The Dhimmah Contract – عَقْدُ اَلذِّمَّةِ
وَيَجُوزُ عَقْدُ اَلذِّمَّةِ لِمَنْ لَهُ كِتَاب أَوْ شُبْهَتُهُ وَيُقَاتَلُ هَؤُلَاءِ حَتَّى يُسْلِمُوا أَوْ يُعْطُوا اَلْجِزْيَةَ, وَغَيْرُهُمْ حَتَّى يُسْلِمُوا أَوْ يُقْتَلُوا
This is a contract like a citizenship contract. It is between the Muslim state and the non-Muslims. According to the Hanabilah, this is restricted to only the Ahlul Kitab (Jews and Christians) or that which resembles that and the Zoroastrians etc. Why? Allah has mentioned in the Quran explicitly:
قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنَ الَّذِينَ أُوتُوا الْكِتَابَ حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَن يَدٍ وَهُمْ صَاغِرُونَ
Fight those who do not believe in Allah or in the Last Day and who do not consider unlawful what Allah and His Messenger have made unlawful and who do not adopt the religion of truth from those who were given the Scripture – [fight] until they give the jizyah willingly while they are humbled. [Surah Taubah, 29]
The Hanabilah stuck to this. Why are the Majus added? Umar Ibn al-Khattab heard Abdur Rahman Ibn Awf say that the Majus should be treated like the Ahlul Kitab. Some say that the Majus had a book that they used to follow. This needs to be checked, but we are not interested in this as we are following the fatwa of Umar and that is enough.
The state can decide to agree with another state to put battle on hold like having a peace treaty. The Mashhur of the Madhab is that this period is for 10 years. Imam Ibn Taymiyyah says that this time is unrestricted. This depends on the Muslim state and that which is in the best interest of the Muslims. If Muslims are to attack or enter non-Muslim lands, it is not permitted to fight them till they have invited the people of the land to Allah. If that is done and sufficient time is given, then there are 3 options:
- They accept Islam
- They accept Jizyah
- By this they agree to live under the Shariah of Allah.
- Establish the Dhimmah contract.
Anyone besides these people are fought till they accept Islam or are killed. This is the Mashur of the Madhab. There is no jizyah for anyone else. A second opinion in the madhab, being a riwayah from Imam Ahmad as is mentioned by Imam Ibn al-Qayyim in Zaad al-Ma’ad, and the choice of Sheikh Ibn al-Uthaymeen, Sheikh Yousuf al-Qardawi, and the position of the Hanafi Madhab; is that the dhimmah contract can be initiated with every disbeliever. The scholars of this opinion say that Ahl Kitab were mentioned as the main people in focus but it wasn’t restricted to them alone. This opinion is more in line with the objectives of the jizyah contract and going against it would go against the very maqasid of Islam and the aim for jihad.
Dhimmah contract is not applicable to apostates as they have different rulings.
The Dhimmah contract is allowed to be levied only by the Imam or his representative. How much jizyah is to be taken? Again, this is decided by the Imam. It should be something that is not too burdensome or unrealistic. Many scholars opine that it is below the threshold for Zakat that Muslims pay. The jizyah is given as a tax because these people are living under the state protection and using the states resources. They don’t have to take part in jihad. They can be given permission to participate if needed but are not obligated like the Muslims.
وَيُؤْخَذُ مِنْهُمْ مُمْتَهَنِينَ مُصَغَّرِينَ، وَلَا تُؤْخَذُ مِنْ صَبِيٍّ وَعَبْدٍ وَامْرَأَةٍ وَفَقِيرٍ عَاجِزٍ عَنْهَا وَنَحْوِهِمْ
The jizyah is taken from them in a state of humiliation. The Hanabilah are quite rough in this issue. The books include making them wait for longer periods of time etc without inflicting physical harm. This is how the Hanabilah interpreted the Ayah of Surah at-Taubah (29). Here, Yad means that they have the ability to give. Sighar was interpreted to mean humiliation. This is as per the Mashur of the Madhab. Other scholars disagree with not just the interpretation but the mentality of humiliation as well. Why? The dhimmi is now a citizen of the Muslim state and now is accorded with a degree of respect. Imam Shafi’i interpreted Sighar as meaning bound or under the authority of the Shariah. Allah teaches us in the Quran,
لَّا يَنْهَاكُمُ اللَّهُ عَنِ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينِ وَلَمْ يُخْرِجُوكُم مِّن دِيَارِكُمْ أَن تَبَرُّوهُمْ وَتُقْسِطُوا إِلَيْهِمْ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ
Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes – from being righteous/kind toward them and acting justly toward them. Indeed, Allah loves those who act justly. [Surah al-Mumtahinah, 8]
This is for those who are not fighting against Muslims. If Muslims are in battle, then they fight bravely till the end. This is a balanced attitude of the people of justice and principles. Allah allowed men to marry the women from the People of the Book. If we are to treat them harshly then how are things supposed to function?
The jizyah is not taken from a young child who hasn’t hit puberty, a slave, a woman, someone too poor to pay it, and its likes. The Hanabilah mention people like the monks, the insane, disabled etc. The ruling goes back to financially responsible. The woman or child doesn’t give jizyah even if they had millions.
Who is considered poor? Imam Ibn Qudamah in al-Mughni says that it is not something specified by a particular number but rather what people consider poor. The specified quantities are matters which can be obliged through the Shariah. If something is not specified by the Shariah, then it is determined by the Urf of the people. This is a principle used extensively by Imam Ibn Qudamah and Imam Ibn Taymiyyah. We see this in action where both of them opine regarding the distance of travel depending on the Urf.
وَيَلْزَمُ أَخْذُهُمْ بِحُكْمِ اَلْإِسْلَامِ فِيمَا يَعْتَقِدُونَ تَحْرِيمَهُ مِنْ نَفْسٍ وَعِرْضٍ وَمَالٍ وَغَيْرِهَا
وَيَلْزَمُهُمْ اَلتَّمَيُّزُ عَنْ اَلْمُسْلِمِينَ, وَلَهُمْ رُكُوبُ غَيْرِ خَيْلٍ بِغَيْرِ سَرْجٍ
وَحَرُمَ تَعْظِيمُهُمْ, وَبُدَاءَتُهُمْ بِالسَّلَامِ
It is obligatory that they be held accountable to the Shariah in things that they consider unlawful including life, dignity/honour (adultery), property (theft), and that which is similar to it. That which they consider Halal like buying pork, alcohol, images, musical instruments etc is allowed for them. The point of the type of punishment is differed upon and contested between the fuqaha. Private internal matters are left to them. The Hanabilah explicitly mention that they are not allowed to publicly showcase their religion, its teachings, or that which is deemed permissible for them and is impermissible for the Muslims. Ex: Drinking alcohol in public.
These people are required to be distinct from the Muslims. They are allowed to ride animals other than horses but without a saddle. It is unlawful to greeting them with the salam, condole them at a loss etc. Doing takhreej on the first one, it would be like saying that a person is not allowed to drive a car, but having to walk only.
These position again goes back to that of humiliation discussed previously. So anything that showcases respect or authority is removed from them. Other scholars like Imam Nawawi strongly disagree with this and says that all these claims are baatil. Dhulm without a valid reason is impermissible. The people are citizens and are to be treated kindly and with respect so that the objective of the Message of Islam reaching people is attained. Being distinct from Muslims is something different in nature.
Learning the madhab is to attain a strong base and is not meant to be blindly followed. Not every word in the agreed upon books of the Madhab is as binding as the Shariah. This is why it is said that the person who hasn’t come across the difference of opinion among the scholars is as though he hasn’t even smelt fiqh. Imam Ibn al-Najjar says that fatwa is upon the practice and this changes from place to place and time to time.
وَإِنْ تَعَدَّى اَلذِّمِّيُّ عَلَى مُسْلِمٍ, أَوْ ذَكَرَ اَللَّهَ أَوْ كِتَابَهُ, أَوْ رَسُولَهُ بِسُوءٍ اِنْتَقَضَ عَهْدُهُ, فَيُخَيَّرُ اَلْإِمَامُ فِيهِ كَأَسِيرٍ حَرْبِيٍّ
If a dhimmi he attacks a Muslim, or says something about Allah, the Quran, or His Messenger that is evil or derogatory, then he has invalidated the contract. In this case, the Imam judges him in a similar manner as that of a prisoner of war.
Based on the Hanbali primer, Akhsar Al-Mukhtasarat authored by Ibn Balban al-Hanbali as taught by Sheikh Zahed Fettah حفظه الله