Before I respond to this question it is necessary to mention the consequences of some hasty answers to this subject. These answers can lead to dangerous or serious ramifications that cause Muslims problems that they are not ready to face at the present time. I say: Those who give Shar’iyah Fatawaa (verdicts) in relation to the Ahlu-dh-Dhimmah today and even those who take up arms towards the Muslims, are obliged to the think on the consequences of giving hasty answers. They must think long and hard about the present reality and think long and hard about the Nusoos (texts) that relate to our current time and the compatibility of these texts upon the reality that we are suffering. The Fatwaa (verdict) follows this process and then the issuing of the Hukm.
The reason for this severe warning in regards to the hasty issuing of Shar’iyah verdicts is because this issue is one that relates to blood, honour and property (wealth) that Allah سبحانه وتعالى has made inviolable (i.e. protected) by the contraction of the Dhimmah. Any answer that seeks to make these permissible with the claim that the ‘Ahd (covenant/contract) has been invalidated, without a strong Shar’i basis cancels out this protection and inviolability and it is taking a risk with the Deen of Allah سبحانه وتعالى and it has been narrated that the Nabi ﷺ said:
“Your taking of a risk with a Fatwaa is like taking the risk with the hellfire.”
(Musnad of Ad-Daarami 69/1, Kanz ul-‘Amaal 28961. Al-Haafizh said that the Musnad of Ad-Daarami is not of a lesser level than the books of the Sunan and if it was included with the five (books) then it would be preferred to the Sunan of Ibn Maajah).
This is in addition to what can result from seeking to make Halaal (i.e. the rights of the Dhimmi) in terms of dangerous and serious effects as has been previously indicated. Upon this basis we introduce the answer to our question that we are discussing by presenting a severe warning and mention the great responsibility involved in addressing it. We present our answer with the Shar’iyah Nusoos (texts) and the opinions of the Fuqahaa that have been extracted from the Adillah Shar’iyah (evidences) that govern the issue that we have put forward in its entirety.
Allah سبحانه وتعالى says:
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 عَنْ يَدٍ وَهُمْ صَاغِرُونَ
“Fight against those who believe not in Allah, nor In the Last day, nor forbid that which has been forbidden by Allah and his Messenger and those who acknowledge not the Religion of Truth among the people of the Scripture (Jews and Christians), until they pay the Jizyah with willing submission, and feel themselves subdued.”
Al-Mugheerah Bin Shu’bah related that he said to a soldier of Kisraa (Persia) on the day of Nahaawand: “We have been commanded to fight you until you worship Allah alone or that you pay the Jizyah.” (Extracted by Al-Bukhaari, Al-Mughni of Ibn Qudaamah: 567/10, refer to Fat’h-ul-Baari 258/6 Hadeeth Number 3159)
It is related from Buraidah that he said: “The Messenger of Allah ﷺ when sending out a leader on a military expedition or in command of an army would exhort him (the leader) with the Taqwaa of Allah Ta’Aalaa within himself self specifically and for good treatment to those that went out with him from amongst the Muslims. He ﷺ said to him: If you meet your enemy from amongst the Mushrikeen then call them to one of three matters: Call them to Islaam and if they respond positively then accept that from them and desist from them, if they refuse then call them to give the Jizyah and if they respond positively then accept that from them and desist from them, if they refuse then seek help relying upon Allah and fight them.” (Al-Mughni of Ibn Qudaamah: 567/10, Hadeeth related by Muslim 1731, 1356/3)
It was mentioned in Al-Mughni: “And the reality of the giving is not considered nor is the application of the Ahkaam because the giving of the Jizyah is at the end of the year and the desisting from them is at the beginning of it at the time of the spending (giving). And the meaning of His سبحانه وتعالى statement: ‘Until they give’ is: They are bound to giving and they respond to spending (paying) it.” (Al-Mughni Ibn Qudaamah 572/10).
It was mentioned in the Haashiyah of Ibn ‘Aabideen: “The end point at which the fighting ends is the commitment to the Jizyah, not its giving whilst the commitment remains, so the Imaam collects it from him (i.e. the Dhimmi) by force.” (Haashiyah Ibn ‘Aabideen 428-429/3)
In ‘Al-Umm’ of Imaam Ash-Shaafi’iy in regards to the meaning of As-Saghaar (subduing/making small) it was stated:
“Ash-Shaafi’iy said: I heard a number of the people of knowledge saying: As-Saghaar means that the rule of Islaam is applied upon them.” (Kitaab Al-Umm, Ash-Shaafi’iy 176/4)
In Al-Muhadh’dhab: “If the Dhimmi refrains from the commitment of the Jizyah or if he abstains from commitment to the Ahkaam of the Muslims his ‘Ahd is invalidated because the ‘Aqd (contract) of the Dhimmah is not contracted except by it and does not remain without it. And if he (the Dhimmi) fights the Muslims then his ‘Ahd is invalidated and it is the same whether this was stipulated as a condition in the ‘Aqd of Dhimmah or not because the ‘Aqd dictates Amaan (security) between the two sides and fighting negates the Amaan and as such the ‘Ahd is negated by it. If he does other than that…. like he commits Zinaa with a Muslim woman, or he afflicts her in the name of marriage…” The book mentions here a number of matters that invalidate (breach) the ‘Aqd that are differed upon that has been mentioned earlier in this study. He then mentions: “Then if refraining is not stipulated from that in the ‘Aqd then his ‘Ahd is not invalidated due to the remaining of what the contract necessitates in terms of giving the Jizyah, abiding by the Ahkaam of the Muslims and abstaining from fighting them. And if refraining from that was stipulated in the ‘Aqd then there are two points of view:
Firstly, that he does not invalidate his ‘Ahd by it because the ‘Ahd is not invalidated with it without the condition (Shart) and as such is not invalidated by it with the condition. This is like displaying alcohol, pigs and leaving Ghiyaar.
Secondly, that he invalidates the ‘Ahd by it.” (Al-Muhadh’dhab of Abu Ishaq Ash-Sheeraazi 257/2)
In a discussion about the Ahlu-dh-Dhimmah and their refraining from giving the Jizyah it was mentioned in the ‘Haashiyah’ of Ibn ‘Aabideen: “If they were a group that dominated over an area (place) which was their country or other than it, and they openly displayed disobedience and made war, then at that time it is not possible to take it from them except by fighting.” (Haashiyah, Ibn ‘Aabideen 429/3)
This means if the Ahlu-dh-Dhimmah fight in the cause of refraining from paying the Jizyah then they have invalidated the ‘Ahd and due to this it was mentioned in Al-Mughni of Ibn Qudaamah:
“And Abu Haneefah said: The ‘Ahd is not invalidated (breached) except in abstaining from the Imaam upon the basis that he is unable to take the Jizyah from them.” (Al-Mughni, Ibn Qudaamah 608/10)
In the book ‘Qawaaneen Al-Ahkaam Ash-Shar’iyah’ in relation to the Hukm of the rebelling of the Ahlu-dh-Dhimmah against the Islamic authority: “And if they rebel for other than the reason of Zhulm (oppression) or violence (against them) then they are enslaved and if they rebel due to oppression or violence then they are not enslaved.” (Qawaneen Al-Ahkaam Ash-Shar’iyah, 176)
We mentioned earlier that Istirqaaq (enslaving) stated here is a Kinaayah (metaphor) referring to the Hukm of breaching the ‘Ahd due to this Khurooj (rebelling against the authority).
It was stated in ‘Ash-Sharh Al-Kabeer Wa Haashiyah’ of Ad-Dusooqiy in relation to the participating of the Dhimmi with the Baghi (rebelling) Muslim in the fighting against the Imaam (i.e. against the legitimate authority) that:
“And the Dhimmi with him is in breach of the ‘Ahd… And all this applies in the case of the Khurooj (rebellion) against the just Imaam whilst other than this and the one who goes out in resistance then the Dhimmi who rebels against the Imaam with him (i.e. the Muslim rebel) does not breach his covenant (‘Ahd).” (Haashiyah, Ad-Dusooqiy ‘Alaa Ash-Sharh Al-Kabeer, 300/4)
These are some of the texts and statements that we have seen to be related to the situation of the Ahlu-dh-Dhimmah today and it is possible to apply them and issue a Hukm in this issue through them.
We summarize these texts and statements to that which the Fuqahaa have agreed upon irrespective of their Madhaahib. The matters that invalidate the ‘Ahd of the Dhimmah are restricted to a single issue: Taking up arms against the Islamic authority and those who support it from amongst the Muslims.
That is because abstaining from the Jizyah or refraining from submitting to the Islamic rule which are legitimate justifications for the Muslims to fight the Ahlu-dh-Dhimmah as was understood from the Aayah of Al-Jizyah mentioned earlier, does not lead to the breaching of the ‘Ahd if the abstaining was not accompanied by taking up of arms or rebelling against the authority. This is because the Islamic authority by way of force can compel them to fulfil what their contract of Dhimmah committed them to just as it can compel Muslims by force to abide by what they are have been committed to perform or pay.
However, in the case where the Ahlu-dh-Dhimmah take up arms whilst abstaining from that which they have committed to, then the issue has become the Qitaal (fighting) of the Ahlu-dh-Dhimmah against the Muslims and the Islamic authority. In regards to this the Fuqahaa have agreed that their ‘Ahd is breached in this circumstance and case in which they possess Quwwah (power) and Man’ah (prevention) due to their taking up of arms and their fighting against the Sultah (authority).
In other than this issue of Al-Qitaal from amongst the matters that have been called Nawaaqid (invalidators) of the ‘Ahd then this has been differed upon and is a disputed issue: Do they breach and invalidate the ‘Ahd of the Ahlu-dh-Dhimmah or do they not? And every issue has been differed in regards to it or disputed upon. Indeed Allah ‘Azza Wa Jalla has commanded that the Hukm (judgement) be returned to the Shar’a when He سبحانه وتعالى said:
وَمَا اخْتَلَفْتُمْ فِيهِ مِنْ شَيْءٍ فَحُكْمُهُ إِلَى اللَّهِ
“And in whatsoever you differ, the judgement thereof is with Allah.”
Returning to Allah in regards to the judgement means returning back to the Kitaab and the Sunnah i.e. returning to the Shar’a. Returning back to the Kitaab and the Sunnah or the Shar’a means returning for judgement to the one who has the ruling authority and this is the Khaleefah or the Imaam, or the one delegated by the Imaam or the Khaleefah in terms of rulers and judges. This is because the ruling or judging over the people falls under the Wilaayah or Sultah (authority) and there is no Wilaayah for the one who has not taken it by way of the Bai’ah (pledge) to act upon the Kitaab of Allah and the Sunnah of His Messenger, as has been mentioned previously.
Ash-Shawkaani said: “The one who has not been given the Bai’ah by the Muslims does not possess Wilaayah (authority) and he has no right to take hold of the affairs that the Imaam manages (is responsible for) whether in full or partially because the Sabab (cause/reason) for the Wilaayah is the Bai’ah.” (As-Sabeel Al-Jarraar Ash-Shawkaani 277/4)
He also stated: “What is intended by the appointing of the Imaam is the implementation of the Ahkaam of Allah ‘Azza Wa Jalla.” (As-Sabeel Al-Jarraar Ash-Shawkaani 507/4)
As such it is essential for there to be an Imaam for the Muslims who will have the say in the matters in which there is difference or that other than him is delegated from amongst the rulers (Hukkaam) and Qudaa (Judges) to do this and we have previously mentioned the acceptance upon the principle establishing that the ‘Order of the Imaam raises (i.e. removes) the dispute/difference’ (Amru-l-Imaam Yarfa’u-l-Khilaaf) (Majaalah Al-Ahkaam Al-‘Adliyah page 10).
As such any party seeking to make judgement in this matter who is not the Imaam or delegated to do so by the Imaam is considered only as giving Fatawaa (verdicts) infringing upon the legitimate authority (As-Sultah Ash-Shar’iyah) and going outside of the obedience to the leaders that Allah سبحانه وتعالى has commanded us to obey. In relation to this Ash-Shawkaani stated: “And from the obligatory obedience is that none assumes Wilaayah (authority) unless it is by their permission (i.e. the Khulafaa of the Muslims) otherwise it would be considered as a contesting of the command and the prohibition (Tahreem) of that has been firmly established.” (As-Sabeel Al-Jarraar Ash-Shawkaani 276/4).
Ash-Shawkaani indicates in these words to the Hadeeth of ‘Ubaadah Ibn As-Saamit (ra) in which he relates: “We gave the Bai’ah to the Messenger of Allah ﷺ upon hearing and obeying, in hardship and ease, what we like and dislike and when precedence is given over us. And that we should not dispute with the one in authority (Al-Amr Ahlihi)…” (Al-Bukhaari, Muslim, Maalik and An-Nasaa’i: Jaami’u-l-Usool 253/1. Hadeeth number 44).
What is meant here by Al-Amr is the Sultah or the Wilaayah (i.e. the authority) and any act that is specific the acts of authority if performed by any direction that has not been delegated by the one who possesses the legitimate authority is considered to be disputing with the Amr Ahlihi (i.e. the legitimate authority) and this is a matter that has been established firmly to be prohibited as noted by Ash-Shawkaani.
Built upon this understanding, then as long as there is no Imaam for the Muslims like today after the removal of the Islamic State from the international community, the matter of who has the final arbitrary say in regards to the different forms of breaching the covenant and in regards to what the citizens from amongst the Ahlu-dh-Dhimmah have perpetrated, I say: The direction (i.e. authority) that possesses the right to adjudicate in this matter does not exist and therefore it is not permitted to issue a ruling upon the Ahlu-dh-Dhimmah today – from other than those fighting – in terms of them having broken the ‘Ahd (covenant). In addition: It is not permitted to make their blood permissible or their wealth (property) or honour permissible and this is because this protection accorded to them is firmly established in the contract of the Dhimmah and there has not been issued a legal ruling from the legitimate authority that has invalidated this protection based on them having committed this or that act from amongst the different matters which breach the covenant, and this is whilst knowing that their contraventions are no less than the contravening of a great number of the Muslims in regards to the rulings of their Deen and their legislation. So how are we able to pass a verdict against the Ahlu-dh-Dhimmah and demand from them to abide by the Shar’a of Allah whilst not demanding this from the Muslims?
This is in regards to the exiting of the Ahlu-dh-Dhimmah from the Shuroot (conditions) that were taken upon their predecessors in relation to that which we have named as matters that breach the ‘Ahd (covenant).
The above is a draft translation from the book: ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya’ by Sheikh Dr. Muhammad Khayr Haykal.