, namely: mu'minun or Muslims; ahl al-Kitab or people of the Book; and mushrikun or unbelievers. Such classification is not found in any religions of the world except Judaism. Surprisingly, Judaism classifies people into three categories: (i) yehudim or Jews; (ii) arel (uncircumcised) or Christian; (iii) goy or Muslims and all others. However such classification is found in Geniza documents, which illustrated the life of Jewish communities in late Fatimid and Ayyubid states, not in Torah.
   Thus, the first category connotes Muslims as those who believe in God, His prophets, His angels, His Books, Hereafter and Judgment Day, but the most important criteria for being believer is to believe in the Prophethood or nubbuwa of Muhammad and Qur'an as the last ever revealed book from the God.
   Second category is ahl al-Kitab or people of the Book are those who believe in the same as Muslims except the fact that they do not acknowledge the Prophethood of Muhammad and Qur'an. Opposite view was taken by Taqi al-Din al-Subki, prominent fourteen century Shafii jurist, who argued that people of the Book does not believe either in God or in the Last Day, hence they should be fought according to Qur'an 9:29: "Fight those who believe not in God and in the Last Day". Alternatively, he suggests that "even if the people of the Book believe in the Last Day, they do not do so in the correct manner, and therefore it is said that they do not believe". Such extreme view is an overstatement. Moreover, al-Subki noted that people of the Book might be qualified as `believers with qualifications' but with the stipulation that the term `believer' should be understood in metaphorical way.
   Moreover, the category of people of the Book might be subcategorized into the following groups such as: (i) Jews and all groups affiliated with Judaism; (ii) Christians and all groups affiliated with Christianity including Unitarians; (iii) Sabeans and all groups affiliated with Sabean religion; and (iv) all others whoever believes in God and the Last Day and does good as prescribed by the verse 2:62 of Qur'an. This list later was extended to Zoroastrians since their beliefs were held to be monotheistic in their roots and they possessed the book. We should also bear in mind that this list does not include any religious groups affiliated with any above mentioned religions, which emerged after Islam, since by the virtue of Qur'an, Muhammad is the last messenger and Qur'an is the last God revealed Book.
   Third category is unbelievers which include: (i) idolaters; (ii) pagans; (iii) polytheists; and (iv) atheists. There were disputes whether Hindus should be included into this category since they were both idolaters and polytheists; however some argued that Hinduism was monotheistic in the beginning and they do also possess the divine book, however this question remains open.
   The representatives of the first category are undoubtedly those which dominate over the other two, however it is not clear whether this category includes heretical sects in Islam such as Ismailis, Alawis and others or they descend into the second or third category.
   The representatives of the second category, namely people of the Book were mentioned in 14 chapters or 41 verses of Qur'an. One of the first verses where the People of the Book were mentioned was the verse 2:62: "Verily! Those who believe and those who are Jews and Christians, and Sabeans, whoever believes in All?h and the Last Day and do righteous good deeds shall have their reward with their Lord, on them shall be no fear, nor shall they grieve." Undoubtedly, this was the verse on the basis of which the classification of second category laid. The importance of the verse consists in fact that this very verse was the foundation of tolerance of adherents of such religions as Jews and Christians on Qur'anic level. This verse implied that Jews and Christians were to be tolerated by Muslims without any doubt and not converted to Islam against their will. In the respect of Sabeans, Yusuf Ali observed that in Arabic they are called Subbi, also they are called Sabians, Nasoraeans or Mandeans or Christians of St. John Their sacred book is called Ginza and is written in Aramaic. There is also found another group which was identified as Sabeans, which used to live in North Arabia during the time of Muhammad and they worshipped stars and planets (Mars, Venus) or they might just have similar faith as ancient Romans had.
   The majority of scholars suggest that the Meccan suras were sympathetic towards people of the Book comparing to Medinan suras which were less supportive towards latter. It is explained by the fact that during Meccan period interests of Muslims and People of the Book never crossed each other, whereas the second period is remarked by frequent conflicts between Muslims and People of the Book, hence such a change in the attitude.
   In Meccan period, we find such verses as 13:36 which reads: "those, to whom We have given the Book, rejoice at what has been revealed unto you". Sell identifies "those" as Jews, who during the lifetime of Muhammad, were valued by him for their loyalty and respect to their traditions and scriptures. However, Baydawi argues that term "those" in this verse refers to Jews and Christians converted to Islam. On the contrary Yusuf Ali suggests that "those" are "both (i) the People of the Book of previous revelations, who study new revelation in Arabic without prejudice and find it confirmation of what their ancestors had received; and (ii) the Muslims who receive the Qur'an with such spiritual joy." Whereas the term `those' probably might not be attributed to the latter, it perfectly match the former.
   One of the other adherents of religions which were later included in the category of the People of the Book were Zoroastrians. In their respect, for instance, prominent famous Ismaili jurist and judge al-Numan said: "(Ali) He said: "Zoroastrians (al-Majus) are People of the Book, except their record had disappeared". However, Poonawala notes that Qur'an 22:17 lists Majus along with ahl-al Kitab and mushrikun. He also refers to the fact that "after the fall of Sassanid Empire the Majus were required to pay tribute (jizya) when they surrendered, but the treatment they received was inconsistent until Umar was convinced that the Prophet had accepted jizya from the Majus of Hajar. This provided a precedent and they were treated as intermediate between mushrikun and the ahl al-kitab since they had no real prophet or revealed book". The precedent of recognition of Zoroastrians by Umar with reference to Prophet Muhammad conduct is also approved by hadith of Buhari: "narrated By 'Umar bin Dinar 'Umar did not take the jizya from the Magian infidels till 'Abdur-Rahman bin 'Auf testified that Allah's Apostle had taken the jizya from the Magians of Hajar."
   Finally it was Qur'an 9:29, which gave the rise to dhimmi concept as such. This verse which reads: "Fight against those who (1) believe not in Allah, (2) nor in the Last Day, (3) nor forbid that which has been forbidden by Allah and His Messenger (4) and those who acknowledge not the religion of truth (i.e. Islam) among the people of the Scripture (Jews and Christians), until they pay the Jizya with willing submission, and feel themselves subdued." It was the obligation to pay jizya which granted people of the Book the status of protected people i.e. dhimmi. Marginani defined jizya as retribution which is the form of punishment inflicted on non-Muslims because of their disbelief. Interestingly, Marginani suggests that no jizya should be taken from Taglibid Christians, but doubled zakat thus implying that the treaty of Najran had its impact on the judgments of Islamic jurists after all.
   Thus, Qur'an classification became the benchmark for emergence of dhimmi concept. Before Qur'an, people of the Book were not qualified as dhimmi and did not have such lowered position as they acquired after death of Muhammad. The verse of Qur'an concerning jizya became the major ground for dhimmi concept since based on jizya, non-Muslims were granted dhimmi status afterwards. We may call treaty of Umar as the stage when dhimmi concept became solid concept, however there may objections whether it was really the treaty which made concept of dhimmi solid, or it was classical Islamic jurists who gave final shape to dhimmi concept. We will look at treaty next and see how deep treaty had impact on the concept.
  
   Religious minorities in early Islamic society
  
   Simultaneously, with the establishment of the foremost Islamic society in Medina, city in the south of Arabian Peninsula, the document, which later became known as Constitution of Medina (wathiqat al-Madina), was adopted in the form of treaty between Meccan Muslim, Medinan Muslim and Medinan Jewish tribes. The adoption of such document marked the new era for the followers of new emerged religion of Islam, the first Islamic society which after death of Prophet transformed into the state. It is said that it "embarked the new journey of co-existence and cooperation in the nascent Muslim polity founded in Medina".
   The Constitution lost its power after the Islamisation of Arabian peninsula, following so called hadith of Prophet Muhammad that there should be no religion except Islam in Arabia. Even most of the scholars believe this hadith to be authentic, it summons some doubts. First of all it contradicts with religious policy of Muhammad, who tried not to suppress People of the Book except some cases. Second, it was not the purpose of Qur'an to eliminate all other religions except Islam, since it recognised those religions which were based on the faith in One God and originated before Islam.
   The text of Constitution consists of preamble and forty seven clauses regulating the administration of new community, the aspects of common defence and interrelationships between Meccan, Medinan Muslims and Medinan Jews.
   First of all, this document established the equality between Muslims and Jews, stating that "they are one community (umma) to the exclusion of all men". This clause implies that the parties which signed the document were equal irrespective of their religious affiliations.
   Second, it established that the Jews, who supported Muslims, may rely on Muslims for help and equality. One of the questions which may arise here is the way Muslims perceived the notion of equality. Did Muslims perceive the concept of equality with Jews same way as they perceive between Muslims themselves? Emon understand this clause as the clause which entitles Jews who aid believers to the same rights and privileges granted to believers under the Constitution.
   On the other hand, some of the clauses of the document implied that the perception of concept of equality by Muslims was different. It is evident from the clause which state that "a believer shall not slay a believer for the sake of an unbeliever, nor shall he shall aid an unbeliever against a believer". This clause separates non-Muslims from Muslims since no contrary had been suggested in the other clauses. Paradoxically, it does not state that a non-believer should not slay a non-believer for the sake of believer, nor should he shall aid a believer against a non-believer. You would say it was Islamic community and the priority is given to Muslims, however this statement may be challenged by the clause which stated that Muslims and Jews i.e. non-believers are one community. Then, one may object stating that Jew does not qualify as unbeliever since Qur'an defines them as People of the Book. Nevertheless for the purposes of the Constitution, Jews had not been qualified as People of the Book. Did Muslims perceive Jews as People of the Book in Constitution of Medina mutely referring to Qur'an? Another question arises here whether the concept of People of the Book emerged in Qur'an by the time of adoption of Constitution.
   Moreover, we find another remarkable clause in the document that states: "no polytheist shall take the property or person of Quraysh under his protection nor shall he intervene against a believer". Guillaume defined the polytheist in this clause as Arabs of Medina; hence the Constitution concerned not only the Medinan Muslim and Jews but also non-believers. Subsequently, it is not clear why they have not been mentioned in the document. If the document was altered by the later scholars, then it might be possible that the unbelievers of Medina were the part of Constitution.
   To the extent it concerns the equality of Jews and Muslims, the following clause stipulates that "Jews of the b.'Auf are one community with the believers (the Jews have their religion and the Muslims have theirs)". This clause implies that the Constitution declared the freedom of religion, however between two religions. Emon noted that "theologically, the implication of Jewish inclusion with the conception of umma is problematic because of classical Muslim understanding of the notion of umma as being a close religious community". On the other hand, does the definition of umma in Constitution contrasts with the classical Muslim understanding or the emergence of the classical Muslim understanding was the consequence of violation of Medina Constitution by Jewish tribes? Perhaps. Allegedly, such possibility is not excluded, since the perceptions of umma by later scholars were under influence of different factor.
   The bi-religious nature of Medina community is explained by the fact that at the time of settling in Medina, Muslims did have that power they became later so they had to co-exist with the adherents of the other religions which were one of the dominant at the time in Medina such as Judaism. It points to the fact that the Constitution of Medina was the temporary document. This clause was not limited only to Jews of Aus but applied also in respect of Jews of other tribes in Medina.
   Strikingly, Abu Ubayd argues that the Jews as they appear in the documents were not the part of believers, since the clear stipulation is made in the document states that "to the Jews their religion and to the believers theirs".
   It is not clear, whether the separation of religions indicated that Muslim and Jews were not the one community. Wellhausen argued that the concept of umma would mean a religious community, which at the same time was not a closed community and could include unbelievers or non-Muslims in the capacity of confederates or clients of Ansar.
   If the assumption is true then it becomes clear why non-Muslim Arabs of Medina were included in the text of Constitution as polytheists who are prohibited to possess the property of believers. Watt suggests that the Jews were the part of the community in Medina since they were the clients of Arab tribes in Medina. If it is true, why then the special attention were given to Jews in the documents. Why were not they skipped since they were the clients of Ansar as it was done in respect of polytheist Arabs, who were clients of Medinan tribes?
   Serjeant, for instance, suggested that the Constitution exposes Jews as a separate and parallel community suggesting that the word `din' found in Constitution could mean law as well as religion. Therefore, the expression to the Jews their religion and to Muslims theirs may be interpreted to the Jews their law and to Muslims theirs. On the other hand, is it possible that Muhammad implied that when drafting the documents, since law did not exist in literary meaning at that time? It can be explained by the fact that the law was viewed through the prism of religion. For this reason if there was the law of religions or rituals of religions, then it would be correct to render `din' as religion not as the law. Besides, Denny suggested that the Jews could be viewed as "a sort of special group a 'sub-ummah'" with its own religion or din if you like.
   The different approach was taken by Haykal who suggested that the Constitution of Medina was the pact of friendship adopted by Meccan and Medinan Muslims on the one side and Medinan Jews on the other and that the pact was established to safeguard religious freedom in the city. The perception of Haykal may not be regarded as correct, since the main objective of the Constitution was not the safeguarding of religious freedom in Medina but to regulate the relationship between three different groups which had to co-exist that time. The assumption of Haykal seems to be romanticising since he attempts to show the Constitution in profitable light. We should not be tempted by such theories but look objectively what the implications the Constitution had for the community in Medina.
   Moreover, we find in Constitution the clause which states that "the Jews must bear their expenses and the Muslims their expenses"; it is the one which bear perplexes. It clearly indicates that in spite of being single community, Jews still have to carry their own burden, not relying on Muslims. However, the same is said about Muslims that they carry their burdens not relying on Jews. The Constitution is rather agreement or compromise between different religious groups than constitutional documents proclaiming one community which establishes equality between its members. It is also evident in the next clause which obliges Jews to pay with the believers so long as war lasts.
   Why was it hard to expose the Jews as the equal members of Medinan community with the frames of the Constitution? There were several reasons for that:
   First, Jews were mentioned as the secondary members of the community, as the primary attention was directed towards believers i.e. non-Muslims.
   Second, Jews were not granted the same rights as Muslims were as it is clear from the above mentioned clause which states that Jews had to pay the war expenses as long as war lasts. What was neglected here that the same duty towards Jews were not mentioned in the document, even it was stated that Jews had to pay with believers, it did not say that the believers had to pay with Jews for their expenses in the cases if the latter waged the war.
   Third, the document clearly draws the distinction line between Muslims and Jews as evident in the above mentioned line which states that "the Jews must bear their expenses and the Muslims their expenses". If we understand one community, such community will share common expenses not separating one group from another.
   Fourth, it would be wrong to assume that the Jews were the parallel and separate or sub-community within Muslim community. No such thing could exist, since paradoxically document declares the equality of all the members of Medina society. The phenomena of parallel community or sub-community simply could not stand any criticism. In the conditions of equality of all members of community the existence of the parallel community was not possible. Simply, if we look back at society in ancient Rome, where different classes existed such as patricians, plebeians and other, patricians were the dominant group in the society who would have dominancy over the other groups. Later, Muslims ascended to such position in the conquered states, however unlike patricians, anybody could convert to Islam.
   In contrast to what most Islamic scholars claim today, the adoption of Medina Constitution did not lead to the creation of the new social order where the citizens with different religious affiliations had equal rights. Soon after adoption, two of Jewish tribes broke the covenant and for that breach had been expelled from that community. After that incident Jewish tribes were never able to recover the privileges they had before in Medinan Islamic society.
  
   II. Treaty of Najran: Freedom of religion of Christians?
  
   Apart from the Constitution of Medina, which basically dealt with the rights of Jews as religious minority within Islamic community, there was another document which comes to our attention. This document was adopted as a result of meeting of Prophet Muhammad with the group of Christians from Najran. That group consisted of sixty men, lead by three persons, namely: Abdul-Masih, who was their leader (aqib); al-Ayham, who was their transport and general arrangement administrator (sayyid) and Abu Haritha b. `Alqama, who was their bishop.
   It is not clear as to when the document was signed. According to some sources it was signed in 5 A.H. by Prophet Muhammad, however there is also a different view stating that it might be signed by caliph Umar in 17 A.H.
   According to Ibn Ishaq, after the long talk on the theological topics and in spite of the obvious contradictions in their views, Prophet Muhammad and this group signed the treaty, which later became known as Treaty of Najran. Basically, the treaty was the charter which granted specific rights to Christians in the area of practice of their religion.
   It is said to have consisted of 14 clauses, starting traditionally with the words: "In the name of Allah, the Most Compassionate and the Most Merciful. This is the document from Muhammad, the messenger of Allah, for the people of Najran", thus implying that the political power and religious leadership of Muhammad were acknowledged by the Christians of Najran.
   The Treaty of Najran has more implications for the emergence of religious freedom in Islamic society than other documents adopted that period.
   First of all, the treaty established that "the security of Allah and pledge of His Prophet are extended for their lives, their religion, and their property". Unlike the Constitution of Medina, the current document was the agreement made by conqueror and conquered like Treaty of Umar which was made with the people of Syria and Palestine. Nevertheless, unlike treaty of Umar, it granted full freedom of religion to Christians of Najran. One of the important distinctions between two treaties was that Treaty of Najran was made with Christian Arabs, whereas treaty of Umar made with Syrians which were not Arabs. The national factor was important since Arabs were considered to be closer to Muslims rather than other nations. The Christian Arabs, in spite of the different religious affiliation of Muhammad, considered him as a political leader of Arabs. This may be one of the reasons why Muhammad granted them full freedom of religion.
   Second, it established that "there shall be no interference with the practice of their faith or their observance". It reminds us mostly the modern clauses which guarantee freedom of religion. Nonetheless, any similarities should be avoided since it was not possible that it was incorporated into the modern concept of freedom of religion. Astonishingly, the guarantee for the freedom of religion granted by Muhammad did not last long. After his death, on the basis of hadiths of Muhammad which stated that no religion except Islam should exist in Hijaz, all other religious groups were expelled from Arabian Peninsula. It is suspicious though, that Muhammad could have said that since it contradicts with his religious policy, implemented during his lifetime.
   One of the other privileges granted to Christians was the autonomy in the matters of the administration as it is evident in the following clause which established that "no bishop shall be removed from his bishopric; or any monk from his monastery, nor any priest from his priesthood" and "they shall continue to enjoy everything great and small as heretofore".
   Furthermore, it seems strange that Muhammad granted Christians the privilege that "no image or cross shall be destroyed". Even though, it is obvious that the crosses would not have been prohibited, it is unlikely that the images were allowed. One of the main objectives of Muhammad during his course of preaching Islam was strict ban on any images, but it may be objected by the fact that some of the images of Mary have been preserved in Ka'ba after Mecca was conquered by Muhammad. The prohibition of pictures is evidenced by the hadiths which believed to be transmitted from Muhammad. It is not our purpose to examine the issue of aniconism in Islam, but to show that it was unlikely that Muhammad would permit such practices. Nevertheless, it should be born in mind that such practice was allowed for Christians who were given the freedom to practice their religion. Later, we will find that such practice was allowed in the treaty of Umar as well, however in restricted scale.
   Two other clauses deserve our attention since they touch upon the issue of justice, such as disapproval of unjust oppression. The first clause states that "they shall not oppress or be oppressed" and the second one states that "neither you will be oppressed nor you will be allowed to oppress others". The line of distinction should be drawn between these two clauses, as the first clause deals with the oppression of bishops i.e. clergy and second with oppression of Christians themselves.
   It is well-known fact how unjust the Christians as well as Jews and other religious minorities were treated in Islamic states; however it was not the same all the time. The level of treatment of religious minorities depended on specific ruler and his policy. This is well-established fact but on the other hand the above mentioned clauses are not found in any Islamic legal documents which were adopted thereafter. Some tend to see it in the words of Qur'an 9:29 - "an yadin wahum saghirun" - "the Jizya shall be taken from them with belittlement and humiliation. The ninth sura is Medinan sura and was revealed during the activity of Prophet as the leader of the community. It is not clear what came first the treaty of Muhammad with Christians or that particular verse.
   One of the clauses which might entitle Muhammad to terminate the agreement with Christians concerned the prohibition of usury. It was read as follows: "Whosoever from amongst you will take usury after this, is excluded from my security". It is strange though that only this crime were mentioned in the pact. The treaty did not deal with the issue of theft or adultery for which Qur'an prescribed really strict punishments. It might be explained by the fact that at that time the verses of Qur'an regarding other crimes may not have been revealed yet.
   As for the impact of the treaty of Najran, though adopted in the lifetime of Muhammad did not have significant effect on the status of non-Muslims. Nevertheless, it should be noted that one of the indirect effects of the documents was that throughout the history of Islam, Arab Christians have always gained more favorable position than the other non-Muslims. It is witnessed by the fact that in the times of Umayyad rule, when Umar II demanded from them to pay jizya, they refused to pay on the grounds that they are Arabs and in the case caliph will insist on it, they will leave the boundaries of Islamic empire to reside in Byzantium. This is not only one example in favour of such attitude; there have been a number of such cases in the history of Islam and there is no need to look at them here.
  
   Implementation of the law of religious minorities in practice
  
   Remarkably, one of the significant documents adopted in the history of Islam, which regulated the status of religious minorities in Islamic state was the treaty signed between the people of Syria and fourth `right guided' caliph Umar, which later become known as treaty of Umar. This document became the starting point for all forthcoming decrees and legal verdicts concerning dhimmi in Islamic state ever after. Even though there have been doubts whether the document was authentic and preserved in original condition, there is no doubt that such document existed indeed. Such doubts were summoned by the different versions of the treaty cited by various historians, scholars and jurists. Moreover, the practice of caliphs who ruled after Umar demonstrated that the treatment of dhimmi was not regulated by the document concerned, but by the current needs of the community at that time.
   In contrast to Constitution of Medina and Najran Treaty, the treaty of Umar dramatically differed by its contents and nature. Thanks to the efforts of late Muslim scholars, it became comprehensive in contents and discriminatory in the nature.
   There is the strong assumption among scholars that the very concept of dhimmi was created by Muslim jurists of later period on the basis of the Treaty of Umar. Simultaneously, it was the first document ever in the history of Islam which became sui generic constitution for the religious minorities in Islamic state. It is well-know that there were attempts to reanimate the discriminatory provisions of the treaty by such caliphs as Harun ar-Rashid and Mutawwakil of Abbasid dynasty and al-Hakim of Fatimid dynasty. Nevertheless, in spite of such attempts the majority of the provisions embedded in the treaty of Umar was not partially observed or not observed at all.
   It is not the aim of this chapter to analyze the authenticity or existence of the document as such but touch upon such aspects of the document such as practical implementation of the document and its impact on all other legal documents regulating the status of dhimmi in Islamic state.
   In 19 century the comprehensive research was undertaken by N. A. Mednikov, prominent Russian orientalist, on treaty of Umar and was reflected in his fundamental work - Palestina ot zavoyevaniya yeyo arabami do krestovyh pohodov po arabskim istochnikam: Issledovaniye (Palestine from its conquest by Arabs to Crusades according Arab sources: Research). The following analysis which will be undertaken here is based on the observations of Mednikov.
   According to Mednikov, the treaty of Umar or pact, as it is sometimes called, consists of approximately 32 clauses which bear prohibitive and discriminatory character. One of the versions of the documents was preserved in the book of prominent al-Turtushi Siraj al-Muluk. It was preserved in the formed of tradition since the wording of the document starts with the words: "We heard from Abd-Rahman ibn Ghanam (died 78/697) as follows". Turtushi does not report from whom he heard or transmitted that document, but even so he cites that. Apart from Turtushi, the text of the document was transmitted by Ibn Khaldun, Ibn an-Nakkash, an-Nuvayri, Ibn Asakir, as-Syutiy and Mudjir-ad-din.Moreover, the document itself was commented by such prominent Islamic jurists as Ibn Khazm and Mawardi as well as by Ibn Hanbal.
   If we divide the provision among the authors as Mednikov portrayed them in his work, we will be able to illustrate them in such table:
  

NAME OF AUTHOR

DATE (A.H.)

NUMBER OF PROVISIONS

   Al-Turtushi
   d. 520
   32
   Ibn Khazm
   d. 456
   26
   Shafii scholars
   End of V century
   21
   Al-Mawardi
   d.450
   17
   Al-Quduri
   d. 428
   7
   Ibn Abd-al-Hakam
   d.257
   6
   Decree of Mutawwakil
   d. 235
   10
   Abu Yusuf
   d.182
   15
  
   Strikingly, Mednikov suggests that towards 1 A.H. number of provisions by reduce significantly.. Does that mean that the most of the provisions of treaty were fabricated as time passed? Does it also imply that originally the treaty did not bear that discriminatory character? In this respect Mednikov argues that the transmitters of Turtushi time tended to worsen the appalling conditions of Christians and to multiply distressing conditions for them. If this is the case, then it is clear why Umayyads did not enforce the majority of the provisions of treaty. Paradoxically, it appears that the significant number of the provisions in treaty were the contribution of legal scholars of Abbasid period. Some historians tend to suggest that the discriminatory character of the document was caused by the transmitters themselves. Turtushi, for instance, is reported to live in Spain when it was being conquered by Christians, that is to say the period of Reconquest, where he was persecuted by Christian government, which tried to convert all Muslims into Christianity by force. These circumstances affected him and made him intolerant towards Christians.
   Since the document itself gains such importance in the legal regulation of religious minorities in Islamic state, it would be necessary to reproduce the text summing up all provisions as portrayed in all versions. In order to analyze the provisions of the documents in sequence, it would be necessary to numerate each provision. Below is the text of the treaty as appears in Mednikov's summary:
      -- We shall not build in our cities or in their neighborhood, new monasteries, churches, convents, or monks cells;
      -- Nor shall we repair, by day or night, such of them as fall in ruins or are situated in the quarters of the Muslims;
      -- We shall let Muslims to lodge in our churches day and night;
      -- We shall keep our gates wide open for passerby and travelers;
      -- We shall give board and lodging to all Muslims who pass our way for three days;
      -- We shall not give shelter in our churches or in our dwellings to any spy, nor hide him from the Muslims;
      -- We shall not teach the Qur'an to our children;
      -- We shall not manifest our religion publicly nor convert anyone to it;
      -- We shall not prevent any of our kin entering Islam if they wish it;
      -- We shall show respect towards the Muslims and we shall rise from our seats when they wish to sit;
      -- We shall not seek to resemble the Muslims by imitating any of their garments, the qalansuqa, the turban, footwear or the parting of the hair;
      -- We shall not speak as they do, nor shall we adopt their kunyas;
      -- We shall not mount on saddles;
      -- Nor shall we gird swords nor bear any kind of arms nor carry them on our persons;
      -- We shall not engrave Arabic inscriptions on our seals;
      -- We shall not sell fermented drinks openly;
      -- We shall clip the fronts of our heads;
      -- We shall always dress in the same way wherever we may be, and
      -- We shall bind the zunnar round our waists;
      -- We shall not display our crosses or our books in the roads or the markets of Muslims;
      -- We shall only use clappers in our churches very softly;
      -- We shall not raise our voices in our church services or in the presence of Muslims;
      -- Nor shall we raise our voices when following our dead;
      -- We shall not carry any palm leaves or images in the streets;
      -- We shall not show lights on any of the roads or in their markets;
      -- We shall not bury our dead near the Muslims;
      -- We shall not take slaves who have been allotted to the Muslims;
      -- We shall not look into the houses of Muslim;
      -- We shall not build houses overtopping the houses of the Muslims;
      -- We shall not hit Muslims;
      -- We shall not buy Muslims, taken as prisoners;
      -- The agreement ceases when one of us deliberately strikes Muslim;
      -- We shall not take Muslims as servants;
      -- We shall not criticize Qur'an, Muhammad and Islamic faith;
      -- We shall not marry Muslims woman;
      -- We shall let Muslims among Christians;
      -- We shall not keep swine openly;
      -- We shall ride only donkey and mules;
      -- We shall attach balls to saddles;
      -- We shall wear seal on our necks;
      -- We shall wear bell when entering the baths;
      -- When riding sit on the side;
      -- We shall not sit on significant place on the meeting;
      -- We shall not greet Muslims first;
      -- We shall give the Muslims way.
  
   Deriving from the list, we may classify these clauses into the following groups. First group, church status, includes provisions nos. 1 & 2. Second group, rules of accommodation of Muslims, includes provisions nos. 3, 4, 5, 6. Third group, restriction of religion, includes provisions nos. 7, 8, 9, 24, 25. Fourth group, rules of behavior and attitude towards Muslims, includes 12, 23, 26, 28, 29, 30, 31, 32, 33, 34, 35, 43, 44, and 45. Fifth group, rules of appearance, includes 11, 13, 14, 15, 17, 18, 19, 38, 39, 40, 41, and 42. Sixth group, miscellaneous, include all other which are not included in all other groups.
   In order to understand how and when these provisions were formed, it is important to examine these provisions. Further, such attempt will be undertaken in order to see how the concept of dhimmi developed in the frames of Islamic history and law.
   First of all, for instance, if we look at the provision no.1, prohibiting the construction of the new churches, then we will discover that such prohibition is not found neither in the reports of Al-Baladhuri nor in at-Tabari's. There is no such prohibition in the treaties of Halid and verdicts of Abu Yusuf. As mentioned above Umayyads did not implement most of the provisions and it would be true in connection to the present provision. As Maqrizi reports when Agathon occupied the post of patriarch in Alexandria, he built the church of St. Mark. During the rule of Abd al-Aziz, Athanasius ordered the church to be built in Eddesse with the permission of caliph. These examples are not meant to be exhaustive, but are sufficient to show that it is unlikely that such provision was inserted before the rule of Umayyad dynasty.
   Mednikov suggests that such practice implies that either such prohibition was not observed or violated many times. It is unlikely though that if such prohibition existed, it would have been violated so many times. On the other hand, it might be possible that in spite of existence of such provision, Umayyad caliphs did not observe it, since it is well know that Umayyads were not great adherents of most Islamic rules issued before the rule of Muawiya.
   Besides, the prohibition of building new churches also is found in the reports of al-Yaqubi and Al-Baladhuri also mention the prohibition in two agreements of Iyad ibn Ghanma with the people of Eddesse and Racca. Mednikov suggests that such prohibition may be viewed as the late forgery.
   The provision no.2 prohibits rebuilding any destroyed church, however there is no such prohibition found with Abu Yusuf or Mutawwakil. According to at-Turtushi, al-Istahri, prominent jurist allowed to repair inside of churches not external parts of churches. Moreover, it is not clear whether this provision concerns the renewal of abandoned churches or the repair of the churches which had been exhausted in the process of the ordinary wear and tear. If the latter was prohibited, then, as Mednikov suggest, the majority of churches in Syria would have drowned in couple of centuries time. Remarkably, according at-Turtushi, Hasan Basri, prominent scholar and jurist, demanded on the base of sunna that all churches to be demolished. Mednikov believed that his demand was not based on sunna and if Basri based on such sunna, then that sunna was forged. It is well-known fact that by third century A.H. most of the traditions, believed to be transmitted from the Prophet Muhammad, were forged in favour of political interests. Such tendencies may have led to the forgery of the tradition on the treatment of dhimmi, since the relationship of Muslim world and Christian world was not perfect that time.
   The provisions nos. 3 and 4 prescribe Christians to keep open their doors for Muslim travelers day and night and let them stay in their houses up to 3 days. Mednikov admits that such a prohibition is not found in neither in al-Baladhuri, nor in Abu Yusuf or al-Mawardi works. However it is known that starting from 1 A.H. Muslim did not hesitate to use monasteries as their accommodation during the travel. However Mednikov believes that no such prohibition existed in the treaty and Muslims which occupied the monasteries did that not on the base of third and fourth provisions but on the fifth provision which prescribed to let Muslims to stay up to three days. He also believes that the forgeries of third and fourth provisions were summoned by the late fanaticism of Muslims.
   The fifth provision which prescribed to keep open the doors for three days is found in agreements of Khalid, Abu Ubayd and Abu Yusuf and in Mawardi work. Besides, Mawardi stipulates this provision to be applied in respect of Christians, living in rural areas rather than town areas. Also he established that the Christians, hosting Muslim travelers, do not have to feed them.
   The provision no. 6, not to give the asylum to the spies undoubtedly was formed in the course of conflict with Byzantine. This provision however may be attributed to the wartime rules. It is necessary to add that Abu Ubayd demanded from dhimmi to show the way to lost Muslims, repair bridges and lit the lights for warriors during the battles. The obligation to repair the bridges was also incorporated in pacts with Edessa. Moreover in pacts with Gurgan, Kumis, Mukan and Tiflis, dhimmi are obliged to be the guides for Muslim army.
   In the opinion of Mednikov, provision no.7 which prohibits dhimmi to teach their children Qur'an may not be attributed to the period of rule of Umar, because Muslims waged the war to spread Islam and it was unlikely that they would discourage the conquered population from teaching Qur'an to their children. He also argues the credibility of such provision by reasoning that the majority of the population spoke Greek, Coptic and Syrian languages at that time and Qur'an itself was the rarity as the book. The existence of such provision may be attributed to the later times such as post Umayyad Spain in IX A.D. This provision took the form of the law during famous caliph Mutawwakil forbade children of dhimmi to study in Muslim schools or with Muslims.
   The provision no.8, which restricts the freedom of religion or faith, is one of the prominent provisions in the treaty. Mednikov suggests that it is the summary of provisions No. 20, 24, 25 which prohibit displaying crosses in churches and walking in the streets displaying palm leaves, lights, candles and crosses. Such prohibition existed before Turtushi, as Mednikov reports and that Shafii jurists considered unlawful to carry Old and New Testament openly, thus, for instance, al-Misri forbids reciting Torah or Evangel aloud. Al-Mawardi listing six `desirable conditions' lists prohibition of recitation of their (Christians and Jews) books and talk of Ezra and Christ. According to Abu-Yusuf, Umar forbade displaying crosses in cities but not in rural areas, such prohibition we find in fifth provision as well. Yet there was one exception to this prohibition which allowed the crosses to be displayed during holidays. Such exception is found in Abu Yusuf claim that "they allowed them (Christians) to display crosses in their holidays". When stating this, he also refers to Abu Ubayd who allowed displaying crosses once a year, thus locating the words of Umar: "regarding displaying crosses in their days of holidays, do not hinder them to do it out of city, without flags and banners, as they requested from you, once a year, but in the towns among Muslims and mosques, do not let them to display their crosses". Mednikov argues that the word `once a year' did not exist in treaty of Umar. He also suggests that Umar's stipulation, that they should not display their crosses in towns where are Muslims and mosques, implies that this practice was allowed when the town or area were populated fully by Christians. In Mednikov's opinion, the prohibition of display of crosses may not be attributed to the times of conquest, but to the times when there were formed purely Arab towns. If such proposition is true, does that mean that such restrictions valid only in the areas with mixed populations? If so, then the homogenous Christian populations were not under such heavy burden of restrictions imposed by Muslim government. On the other hand such homogenous populations may have only existed in rural areas but not in towns, as witnessed by instruction of Umar. Nevertheless, if such prohibition existed in treaty of Umar, we would not witness Christians carrying crosses during their feasts prior the prohibition of Mutawwakil in 235 A.H. and ceremonial celebration of Epiphany in Cairo in 398 where Christians carried crosses and palm leaves.
   Regarding the prohibition of conversion of Muslim to Christianity, it should be noted that this matter was the major concern for Muslims and there was no need to include such stipulation into the treaty since it was clear that such conduct was not approved by Muslim authorities. Besides, Mednikov believes that in the later stages when Christians learned the language of Muslims, the cases when Christians converted to Islam for their own material benefit significantly increased, their fellow Christians tried to convert them back to Christianity, and hence such need for provision arose. Consequently it was not possible at the time of Umar that such provision included into the treaty for the reasons stated above. On the other hand, such assumption might be erroneous since at the time of Umar, the Islamic state was in state of emergence and Umar felt such necessity in the face of danger that new Muslims could be converted into Christianity, inserted such clause. However, we may view this clause as the founding clause for law of apostasy in Islam. Such clause might have been included on the ground of famous tradition of Prophet Muhammad which states that anybody who changes religion should be killed.
   The next clause could be portrayed as an authentic since it stipulates not to make any hindrances for the relatives converting to Islam. Such claim is sustained by the verity that at that phase when Muslim empire was expanding, there was great necessity for support by local population and Muslim authorities did everything to encourage the population to convert to Islam. It was soon after when such initiative was dropped off for the financial reasons.
   As for the provision no.10, in the opinion of Mednikov, there was no need to incorporate the first part, which stipulated to show respect to Muslims since it was per se rule at that time. Mednikov believes that such provision emerged in the result of excessive disrespect which Christians who reached high posts in the governments started to show towards not only ordinary Muslims but also Muslim which used to occupy significant posts. Such provision cannot be attributed to the period of Umar's rule since at that period it was not common practice to employ Christians to the significant posts and it is also substantiated by that fact that Umar was himself opposed to the idea of hiring non-Muslims to the significant posts.
   The provision no.11, which prescribes Christians to dress distinctly, is in accordance with provisions no. 13,17,18,19,39,41,42. It is reported that Abu Yusuf also used to stipulate such provision and in addition to that Abu Yusuf gives in detail how dhimmi should dress, which is not present in the treaty of Umar. It is also transmitted from Abu Yusuf, that such provision existed during Umar II, but Umar II himself does not refer to the text of treaty. Hence, it is not clear whether Umar II knew about treaty or not. Mednikov suggests that either such provision was forged or the different version of treaty was known to Umar II. Mednikov also reports that this provision is not found neither in Abu Ubayd' treaty, nor in letters of Umar to people of Jerusalem and Ludd and nor in any treaties reported to us by Al-Baladhuri and at-Tabari. However there is contrary evidence that in 1 A.H. the people of one Syrian province were granted the permission to dress like Muslims.
   The provision no.12 which prohibits the names of Muslims and to use the style of speech used by Muslims is not found anywhere except Ibn Khazm and at-Turtushi. As for the style of the speech, then according Belan, dhimmis were not allowed to use the expressions like as-selam aleykum at that time. Nonetheless, it is unlikely that Christians were not allowed to use the Muslim expressions at that time, since it would look discouraging for Christians to convert to Islam at all. Mednikov attributes such provision to the period of the rise of fanaticism among Muslims.
   The provision no.13 prescribes not to ride saddles, according to Mednikov, is found for the first time in the report of Tabari about the decree of Harun ar-Rashid, who ordered in 191 A.H. to dress and ride differently from Muslims. Mednikov suggests that in his decree caliph ruled according to Abu Yusuf advice who is believed to stand on the Umar I & II decrees. Moreover, Mednikov argues that even though Umar indeed prohibited dhimmi to use saddles on horse, such clause were replaced or forgotten by the time.
   The provision no. 14 which prescribes not to carry or acquire neither swords nor any other arms, in the opinion of Mednikov, is the natural rule of conquerors over the conquered. Here he suggests that the law of the war applies i.e. surrendered or conquered should not bear any weapons to distinct themselves from the rest warriors or soldiers, consequently in peaceful time, there is not need in arms. This provision did not exist until the times of al-Quduri and is found only in the treaties of Abu Ubayd and Abu Yusuf. Surprisingly, some of the Christian communities like Taglibid and Djurjdum kept and carried weapons. Mednikov believes that this provision is doubtful since most of the brave Christians at that time carried swords in order to gain respect among their Muslim fellows. Moreover, during the reign of caliph Mamun, Christian tax collector and head of military department in Bur, Egypt carried the sword.
   The provision no. 15 which prescribes not to engrave any Arabic writings in their rings, as Mednikov believes may not be attributed to the time of Umar, since it is attributable to the times when Christians started to practice it too often. In his opinion, such clause may have emerged not earlier than the end of IV or beginning of V A.H.
   Regarding the provision no.16 which prohibits selling wine or displaying wine, depending on the source, it is unlikely that such prohibition existed at that time of Umar, even though the prohibition existed in Qur'an. Mawardi, for instance, attributes this provision to the ones which are desirable. The issue of prohibition of wine consummation in the Islamic world is controversial, while it was prohibited by Shari'a to consume the wine for Muslims, it is well known fact that Muslims in the Middle Ages valued wine not less than dhimmis and it is unlikely that such prohibition existed during the rule of first Umayyad caliphs, among whom, Yazid I drank every single day, Abd-al-Malik once in a month and Valid once in two days. In the view of Mednikov, such prohibition may have existed during the times of Abbasids.
   The provisions nos. 17, 18, 19, in the view of Mednikov, is related to the provision no.11 which prescribes Christians to dress distinctly. It is noteworthy that such restriction existed during the rule of Fatimid state.
   Goitein, referring to the Geniza documents, states that non-Muslims were under obligation to be distinguished from Muslims by their wearing apparel and "to wear badge of a certain color, a particular type of belt or of headgear, and in general, to be content with modest clothing as befitting a subject population". However, he argues that the practice differed from the theory significantly during the rule of Fatimid and Ayyubid dynasties. He affirms that in spite of existence of such restriction, there was no apparent difference in dress of non-Muslims from their Muslim fellows. Saying that he refers to the incident happened at that time, when the Jewish girl who were caught when having affairs with Christian doctor, was not wearing her clothing marked her as Jewess.
   Nonetheless, these provisions were concerned with general appearances of non-Muslims such as shaving in front of the head (no.17), always dress in the same way wherever they may be (no.18) and bind the zunnar round our waists (no.19). These provisions are found in the reference of Djelalitdin as-Suyuti to Ibn Abd al-Hakam; in the work of Ibn Khazm and decree of Mutawwakil as well as in legal treaty of Abu Yusuf.
   In the respect of these provisions, at-Turtushi cites the story which happened during Umar II, when delegation of Taglibid Christians visited Umar II, and Umar II clipped the fronts of their heads and bind with material torn from their dresses. However, Mednikov doubts that it could have happened during Umar II since he indicates that when Taglibid Christians were asked to pay jizya or embrace Islam, they threatened to leave for Byzantium, so after this Umar II replaced jizya with double sadaqat which was paid in single by Muslims. Mednikov argues that it was merely possible that avoiding such mighty tribe from leaving, he could insult them in that way. He suggests that this passage was forged.
   The provision no. 20 is related to provision no. 8 which prohibits demonstrating the religion openly. Contrary to the treaty of Najran, it significantly restricts the rights of dhimmi to profess their religion openly and here we see the regression from treaty of Najran to treaty of Umar rather than progress.
   As for the provision no. 21, Mednikov indicates that on observation of this clause it was allowed to toll the bells everywhere and anytime, however according to Abu Yusuf, Halid allowed to toll the bells anytime except the time of Muslim prayers. It is unlikely that such restriction was included in the treaty by Umar; however at the late stages irritated by the bell noise and when they started to interrupt the call to prayer, adhan, Muslim authorities should have taken such measures to restrict it. Mawardi for instance requires that the sound of the bells would not reach the ears of Muslims and consider this provision to be non-obligatory. Mednikov suggests that this provision was not always observed.
   The provision no.22 which prohibits to raise the voices in the church, during liturgy and in presence of Muslims, is not found anywhere other than Mawardi. It mainly concerns the churches which were located close to mosques, or when in the case the Muslim decides to visit the church or liturgy. In this case, this provision interplays with the provision no.3 that requires keeping the doors of church open for traveling Muslims. Such prohibition may be attributed to the times when the Muslim intolerance reached its peak.
   The provisions nos. 23 and 26 concerns the burial procedure of Christian deceased, as they prohibit raising the voices during funerals and burying deceased near Muslims neighborhoods. Mednikov suggests that these provisions could emerge where Muslims and Christians had lived together for a long period of time and where the Muslims were majority among the population. In the connection to these provisions, it is reported that Mutawwakil ordered to demolish all dhimmi graves, "so they do not look like graves of Muslims". Deriving from this fact, Mednikov suggests that before such decree adopted the graves of Muslims and dhimmis were alike. He also believes that provision no.26 either was not known or was not observed. If it was known, it was known after III A.H. i.e. during the rule of Abbasid dynasty. Up to this point, it is difficult to say whether the restrictive rules of Umar were restored by Mutawwakil or it was his own initiative.
   As for the provisions nos. 24 and 25, they are related to restriction of religion group which are found in provision no.8. Mednikov notes that these provisions are not found anywhere earlier than at-Turtushi, if we do not take into account the restrictive measures imposed by infamous Fatimid caliph al-Hakim. However it is unclear whether such restrictions could exists during Umar or been imposed by Umar, since taking into account that the majority of the population during the conquest of Umar was Christian and Umar would not like the idea of Christians easily walking in the streets and demonstrating their faith. Nevertheless, most of areas as we noted above in the time of conquest were populated by Christians and such prohibition could concern only urban areas.
   The provisions nos. 27 and 31 are almost identical, since they touch upon the aspects of acquiring the Muslim slaves. Both provisions prohibit acquiring the slaves belonging to Muslims. It includes the acquiring taken as prisoners non-armed population, women and children. Mednikov believes that such prohibition suggests that there was the time when dhimmi could buy slaves from Muslim fellows without any hindrances. But since most of the slaves of Muslims were keen to embrace Islam, it was desirable that such people would not get into hands of dhimmis. Together with that Mednikov believes that this provision is of late origin since it is not found anywhere before Ibn Khazm and only found in versions of at-Turtushi and Ibn-an-Nakkash, while in treaty of Umar it is found as the late addition.
   The provisions nos. 28 and 29 embraced also those cases when dhimmi house was so much higher than Muslim neighbor that it would enable former to look into the house of the latter. Only provision no.28 is found in official version of treaty of Umar, whereas no.29 only found in one of the version and also discussed in Shafii legal works as well as in at-Turtushi and Mawardi works. Mawardi considers these provision as desirable i.e. obligatory only in the case if they were stipulated by conquerors in their treaties. Mednikov believes that these provisions could only emerge only after IV A.H.
   As for provisions nos. 30 and 32 which prohibit the beating the Muslims, Mednikov believes, that they were meant per se in the course of the conquest and there was no need to include them into the treaty.
   The provision no. 32 is the last provision in the treaty of Umar, since the provisions from nos. 33-45 are not found in there. The provision no. 32 deals with the validity of the treaty or agreement, if dhimmi hits Muslim. It stipulates that the treaty would be void if such action happens. Such term of the agreement naturally would be included in the agreement, not only because it speaks about the validity of the contracts, but also that Muslim would consider the harming Muslim by dhimmi as the grave crime.
   The provision no.33, which prohibits for dhimmi hiring Muslims as servants is significant but is not found before Ibn Khazm. It is doubted by Mednikov, who does not attribute this provision to the period of Umar's conquest. Undoubtedly, this provision is related to the previous provision which prevented any Muslims to be humiliated or harmed by dhimmi and may be viewed as protective measures.
   The same applies to the provision no. 34 which prohibits insulting Muslim faith, which is also found in version of al-Quduri, al-Mawardi, Ibn Khazm, legal works of Shafiis and at-Turtushi.
   The provision no. 35 prohibits marrying Muslim woman, even though such rule derives from Qur'an, which prohibits Muslim women not to marry non-believers. It is reflected in legal works of all prominent Muslims jurists such as al-Misri, Marginani, Shafii, etc. In the opinion of Mednikov such prohibition implies that the cases where the dhimmi married Muslim women did really take place that time, hence is the necessity in such clause.
   The provision no. 36 which prescribes dhimmi to let Muslims to live among them, is only found in the version of Ibn Khazm and as Mednikov believes, is of Spanish origin. It is because when Muslims conquered Spain, non-Muslim population i.e. Christian and Jews were majority and they were all given dhimmi status. It is only in the late stage most of Spaniards converted to Islam; however before that there was a great need to settle Muslims among dhimmi since there was no choice.
   The provision no. 37 which prohibits keeping the swine openly is almost similar to provision no. 16 by nature. As the latter one, this prohibition is derived from Qur'an but such prohibition could not be applied to Christians since they were not covered by such prohibition. If that was the case, then Christians could keep swine but not in the way as to encourage their Muslim fellows to their consumption. Unlike wine, the prohibition of swine consumption was really strict and was taken really serious by Muslims.
   The provision nos. 38 and 39, which concerned restriction of horse riding, in the opinion of Mednikov, may be attributed to the times of Abu Yusuf and does not comply with provision no.13 of treaty of Umar. The latter prohibits riding on horse saddles whereas the former stipulate that dhimmi may ride on donkeys and mules without emphasizing whether they could use horse saddles or not. However, in this sense, we may view no.13 as the stipulation to no.38, so dhimmi may ride on mules and donkeys but not using horse saddles. Nevertheless, question here is: Is there anyway to ride the mules and donkey without saddles since saddles may be used with horses and donkeys as well as mules. As for the no.39 which prescribes to attach balls to saddles, there is no way to suggest that the saddles could not be used.
   The provision no.40 which obliges dhimmi to wear stamp on his neck as the sign of payment of tax is probably is most humiliating provision, even though Mednikov notes that this provision did not exist before Abu Yusuf. The same goes with no.41 which prescribes to wear the bells when entering the public bath.
   There is no need to discuss provisions nos. 42 and 43 as they were discussed above.
   One of the interesting theories, expressed by Mednikov, is the theory that the most humiliating and discriminating of treaty of Umar were forged by late jurists, caliphs and rulers, since there were time when dhimmi reached the point when they became very rich and influential in Muslim state, which increased envy of their Muslim fellows who were less lucky.
   As it is seen from the examination of provisions of treaty, majority of them had been inserted by late Islamic jurists of Abbasid and dynasties which ruled after them. The documents like Medina Constitution and Najran Treaty did not have a significant effect on the treaty of Umar, except the fact that the Taglibid Christians were given special treatment. Undoubtedly, the treaty of Umar had decisive influence on the formation of dhimmi concept, but it is unlikely that it gave the concept the final shape, as we indicated above. Nevertheless, we have to admit that Umar by drafting such treaties with conquered population left the solid base for the late Islamic jurists who had the concept finalized.
  
   Conclusion
   As a conclusion, it should be said that the law of religious minorities in Islam had gone difficult and long period of formation. On the one hand, the documents witness that the treatment of religious minorities changed dramatically from beginning depending on the circumstances. On the other hand, having dhimmi concept as an example, we may come to conclusion that the Constitution of Medina claimed by late Islamic scholars as having had constitutional effect on the formation of Islamic state, did not gain such importance for law of religious minorities. Besides, neither treaty of Najran had any positive effect on the concept of dhimmi. Nevertheless, the effect of Qur'anic rulings was decisive.
   One question arise in this respect: were the principle of Islamic law which had decisive influence on formation of dhimmi concept or all in all it was the administrative secular laws of caliphs and rulers which determined the fate of religious minorities in Islamic state? Perhaps - both of them. However, deriving from the analysis of documents it should be pointed that it was the representative of Islamic jurisprudence who shaped the concept.
  
  
  
  
  
  
  
  
  
   ? PhD scholar, Brunel University, Law School
   Goitein notes that the term `armay' (Aramaic) applies in respect of non-Jew and is used as legal parlance but not as common phrase See TS 13 J 6, f 32, 1.10, India Book 279 Goitein, op cit. p 278 and 586
   Goitein op. cit
   Seth Ward, Dhimmi Women and Mourning in Islamic Legal Interpretation: Muftis and their fatwas, ed. By Muhammad Khalid Masud, Brinkley Messick, David S. Powers, Harvard University Press, Cambridge, Massachusetts, London England, 1996 p. 88
   Ibid.
   Ibid.
   See Ahrens, Christliches im Koran p. 159; Koran, Perevod i kommentarii, I. Y. Krachkovskogo B. Yazychy, 1990 p. 518
   The Holy Qur'an, Translation and commentary by A. Yusuf Ali, Published by Islamic Propagation Centre International, 1946 p.33
   Sell, Historical Development of Qur'an, Simpkin, Marshall, Hamilton, Kent & Co. London, 1923 p.55; Rodwell, Qur'an, p. 427
   Ibid.
   The Holy Qur'an, Translation and commentary by A. Yusuf Ali, Published by Islamic Propagation Centre International, 1946 p. 615
   The Pillars of Islam, Da'a'im al-Islam of al-Qadi al-Numan, translated by Asaf A.A. Fyzee, completely revised and annotated by Ismail Kurban Husein Poonawala, Vol.I, Acts of Devotion and Religious Observances, Oxford University Press, Oxford, 2002 p. 469
   Ibid. see footnote 168
   Ibid. See also Madjus; Mishkat, II, 410; Robson, II, 859; Kafi, III, 558
   Buhari, Sahih, Vol 4, Book 53. One-fifth Of Booty To The Cause Of.... Hadith 384
   Burhaniddin Marghinani, Hedaya fi furul al-fiqh, Uzbekiston Publishing 1994 p.81
   Ibid.
   Anver Emon, Reflections on the Constitution of Medina : An essay on methodology and ideology in Islamic legal history, UCLA Journal of Islamic and Near Eastern Law, 2002 p. 106
   Mawardi op. cit. p. 184 "Ubayd Allah ibn Abd Allah ibn Masud , may God grant him mercy, reported that Aisha, may God be pleased with her, said : The last admonition that the Messenger of God made, God bless him and grant him a peace, was to say, `There may not be two religions in the Arabian peninsula at the same time'"
   Ibid.
   A. Guillaume, The life of Muhammad: A translation of Ibn Ishaq's Sirat Rasul Allah, Oxford University Press, Pakistan branch, 1970 p.232
   Goitein op. cit. p. 106
   Id. p.232 Footnote 3
   Id. p.233
   Goitein op. cit p. 107
   Ibid. ; Abu Ubayd al-Qasim b. Salam, Kitab al Amwal, ed. Muhammad Hamid al-Fiqi, Cairo (Amira) 1353/1934
   Ibid. ; Julius Wellhausen , Exurcus: Muhammad constitution of Medina, in Muhammad and Jews of Medina, (Wofgang Behn trans, 1975)
   Emon op. cit.
   Above n. 1; W. Montgomery Watt, Muhammad in Medina 221-25 (1956)
   Ibid; R.B. Serjeant , The Constitution of Medina, 8 Islamic Q. 3, 13 (1964)
   Ibid; Frederick Denny, Ummah in the Constitution of Medina, 36 J. of Near Eastern Studies 44 (1977)
   Ibid. ; Muhammad Husayn Haykal, The Life of Muhammad 179-80 (Ismail R.A. al Faruqi trans. 1976)
   Guilamme. Op. cit. p. 232
   Jalal al_Din, Tadrib al-Rawi, (Egypt) 1307 A.H.., p.256 quoted by M.Z. SIbiddiqi, Hadith Literature, (Calcutta University) 1961 quoted by Mohammad Shabbir in The Authority and authenticity of Hadith as a source of Islamic Law, Kitab Bhavan, New Delhi-110002 (India) p. 70
   Ibid.
   Chase F. Robinson "Empire and Elites after the Muslim conquest: The Transformation of Northern Mesopotamia"; It is said that the yellow copy of the document bearing the Prophet's stamp in 265/878 in a daftar in a possession of Habib the monk, who claimed that it came from the Bayat al-Hikma;
   See Yasin Istanbuli, Diplomacy and diplomatic practice in the early Islamic era, Karachi : Oxford University Press, 2001
   Al-Baladhuri, Futuh Al-Buldan, translated by Hitti (New York, 1916), p., 75-79
   Ibid.
   Ibid.
   Ibid.
   Narrated Said bin Abu Al-Hasan: While I was with Ibn 'Abbas a man came and said, "O father of 'Abbas! My sustenance is from my manual profession and I make these pictures." Ibn 'Abbas said, "I will tell you only what I heard from Allah's Apostle. I heard him saying, 'Whoever makes a picture will be punished by Allah till he puts life in it, and he will never be able to put life in it.' "Hearing this, that man heaved a sigh and his face turned pale. Ibn 'Abbas said to him, "What a pity! If you insist on making pictures I advise you to make pictures of trees and any other inanimate objects."
   Islam: from Prophet Muhammad to the Capture of Constantinople, edited and translated by Bernard Lewis, Vol. II, Harper & Row Publishers, London, 1974 p. 217
   Id. p. 217; Al-Turtushi, Muhammad ibn Walid, called Ibn Abi Randaqa. Siraj al-Muluk, Cairo, 1289/1872
   Ibn Khald?n. 1958 The Muqaddimah : An introduction to history. Translated from the Arabic by Franz Rosenthal. 3 vols. New York: Princeton. The text is also found here: http://www.muslimphilosophy.com/ik/Muqaddimah/
   Michael Jan de Goeje, Memoire sur la conquete de la Syrie, 1900, p. 143 Mednikov p. 391
   Nuvayri, NihayetЭ'1-ereb, XIX, 430-436
   Kremer, Cul-trurgeschichte des Orients, 1875, I, p. 102
   The history of the temple of Jerusalem, translated from the arabic MS. of the imam Jelal addin al Siuti by J. Reynolds, London, 1836; See also SteinschneIbider, Polemische und apologetische Literatur in arabischer Sprache, Leipzig, 1877, стр. 169; J. R. A. S. New Series, XIX, 1887, стр. 247,sqq; Wuestenfeld, Die Geschichtschreiber der Araber; Getting. 1882, стр. 223; Rоhricht Biblioth. geograph. Palaestinae, Berlin 1890, стр. 120.
   Histoire de Jerusalem et de Hebron... fragments de la Chronique de Moudjir-ed-dyn, trad, sur le texte arabe par H. Sauvaire, Paris, 1876, and also by Hammег in Fundgruben d. Orients, II, III, IV и Williams'oм в Memoirs, 1849. See also: . Rohricht, Bibliotheca geograph. Palestinae, 145; SteinschneIbider, Polem. und apolog. Literatur, 177sqq; Wuestenfeld, die Geschichtschr. d. Araber, p.235
   See The Zahiris, Their Doctrine and Their History: a contribution to the history of Islamic theology by Ignaz Goldziher, trans. and ed. Wolfgang Behn. Leiden: E.J. Brill, 1971
   Al-Mawardi, The Ordinances of Government , a translation of al-Ahkam al-Sultaniyya w' al-Wilayat al-Diniyya, translated by Wafaa H. Wahba, Center for Muslim Contribution to Civilization, Garnet Publishing Limited , 1996 p. 161
   In Musnad, Ibn Hanbal referred to the book "Muntahab-kanz-al-`ummal"of Ala-ad-din al-Muttaki al-Hindi, the reproduction of as-Suyuyti's "Djami'-al-Djauami" where the one of the version of Treaty of Umar was placed, which is similar to the versions of Turtushi and Ibn-an-Nakkash.
   Al-Shafii, al-Imam Abu `Abdallah Muhammad ibn Idris, Kitab al-Umm,Bulaw (Amriya), 1321-2/1903-1904 iv. Pp. 118-119
   N.A. Mednikov Palestina ot zavoyevaniya yeyo arabami do krestovyh pohodov po arabskim istochnikam// Pravoslavniy Palestinskiy sbornik. T 17. Vyp. 2. SPb T. 2-3. 1903p. 570
   Mednikov, op. cit. p. 574
   Only 32 of these provisions were listed by Turtushi. Ibn Khazm lists 1, 2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 26, 27, 30, 33, 34, 35 and 36, whereas Shafii in Turtushi's time list 1, 2, 6, 8, 11, 13, 16, 19, 20, 21, 29, 34, 35, 37, 38, 40, 41, 42, 43, 44, 45. Mawardi lists 1, 4, 5, 6, 8, 11, 16, 19, 20, 21, 22, 23, 29, 34, 35, 37, 38. Al-Kuduri lists1, 11, 13, 14, 34, 35, 38. Ibn Abd-al-Hakam lists 11, 13, 17, 19, 40, 42. In the decree of al-Mutawwakil are listed 1, 7, 11, 13, 19, 20, 25, 26, 38, 39. Abu Yusuf lists 1, 5, 6, 11, 13, 14, 16, 19, 20, 21, 30, 37, 38, 39, 40.
   Mednikov op.cit. p 574
   Mednikov op. cit . p 573
   Abu Yusuf, Yaqub ibn Ibrahim. Kitab al-Kharaj, 3rd edition, Cairo (Salafiyya), 1382/1962-1963 pp. 81-85
   Eius tempore aedificata est Ecclesia nomine S. Macarii" (Renaudot, Historia patriarch. alexandr., стр. 173; Wuestenfeld, Geschichte d. Copten, p 21; Al-Maqrizi, Taqi al-Din Ahmad ibn Ali. Kitab al-Suluk li-mar'rifat duwal al-muluk, ed.M.M. Ziyada and others, in course of publication, Cairo (Lajnat al-talif, 1934 -
   Rubens Buval, Histoire d'Edesse, Journ. Asiat. Serie VIII, t. XIX, pp. 77-78 "Athanase, que le calife de'signa comme gouverneur de son jeune frere Abd-al-Aziz.... fit reconstruire a Edesse la magnifique basilique de la Mere de Dieu et batit a Fostat d'Egypte deux grandes basiliques"
   Mednikov op.cit. p. 575
   W.Muir, The Caliphate: Its rise, decline and fall, a new and revised ed. By T.H. Weir, Edinburgh: John Grant 31 George IV. Bridge 1924 pp. 254-378
   Al-Yaqubi, Ahmad ibn Abi Ya'qub. Kitab al-Buldan, ed. M.J. de Goeje, 2nd edition, Leiden (Brill), 1892
   Al-Baladhuri, Ahmad ibn Yahya, Ansab al-ashraf, ivA, ed. Max Schloessinger, revised and annotated by M. J. Kister, Jerusalem (Magnes Press), 1971
   Mednikov op. cit. p. 575Liber expugnationis regionum, de Gоеjе, p. 173
   Mednikov op. cit p. 576
   Abu Yusuf op. cit. p. 81 See Abu Ubayd al-Qasim ibn Sallam. Kitab al-Amwal, ed. Muhammad Hamid al-Fiqi, Cairo (Amira), 1353/1934. pp. 85-87
   Al-Qalqashandi, Subh al-a'sha, xiii, p.368; al-Tabari, iii, pp. 1389
   Al-Turtushi op. cit. p. 400
   Mednikov op. cit p. 576
   Al-Turtushi, op. cit. p. 400
   Mednikov op. cit 576
   Mednikov op. cit. p 578
   It was reported by prominent Arab poet Jerir Mednikov op. cit. p. 579
   Mednikov op. cit. p.578
   Mednikov op. cit. p. 578 He explained that by referring to the fact that the Muslims forced Christians to open their doors for travellers with the desire to humiliate any Christian.
   Abu Yusuf p. 81 See Abu Ubayd al-Qasim ibn Sallam. Kitab al-Amwal, ed. Muhammad Hamid al-Fiqi, Cairo (Amira), 1353/1934
   Al-Mawardi, The Ordinances of Government , a translation of al-Ahkam al-Sultaniyya w' al-Wilayat al-Diniyya, translated by Wafaa H. Wahba, Center for Muslim Contribution to Civilization, Garnet Publishing Limited , 1996 p. 161
   Mawardi p.161
   Abu Ubayd op. cit. Mednikov 579
   Mednikov op cit 579.
   Mednikov op cit p. 579
   Mednikov op cit p. 577
   Mednikov op cit p. 579
   Dоzу, Histoire des musulmans d'Espagne, Leyde, 1861, t. II, pp. 102-4; 129.
   Tabari op. cit. p. 244
   Mednikov op cit. p. 580
   Mednikov op cit. p. 580
   Ahmad ibn Naqib al-Misri, Reliance of the Traveller, a classic manual of Islamic sacred law, in Arabic with facing English text, commentary and appendices edited and translated by Nuh Ha Mim Keller, Amana Publications, Beltsville, Maryland, USA, 1994 p. 608
   Mawardi op. cit. p. 161; Qur'an condemns Christians and Jews for proclaiming Christ and Ezra as Sons of God.
   Abu Yusuf op. cit p.81 Mednikov op .cit p. 582
   Abu Yusuf op. cit. p. 81
   Abu Yusuf 154-156 Mednikov op. cit. p. 582
   Mednikov op. cit. p. 582
   Mednikov op. cit. p. 582
   Mednikov op. cit. p. 582
   Mednikov op. cit. p. 582
   Mednikov op. cit. p. 582
   Mednikov op. cit. p. 583
   Mednikov op. cit. p. 584
   Allah's Apostle said, The blood of a Muslim, who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims." Sahih Bukhari at http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/bukhari/083.sbt.html#009.083.017
   Mednikov, op.cit p.583
   Mednikov op. cit p. 584
   Mednikov op. cit p. 584
   Mednikov op. cit p. 584
   Mednikov op. cit p. 585
   De Goeje, Liber expugnations regionum, p.161 Mednikov op. cit p. 586
   Mednikov op. cit p. 587
   V. Girgas, Prava hristian na Vostoke, St. Petersburgh, 1865 p. 68
   Mednikov op. cit p. 586
   Tabari p. 238-9 Mednikov op. cit p. 589
   Mednikov op. cit p. 589 Tabari 1316-17
   Mednikov op. cit p. 589
   Mednikov op. cit p. 589
   Mednikov op. cit p. 589
   Mednikov op. cit p. 591
   Mawardi op. cit. p.159
   Kremer, Culturgeschichte des Orientes, Wien, 1875, vol. I pp. 148-149
   Mednikov op. cit p. 591
   Goitein, op cit. p.286
   Ibid.
   Ibid.
   Al-Suyuti, Jalal al-Din, Husn al-Muhadara fi akhbar Misr wa'l-Qahira, Cairo, 1321/1902; Mednikov op.cit. 592
   Mednikov op. cit p. 592
   Mednikov op. cit p. 592
   Mednikov op. cit p. 592
   Mednikov op. cit p. 593
   Mawardi op.cit. p.161
   Mednikov op. cit p. 593
   Mawardi op.cit. p.161
   Mednikov op. cit p. 594
   Mednikov op. cit p. 595 Abu Yusuf p. 244
   Mednikov op. cit p. 595
   Mednikov op. cit p. 595
   Mednikov op. cit p. 595
   Mednikov op. cit p. 595
   Mednikov op. cit p. 595
   Shafii op. cit
   Mawardi p. 161
   Mednikov op. cit p. 596
   Mednikov op. cit p. 597
   Mednikov op. cit p. 597
   Mednikov op. cit p. 597
   Mednikov op. cit p. 597
   W. Montgomery Watt, Pierre Cachia, A History of Islamic Spain, Edinburgh, 1965 (Islamic Surveys, 4) Russian edition 1976 p.18
   Mednikov op. cit p. 597
   Mednikov op. cit p. 597
   Mednikov op. cit p. 601
  
  
  
  
  
  
  
  
  
  
  
  
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