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- Bu səhifədəki naviqasiya:
- SUMMARY Inheritance rights and the will in Islamic family law
- Ключевые слова
- Medina Constitution
- The concept of “Dhimmi” and “Jizyah”
- General Rights of Dhimmis
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ƏDƏBİYYAT 1.
Гурани Кярим. Яряб дилиндян тяръцмя едянляр З.М.Бцнйадов; В.М.Мяммядялийев. Бакы: Гисмят, 2004, 607 с. 2.
nəşriyyatı, 2009,1248 s. 3.
Sistani Seyyid Əli Hüseyni Ayətullahil Uzma. İzahlı Şəriət Məsələləri. Moskva: 2003, 519 s. 4.
5.
Buhari. “Səhihi Buhari”, Muhtasarı Tecridi Sarih. terc. Abdullah Feyzi Kocaer, İstanbul: 2003, 6. Эцненъ Щалил. Бцйцк Шафии илмищали. Истанбул: Илм йайым еви, н.и.й.,513 с 7. İbn Mace. ”Sünən”. İstanbul: Çağrı neşriyyat, 1992, ,462 s. 8. İbn Rüşd, Bidayətul Müctəhid tər.Ahmed Meylani, İst.1991,IV,1961 9.
10.
Karslı İbrahim H. Kuran yorumlarında kadın. Rağbet nəşriyyatı, İstanbul- 2003. 234 s. 11.
Mustafa Fayda. TDV İslam Ansiklopedisi. ”Aişe” maddəsi, İst. 1989 İslam ailə hüququnda miras üzərindəki haqlar, əhatə dairəsi və vəsiyyət 93 12. Şerif Muhammed (cev. Ahmet Özberk) İslamda ve başka dinlerde kadın. İstanbul: 2001, 13.
Əbu Davud, “Sünen” Çagrı nəşriyyatı, İstanbul: 1992, 14.
1335 15.
Əş-Şökani Məhəmməd bin Əli Muhəmməd. Neyləl-əvtar. Qahirə. N.İ.Y. 16.
Mirzəyeva Səbinə Həmid qızı 94
XÜLASƏ
İslam hüququnda miras ölünün özündən sonra qoyduğu və mirasçılarına çatacaq şeylərdir. Miras yalnız varislərin haqqı deyil. Ömür boyu ona sahib olan və qoruyan ölünün cənazə xərclərinin ilk haqıdır. İslam hüququnda vəsiyyətin məşru olmağı Qurani-Kərimə, sünnətə və icma dəlilinə əsaslanır.Vəsiyyətin hökmünü dünyalıq və axirətlik olaraq iki yerə ayırmaq olar. Vəsiyyət yalnız vəsiyyət edən insanın ölümündən sonra, onun borcları ödəndikdən sonra icra edilə bilər.
РЕЗЮМЕ
В исламском праве наследством считается то, что оставляет после себя покойный наследникам. Первым правомсчитаются расходы на поминки из имущества покойного. Далееследуют права тех, кому был должен покойный, права лиц, кому по своей воле завещал покойный и, наконец, праванаследников. В исламе завещать имущество для владельца считается обязательным. Завещание можно подразделить на мирское и загробное. Примером мирскоо завещания является хадж, загробного – имущество.
Inheritance rights and the will in Islamic family law
In Islamic law inheritance is things that the deceased leave to the inheritants. Inheritance is not only inheritants` right. The first right is funeral costs from theproperty of the deceased. Then the rights of people whom the deceased owed, the rights of people….
Status of non-Muslim inhabitants in an Islamic State 95
STATUS OF NON-MUSLIM INHABITANTS IN AN ISLAMIC STATE By Dr. Namig Abuzarov
Key words: Non-Muslims, dhimmi, jizya, minority, Medina constitution, the people of the Book. Açarsözlər: Qeyri-Müsəlmanlar, zimmilər, cizyə, azlıqlar, Mədinəkonstitusiyası, əhli-kitab. Ключевые слова:Немусульманы, зымми, джизья, меньшинства,Мединская конституция, люди книги. Introduction Islam is the second major living religion in the world with 1.6 billion followers, which comprise nearly 23% of the world`s population. Muslims make up a majority of the population in 49 countries. 1 There are hundreds of nations within the scope of Islam. Despite some of them being smaller in number than others, since the 7 th
century but they have been sharing the same religious values regardless of their ethnic origin, race, nationality and language. The followers of other religions including Judaism, Christianity, Zoroastrianism and so forth, have lived in Muslim majority areas or in the Islamic State under the status of “non-Muslims” since that time. The term “non-Muslim” differs from the modern concept of “minority” in some ways. There is no single and broadly accepted definition of minority at the international level. The 1 st article of The United Nations Minorities Declaration refers to minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence, but it does not provide internationally agreed definition as to which groups constitute minorities. 2
1 Pew Research, (2012), The Global Religious Landscape, retrieved from http://www.pewforum.org/2012/12/18/global-religious-landscape-exec/ 2 United Nations, Minority Rights: International Standards and Guidance for Implementation, New York and Geneva 2010, p. 2. Namig Abuzarov 96 According to a special rapporteur of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (SCPDPM) Francesco Capotorti, a minority is “a group numerically inferior to the rest of population of a state, in a non- dominant position, whose members -being nationals of the state- possess ethnic, religious and linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion and language.” 3 The notion of “number” predominates this definition, and it implies that numerically inferior groups are central part of the concept “minority” and they are the most vulnerable part of a society. According to Kristen Henrard, the author of numerous books on minority, the two most important reasons for the difficulty to arrive at a generally accepted definition of the concept “minority ” are the complexity and diversity of the minority phenomenon and the fear of the states regarding the consequences of the recognition of minorities (and the ensuing rights). The typical fear of states is that the recognition of minorities and Minority Rights will lead to an escalation of nationalistic and even secessionist movements and finally to the break-up of the state. 4
notion that is primarily based on religious identity. Islam has rejected all the notions of minority on which ethnic, racial, nationalistic and linguistic characters of a society base. It has selected only the identity of ideas- a thing which depends on the choice of a man and not the accidents and hazards of birth- as the basic tie of the society and the factor of union. 5 So, there is a fundamental difference between the Western- derived concepts of “minority” and that of Islam. In this article I examine the Islamic concept of “Minority” that the Prophet Muhammad and the early Muslim community conceived in the 7 th century and explore how Islamic legislation with regard to non-Muslim subjects enacted by the Prophet and adopted by the orthodox caliphs in this period. Thus, I confine my
3 Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, (New York, United Nations, 1979), para. 568. 4 Henrard, K, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination, (2000), Kluwer Law and Taxation Publishers, p.172. 5 Hamidullah, M., Introduction to Islam, Ankara 2007, 3th edition, p. 224. Status of non-Muslim inhabitants in an Islamic State 97 research to the years 622-661 AD, because this period provides a lot of precedents by which the later Islamic Law took its form.
Medina constitution is the most vivid example that provides basic principles with regards to the status of non-Muslim inhabitants in an Islamic State. The Prophet Muhammad drew up this unique historical document or the first written constitution of Islamic community soon after his migration to Medina by mutual consent. This document contains 53 sentences, or, to use legal terminology, sections; and is an invaluable example of the legal language and the manner of document-writing of the time. The importance of it has been felt by the European Christians even more than by the Muslim historians. Besides Welhausen, Mueller, Grimme, Sprenger, Wensinck, Caetani, Buhl and others, an English historian, in the course of a short history of the world, has felt it necessary to mention it in considerable detail. 6
was under these circumstances that the Prophet arrived in Medina, where the following problems demanded urgent solution: 1.
inhabitants. 2.
Arrangement for the settlement and livelihood of the Meccan refugees. 3.
An agreement with the non-Muslims of the city, particularly the Jews. 7
In Medina, the Prophet Muhammad constituted a City-State, in which Muslims, Jews, a small number of Christians, and pagan Arabs, all entered into a statal organism by means of this social contact. 8
The very fact that, at the time of the constitution of this City-State, the autonomous Jewish villages acceded with their free will to the federal State, and recognized Muhammad as their supreme political leader, implies that the non- Muslim subjects possessed the right to vote in the election of the head of the Muslim State at least in as far as the political life of the country was concerned. The following articles of the Medina constitution played central roles in establishing multi-cultural environment, viz:
6 Hamidullah, M., The First Written Constitution of the World, (1941), p. 4. 7 Ibid., p. 8. 8 Hamidullah, Muhammad, Introduction to Islam, p. 227. Namig Abuzarov 98 Section 2.They (All citizens of Medina) shall constitute a separate political unit (Ummat) as distinguished from all the people (of the world). Section 25.And the Jews of Banu ‘Awf shall be considered as one political community (Ummat) along with the believers—for the Jews their religion, and for the Muslims theirs, be one client or patron. He, however, who is guilty of oppression or breach of treaty, shall suffer the resultant trouble as also his family, but no one besides.
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Section 40. The clients (mawla) shall have the same treatment as the original persons (i.e., persons accepting clientage). He shall neither be harmed nor shall he himself break the covenant. 10
and institutions like ransom, blood-money, asylum or quarter, membership of a tribe by treaty agreement and other customs were left untouched (25, 31 and 40) 11 . On the other hand, the other religious groups then living in Medina, especially the Jews, were guaranteed complete protection with a social and political status not less viable than what was envisaged for the Muslims. The most significant is the fact that the non-Muslims who were a party to the Charter were declared as integral part of the Prophet`s newly conceived polity so long as the remained faithful to its terms. 12
The concept of “Dhimmi” and “Jizyah” The term “dhimmi” literally means “protection” and “ahl al-dhimma” refers to Jews, Christians and others who agree to live in Islamic State. In other words, non- Muslim citizens of the Islamic state whose protection is guaranteed by the state in return for paying “Jizyah” are called “dhimmis” 13
The Islamic Law divides non-Muslim citizens into three categories, viz: 1.
Those who become the subjects of an Islamic State under some treaty or agreement; 2.
9 The Prophet Muhammad dedicated the sections of Medina constitution ranging from 25 to 30 to the Jewish tribes who settled in Medina. See, for example, Hamidullah, M., The First Written Constitution of the World, pp. 37-38. 10 Hamidullah, Muhammad, The First Written Constitution of the World, pp. 31-40. 11 Ibid., p. 26. 12 Ahmad, Z., The concept of Jizyah in Early Islam, Islamic Studies, Vol. 14, No. 4 (1975), Islamic Research Institute, International Islamic University, Islamabad p.296. 13 Srakhsi, al-Mabsut, (1993), Beirut, Dar al-Kutub, Vol. 5, p. 31. Status of non-Muslim inhabitants in an Islamic State 99 3. Those who are there in the Islamic State in any other way. 14
dhimmi, namely, Christians, Jews, both of whom possess a Scripture, and the idolaters, fire worshipers and all unbelievers. 15 On the other hand, in accordance with Islamic law a non-Muslim who comes to Islamic state and lives within its boundaries for more than a year, gains a legal status of “dhimmi” and is subject to pay a tax called “jizyah” 16
It is worth mentioning that “jizyah” was a tax that paid by “dhimmis” in return for their full protection against enemies and for their exemption from military services and hence, only non-Muslim adult males were obliged to pay jizyah. Since the defense expenses of the Islamic State were reasonably high, so, Prophet Muhammad and the Orthodox caliphs imposed “jizyah” to make non-Muslim males contribute financially to defense budget. 17 However, if whosoever from “dhimmis” joined the army voluntarily, he was exempted from “jizyah” as long as he was affiliated to the army. 18
women, children, slaves, lames, age-stricken or physically disabled persons and those who do not have any fixed sources of income or depend on others for their livelihood, are completely exempted from jizyah. Similarly the clergy, the monks, the nuns and the servants of the monasteries are exempt therefrom. 19
of dirhams. In other words, jizyah was an impost on wealth, not on incomes of protectorates. The levy, therefore, corresponds to non-Muslims as what “zakah” is to Muslims. 20
In order for a non-Muslim to pay jizyah he had to be financially independent. The amount of Jizyah was to be fixed in accordance with their financial position. Those who were rich had to pay more, while those who belonged to the middle class paid less and the least amount was charged to the poor class. According to Islamic
14 Maududi, A.A., Rights of non-Muslims in Islamic State, KaziPubns Inc. (June 1975), p.10 15 Aghnides, N.P., Mohammedan Theories of Finance, New York 1916, p. 399. 16 Keskioglu, O., “Taxation in Islamic Law”, Izmir 1966, p. 38. 17 Hamidullah, M., The Prophet of Islam, Istanbul, 2003, p. 968. 18 Ibid.
19 Abu Yusuf, Kitab al Kharaj, Istanbul, 1973, p. 200. 20 Peerzade, S.A., Jizyah: A Misunderstood Levy, JKAU: Islamic Economy, Vol. 23, No. 1, p. 156. Namig Abuzarov 100
law, a person owning 10,000 dirhams and more is rich, the person owning more than 200 dirhams, but less than 10,000 dirhams belongs to the middle class and finally a person owning less than 200 dirhams is considered as poor. 21 In the time of the Prophet, the jizyah amounted to ten dirhams annually, which represented the expenses of an average family for ten days. 22 However, the least amount of jizyah that imposed by the Prophet and his orthodox caliphs was to the count of one dinar per adult male. 23
into three categories in terms of jizyah, namely “general public” who were obliged to pay 1 to10 dinars per head 24 , “merchants” who had to pay 24 dinars per head and “the heads of the tribes, the landlords and the rich” who had to pay 48 dinars per head annually. 25 Umar`s second regulation with regards to jizyah was his exemption from this tax of all those below the age of 20 and above that of 50 26 . It allows us to argue that the majority of non-Muslim inhabitants were exempted from jizyah. However, according to one account, total amount of jizyah that collected during the times of the Prophet was (1,56,010) dirhams 27 . General Rights of Dhimmis In return for paying the jizyah the non-Muslim inhabitants of the Islamic state possessed some legal rights. The acceptance of the jizyah establishes the sanctity of their lives and property, and thereafter neither the Islamic state, nor the Muslim public has any right to violate their property, honor or liberty. 28
After the agreement, the Zimmis continue to enjoy the ownership of their properties and their heirs have full rights of inheritance in it. They possess full powers of sale, transfer, grant and mortgage in respect of all such properties and the
21 Aghnides, N.P., Mohammedan Theories of Finance, New York 1916, p. 403 22 Hamidullah, M., Introduction to Islam, p. 229. 23 Ahmad, Z., The concept of Jizyah in Early Islam, Islamic Studies, Vol. 14, No. 4 (1975), Islamic Research Institute, International Islamic University, Islamabad p. 296. 24 It was found that the actual historical standard for the dinar to be 4.5gm of pure gold. Retrieved from: http://www.ahamedkameel.com/archives/444. 25 Abu Yusuf, Kitab al Kharaj, pp. 126, 200. 26 Yadav, T. P., The Myth of Jizyah, Journal of Indian Research, April-June, 2013, Vol. 1, No. 2, p.34. 27 Hasan, S.M., The Economic Functions of the Early Islamic State, International Islamic Publishers, Karachi, 1981. p. 180. 28 Maududi A.A., Rights of non-Muslims in Islamic state, KaziPubnsInc (1975), p.12 Status of non-Muslim inhabitants in an Islamic State 101
Islamic state has no right to dispossess them of any of these rights. 29 In other words, the life of a Zimmi is considered as sacred as that of a Muslim. 30
At the beginning of each agreement letter on which mutual rights and obligations of Islamic state and non-Muslims were written down, the Prophet Muhammad assured the other parties of the contract that their lives, properties, religions and temples would be under protection by the following statements:
This is a guarantee of security from God and his Messenger, You are under protection of God and Muhammad, For you are the protection of God and the protection of His Messenger 31
The Islamic Prophet not only sent letters of assurance to the neighboring non- Muslim tribes, but also urged his successors and Muslims to obey the rules of these agreements. A prophetic tradition is quoted in this regard:
“Beware! Whoever is cruel and hard on a non-Muslim minority, curtails their rights, burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment.” 32
The same approach was adopted by the second caliph of Islam, Umar to the non- Muslim subjects of the state. He warns his successors about dhimmis saying: “ I advice my successor to fulfill the contract of the non-Muslim citizens who are under the protection of Allah and His Messenger. I enjoin them to fight for them if the need arises and not to burden them with more than they can bear ” 33
According to the Islamic law, the non-Muslim inhabitants who settle in the Islamic State enjoy the privileges granted by the State. For instance, those dhimmis who are afflicted by disease that left them disabled, or were severely injured in
29 Ibid., p. 11. 30 See, for example, Hamiduallah, M., al-Majmua al-Wathaaiq al-Siyasiyya, Beirut 1985, pp. 118-120. 31 Ibid. 32 Abu Dawood, Sunan, The Book of Kharaj 23, hadith no. 2654. 33 Bukhari, al-Sahih, al-Manaqib, 31, hadith no. 3424; Abu Yusuf, Kitab al-Kharaj, p. 205. Namig Abuzarov 102
accidents and cannot earn their livelihood, or went bankrupt that became independent of others in terms of living, are not only exempted from Jizya, but were entitled to help from the State Treasury (Beyt al-Mal) 34
A reputable jurisprudent Kasani states that, if a dhimmi commits crimes, or even refuses to pay the jizya or kills an innocent Muslim or abuses the Holy Prophet or attacks the honor of a Muslim woman, and yet these will not disqualify him from the status of “dhimmi” and he will not considered to have lost his right of protection. 35
their right of protection: 1.
When they cooperate with enemies against Muslims, 2.
When they rebel against the state to overthrow it. 36
In accordance with Islamic law, all personal matters of the Dhimmi are to be decided in accordance with their Personal Law. The corresponding laws of Shariah are not to be enforced on them. If anything prohibited for Muslims in their Personal Law, but the same is not prohibited to the Dhimmis by their religion, they will have the right to use that thing and the courts in the country will decide their cases in the light of their Personal Law. For instance, marriage without witnesses and without fixation of Mehr (dower money) will be allowed to stand. Similarly, dhimmis are exempted from punishment for adultery and drinking wine, while it is prohibited for Muslims. On the other hand if a Muslim spoils of a wine of a dhimmi, or harms his pigs, he will have to pay for them. 37
Dhimmi traders also have to pay a trade tax as is charged from the Muslim traders on trade goods of the value of 200 dirhams or more or if they own 20 mithqals (equal to 85 grams) or more of gold 38 . The non-Muslim minorities have practiced their worship and fulfill their religious obligation freely. The orthodox caliphs of Islam upheld this freedom thorough their tenure and did not destroy any of the existing churches, synagogues and other sanctuaries. It astonished the Umayyid caliph, Umar bin Abd al-Aziz that why so much religious liberty had been given to non-Muslim inhabitants by his
34 Abu Yusuf, Kitab al-Kharaj, p. 232. 35 Kasani, A.E., Badai as-Sanai, Beirut (1997), Vol. 7, p. 336 36 Maududi A.A., Rights of non-Muslims in Islamic state, p. 15. 37 Ibid., pp-12-16. 38 Abu Yusuf, Kitab al-Kharaj, p. 216. Status of non-Muslim inhabitants in an Islamic State 103
predecessors. He asked, well-known Islamic scholar, namely, Hasan al-Basri about it. The answer of this jurisprudent was that, the status given them in the state was due to the jizya they paid. He advised the caliph that he should keep firm to what his predecessors had done in this respect 39 .
places of worship in such towns as have been taken by storm. All the places of worship were left as they were. They were neither destroyed, nor the conqueror had the right to deprive these places of worship of their goods or properties. 40 It implies that it is not permissible for Muslims to destroy ancient places of worship of non- Muslim subjects. As it was mentioned above, Dhimmis have been exempted from military services as well, since it is Muslim population`s accountability to defend the state against the enemies. Jizyah is not only loyalty to the state but it is also the contributory compensation for exemption from military service. Whenever Muslims felt unable to protect the non-Muslim minorities they gave the jizya back to non- Muslims.
41 For instance, at the time of the Battle of Yermuk in 634, when the Romans gathered huge armies to fight against Muslims and the Muslims had to forego their occupation of most of the towns of Syria in order to concentrate a single point. Abu Ubeydah, the Commander, ordered his treasury officer to refund the jizyah that collected from Syrian Christians and to inform them that Muslims were unable to protect them 42 . Hence, many non-Muslim inhabitants, including Christian tribes consider this as just treatment that made them prefer Islamic rule. 43
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