Operating Islamic Jurisprudence in Non-Muslim Jurisdictions: Traditional Islamic Precepts and Contemporary Controversies in the United States

Chicago-Kent Law Review

Volume 90 Issue 1 Shari'a and Halakha in North America Article 5

1-30-2015

Mustafa R. K. Baig University of Exeter

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Recommended Citation Mustafa R. Baig, Operating Islamic Jurisprudence in Non-Muslim Jurisdictions: Traditional Islamic Precepts and Contemporary Controversies in the United States, 90 Chi.-Kent L. Rev. 79 (2015). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss1/5

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 35947-ckt_90-1 Sheet No. 47 Side A 01/14/2015 15:25:42 , COM . BOUT , A and Newt Gin- 2 lib) Ư৫Ɨ * ) 1/14/2015) 9:16 AM AIG Ibn Ab Ư ELETE D OT N R. K. B 79 79 O (D NTRODUCTION DOCX I (Qur’an: 17:34) USTAFA )(4). M The Anti-Sharia Law Movement in the United States (Arabic/Sufi proverb attributed to ‘Al (Arabic/Sufi proverb attributed When a noble person makes a promise, he honors it. a promise, person makes When a noble Fulfill your pledge, indeed the pledge will be asked of. will pledge indeed the Fulfill your pledge, WITH SIGNIFICANT CHANGES The “anti-Shari‘a movement,” however, gained ground in a ground in a however, gained The “anti-Shari‘a movement,” ( 1 AIG AIG OPERATING ISLAMIC OPERATING JURISPRUDENCE NON-MUSLIM IN P04 - B Critics of the bills across the United States maintained that the revised States bills across the United that the revised maintained Critics of the In 2010, Oklahoma voters supported a ballot measure banning state banning ballot measure voters supported a In 2010, Oklahoma JURISDICTIONS: ISLAMIC TRADITIONAL PRECEPTS AND CONTEMPORARY CONTROVERSIESCONTEMPORARY STATES IN THE UNITED number of states by legallynumber into more the language modifying acceptable laws international foreign and using which prohibited courts from terms generallyspecific exceptions). (with some more wording in the state bills simplyprovided a more cover for the nuanced and stir anti- sentiments to stoke Islamophobic motivation pre-existing Muslim prejudice. Some Republicans raised alarmist fears, such as Rick that comment is “terrorism Santorum’s a tactic, not an ideology.But this ji- and its violent iteration new existential threat to America, [Shari‘a] has yet to be adequatelyhadism, by explained our leaders” 2. Pierre Tristam, * Dr. Mustafa Baig Islamic is Research Fellow University of Exeter’s Institute of Arab and at the Pierre Studies. 2. 1. Awad v. Ziriax, Cir. 2012). 670 (10th F.3d 1111 http://middleeast.about.com/od/religionsectarianism/a/sharia-law-movement.htm visited(last Dec. 6, http://middleeast.about.com/od/religionsectarianism/a/sharia-law-movement.htm 2014). courts from considering Islamic law or “Shari‘a”. The Tenth Circuit subse- considering Islamic courts from out ban singled the part of grounds that down the ban on the quently struck law forIslamic because lawmakers failed to identify special restriction and any where Islamic instances law caused that the amend- an actual problem freedom right to constitutional violated Muslims’ solve, and ment sought to of religion. 35947-ckt_90-1 Sheet No. 47 Side A 01/14/2015 15:25:42 A 01/14/2015 47 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 47 Side B 01/14/2015 15:25:42 . , , : 4 RA AW AW E L PACE The The 5 504–11 HEORY &S ROGRESS :T Y ’ A .P Orientalism ‘ RIENTALISM SLAMIC Ʈ M OC LASSICAL (July 2, 2012), 2012), 2, (July -O A RANICA C I HAR , 16 I , OST ‘a .D:S ,S Ư ,P ATION N LAN ALLAQ ENTER FOR HE &P ABASHI T , C (Michael Freeden & Andrew , T ’ D 3 B. H NCYCLOPAEDIA NCYCLOPAEDIA NV E [Vol 90:1 90:1 [Vol , E AEL AMID AMID (Aug. 1, 2011), 1, 2011), (Aug. ) 1/5/2015) 9:32 AM ,30 URISPRUDENCE IN THE RACTICES J Feqh P ELETE D , ACLU n and the Genesis of Shar OT Ɨ N SLAMIC jurisprudence Some aspects of this O 6 ,I (D HEORIZING (2009). There is a burgeoning number of studies on number is a burgeoning There (2009). Citizenship after Orientalism: Genealogical Investiga- Genealogical Orientalism: after Citizenship fiqh. :T DOCX ALDER C ERROR )(4). T HOUGHT T 7 Citizenship Without Nations Citizenship Without ORMAN ORMAN CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Engin F. Isin, IME OF (2009) and Norman Calder, (2009) and Norman T 1–28 (Penguin Books 2003) (1979) (and related works). For (1979) (and related 1–28 (Penguin Books 2003) a refined See OLITICAL P The True Story of Shari’a in American Courts in American Shari’a of The True Story http://www.iranicaonline.org/articles/feqh#article-tags-overlay. Also useful is OWER IN IN OWER P RIENTALISM WITH SIGNIFICANT CHANGES ( ,O AIG AIG RANSFORMATIONS and other related see the introduction and matters, W of AID OMPARATIVE sayson the topic. Fear, Inc.: The Roots of the Islamophobia Network in America Islamophobia Network Fear, Inc.: The Roots of the ,T S 239, 239–79 (2009). 239–79 (2009). 239, available at available fiqh C Y P04 - B Such alarmist fear mongering present in the narrative—whether delib- the narrative—whether Such alarmist in present fear mongering ’ in , OC NOWLEDGE AND DWARD RACTICE tions have been singled out in these have been singled and it is controversies, such aspect—theone lands— living in non-Muslim concerning Muslims jurisprudence Islamic driv- part of the impetus focus of this paper. In addition, which will be the politi- among discussion is the absence of anying the analysis informed legal about what the Islamic cians and anti-Shari‘a campaigners tradition actually linguistic meaning of Shari‘a (“pathway” of Shari‘a linguistic meaning to a water hole”) serves or “path as a just as water is metaphor for its technical usage: for the vitali- essential tylife, so is the Shari‘a for of human wayfarers of traversing the journey of Shari‘a to discover the dictates Muslims attempt life in this world. (the theydivine will of how their lives) through should live out jurispru- deep dential comprehension known as (Colin Imber ed., 2010). 2010). ed., Imber (Colin Ali et al., 7. in the United States, see Wajahat and the anti-Shari‘a on Islamophobia For movement more Robert Gleave’s introduction in N http://www.thenation.com/article/168378/true-story-Shari’a-american-courts#. Edward Said’s to introduction example, narrative), see for of this the historical roots 4. E discourse For some on power, and narrative (and what underpinning points could be argued as K (1999), P 3. Abed Awad, Abed 3. (2012) (for race being constitutive an important factor in constructions of citizenship). &S 80 80 freedomgrich’s is a “Shari‘a that comment of to the survival threat mortal know it.” in the world as we States and in the United at the Qur’ of the Moral Law: A New Look Groundwork 5. Wael B. Hallaq, of the recent academic see for example, expositions on this, To visit some erate or madeof ignorance—mischaracterizes out in regards Shari‘a, both of Shari‘aessence and the under contention to the topic broadly.more Orientalism and citizenship and interesting parallels can be drawn to the demonization of the Muslim Orientalism can be drawn to the and citizenship demonization and interesting parallels citizen States. United of the application of Said’s original thesis in a post-9/11 America, see H a post-9/11 America, application of Said’s original thesis in These reductionist attitudes reflect complete attitudes These reductionist for the moral disregard and considerations of the Shari‘a. and ethical philosophical underpinnings (Aug. 26, 2011), 2011), 26, (Aug. There have been a http://www.americanprogress.org/issues/religion/report/2011/08/26/10165/fear-inc/. States from in the United individuals of responses and rebuttals to campaign the anti-Shari‘a number For some shorter statements, see alike). Alicia Gay, non-Muslims and (both Muslims and organizations ACLU Lens: The Truth Behind the Anti-Sharia Movement Shari‘a, 6. It is in this sense that I use the term Islamic law (or jurisprudence). For discussions on more Vincent eds., 2013); Engin F. Isin, 35947-ckt_90-1 Sheet No. 47 Side B 01/14/2015 15:25:42 B 01/14/2015 47 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 48 Side A 01/14/2015 15:25:42 . ) m and Ư Ɨ fi‘ (Nov. 5, Ɨ USLIM , Sh Ư EACE (Nov. 6, 2014), r al-Isl P -M lik Ɨ Ɨ D ON , M EACE Ư N P , anaf OICE FOR ণ V 81 81 NDER OICE FOR U V EWISH , J ) 1/5/2015) 9:32 AM SLAMOPHOBIA I EWISH EWISH IVING , J ELETE L D OT GAINST N A O AND ) intensify, he said to them, “If you he said to them, ) intensify, ) (D School (the largest of the four) for reasons that will Ư (Aug. 28, 2011), 2011), 28, (Aug. EWS EWS ba , J UN DOCX anaf S Ɨۊ ণ URISDICTION HIJRA a ( J )(4). ܇ Anti-Sharia Legislation ALTIMORE , B Part of the concluding comments will outline the comments will outline the Part of the concluding OPERATINGJURISPRUDENCE ISLAMIC 8 IGRATION The So-Called Anti-Sharia Law Movement: Chilling Example A of the Para- M The Anti-Sharia Campaign WITH SIGNIFICANT CHANGES ( USLIM (the two primary law) relating to emigration. sources of Islamic AIG AIG M Rabbis & Synagogues Standing against Islamophobia against Synagogues Standing & Rabbis I. . Much of the focus will be on the will the focus . Much of Ư P04 - B There are two main precedents from the and Prophetic prac- Qur’an There are two main precedents from For purposes of remaining within the natural constraints of the essay, within the natural constraints For purposes of remaining In examining the Islamic jurisprudence of Muslims living under non- under living of Muslims jurisprudence Islamic the In examining Sunna anbal were to go to Abyssiniawill not for you), (it would be better for the king as Allah shall such time until country, friendly tolerate injustice and it is a tice/ The first precedent concerns the persecution of the earlyThe first precedent concerns the persecution followers of the Prophet saw the af- Prophet, especially classes. When the those of poorer Companions ( fliction of his adaptability of the Islamic juristic traditionof the Islamic adaptability with the actual interaction of “Shari‘a” with the contemporary American legal system. http://www.jewsagainstislamophobia.org/wp-content/uploads/2011/09//Anti-Sharia-campaign.pdf (last (last http://www.jewsagainstislamophobia.org/wp-content/uploads/2011/09//Anti-Sharia-campaign.pdf visited Dec. 10, 2014); Jesse Yurow, similar “anti-Shari‘a” trends in Canada and some European countries, although anti-Shari‘a campaigns anti-Shari‘a campaigns European although countries, some and in Canada “anti-Shari‘a” trends similar https://www.aclu.org/blog/national-security-religion-belief/aclu-lens-truth-behind-anti-sharia- Usha Nellore, movement; noid Style in American Politics 2015] 2015] http://articles.baltimoresun.com/2011-08-28/news/bs-ed-sharia-law-20110828_1_anti-sharia-sharia- law-paranoid-style; become apparent later. become 2014), There are http://jewishvoiceforpeace.org/blog/rabbis-synagogues-standing-against-islamophobia. http://jewishvoiceforpeace.org/blog/national-anti-sharia-legislation (includes a number of useful links (includes a number http://jewishvoiceforpeace.org/blog/national-anti-sharia-legislation here); and The third section addresses that question byThe third section at the guidance that looking of lands, in terms in non-Muslim living jurists give to Muslims Muslim Muslim affairs independent from their own legal should organize how they of Muslimgiven to the appointment attention is Particular sovereignty. lands. judges in non-Muslim tradition, of the readers with the authoritative weight and also to provide legal Islamic tradition (specifically pre-modern focus is largelymy on the the Sunni tradition). Muslim rule, Muslim rule, I will begin by the rudimentary looking at Mus- issue of how viewed the lim jurists actuality non-Muslim living in of Muslim individuals by then, as discussed question The ensuing is the rela- jurists, jurisdictions. Is- extent to which polity, has to a Muslim and the a Muslim that tionship laws lamic jurisdictionallycan be (if it all) to and applied extended territory ( the jurisdiction of Muslim Muslims living beyond have not been as organized nor have they had the same they had the same in have not been as organized nor have impact Europe. 8. namely jurisprudence, of Sunni That is within the four schools ণ 35947-ckt_90-1 Sheet No. 48 Side A 01/14/2015 15:25:42 A 01/14/2015 48 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 48 Side B 01/14/2015 15:25:42 - AL ণ INA -M ama Ibn Abjar ama Ibn L ’ ৢত YA BI Ʈ ADUN There are numerous -L 11 [Vol 90:1 90:1 [Vol verse”) to determine the legal aspect verse”) to determine ) 1/5/2015) 9:32 AM HIB AL Ɩ hijra ELETE AW D 146 (A. Guillaume trans., Oxford University note 9, at 148. and extol the virtues of those that OT -M N O LLAH supra AL (D , hijra A ণ Q L ǋ ণƖ HAR DOCX S Upon arrival, the Muslims engaged them- engaged the Muslims arrival, Upon AS 9 I R )(4). , S BN ), the king of Abyssinia was a devout Christian and a great Christian was a devout Abyssinia of ), the king Ʈ Ư N RAT sh Ɩ Ʈ Ɨ day of the Islamic month of Safar), the Prophet of the Islamic month day CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ,S th ARQ Q -Z ণƖ S I note 9, at 198. BN I supra , Q WITH SIGNIFICANT CHANGES Although it is not a like-for-like precedent, as the migration ( 503–06 (1996) (Leb.); I ণƖ UHAMMAD AL 12 S YA I AIG AIG Ʈ UHAMMAD BN P04 - B In this first instance of Muslims migration, exercised self-exile in or- In the year 622 (26 AMMAD Verily, those who are given death by the angels while they were wronging themselves, the were wronging themselves, they while the angels by death are given those who Verily, land. were oppressed in the We in? reply: They were you In what [plight] to them: angels say for you to emigrate? Such people will They say: enough the earth of Allah spacious Was not and chil- women men, weak among Except the refuge! Hell - what an evil in their abode find [to the guidance to a way land of migration]. have nor power in their who have no means dren em- Whosoever Forgiving. and Pardoning for Allah is most For these, Allah will pardon them ণ 10 U left for Mecca. This event marks the beginning of the Islamic calendar and the Islamic the beginning of marks left for Mecca. This event the obligation on all the Companions to emigrate. selves in selves in acts their piety, of worship and peacefully host among living community. time,After some news had Meccan population spread that the to Companions returned of the Prophet So some Islam. to had converted Companions returned Mecca, only Some news was untrue. to find that the them- to conceal and failed Abyssinia,again to others attempted while selves. When more they persecuted and tortured were they were found, Abyssin- them to leave for ordered the Prophet again Hence, than before. ia. verses in the Qur’andiscuss the that migrate(d). 9. M 9. 82 82 yourelieve your from distress.” Press 2001). Negus (Arabic: al-Naj M 1 scholar of the revealed scriptures. A He was recognized for his justice and tolerance. and died in 9 later converted to AH. (his proper name) Islam 10. 12. “ (known as the frequently mentioned The one most M 11. I 11. der to avoid persecution. But the next migration to take place was of a dif- migration next persecution. But the der to avoid was not voluntaryferent nature. It as it was in previous case butthe Yathrib at the to Medina (known as to emigrate order the and obligatory, time) was not only for a few Muslims, but for almost the entire Muslim A summarized Mecca. of events is as follows: description of the population of the Aws and members idola- tribes of Medina (who, although Khazraj ters, kept close companywith the Jews of Medina) converted to Islam to theyheard verses of the Qur’an recited to Medina where through visits by an emissary the Prophet, and through them from sent Mecca. to them there, taking aninvited the Prophet The new Muslim community in Medina with established As Medina their lives. him protect they would oath that itself as the Prophet permitted his and Muslims, a safe haven for Islam tomigrated except those Companions Gradually, all Medina. to migrate not have the financial to do so. or did means who were either imprisoned of migration reads: reads: of migration 35947-ckt_90-1 Sheet No. 48 Side B 01/14/2015 15:25:42 B 01/14/2015 48 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 49 Side A 01/14/2015 15:25:42 : Ʈ M Ɩ had IYAR S SL S -I ’ Some 13 AL Ʈ AWL into English HAYBANI 3 (n.d.) (Pak.). -D (expeditions). (expeditions). r al-Islam ǋ৫ :S Ɨ N AL siyar D ABS 14 ǋ siyar N -M if Ɩ ATIONS (abode or territory of (abode or territory of 83 83 N -Q B AL Ɩ AL , ‘ahd IT ) 1/5/2015) 9:32 AM AW OF AW , K Ʈ L ELETE ) or , not only as “ways”conduct of only , not HADDURI D r al-Islam K Ɨ OT ARAKHS literally means of War,” it “Abode SLAMIC N D I dana -S O siyar AJID AJID Ɨ (D HE arb ۉ ,T muh DOCX MAD AL and jihad are grouped together to form a form and jihad are grouped together to ণ ( A )(4). r al- Ɨ siyar HADDURI D K (territory of war), reflecting the historical reality of (1975). , hudna Ʈ ۊ N AJID OPERATINGJURISPRUDENCE ISLAMIC Ɩ ul arb ܈ UHAMMAD IBN ۉ M , HAYB -S L AKR r al- ’ da‘a B , is that the early Muslims and non-Muslims contact between Ɨ WITH SIGNIFICANT CHANGES ( Ɨ b ǋ D B Ɨ AIG AIG b IYAR LI -S , 4:97–100 (translations of Qur’anic verses are , 4:97–100 own). my Sometimes, the terms Sometimes, the terms P04 - B Before looking at these legal discussions, it is importantBefore looking at to comment , or B AL b igrates in the cause of Allah will find plenty and spacious refuge. And he who leaves his igrates in the cause spacious refuge. And he who leaves his and find of Allah will plenty then his reward is andhim, emigrating befalls death toward Allah and His Messenger home certain with Allah Forgiving and Merciful. and Allah is most Ɩ r al-muw Ɨ IT Ɨ 14. See for example M (1966) and the Arabic edition by the same author M same the (1966) and the Arabic edition by K 2015] 2015] took place that was from anotherland to a non-Muslim land non-Muslim being jurists did, land, as was Medina), the(Mecca at a non-Muslim time question of to Medina to the to emigrate nevertheless, link the imperative and it results lands, non-Muslim to reside in it was permissible whether to prac- freedom the the fact in Medina meant joining the Prophet that from oppression. faith without tice the Islamic discussions are located jurispru- on where these works of Islamic in the legal in classical with non-Muslims relations of Muslim dence. The subject of heading the under literature is primarily discussed juristssubject of defined the Muslim of the warriors and what is incumbent but also as on them and for “them,” unbeliev- from of groups ranging wide spectrum with a governing relations to those with whom treatiesers and apostates have been made. was largely by virtue of warfare, actual or potential. Hence, Muslim juristswas largelyHence, Muslim actual or potential. byvirtue of warfare, bifurcated the world into two realms: heading. The impression that Muslim/non-Muslim relations are confined that Muslim/non-Muslim to impression heading. The military struggle seems to bybe confirmed content and titles of both the has subsectionsthis section of jurisprudence. The section that largely cover aspects of warfare, imamate (leadership in war), taxation, treaties, spoils of the war, rebels Perhaps the reason such headings dominate and apostasy. kit and Islam) the time. This feeds the impression only discussed jihad and the that jurists in reference to military struggles against the relationship with non-Muslims Although the term enemy. 13. 10 A Qur’an as Islamic international or the Islamic law of nations. law writers, aiming to find an analogous term, have rendered analogous term, find an to writers, aiming does not refer to a perpetual state of physicaldoes not refer to a perpetual state of nor—as we war, see— shall does it preclude the possibility abidance of peaceful Muslim in non-Muslim territory was sometimes designated as non-Muslim territory. Furthermore, d 35947-ckt_90-1 Sheet No. 49 Side A 01/14/2015 15:25:42 A 01/14/2015 49 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 49 Side B 01/14/2015 15:25:42 - - , ǌ Ư are n Ɨ B AL arb Ɩ YAT AL YAT ۉ available IT Ɩ ID :K r al- Ʈ B M ণ Ɨڱ Ɩ School, d. Ư as simply a land of as simply SL with a securi- HAR L. (2010), (2010), L. -I S L 17 ’ Muslim scholars scholars Muslim arb anaf AL , 8:56–61. Some Some , 8:56–61. modern arb YA ۉ Ʈ NT ণ Ɩ 15 ۉ .I ID 16 r al- AWL UB Ɨ -H P arb. D -D r al- AL 18 ۉ Ɨ , [Vol 90:1 90:1 [Vol Ʈ See Qur’an ” of the purpose because N D N AL ) 1/5/2015) 9:32 AM ). Ɩ ǋ N or “sun of the leading schol- Ʈ rib r al- AN 19 Ɨ (abode of non-belief) and non-belief) of (abode ELETE Ɨۊ -Q D D mu ARGH fa’s opinion is relayed is fa’s opinion when he is OT jurist and redactor of al-Shayb Ư AL Ư , N NCYCLOPEDIA OF Ʈ -M ). O E N Ư an (and with are these terms often used in conjunction distinguished from from distinguished in meaning z r al-Kufr r al-Kufr Ɩ (D AL Ɨ Ʈ Ɨ anaf L note 14 (translator’s introduction); Mohammed Fadel, note 14 (translator’s introduction); Mohammed D arb ǌণ ণ ۉ ‘A ). HAYB DOCX LANCK Magh P ) refers to Jews and belief Christians (or those that have in -S supra arb b , r al- )(4). (d. 189/805)—who is among two of Ab is among (d. 189/805)—who fa (the eponym of the eponym fa (the Ɨ ۉ Ɨ Ư AX Ư ASAN r al-Kufr is D Ɨ n ণ shams al-a’imma, - Ɨ D an , M r al- CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW AL ASAN AL Ɨڱ ǋ HADDURI ), exercising a type of suzerainty over them (although, according to to (although, according ), exercising over them suzerainty a type of ণ - B Ahl al-Kit and marries from among the inhabitants of that terri- of that the inhabitants among from marries and ǌণ A n jizya Ɨ N Ʈ ) for trade,” Ab BN AL -D n I am Ɨ 191 (M. Khadduri ed., 1975). Ʈ N N AL Ɩ was that they were fa replied: I disapprove of his doing so. so. doing his of I disapprove replied: fa am , Ɩ Ư WITH SIGNIFICANT CHANGES ( (referred to as an Ư URH AIG AIG HAYB UHAMMAD and Expeditions of the Prophet ( and Expeditions of -S ǌণ 138-139 (n.d.) (Egypt). (Egypt). (n.d.) 138-139 L Ʈ ’ P04 - B Nonetheless, Ab Muhammad al-Shayb The renowned Transoxanian fa’s most widelyfa’s most cited students—gives his opinion in regards to a per- Siyar tory who is from tory who is from the People of the Book? Ab valid? be marriage a such would he marries, if But I asked: He replied: Yes. of why did it? disapprove you Then, I asked: in it. his living of disapprove I replied: Because He I asked: What is your opinion of a Muslim who enters non-Muslim terri- non-Muslim who enters of a Muslim opinion is your What I asked: tory under an Ư an UBTAD http://www.law.utoronto.ca/documents/Fadel/Max_Planck_Final.pdf. http://www.law.utoronto.ca/documents/Fadel/Max_Planck_Final.pdf. IYAR LI Muslim reformers advocate the reconceptualizing of these categories to reflect their perception categories these advocate the reconceptualizing of of the reformers Muslim Also see K order. world modern non-Muslims as opposed to one hostile to Muslim lands to Muslim ( as opposed to one hostile non-Muslims used interchangeably but sometimes but sometimes used interchangeably and understood as derivatives of as and understood jihad is to actualize peace and repel evil that result from continued hostili- continued actualize peace jihad is to result from repel evil that and this is what “servesties, and of Muslims.” the interests 18. M divine scripture). 18. prominent jurists, wealth should only be taken when the Muslims are inthe Muslims a state of need). be The default taken when jurists, wealth should only prominent position, however 150/767) reportedly disapproved of Muslims residing in non-Muslim terri- non-Muslim residing in Muslims reportedly150/767) of disapproved entering heading of “Muslims tories. Under the son that converts to Islam in non-Muslim territory.son that converts to Islam in non-Muslim states that the duty He toto the land of Islam after conversion, migrate majority to the according of scholars, was of the Prophet in Medina. In support abrogated at the time of the Prophet: “There is noof that assertion, he cites the narration migra- after the conquest of Mecca.” tion [required] ণ 17. ( People of the Book M S viewed peace settlements as “jihad settlements viewed peace al-Sarakhs tax ( return for a tributary 15. in was sometimes these regions land of the Muslim by and recognition Such an agreement 84 84 peace treaty into a entered with or truce 16. 2 B 2 at 16. History of Islamic International Law International History of Islamic ty covenant ( Jihad, 19. collections of places in under the chapters of Pilgrimage, Mentioned in a number all major asked by his pupil about marriage with People of the Book: with People of the pupil about marriage asked by his 35947-ckt_90-1 Sheet No. 49 Side B 01/14/2015 15:25:42 B 01/14/2015 49 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 50 Side A 01/14/2015 15:25:42 Ʈ n R Ư Ɩ al- as Ư -Q lw Ɲ 271–72 271–72 —that R Ʈ hijra 20 AB m al-D Ư 4:97 123 (n.d.) MDAT AL -K n al-Bar N Ɨ Ɩ ’ , ‘U Ʈ UR ) Kh Ɨ YN IYAR AL -Q it. Other scholars -S -‘A jurists looked at the the jurists looked at R AL Ư (Raz Ʈ AL 85 85 ণ ঌƗ AFS forbid fa merely disapproved of disapproved fa merely anaf T HAR MAD AL Ư Ʈ ). ণ ণ ) 1/14/2015) 9:17 AM ’s opinion, stated that the that stated ’s opinion, fa’s statement as to whetherfa’s statement ,S Ư A an Ʈ mad Ri N F Ư ত n Ɩ Ɨ an BN ELETE Sunna RF ) hand, if is found. On the other I ǌণ D -‘I D OT ARAKHS ǋ ǌণ (d. 855/1453), commenting on the commenting (d. 855/1453), on the that he performs migration to that to migration that he performs Ư N M Similarly,great Egyptian tradi- the -S O ণ IN AL IN 21 sabab ’ A (D Ɩ jib) jib) M Ɨ AKR AL HAZ DOCX w B ,K Ʈ ǋ , a on A marginalia )(4). n al-‘Ayn n B D Ư Ɨ ), and is aware of a land where he can practice Ɩ A B ڲ m fa’s opinion does not contradict that of his fol- does not contradict fa’s opinion ࠂ UHAMMAD Ɩ Ư ’i D M Ɨ Ɩ MAD an ǋ ণ note 13, at 8–9. B UR A far OPERATINGJURISPRUDENCE ISLAMIC A scholar (and exegete) from India, Na‘ ) in the obligation to migrate away from non-Muslim non-Muslim away migrate to from ) in the obligation fa’s opinion considered the question of Muslims resid- of the question fa’s opinion considered -M ǌণ Ư 18 (2003) (Leb.). (Leb.). 18 (2003) Ư Ʈ BN BN N supra I Ʈ R after the conquest.” , Ʈ Ɩ an illa -D N AL Ʈ shiya Kanz al- shiya Kanz anaf -D UKH ণ ǌণ Ɨۉ is not found, and Muslims can live honorably,the obliga- then and Muslims is not found, WITH SIGNIFICANT CHANGES -B hijra ( (d. 1948/1367), as he commented on the verse of obligation ARAKHS Ư ADR AL M AL UHAMMAD AL Ʈ d -S AIG AIG ‘ Ɨ M A As well as the Prophetic narration, the As well as the Prophetic AL b The important condition of having knowledge of a land where he knowledge of a land where of having condition The important ণƮণ sabab Ɨ 22 A 23 ৡ d P04 - B One should also bear in mind that Ab Ɨ ’s translation of the Qur’an). ণ Ư HAR his faith, then it is obligatory ( obligatory it is his faith, then land.” that “if a Muslim is residing in a land where he is unable to perform his perform is residingwhere he is unable to that “if a Muslim in a land ( religious obligations or not it was possible for Muslims living to carry in non-Muslim lands out conceptual continuitytheir religious duties. Moreover, this was expressed by the late elaborated on the implicit concern in Ab elaborated on the implicit Mur Muslims living in non-Muslim lands—he did not Muslims living in non-Muslim ing in non-Muslim lands with the operative cause in place. Later scholars did not if Muslims byclarified and elaborated his view mentioning that find themselves being oppressed or persecuted, then in they could remain territory. non-Muslim operative cause ( lands. Although Ab Hadith, mentions that Muslims Hadith, that Muslims fled withmentions Allah and their religion towards and in his time away Islam, fear of enticement His Messenger for from (already), he noted, Muslims are able to Lord wherever they worship their desire. tionalist and jurist, Badr al-Dtionalist and jurist, Hind (Pak.) (known as (Pak.) (known 23. N 23. 22. 15 B 15 22. “there is no 21. 1 21. 20. Transmitted reports of Prophetic practice/sayings ( S such a conceived the is lifted. Hence, scholars of majority tion to migrate to the Hadith of Mecca in accordance the conquest ending with 2015] 2015] al-Shayb commenting (d. 499/1106)), ars” the Qur’anic was obligated in migration because the verse (cited above) to would continue and the obligation oppression Muslims under were living cause ( if such a the Day of Judgment (1958); 10 (1958); can practice his faith without difficulty is added. lowers, if one did attempt to reconcile any apparent difference, one could any apparent to reconcile attempt lowers, if one did argue that Ab 35947-ckt_90-1 Sheet No. 50 Side A 01/14/2015 15:25:42 A 01/14/2015 50 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 50 Side B 01/14/2015 15:25:42 - Ư (d. ] of Ư supra Ibn hijra , b ya 28 Ư was so 33 (Dale relates, AJAR AL ৬৬Ɨ h ATH ণ ‘ Ɨ m SH Ɨ The narra- BN -A kar 25 6I 154 (2002) (Leb.) (Leb.) 154 (2002) Sunan Sunan MAGINATION BN AL I r al-Isl d’s placing of the the d’s placing of 161 (Leb.); K. Abou El Abou El K. 161 (Leb.); ” rules this out, at 146–47 (Brill & Leiden & 146–47 (Brill Ɨ ǌ 3 I D w MM Ɨ USTADRAK shirk -U OCIETY D ELIGIOUS -M S s and other Companions Companions s and other see also R ǌ [Vol 90:1 90:1 [Vol Ɨ AL , ‘ 80–81 (1980) (Leb.) (Hadith report report (Hadith (Leb.) 80–81 (1980) ‘ AL Ʈ d, in his ) 1/5/2015) 9:32 AM ‘ , MI ǌ Ʈ FI Ɩ R 93 (n.d.) (Hadith report 2787). Ɩ w ǋ -J H Ɨ P ELETE AW AND Ɩ D -S L AL , UNAN Ʈ SH OT Ʈ D 378 (1959)). 378 (1959)). Ʈ N ,S S AL ǌ R Ʈ -N O Ɩ h Ibn ‘Abb (D DR Ɨ ATH SLAMIC I ‘ IRMIDH IGRATION AND THE UKH -T SH 1 I BN KIM AL DOCX -B I ,M -A in Ɩ AL Under the same heading,report another school—analyzed the legality of Muslims legality of school—analyzed the , Ɩ ণ Ư The Obligation to Migrate: The DoctrineThe Obligation to Migrate: of ‘Hijra’ in Islamic AL )(4). - S 26 Ʈ ‘ fi‘ BN AL ণƮণ I Ɨ A H AL BN N ৡ I Ɩ CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW was actually meant to support the and strengthen Ɩ ণ ILGRIMAGE UHAMMAD note 26, at 80 (Hadith report 1654); M ,P HAR H BDULL S hijra Ɩ ULAYM Ʈ supra (d. 852/1448)—among the foremost Hadith commenta- Hadith the foremost (d. 852/1448)—among (d. 204/820) argued that, even after the establishment of establishment even after the argued that, (d. 204/820) ‘A R S , Ư Ư Ʈ 24 UHAMMAD Ɩ D n ǋ School seems seems School Muhammad position. in their to be unified ǋ M Ư B -B Ɨ fi‘ BDULL W Ɨ Ɩ RAVELLERS in its nascent days. After the conquests, in its nascent days. S Ɩ fi‘ AL ૜ ‘A T WITH SIGNIFICANT CHANGES 2A ‘ Ɨ IRMIDH ণ ( D m ǋ ǋ ǋ -T AT B Ɨ B B Muhammad Khalid Masud, Khalid Masud, Muhammad AIG AIG AL , F Ʈ USLIM s al-Sh See Ư N , would not have given these people a choice of residence if it were people a choice given these , would not have Ư Ɩ M See also 27 P04 - B There does seem to be some difference of opinion among the scholars the scholars among to be some difference of opinion There does seem The Sh The Other Hadith narrations indicate that Other Hadith narrations the Prophet forbade Muslims in fi‘ Islamic Law and Muslim Minorities Islamic Law and Muslim , r al-Isl Ɨ SQAL ajar al-‘Asqal Ɨ residing among polytheists.” were allowed territory).Additional- non-Muslim in Mecca (then a to reside to to Islam remain that converted nomadic tribes allowed ly, the Prophet to al- The Prophet, according lands of Islam. domains of the outside the Sh the Islamic rule in Medina, ‘Abdull rule in Medina, the Islamic Ibn Idr Eickelman PiscatoriEickelman and James eds., Univ. of California Press 1990) (citing Fadl, ‘A 1655). 1655). “[W]hoever joins a polytheist and lives with him is like him.” is like him and lives with joins a polytheist “[W]hoever ণ tors and a jurist of the Sh states, “I disavow myself of every Muslim who settles among the polythe- the who settles among of every Muslim states, “I disavow myself ists.” 24. 4 A 4 24. 86 86 27. 3 (Hadith report 2627). 27. narration under the heading “living in the lands of narration under the tion could refer to Muslims residing in the dwellings of non-Muslims (as in the dwellings of non-Muslims to Muslims residing tion could refer but Ab used are all in the singular), the pronouns by al-Tirmidh narration is mentioned A similar least according to him. disapproval [ of “the (with plural pronouns) under the heading 388/988), an early388/988), an Hadith commentator, reconciled the differences of opinion by that arguing D note 25 (Hadith report 2645). note 25 (Hadith report 2645). 28. Law sinful for them to retain their independence. Consequently, Muslims who Muslims Consequently, to retain their independence. them sinful for landsconvert in non-Muslim may they reside there unless enticement fear Islam. away from in how these narrations should be interpreted. For example, Al-Kha For example, in how these narrations should be interpreted. The was no longer required. strong and established that migration required again when be would only the conditions so demanded. 25. 3A 1994). 25. 26. 3 A 3 26. from living with non-Muslims. Ab living with non-Muslims. from 35947-ckt_90-1 Sheet No. 50 Side B 01/14/2015 15:25:42 B 01/14/2015 50 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 51 Side A 01/14/2015 15:25:42 , Ʈ Ư R Ɩ lik MA Ɨ Ɩ UKH UD anbal sim (d. Q -B ণ Ɨ BN AL I ণƮণ and Ư A ৡ fi‘ ma has embraced this ma lik would disap- was understood ণ Ɨ Ɨ Ɨ ma (d. 620/1223), ma (d. 620/1223), UHAMMAD HAR 29 Ɨ S M hijra Ʈ 87 87 R s is near identical. In BN Ư Ɩ I H -B note 29) appears as a shortened (and Ɩ ) 1/5/2015) 9:32 AM AL anbal ণ n (d. 240/855) whether M 240/855) whether n (d. ণ ǌ n Ibn Qud supra supra AT BDULL ELETE Ư lik’s students, Ibn al-Q n D Ɨ ,F ত ‘A Ʈ OT N N Ʈ N Ɩ ], ], and he used to say, ‘they should O -D s and Ư m Sa da (D Ư Ɨ 30 SQAL fi‘ Ɨ sim responded, “Yes, M responded, sim -‘A DOCX Ɨ ajar’s discussion ( )(4). ণ ma’s text. It may well be that Ibn Qud ma’s s, Sh UWAFFAQ AL ya shad Ɨ Ư Ư AJAR AL h ; (iii) he is unable to emigrate due to captivity or or due to captivity to emigrate ; (iii) he is unable ণ Ɨ anaf BN I ণ kar OPERATINGJURISPRUDENCE ISLAMIC Ʈ L ‘A note 12; 8 M note munkar) scholar, Muwaffaq al-D scholar, Muwaffaq verse cited above. lik Ibn Anas (d. 179/795) strongly disapproved of Mus- disapproved lik Ibn Anas (d. 179/795) strongly Ư School, on the other hand, differed considerably other hand, differed with their on the School, Ɨ BN Ư I a land where they were forpersecuted doing so. The juristic supra lik WITH SIGNIFICANT CHANGES , hijra ( anbal Ɨ MAD ণ ণ fa’s view of disfavoring residence. AIG AIG from Ư 456–58 (1948) (Egypt). Ibn Ibn (Egypt). 456–58 (1948) Ʈ a land where Muslims could practice their religious rites unreserv- their religious could practice a land where Muslims Qur’an an to P04 - B The M In looking at the Qur’anic verses, the Prophetic narrations, and the verses, the Prophetic narrations, the Qur’anic at In looking The UGHN ǌণ -M not go to their lands where they will become subject to the laws of polythe- of become subject to the laws will lands where they their go to not disapproved of merchants traveling to non-Muslim territory for the purpose of traveling to non-Muslim disapproved merchants of conducting business, Ibn al-Q prove of it strongly [ counterparts. M territorylims even traveling to non-Islamic of trade, let alone for purposes for permanent residence. When one of M 191/806), was asked by al-Sal ‘Abd view, that lands is to Muslim migration preferable, can be analogized with Ab terms of permanent residence in non-Muslim lands, the Sh terms to be linked to the freedom of worship and to strengthening the new Mus- new and to strengthening the of worship the freedom to be linked to lim community. of the The and his CompanionsProphet took migration place edly and schools do not differ to any with respect to this issue. In fact, great extent the approach of the AL 209–10 (n.d.) (Egypt). (Egypt). (n.d.) 209–10 30. analyses jurists/Hadith of the the concept of scholars, 29. 6 A 6 29. 2015] 2015] permit would that conditions discussed land and non-Muslim in a residing to reside He stated: there. them a (i) if has theMuslim to means emigrate to his faith manifest possible for him not and it is lands, non-Muslim from is there obligatory his emigration from duties, then perform he nor can is possible but it means to emigrate the he has (ii) if him; upon obligatory then it is duties his obligatory and perform manifest his faith to for him Muslims,strengthen and assist the so that he may preferable to emigrate at peace their deception and is from he is secure that engage in jihad, and seeing evil ( from illness, for example, then he is permitted to reside there. then he is permitted illness, for example, from an early writer. slightly modified) version of Ibn Qud version slightly modified) classifies the ruling on emigration into the same three categories. Again, he he three categories. Again, into the same classifieson emigration the ruling refers to the 35947-ckt_90-1 Sheet No. 51 Side A 01/14/2015 15:25:42 A 01/14/2015 51 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 51 Side B 01/14/2015 15:25:42 , - n Ʈ L Ɨ HE RA (d. Ư LIK Ɩ 611–12 611–12 AMILIAR -M T 2A T Ɩ in ,F scholars, n Ibn ‘Aff n Ibn OVENANT s (with some , Ư Ɨ Ɨ NA AL NA Ʈ C lik IPMAN AD Ɨ UMAHHID 102 (1905) (Egypt). (Egypt). (1905) 102 -M Waqq Ɩ Ư -M N. L 119–38 (1981) (Moroc- 119–38 (1981) Bakr Ibn al-‘Arab ǌ UBR HL AL RIB T AL ‘ ECURITY -K A r entering Kerala in India and Ɩ U S Ɨ n Ư -M IQH F [Vol 90:1 90:1 [Vol ONATHAN Ʈ ) 1/5/2015) 9:32 AM R AL F Ʈ Ɩ UQADDIM F 24–31 (1997). Muslim merchants and and merchants Muslim (1997). 24–31 Y 32 Ɩ ‘ NDER A lik Ibn D I -M Ɨ ELETE -K U D HINA -M UDAWWANA AL RADE ja who he married after successfully and hon- after successfully he ja who married C Ư OT B AL AL T -M B AL N Ɩ , ARB Ʈ Ɩ O S IT 383 (2002); J 383 (2002); Ʈ IT AL , (D -H N , K ,K FOR ǋ Ʈ ) N r is actually a name of a person from the third generation from of a person a name r is actually N DOCX ণ UB ORTHWEST Ɨ R AL ৫ Ɩ A USHD ANSHAR n N Ɩ Ư S R )(4). OCIETIES UR lik’s view is the strictest, and seems to defy and seems strictest, is the lik’s view -W As such, trade naturallyplayed an important D D S AM Ɨ Ʈ ( ‘ -Q BN I A 34 AL scholars in a future article. Ư S South-East Asian Islam to the Eighteenth Century Ɩ M CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Y 123 (P. M. Holt, A. K. S. Lambton & B. Lewis eds., 123 (P. M. Holt, A. K. S. Lambton 1984); I lik lik Ibn D lik Ibn 31 ণ Ɨ Ɨ BN USLIM USLIMS IN MAD I A ARR AL ণ M M Y M -B A ].’” SLAM Ɩ NTERING I BN E I BN AL I ra). Ư BD AL -S ‘A and those travels continued throughout the era of the Proph- the era of the throughout continued and those travels MAD note 26 at 150 (Hadith report 7190). There is also mention in some biographical There is also report 7190). mention in some 150 (Hadith note 26 at ণ note 26 at 341–42 (Hadith report 1227). (Hadith report at 341–42 note 26 different Other sources included slightly 33 WITH SIGNIFICANT CHANGES ( BN ISTORY OF BD AL I r may be mythical, the conversion of an Indian king from that region has been linked to linked to been that region has from ther be Indian king may an conversion of mythical, HISTORY OF (d. 914/1508), continued to propagate the same position, albeit albeit to propagate the same position, (d. 914/1508), continued ISTORY OF Ư Ɨ USLIMS m al-shirk H AIG AIG n s Ư supra Ɨ Ư UHAMMAD :A supra M k , , ۊ Ʈ ,AH a II. P04 - B Addressing Muslims in foreign lands as merchants was a particularly as in foreign lands Addressing Muslims merchants KIM Ɩ ণ lik Ibn D - Ɨ AMBRIDGE IRMIDH APIDUS TRANGERS a Hadith (of questionable authenticity) in which the king gifted a jar of ginger pickle to the Prophet. in ginger pickle to the 4which the king gifted a jar of a Hadith (of questionable authenticity) of Muslims renowned for his knowledge and asceticism. Nevertheless, while the details surrounding Nevertheless, and asceticism. knowledge renowned for his of Muslims M converting the king to Islam. M to Islam. converting the king with some scholars taking limited exceptions.limited taking with some scholars Companions) sailed to China from Abyssinia (whist in asylum) in 616 and later again leading an envoy in 616 and later again leading an envoy (whist in asylum) Abyssinia from sailed to China Companions) Similar historians. sources or Western dates) are notby Muslim corroborated in 650 (or other varying M named Companion supposed of a story the of can be said such as the Andalusian Ibn Rushd (d. 520/1126) and the North African al- North the Ibn Rushd (d. 520/1126) and such as the Andalusian Wanshar (24/644-35/656). Popular stories that the venerated Companion Sa‘d Ibn Ab the venerated Companion that Popular stories (24/644-35/656). et and the early caliphate. 543/1148). Some of these positions were, in part, driven by political circumstances on the ground. I I ground. were, in part, driven on the political circumstances by positions of these Some 543/1148). intend to take up the views of M J. de Hermanus Graff, 33. T works of the Prophet (s works of the Prophet went on Not to trade journeys beforethat the Prophet mention himself 34. declaring his political emissaries after the caliphate of ‘Uthm as far travelled and as China during (1970) (Iraq); 2 A pertinent consideration for Muslim jurists, as trading was an important jurists, for Muslim pertinent consideration in the Arab trade of Islam. advent even before the feature of Arab society and East Asia is well- coastal India, South East Asia Malabar region of documented, 370 Arabia). (1980) (Saudi flexibility in the view of Ab There is some AL C L S 31. 10 ‘A 10 31. 88 88 [ ism the social andthe social practice of Muslim historical traders at the time, were who, As in large numbers. lands well as his to non-Muslim traveling forconcern law in general, beingMuslims he is concerned to non-Muslim subject more specifically by being governed transactions with financial non-Muslim traders). Later M asked about he is being rules (considering co). Also see 1 32. M Trade” is Land for Enemy’s the “Travelling to on in the chapter passage opening the The fact that it is instructive of his attitude toward Muslims lands. traveling to non-Muslims 32. prophethood and married the successful merchant Khad the successful merchant married and prophethood said: “[The have reported to the Prophet is for example, her behalf. In one tradition, estly trading on 2 A the Prophets, the truthful, and the status of the] truthful, trustworthy martyrs.” is among merchant 35947-ckt_90-1 Sheet No. 51 Side B 01/14/2015 15:25:42 B 01/14/2015 51 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 52 Side A 01/14/2015 15:25:42 - Ɩ L ’ In al- AL note note ‘ (d. as a 37 Ư arb. n AR LI ), and ৡ Ɨ ۉ supra n arb , Ư N ۉ AYYIRA Thus, it is it is Thus, ǋ r al- UKHTA School, N 35 -N Ư Ɨ ণ ghadar A -M D r al- S AL Ɨ D anaf , Ʈ Ʈ ‘ D R ণ A ǋ S n al-Margh Ư (Joan Spencer trans., North- UD 89 89 BN AWHARAT AL AWHARAT -Q note 16, at 152. -J SLAM AL I AL Ʈ ) of the ) 1/5/2015) 9:32 AM D n al-D , Ɩ Ʈ supra Ɨ , N Nevertheless, Muslim traders . Such rulings dismiss no- the Ʈ Ɩ (claiming a security covenant), GE OF OF GE N ELETE 36 matn This is contrary to a prisoner of This is contrary of to a prisoner Ɩ D A AGHD n AM N arb Ʈ 38 cited above. 3 I cited above. Ɨ OT -B -Y ۉ N attitude toward Muslims trading in non-Muslim trading in attitude toward Muslims 39 Ư O OLDEN ARGH lik (d. 800/1397) explain that this is be- (d. 800/1397) (D Ɨ Ư G D AL r al- isti’m -M n Ɩ Ɨ Ɨ HE in a peaceful state. cannotTherefore, one in a peaceful AL DOCX D ADD ,T ণ UHAMMAD AL )(4). - al-Mudawwana arb M ۉ (jihad), referring to a situation where a Muslimto a situation (jihad), referring AL BN Ʈ I L OMBARD L ‘A , which summarizes legal views of the authoritative r al- Ư MAD OPERATINGJURISPRUDENCE ISLAMIC Ɨ siyar r ণ BN Bakr al-Yam ǌ D A I ǌ 373 (n.d.) (Pak.); 2 AURICE AURICE also adds that, if the contract is contravened also adds that, if the contract is by the non- ASAN AKR Ư UDURI B ণ , 2 M - n WITH SIGNIFICANT CHANGES ( -Q Ɨ ǋ n AL B Ư AIG AIG ǋ ar li’l-Qud B ܈ See, e.g. Id. 296 (n.d.) (Pak.). (Pak.). 296 (n.d.) Ʈ P04 - B In sum, Muslim jurists prohibited any kind of deceit in financial deal- deceit jurists prohibited anykind of Muslim In sum, lands for trade purposes The issue of entering non-Muslim Muslims R ǋ UKHTASAR AL UD cause a Muslim is duty-boundby to abide the security any covenant; in- the law ( of violation a fringement after obtaining it is violation of the law is forbidden (haram). trader, it is not permitted for to infringe him on their propertytrader, it is not permitted and life.” 593/1197) and Ab understandable why the earliest Islamic Islamic why the earliest understandable in traders addressed Muslim jurists legal rules required phenomenon socio-economic lands. This non-Muslim hypothet- that entailed devising even if the various particulars, to deal with purposeful)ical (albeit, comparable scenarios to the adopteddiscourse in No within jurisprudence. other areas independent was usually heading des- trader in legal texts. ignated for the Muslim their commentaries on this statement, Burh their commentaries on this statement, Prophethood due to his dealings with the Arabs and conduct due to his dealings with the Prophethood in trade). 35. Q Holland Medieval Translations 1975) (providing more information on trade in early Islam). information (providing more Holland Medieval Translations 1975) 36. as There are exceptions such 31. This may seem ironic given the M somewhat seem 31. This may lands. 37. A 37. are mentioned in the discussion of of under the section shows that one This lands covenant. with a security enters non-Muslim could in fact enter M words earned before declaring the Prophet himself titles honorific were two Trustworthy (Truthful and 2015] 2015] Peninsula. the Arabian outside Islam of in the propagation role 39. 39. 38. 2 A 2 38. Muslim sovereign or by the consent of the sovereign, then he is no longer consent of the sovereign, then he is by the sovereign or Muslim covenant. the responsible for upholding the School. It states the following: “If a Muslim enters following: “If a Muslim states the the School. It Mukhta war, even one that is freed willingly,is not under a securityhe covenant. as Al-Margh ings or breaking of local law in local law of breaking ings or exclusively ascribe the connotation of war or belligerence to of war or belligerence exclusively the connotation ascribe is addressed inrenowned standard text ( a tion that Islam only Muslims and hostile relations to exist between permits Upon the obtaining of a security mutu- covenant (and paying non-Muslims. 35947-ckt_90-1 Sheet No. 52 Side A 01/14/2015 15:25:42 A 01/14/2015 52 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 52 Side B 01/14/2015 15:25:42 r ): 40 Ɨ al- D arb ۉ jihad. 141 (1973) 141 (1973) YA Ʈ r al- N Ɨ siyar/ d (founder of the d (founder ǌ This suggests This suggests ৫Ɩ D However, the However, the w texts after 41 Ɨ UL 44 Ư It is worth men- -S lik ). 43 134–35 (n.d.) (Leb.). The (Leb.). (n.d.) 134–35 Ư Ɨ B ‘ M AL Ɩ Ɩ qi text above, stated that, text above, stated IT K Ɨ Ư ণ states this without men- states -K r Ư [Vol 90:1 90:1 [Vol /w ǌ -A Ư AL ) 1/5/2015) 9:32 AM and other jurists allocate a jurists allocate and other q Ư AL (he who claims (he who securitya ণ , Ɨ n Ʈ texts, M ward Ư Ɨ ELETE Ɨ HAR n . This thatindicates the jurists entering Muslim territory is also discussed entering Muslim D Ư S d Ʈ WARD OT Ɨ anaf Ɩ N B F ণ O Al-M Ɩ -M qayd ittif (D byway trade (or other of it is means) musta’min UB 42 musta’min -L DOCX AL arb , Ʈ ۉ )(4). N School was much more reluctant to permit permit reluctant to more much School was Ư Ɩ UHAMMAD AL jurist), in his book on the regulations of governance, mentions of governance, mentions regulations on the book jurist), in his b al-Siyar/Jih Ư ) for the ) for the lik M r al- AYD Ɨ CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ɨ b ’s own words. fi‘ Ɨ Ư Ɨ Ɨ BN -M n I D b Kit Ɨ Ʈ , in his gloss on the al-Qud his gloss on the , in L School) as the only person to differ. School) as the only AL Ư Ư Ʈ n ‘A (a Sh hir Ư Ɨ HAN ਋Ɨ -G (d. 448/972), who states that, “[a] Muslim who who states that, “[a] enters (d. 448/972), ASAN ward was not intending to limit purposes of travel to trade only, purposes of travel to trade to limit was not intending Ư Ɨ appear to devote less attention to the case of a person claim- Ư ণ ) but an incidental one ( ) but an incidental - Ư r WITH SIGNIFICANT CHANGES ( z ǌ BD AL Ɨ AL Al-M AIG AIG ǋ ward . B tir Ɨ with a security covenant or is taken captive but then freed and with a security covenant or is Id Id. ۊ P04 - B It is interesting to note that al-Margh note that to It is interesting The obligation to uphold the securityuphold covenantThe obligation to expressly is mentioned arb ۉ qayd i separate subheading ( separate covenant) within the within the covenant) 44. 44. distinguished between the distinguished wayslands ( non-Muslim to enter Muslims to travel to non-Muslim landsplace. Muslims to travel to non-Muslim in the first al- given a security covenant is not permitted to attack them or their to attack them property, given a security is not permitted covenant and has to guarantee them quarter.” difference of opinion among the jurists if any exists. Here he only D exists. Here he only the jurists if any mentions among opinion difference of minority, now extinct, minority, or, from a legal-historical point of view, it perhaps and acknowl- indicates view, a legal-historical point of or, from to non- were traveling in reasons whyedges a diversification Muslims Muslim lands. In other words, “trade”not a is precluding qualification ( that al-Qud agreement of the jurists, if such a contract is made, stillsuch a contract is stands. made, agreement of the jurists, if Mudawwana lands. This is in non-Muslim trader ing a security covenant or a Muslim probablybecause the M one way was through military expeditions, and the other was through other was through one way and the was through military expeditions, are discussed under peaceful such as trade. Both types means 40. The inverse case of a non-Muslim 41. 4 ‘A 4 between law of a of peaceful existence means provision in the the under this section, again signifying and non-Muslims. Muslims 41. 90 90 to it),al observance anybreak to part person allow a does not law Islamic there. persons living the property let alone attack of the law, and tioning here that, in contrast to the tioning here that, in contrast words in parentheses are Mayd (Egypt). (Egypt). 43. by al-M 42. A 42. Later scholars have added other generic means of entry into the Abode of the added other generic Later scholars have of entry into means War, over and these without specifying above trade, might be. For what al-Mayd example, “[I]f a Muslim enters tioning any difference among the four schools of law, pointing towards law, pointing four schools of the difference among tioning any the established schools on this issue. among unanimity not permitted for him to infringe on their property and life.” him for not permitted 35947-ckt_90-1 Sheet No. 52 Side B 01/14/2015 15:25:42 B 01/14/2015 52 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 53 Side A 01/14/2015 15:25:42 - H Ɩ AL has has Ư , of al- Ʈ IN n ) Ɨ r n Ư Ư BDULL territorial SLAM AKHNAW s I ’ -L m convert to to convert Ɨ mi‘ al-Sagh Ɨ (Epitome) but with a ar AYY AL Harb ܈ al-J , where rules for ণ ] - BODE OF BODE would you return you would ’s text but al-Margh 91 91 Ư r al-Isl r A 45 arb r Ɨ ǌ ], r al- ۉ Mukhta whose safety and protection is the and protection is the whose safety Ɨ BD AL D HE ) will not decree anything is a commentary on his own work, on his a commentary is ’s D Ư m ‘A ) 1/5/2015) 9:32 AM r Ɨ ya (T r al- ǌ Ɨ ƯڲƗ Ɨ M D dhimma ELETE q Ɩ jurists discussed the issue of a Ư D , or jurisdiction, is a requisite for r al-Isl or SL al-Hid Ɨ OT ERRITORY (tributary tax). tax). (tributary 46 D ya -I N , or seizes property or a slave and slave and or a property or seizes , 153 (n.d.) (Egypt) (printed with its commentary UHAMMAD T Ʈ Ɨ anaf O kim jizya ণ (D M arb 140 (Leb.) (although I have added some observations R AL wil Ɨۊ ۉ Ɩ See ] with a security covenant, and if then] with a security covenant, UBTAD fa is reported to have responded to the have responded to the fa is reported to YA DOCX Ư Ʈ D USLIM USLIM -M arb an r al- )(4). Ɨ -M ۉ ANAF D ণ note 16. Although - ǌণ ON YAT AL YAT , then the inhabitants of [ , then the inhabitants Ɩ r al- s hold that Muslim jurisdiction cannot extend to jurisdiction cannot extend s that Muslim hold N m Ư Ɨ ID note 18, at 194. Ɨ supra supra because he must have considered its inclusion important. 1 ‘A important. considered its inclusion have because he must JIM AL D OPERATINGJURISPRUDENCE ISLAMIC , B Ɩ ar Ʈ ܈ anaf N are non-Muslim subjects of are non-Muslim AR supra Ɩ T ণ , N Ʈ Ʈ Ʈ r al-Isl N URISDICTION OF URISDICTION Ɨ J Ɩ Mukhta , it is practically, it is a commentary on al-Qud Ư D YA F , the other in an files a suit against Islamic and one of them Ʈ ARGH WITH SIGNIFICANT CHANGES ( HE m HAYB AH -M Ɨ The jurists maintain that The jurists maintain AIG AIG -S -B AL L 47 by the same author same the by Ahl al-Dhimma III. T ). (or from (or from elsewhere if necessary). Ư ya b n ID AL ID P04 - B Behind this discussion lies a larger concept of the inviolability and inviolability concept of the Behind this discussion lies a larger Given the obligation to abide by to abide the security obligation Given the the jurists then covenant, Ɨ ܈ Islam or become a Protected Community [ Community a Protected or become Islam Ɨ Muslims are not applicable. Muslims [action] of the man? of this disapprove you Would I said: on the grounds of his re- of it for him disapprove would He said: Yes—I them. towards perfidiously act ligion to to any them of what this [person]or took, is there liability any forof any wealth or blood? [the victim’s] No. He said: Why? I said: out this act in He said: Because he carried takes it to I said: What is your opinion about this, that someone who goes in who goes that someone What this, I said: is your opinion about [in them amongst in of their men kills one ’ Ɩ yat al-Mubtad r al-Isl Ɨ Ɨ AW gha question of crimes committed in non-Muslim territory and which system of territoryand which system committednon-Muslim in of crimes question conversation: following is applicable in the punishment jurisdiction. The non-Muslim territory. Ab non-Muslim 47. 2 47. 46. A 46. responsibility of the sovereign in return for paying 45. 45. 2015] 2015] al-Hid Shayb added it in his own own his added it in of my own here). Interestingly, this passage is not found in al-Qud in found not this passage is own here). Interestingly, of my F in this regard. The same applies if one embezzles thethe other propertyembezzles of applies if one in this regard. The same ( Muslim in non-Muslim lands who loans money or property (on credit) to a (on credit) lands who loans or property money Muslim in non-Muslim If the two return to a non-Muslim. loaned something by or is non-Muslim D protection of life and property.protection of The court, then the Islamic sovereign ( limited number of changes and additions to the original included from from original included of number to the additions changes and limited had to address what typehad to address apply the contravened of law should if a Muslim this is a type land. Essentially, law of the And in question. of choice-of-law of defining the extent law, it involved Islamic Bid 35947-ckt_90-1 Sheet No. 53 Side A 01/14/2015 15:25:42 A 01/14/2015 53 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 53 Side B 01/14/2015 15:25:42 - - - - n Ɨ n R l Ư ǌ BN AL AL I as ৡƖ r al- Ư The The B N AL 49 17–18 ) to be Ʈ ) HAYKH r -A Ư URR AL 50 Kanz al- ’a bi-d an YA YA D l Tanw ABY note 16, at Ɩ ’s m Ibn Mu- Ibn m ܈ Ɨڲ ta’z Ư Ư Ɩ R AL h ID (2003) (Leb.) (Leb.) (2003) Ʈ ,T arb. Ɨ Ʈ AL note 48. 48. note qa UHAMMAD R ‘ note 48; 4 note 48; ‘ -H Ɨ ۉ . This is due l supra R na a ৡƖ ANW , Ʈ is in opposition to B Ɩ School. m AL Ɨ T Ư T N ণ Ɨ AYLA supra -A supra ণ ণ Ɩ , r al- , U -Z N Ʈ anaf in the Indian Subconti- n) Ibn Ibr n) Ɨ note 16, at 153; 4 16, at 153; note Ʈ HAR Ư and al-Nasaf states: “ ণ ), when the act had ), when the AL HAR R R AL -M Ư S Ʈ D Ʈ S ar ), the judge does not does ), the judge bid R ܈ Ʈ UJAYM ’ Ɨڲ R ARGH UJAYM Ɩ supra r al-Isl mustaqbal mustaqbal .” 4 N Ɩ ANW N Ɨ , AD Ɨ Ʈ Ɨڲ -M LAMG will issue a fatwa to the 168Fakhr al-D (1998) (India). T ma ) of the ADD AL N BN Ɩ D -Q note 47. n ণ ‘ AL Ɩ [Vol 90:1 90:1 [Vol IQ n al-‘Ayn Mukhta ǌ UKHT BN ’ Ư N , R (qa Ɩ Ʈ ) 1/5/2015) 9:32 AM AL Ɩ ƯڲƗ N ;2 ’s Ʈ ণ W Ư HAR -M mut q r S Ɩ note 47. If there is a peace treaty with a AQ supra ǌ , AT ya” yata waqt al-idd yata waqt BID R ELETE ARGH N 593–94 (2004) (Pak.); 6 M (Pak.); 593–94 (2004) Ɨ AT -D Ɨ Ʈ Ɩ Ɩ D , F ‘ n (or Zayn al-‘ IQ note 47; 5 I Ư -M ’ mentions that mentions M 204 (2000) (Leb.). Similar wording used is “ OT Ư URR AL supra BID Ɩ , Ɩ N BN BN AL wil Ɩ N I UKHT YA ‘ Ʈ O ,D AQ Ɨ Ʈ ANZ AL UM Ɩ ya wa ya‘tamidu-h N l 276 (2003) (Leb.) (printed with its commentary 6 supra Ʈ (D Ɨ -M K , R BN -D ID BID -H m (d. 861/1457) adds that although the m (d. 861/1457) adds that although the M N ণ Ʈ Ɩ Ɨ ৡƖ A -H ‘ note 47, at 276. B ASKAF DOCX BID AL HAR ণ BN al-wil -A BN AL URR AL Ư - Ɩ and known as F known and ণ S ANZ AL ‘ Ư I In this case, the judge did not have jurisdic- did not the judge case, In this )(4). note 16, at 153; 5 I note 16, at 153; 5 and Zayn al-D Zayn and r Ư 257 (2000) (Leb.) (compiled by around 400 scholars under the under 400 scholars by around (compiled (Leb.) 257 (2000) supra ’a ya‘tamidu al-wil ,D ǌ IQ 48 Ʈ AL n ,K , (2003) (Leb.) (al-Qud R AL ’ BN Ʈ HAR Ɨ Ʈ Ɨڲ Nevertheless, the Nevertheless, the N YA R np Ɩ Ʈ n Ʈ S 135 (Leb.). Badr al-D (2000) Ɨ Ư UHAMMAD ); 6 51 ৡƖ -R CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW IQ m ’ M B ). BID supra ASAF IND YA YA ANW ASKAF Ɨ ’a yastad‘ Ɩ Ɩ Ɩ note 16, at 153; 6 I ” note 48; 6 I note 48; ণ -A ‘ UHAMMAD -N -H , - note 48, at 169. , T Ɨڲ Ʈ R AL IN Ʈ AQ note 48, at 2 203–04; note 48, at 204 (al-‘Ayn 204 48, at note n Ibn al-Hum M N m Burh ণ Ư BN arb. AL -B Ɩ A SH -D N AYYID ۊ ਌Ɨ R AL Ɩ D AL Ʈ N N AL r al-Isl Ʈ supra Ɩ supra Ʈ Ʈ -B ) to return it, as the matter remains between him and the ) to return it, as remains between him matter ǋ Ɨ W , , AL supra supra supra Ʈ Ʈ , -D “li-anna al-qa Ʈ , Ɩ ‘ M D -D , , N Ʈ Ʈ ণ AL jib ANW Ɩ , AT l al-D YN A ANZ AL mustaqbal T ARGH Ɨ ahl al- N AL anna al-qa anna L AL YN YN Ɨ Ʈ AMART Ɨ -F K WITH SIGNIFICANT CHANGES Ɩ M Ɩ AYLA ণ w ( -‘A L -M -T UJAYM note 48; 6 I I note 48, at 135–36; 6 ণ -‘A -‘A -Z AL ‘al N BN BN AM AL ‘A AL UJAYM AIG AIG ., Ɨ I HAR ARGH is not able to adjudicateis not able who are in on those AL AL AL N S HAR H AL Kam BN supra supra states “ S -M .” 7 Ɩ R Ư are counted among the four key foundational primers ( primers foundational key four the among counted are Here, we see the difference between a legal obligation (in terms of a difference Here, we see the (in terms of a between a legal obligation , , 52 BN Ʈ Ʈ Ɩ MAD . ‘ ‘ ƯڲƗ ya IQ P04 - B AL On the issue of owed property,if two non- the same ruling is given 53 occupies a parallel position to them, incorporating issues addressed by later scholars); 2occupies a parallel position to them, S ণ ’ n Ɨ ’iq q M ET AL ࡃ r Ɩ A yata la-n Ɨ Ɨ A Ɨ ܈Ɨ BDULL ਋ UHAMMAD UKHT I AQ AYLA AYLA BN 49. 2 49. Ab Daq 50. 4 50. wil al-wil hammad Ibn Nujaym: Nujaym: Ibn hammad state will not enforce the return of the state will not enforce will state the fatwa property, that it is ( obligatory particular non-Muslim land then it is possible for some form of discretionary punishment ( of discretionary punishment form some for then it is land particular non-Muslim possible 52. 7 52. (2003); 5 I (2003); supervision of Shaykh Ni Shaykh supervision of the 51. 7 carried if the specifics of the treaty lay this out. 51. M actions committed in jurists also add that, at the time of adjudication time of adjudication add that, at the jurists also 277; 2 N I ‘A 92 92 of a decree. the enforcement M 53. 6 K 6 53. state injunction) and a religious and moral obligation to return the property. property. obligation to return the and moral a religious state injunction) and Muslims from territory non-Muslim file a case in ণ Z Z and supercommentary 6 S and supercommentary nent, after the Mughal emperor Aurangzeb Alamgir (d. 1118/1707), who commissioned its compila- who commissioned (d. 1118/1707), nent, after the Aurangzeb Alamgir Mughal emperor tion). 48. In the words of al-Margh tion at the time the debt tooktion at the ( place 153; 5 I 153; 5 al-Zayla‘ God. Muslim, statingMuslim, that the property or embezzled owed should be returned; this is not a legally decree that binding will enforce the return of property by the abide to obligation states his religious verdict that but rather a am hold jurisdiction over the non-Muslim since the individual had not commit- had not since the individual non-Muslim over the hold jurisdiction past ( in the Islam to of the jurisdiction ted himself been carried toout, but rather had committed himself what will take place in the future ( 35947-ckt_90-1 Sheet No. 53 Side B 01/14/2015 15:25:42 B 01/14/2015 53 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 54 Side A 01/14/2015 15:25:42 - - AL AL FIRST - See also See also This is RIME AND note 48, at (in non- 56 WENTY , C (commit- , wherein, T ,). m m supra Ɨ Ɨ , , whether it is Ʈ ETERS ‘ qila P Ɨ iltiz ‘ note 48, at 169; 4 note . (forthcoming 2015). 2015). . (forthcoming note 53, at 19–20; 7 AYLA musta’min EV r al-Isl -Z Ɨ UDOLPH supra 93 93 note 55. For a general account general note 55. For a 57 supra ) is also required. The AL D , , .L.R musta’min IXTEENTH TO THE ), in both cases it would), M ra S The is issue somewhat Ɩ an Ɨ INN supra supra 54 ) 1/5/2015) 9:32 AM UM a’ UJAYM ). ܒ , M N kaff -H ) from his personal wealth. In ) from ELETE ) themselves to the laws of Is- ) themselves fa cited earlier. Expounding on BN D kha Ư ya I m note 47. There are some further details on the note 47. There are some Ư OT BN AL Ɨ d an 5 N note 48, at 169; 4 O supra in the sources sources in the (D t iltiz , ǌণ Ɨ N Ʈ y RACTICE FROM THE supra Ɨ ’l-mustaqbal P ) can be applied for murder. For man- murder. for be applied ) can , Ư DOCX BID Ɩ ‘ ܈Ɨ܈ )(4). m f qi b al-Jin UJAYM BN Ɨ / Ɨ N ; i.e. a fatwa will be issued but not a court decree. ) but it is not necessary to provide them all here. One to provide them can compare ) but it is not necessary note 16, at 153; note 16, note 16, at 153; 6 I m Kit , group is held partly family/tribal responsible the ab Ɨ BN HEORY AND ܈ m supra qawd :T Ɨ supra gha , OPERATINGJURISPRUDENCE ISLAMIC , Ʈ ), however, the tribal group cannot be held responsible ), however, the tribal group cannot Ʈ to adjudicate is established at the time of pronouncing of pronouncing the time is established at adjudicate to ) or by manslaughter ( ) or by manslaughter AW m al-isl r al-Isl N note 47, at 277–78. note 47, at 277–78. N Ɨ L Ɩ Ɨ an Ɩ D N k N Ʈ Ʈ ۊ ƯڲƗ r al-Isl supra q , Ɨ ; in that case, the judge will decree that the property owed owed property decree that the will case, the judge ; in that ARGH N SLAMIC SLAMIC WITH SIGNIFICANT CHANGES ARGH Ʈ I ( ‘amad D note 48, at 136–37; 6 I 6 note 48, at 136–37; refers to the relatives of the perpetrator the bloodwite. For responsiblefor paying male m -M available at -M Ɨ BID Choice of Law as Non Constitutional Federal Law AIG AIG note 48, at 205; note I 5 qila AL Ɩ AL ‘ Ɩ s, it includes soldiers of the same ors, it includes soldiers of the same regiment traders of the same (or wherevermarket else (2005). (2005). Ư ‘ supra 2 , Ʈ BN supra iltazama a iltazama yun al-darayan ‘ P04 - B Along with misappropriated property, the issue of issue misappropriated property, the murder is also Along with men- , 55 anaf Ɨ Ʈ r al-Isl ণ YN Ɨ ENTURY AYLA UNISHMENT IN tab slaughter, blood money must be paid by the tribal group ( must be paid byslaughter, blood money tribal group the retaliatory ( slaughter sentence is different from could what one face in for the crime, as they are required to know the perpetrator’s whereabouts for the crime, territory committing from a change in such an act. With him and restrain ( 55. 2 55. lam. the decree had committed ( as both the case of manslaughter, an expiatory act ( of Islamic criminal law and itsof Islamic in different contexts see R application the be obligatory to pay the blood money ( the blood money to pay be obligatory Z this, the jurists give the followingthis, the jurists give details: if a Muslim because, in for a crime thatfor a crime a member in another land. committed P C Islam and files a case in 54. to then coverts who non-Muslim of a the property embezzles applies if a Muslim The same 2015] 2015] fu- in the rulings Islamic to of committing reason aforementioned to the ture ( Muslim territory)Muslim takes the life of another Muslim by murder ( tioned in the interlocution with Ab tioned in the interlocution 57. 57. must be returned.must of at the concept the jurists look Here, ment) again, this case and hold that in is valid of the debt the occurrence jurisdictionally as the act of both parties took place with the agreement Islam. Hence, the jurisdiction accepting and the laws of to submitting re- the quired for different if both parties are non-Muslims but convert to Islam and enter convert to Islam but are non-Muslims parties if both different D 137; 6 I ‘A solidarity can be established). See 56. 56. issue of embezzled property ( issue of embezzled these notions with the “submission rule”, “choice of jurisdiction rule” and “special jurisdiction rules” of rule” and rule”, “choice of jurisdiction the “submission these notions with 2000 O.J. art. 5(1), 5(3), 23–24 44/2001, Regulation the European Union Brussels Regulation. Council 1 12) (EC), (L Mark Rosen, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:en:PDF. 35947-ckt_90-1 Sheet No. 54 Side A 01/14/2015 15:25:42 A 01/14/2015 54 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 54 Side B 01/14/2015 15:25:42 , Ʈ r ǌ Ɨ are ASAF 60 -N z bi-d and one AL Ɨ r note 53, atnote 20; ۊ arb, supra ۉ , M punishments Ɩ r al- UM Ɨ bita bi’l-i School places on ter- -H Ɨ Ư D add note 16, at 153; 1 1 at 153; 16, note is without restriction restriction is without ۊ 58 [Vol 90:1 90:1 [Vol . As blood for the money, BN AL supra anaf ) 1/5/2015) 9:32 AM , Ʈ ণ N arb fa’s two most prominent stu- prominent fa’s two most Ɩ Ư ELETE ۉ N 62 Ʈ D an and there are strict evidentiary requirements mata al-th ܈ OT N r al- ARGH add add ǌণ O Ɨ ۊ -M (D D AL or DOCX (non-Muslim land), retaliato- the ruling of Some of the jurists emphasize the point of of the jurists emphasize the point of Some note 48, at 138–39; 6 I 138–39; 48, at note m 59 )(4). Ɨ arb li-anna al-‘i supra ۉ ( , Ư ‘ m CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW v note 47. note 47. r al- r al-Isl Ɨ Ɨ AYLA note 48, at 206; 2 at 206; 48, note D D -Z (lit. “limits”) are the restrictive ordinances or statutes of God that have fixed have God that of (lit. “limits”) are the restrictive ordinances or statutes ) of life and property in the juristic dis- is highlighted supra d note 56, at 53–64. 56, at 53–64. note AL , ǌ r al-Isl supra N ma Ʈ v note 48, at 169–170. note 48, at 169–170. , ud ܈ Ʈ i note 57. note 57. ۊ D BID supra YN WITH SIGNIFICANT CHANGES , 4:92. , pl. ( Ɩ s do not, however, excuse theexcuse not, however, s do expiatory the act because supra ‘ Ư , -‘A AIG AIG BN add, add, ). Retaliatory slaughter, however, is impossible to execute). Retaliatory unless slaughter, however, is impossible AL ETERS ). Hence, the ruling of expiation). Hence, would apply of loca- irrespective ۉ Qur’an See supra 7 61 anaf whether it is whether m UJAYM Ɨ P04 - B If the case involves two Muslim prisoners in ণ In the above cases, the emphasis that the In the above note 47, at 595; 4 laq N ʊ ܒ suf (d. 182/798, who is one of Ab one of who is 182/798, suf (d. BN ǌ mu also. See P punishments in the Shari‘a. They are illicit intercourse (punishable by death by stoning or one hundred stoning or one death by the in by Shari‘a. They are (punishable illicit intercourse punishments wine (forty drinking lashes), (eighty intercourse/defamation of accusation unproven an lashes), making crucifixion or sword robbery (death by highway of the hand/limbs), lashes), theft (amputation or eighty a specific defini- very Each has applies). as theft punishment otherwise the same murder, if it includes a crime whether constitutes a tion that determines 61. 6 I 59. 59. tion 5 I 60. 60. 62. 62. ( the jurists assert that a Muslim assert that a Muslim the jurists protection and inviolability the maintains of territory a security covenant, because with non-Muslim his life if he enters the established from (even if to a lesser extent) is the inviolability here protection of jurisdiction again, paralleling this to the fact that paralleling this to the jurisdiction again, 58. 58. 94 94 takes the life of the other, or if a Muslim trader (i.e.takes the life of the other, or if a Muslim with a security covenant) takes the life of a willMuslim prisoner, then the murderer not be case of man- in the be required that an expiatory act would punished except who kills another Muslim Muslim if a slaughter. The same ruling is given territory. in non-Muslim converted to Islam nullified in the case of adulterynullified in the case in the absence of Muslim and theft sovereignty. supra supra Qur’anic verse pertaining to manslaughter (which states “[w]hoever kills kills to verse pertaining Qur’anic states manslaughter (which “[w]hoever slave”) free a believing believer must another al-isl dents), while not entirely rejecting territorial jurisdiction and inviolability, rejecting territorialdents), while not entirely jurisdiction and inviolability, lands.give far less They that significance to its effect in non-Muslim argue the state has to do so. This can onlythe power sover- exist with a Muslim place who rules in eign (imam/caliph) over Muslim Because this subjects. is not the case with cussion of Islam in non-Muslim territory. The other schools and also Ab cussion of Islam Y ry slaughter cannot be applied. ry slaughter cannot ritory and jurisdiction is readily observable. An important concept of the (‘ inviolability 35947-ckt_90-1 Sheet No. 54 Side B 01/14/2015 15:25:42 B 01/14/2015 54 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 55 Side A 01/14/2015 15:25:42 fa Ư al- ‘69 I supra ’ an , lik, see Ɩ Ʈ This This z bi’l- Ɨ ‘ Ɨ 67 r HAR ǌণ ۊ -S AYLA and moral s, however, -Z Ư note 30, at 218, 30, at 218, note al-i m demonstrates demonstrates s differentiate s differentiate ) for) infractions of B AL AL Ʈ Ư s Ɨ m ܈Ɨ anaf ,” (contingency) supra Ɨ ART , qi ڲ ণ T anaf ri Ʈ MA Ɨ ণ Ɩ F and r al-Isl ‘ 95 95 d I ’ UD Ɨ ǌ The The r al-Isl So, when Ab Ɩ Q D 64 Ɨ ud ) remains for committing) remains 65 ۊ AN , for example, maintained , for example, D BN Ư ) 1/5/2015) 9:32 AM -S note 48, at 205; 4 205; 48, at note In the aforementioned case, In the aforementioned fi‘ ithm AL Ɨ 63 ‘ Thus, the ELETE I has been waived upon entering upon waived has been supra ’ D 66 , Ɩ Ʈ m ). OT Ɨ note 24, at 354–55. For the view of M AD YN N O , B position, see I position, -‘A Ʈ Ư (D ). Al-Sh supra N , which is tied to territory; and (ii) AL , Ɩ Ʈ ‘ S r al-Isl ’s use of the word “‘ ) and time. DOCX anbal Ɩ FI Ư Ɨ n Ɩ ণ n -K H Ɨ D Ɨ )(4). note 47, at 278. note 47, at 278. ‘amad -S n muqawwima Ư AL note 16, at 153. supra AKR AL r/mak , B Ɨ N Ʈ note 13, at 62; 7 note 13, at 62; d ǋ , which is tied to religion. supra OPERATINGJURISPRUDENCE ISLAMIC B , BID Ʈ A N Ɩ ‘ Ɩ supra N Ʈ N , s view, see 7 Ʈ Ʈ Ư BN ma al-muqawwima -D ܈ fi‘ ). They do, nevertheless, do, split the inviolability cate- two ). They into Ɨ n AL ARGH WITH SIGNIFICANT CHANGES Ư ’ ( Ɨ al-‘i ARAKHS -M AIG AIG -S , supra note 31, at 91. For the , supra note 31, at 91. AL N Id. AL ǋ bi’l-d N P04 - B The above discussion on the jurisdiction of The above discussion on the jurisdiction Ɨ ণ A r l ma al-mu’aththima ܈ Ɨ indicating territory. cause for visiting non-Muslim a temporary that there should be no distinction between the punishment for a Muslim shouldthat there for a Muslim punishment between the be no distinction killed in Muslim territoryterritory. or non-Muslim ‘i 67. 2 66. 67. where the Muslim with a security covenant kills another Muslim with a with the Muslim kills another security Muslim where the covenant schools state status, those same territorial retaliatory that is oblig- slaughter case of ( murder the atory in 16 S 64. 6 ‘Al 6 if the can be applied (and which) punishments whether differ on schools law. Note that the the criminal land. in a non-Muslim an army or is present among chief (vested with authority) army imam 64. gories: (i) 63. For al-Sh For 63. 2015] 2015] terms, in absolute to Muslims apply His Messenger and of God the laws ofirrespective place ( the complexity involved if someone violates the security covenant. One the complexity juristic dis- the above from understood matter of particular importance jurists envisaged non-Islamiccourse is thatMuslims sojourning to Muslim the case of a Muslim at When looking territory periods only. temporary for with a security covenant with a security another Muslim who murders cov- the is because blood money the penalty of maintaining enant, a reason for idea that jurists treated lands as temporary, with the his visit to non-Muslim This can future. the not-too-distant in he would return back to his homeland be discerned from al-Margh between legal obligation that is connected with between legal obligation that is connected (1998) (India). (India). (1998) 65. note 48, at 138–39; 6 I note 48, at 138–39; 473–74. All three discuss the application of Islamic punishments ( punishments Islamic of application discuss the All three 473–74. states that there is nothing due on a Muslim trader that kills a prisonerdue on a Muslim trader that nothing states that there is or a that was and property of life is because the inviolability convert, it Muslim in available to him previously d state that inviolability territory, stems from religion ( not from obligation that is connected with Islam. is connected with Islam. obligation that non-Muslim territory. However, the religious inviolability is not waived as is not inviolability the religious territory. However, non-Muslim meaning that the sin ( long as he is a Muslim, andthe crime the covenant of security, even though the Is- contravening punishment does not ( lamic 35947-ckt_90-1 Sheet No. 55 Side A 01/14/2015 15:25:42 A 01/14/2015 55 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 55 Side B 01/14/2015 15:25:42 as . In and b al- arb arb Ɨ ANDS ۉ ۉ L siyar Kit ) states that r al- r al- Ɨ Ɨ jurisdiction in is then to able D USLIM D 71 m matn ). Ɨ m’s -M ; hence, their prop- The jurists did The jurists not ǌܲ Ɨ f m 68 ۊ ON Ɨ N ) that he was in) that he Dar al- s—who are the specific r al-Isl Ư an [Vol 90:1 90:1 [Vol Ɨ as the protection it offers it as the protection r r al-Isl ) 1/5/2015) 9:32 AM Ư D 70 Ɨ , r al-Isl anaf Ɨ D m ELETE UDGES ghayr ma ণ Ɨ D taqd D J OT and N O ۊƗ (D r al-Isl become permissible in URISDICTION IN note 16, at 66. For an analysis in English, see also Ɨ J m D DOCX Ɨ mub PPOINTING manual of jurisprudence ( manual Ư supra )(4). A , Ʈ N Ɩ SLAMIC anaf , it is supposed ( , it is supposed r al-Isl r I N CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ʈ AND Ɨ ণ m Ɨ D ), Muslim scholars have also discussed independent ), Muslim ARGH note 48, at 205. ) in -M ƯڲƗ AL supra r al-Isl texts, one can find a ruling a prophetic tradition) (based on , Ư Ʈ sida Ɨ , 3 Ɨ .” This is because a Muslim sovereign cannot extend extra- sovereign .” This is because a Muslim YN , be able to apply any state would not the Islamic of its rulings , which was described in the previous section). For example, D WITH SIGNIFICANT CHANGES ( NDEPENDENT m anaf -‘A Ɨ AIG AIG arb arb ণ AL d al-f ۉ ۉ One can onlypresume that because he has no legal connection with Id. See, e.g. IV. I ǌ jurists addressed the question of appointing Muslim judges in non- Muslim appointing jurists addressed the question of Ư 69 ’/Adab al-Q P04 - B Many of these principles form the basis rulings across for spreading Manyof these principles form In the section on judiciary in Islamic jurisprudence ( In the section on judiciary in Islamic r al- r al- Ɨڲ r al-Isl Ɨ Ɨ Ɨ anaf al-‘uq which states, “There is no usury between a Muslim which states, “There is no usuryand a non-Muslim in between D standard territorial protection to those living outside outside territorial protection to those living other sections of Islamic on jurisprudence outside the section the law, for example, jihad. In financial focus of this section—hold that transactions that are otherwise prohibited prohibited are otherwise section—hold that transactions that focus of this ( jurisdiction within non-Muslim territory. That is, Muslim scholars have Muslim territory. is, That within non-Muslim jurisdiction established within non- and forms is also elaborated on how jurisdiction lands (rather than the extension of Muslim D Qa erty is violable and unprotected ( and unprotected erty is violable to the life and property of Muslims would not exist. Muslims would not of to the life and property discuss the case of a Muslim who does not enter non-Muslim territory non-Muslim does not enter who case of a Muslim discuss the for resident in non-Muslim is rather a purposes, but temporary permanent lands. 68. 7 68. 96 96 why also explain would they Muslims addressed often in D traders. Hence, some jurists mentioned that since there is an intention of is an intention that since there jurists some traders. Hence, mentioned to returning Islam because that is his permanent residence. that is his permanent Islam because offulfill some person. to the its obligations murdered ণ A that would be vested in them. lands and the judicial authority Muslim dictate from a standard Mustafa R. K. Baig, A Fatwa on Usury (2005) (unpublished M.A. in the Context of British Society dissertation, University of Manchester) (on file with author). expiatory is required for earlier, the same Qur’an as verse of the mentioned but rather an absolute 70. on territory dependent act, as this is not an expiatory having to offer the Muslim Apart from intentional breaking of the fast, breaking an oath, etc., irrespective of territory. 71. 69. 69. for crimes committed outside of 35947-ckt_90-1 Sheet No. 55 Side B 01/14/2015 15:25:42 B 01/14/2015 55 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 56 Side A 01/14/2015 15:25:42 Ư Ư - - - l n d ܈ al- Ɨ ) is ǌ AL AL ǌܒ Ʈ Ɩ hir al- L Y Ibn Ab ܲƗ ANZ AL al-Hind ‘A Ư suf (d. Ư ৫Ɩ b al-A Sufy note 47, at note 47, at ǌ Ư lw Ɨ BN , K al-Su‘ -‘A Ɲ al-Mabs Ʈ I ǌ AL Kit , supra ya in 41/661 after in 41/661 after ya Ʈ Ư , ASAF Ʈ w Ɨ -N IND n al-Bar j Ibn Y Ɨ Ɨ AL -H UHAMMAD ya Ibn Ab ASKAF ) accepted judicial Kh n’s view is also mentioned n’s view is also mentioned ajj Ư Ư AL ণ M n Ʈ n’s original passage, - ঌƗ Ư ণ w (also known as (also known as ǌ .” 2 (d. 50/670)—after succeeding 97 97 Ɨ (d. 1088/1677), citing 1088/1677), (d. Ư l AL LW Ư in which (mainly) the opinions in which (mainly) ܈ Ɯ ’ir Ư n’s view, Ab bi‘ from a just or tyrannical a just or from Ɨ n Ư In it, the Companions it, the Companions In Ɨ Ɨ cites the view in reference to AR AYYID ’ t mad Ri 73 S ত -B ) 1/5/2015) 9:32 AM b al-A yya (sometimes known by his pen name known by (sometimes askaf Ɨڲ Ư D A Ɨ (n.d.)). Misk Ʈ . ǋ 26 (n.d.) (photocopy without publisher publisher without 26 (n.d.) (photocopy ণ ‘ N H qa N AL Ʈ Kit U ELETE asan Ibn ‘Al Ɩ IQ dil wa’l-j Ɩ ’ note 47, at 43. D ণ Ɨ -S H Ɩ ISK ‘ AR School, as the narrations have been reliably Ư K OT F n al- M al-Hind n’s rule that is being referred to is when he set referred to is when he is being n’s rule that AQ Ư N AL Ɨ Ʈ Ɨ Ɩ ǋ O ঋƖ supra w note 16, at 102; 8 note -D anaf I n al- B , Ɨ Ʈ (D R ণ Looking at Misk ܒƗ ULL Sufy SH 75 ARAW Ư note 47, at 295 note 47, M supra Ɩ ’ al-D H DOCX , ণ Ɨ regardless of whether the tyrant Mus- is a MAD Al-Fat Ʈ ANZ AL ANZ ণ N N Ʈ n (d. 907/1501-2), states that the term can the term that states n (d. 907/1501-2), K upra Ɩ Ư ʊ )(4). In explaining Misk In explaining HAR 545 (2000) (Pak.). (Pak.). 545 (2000) ) N Ɩ , s S Ʈ ISK AMART 76 . ‘Al an . n attributes his position back to the n attributes his position back to the YA Ɩ AL M Ư ya Ibn Ab Ibn ya Ư Ʈ -T YA ’ min al-sul ‘ Ư Ʈ n ’ir AL Ɩ w , in 18 A AL Ɨڲ N ‘ Ɨ laq ARGH ܒ AW Ɨ Ɨ Ʈ ܒ IND j ঋ N note 47, at 43. I Ʈ -M ULL ‘ ISK -H OPERATINGJURISPRUDENCE ISLAMIC U -R M AL M suf was a powerful Umayyad administrator (governing over large parts of Umayyad suf was a powerful note 48, at 461. AL ǌ -M N AL Ɩ supra Ʈ Ɩ , Ɩ suf and his own are narrated. The texts belong to the classification of the classification of are narrated. The texts belong to own his suf and Ʈ lim mu W ǌ -D al-Multaqa W Ɩ ULL H AL Ɩ ܲƗ Y supra Ɩ M AT ǌ , j Ibn Y AT N AL Ɨ WITH SIGNIFICANT CHANGES ণ ASKAF -F Ʈ ( note 47, at 110; 8 n and ULL -F ‘ zu taqallud al-qa Ư ণ ajj L ণ U - ǌ AL ’ A very interesting dimension is added by is A very jurists some in their dimension interesting Ʈ AIG AIG ণ HAR fa, Ab fa, Ư AT AL UJAYM S 74 ) of the Prophet and their successors ( the Prophet ) of Yaj From this short statement, a discussion among jurists emerges with with jurists emerges a discussion short statement, this From among supra N an ,F in 3 , 72 Ʈ YA F and form the structural authority of the and form ܒ ”), ba Ʈ ) ruler were quite straightforward, but the definition of a tyrant, or definition the but quite straightforward, were ) ruler ,”complex. was more Ư IQ P04 - B t The permissibility of a tyrannical ruler to appoint judges is first exem- judges ruler to appoint of a tyrannical The permissibility ’ BN n ǌণ Ɨ Ư Ɩ y Ɨۊ ’ir dil Ɨ a lib (the fourth legitmate “Rightly-Guided Caliph”; d. 40/661). During that period there were Com- 40/661). During d. Caliph”; “Rightly-Guided lib (the fourth legitmate Ɨ Ɨ USAYN ABAW AQ j ‘ ܇ (d. 60/680) over parts of the Islamic empire. over parts of the Islamic (d. 60/680) of Muhammad al-Shayb plified by Mu‘ a precedent of the sultanate of citing ৫Ɨ judicial office. Later, Prophet that accepted of the panions riw 74. Al- his leadership thereafter is considereda peace treaty was legitimate between the two parties, and forged (and not a rebellion). 74. his father as the fifth Rightly-Guided Caliph of Islam—relinquished power to Mu‘ power Islam—relinquished Caliph of Rightly-Guided fifth his father as the also be extended to a non-Muslim. earlier scholars such as Misk earlier scholars such established from the author through mass transmission or well-known reports. Legal opinions that reports. Legal opinions that or well-known transmission mass the author through established from positions during his tyrannical reign, to go along with the early reign, to his tyrannical generations positions during of Muslims accepting such posts in the of al- reign of Ab among the six authoritative texts compiled by Muhammad al-Shayb by Muhammad the six authoritative texts compiled among himself up as a rebellious leader in opposition to the righteous/rightful caliph of the time, ‘Al of the time, caliph to the righteous/rightful up as a rebellious opposition leader in himself the Umayyad empire) infamous for his brutality and oppression. The wisdom behind this ruling is that behind this ruling is that and oppression. The wisdom for his brutality empire) infamous the Umayyad in their own capacities. society unjust, then judges could at least dispense justice in even if the rulers are of to the permissibility his duties with justice is attached perform to a judge is able The condition that accepting such positions. 3 respect to a respect to The characteristics this legal rule. particular part of a just of ( “ 75. 8 44. 75. in 6 I Multaqa ণ N 76. 3 M 3 76. lim or a non-Muslim. Misk or a non-Muslim. lim ruler.” 72. “ 72. 2015] 2015] “[i]t is permissible of the position to accept “Mu‘ 73. Mu‘ of The unjust part exploration of the term term exploration of the information, printed with its commentary in 3 information, A D 95/714). ( he takes a linguistic view of the term, inhe takes a linguisticthe term, that it refers to a tyrant view of the “ab- in solute sense” ( cites both Misk 35947-ckt_90-1 Sheet No. 56 Side A 01/14/2015 15:25:42 A 01/14/2015 56 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 56 Side B 01/14/2015 15:25:42 Ư ঋƖ mi‘ I Ɨ R pray- d r, al-J MAD Ʈ Ư al-Dehlaw ‘ ণ Ư ), appoint t Ư j Ɨ ) is missing. I have I have ) is missing. (published in Kara- (published khar mi‘ al-Kab ya ƯڲƗ Ư Ɨ ’ al-Andr Ɨ n Ɨ al-J rkh Ɨ t Ɨ note 47, at 43; 18 A 18 47, at 43; note b Adab al-Q b Adab [Vol 90:1 90:1 [Vol Ɨ al-T ) 1/5/2015) 9:32 AM Ɨ lim Ibn al-‘Ul Ibn lim , also is that Islam mentions Kit w caliph), or by one of his ap- his of caliph), or by one supra Ɩ / Ɨ . The underlying notion is that The underlying notion is that , t prayers, for example, that the for example, prayers, ya ELETE N Ɨ Ư Ʈ 78 d d D Ʈ n Ɨ ‘ Ɨ BID OT al-Fat N Ɩ ‘ O al-Ziy rkh (D Ɨ BN n’s work), states that this notion deems states work), deems this notion that n’s t Ư and Ɨ This ruling is significant because these This ruling is significant because r DOCX Ư ) because the judges are Muslim and non- are Muslim ) because the judges 80 states that, because of the jurisdiction that m agh )(4). al-T Ɨ ܇ Ɨ Ɨ w , authored primarily by ‘ by primarily authored , w Ɨ ya Ɨ ). In the ruling above, even though the gover- ). In the ruling above, even though CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ư note 76, at 26. 76, note Ư n l Ɨ Fat Ɨ are thus dismissed. The other five works are: The other five works are thus dismissed. d al-isl t al-Siyar al- w rkh Ɨ Ɨ supra , Ɨ y , r t al-Fat Ư Ɨ Ɨ D bil ǋ ‘ U al-T -S Ɨ 79 ) laws not prevalent there. are w WITH SIGNIFICANT CHANGES ( hir al-riw hir Ɨ AL ǋ ܲƗ note 76, at 546–47. My personal copy of personal copy My note 76, at 546–47. B AIG AIG kufr adds a general point about Muslim rulers that are subservient to rulers that are Muslim a general point about adds Al-Fat Id. Ɨ r, al-Siyar al-Kab r, al-Siyar Ư 77 supra P04 - B . Id. . Next, there is mention of cities that have Muslim governors appointed of cities that have Muslim Next, there is mention Another text, w , Ɨ N 80 agh congregational prayers as well as to collect land taxes ( Ɩ ܇ d H Ʈ 77. 3 A (d. 786/1384) and about 30 other authors, in 8 I other authors, about 30 and (d. 786/1384) not a condition for the sovereign to appoint judges and adds some interest- and appoint judges for the sovereign to not a condition judiciary. and It sovereignty, governance, to Muslim ing points relating lands mentions that when come into the but the possession of non-Muslims, judicial affairs remain with the Muslims, countries will such bestill classed lands ( as Islamic Islamic ( Islamic valid the sultanate of a non-Muslim over Muslims the valid- and establishes over Muslims of a non-Muslim sultanate valid the to this According to the judiciary. to appoint a person ruler a ity of such for a non- it is valid establish rule; since a condition to is not view, Islam remove to it is also valid for a non-Muslim to appoint judges, Muslim them. al- 78. 78. chi) is incomplete from which the chapter concerning judges ( concerning the chapter which from chi) is incomplete also checked a copy from also checked a copy from another publisher section is (Beirut) and the same missing. 79. acts be must undertaken bysovereign/authority. Muslim It is normally the Friday of the and the conditions among contradict the K 98 98 commentary wrote a (who Misk on the lands are only occupied by non-Muslims for a temporary period, and by period, a temporary non-Muslims for occupied the lands are only The that sovereigntythere is an expectation the Muslims. to return will Fat judges, and marryorphans. judges, and off they it is permissiblehold there, the Friday to perform for those judges and ‘ by The non-Muslims. ers. pointees/governors ( pointees/governors prayers be led by the sovereign (imam must nors/officials are not appointed by sovereign, but are appointed a Muslim the Friday to administer theyby and are permitted a non-Muslim, non-Muslims; it states that those that are subservient out of compulsion are of compulsion out are subservient it states that those that non-Muslims; be considered will are without compulsion those that but still Muslims, transgressors. 35947-ckt_90-1 Sheet No. 56 Side B 01/14/2015 15:25:42 B 01/14/2015 56 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 57 Side A 01/14/2015 15:25:42 - al- AL ‘ Ɨ w mi‘ al- MI Ɨ Ɨ with the with the Ɩ J ya , J Ư n of a judge of a judge Ɨ al-Fat rkh WUNA Ɨ Ɩ t Ɨ AM S al-T Ɨ w ƖঋƮ ), although I have shown that prayers as well as Ɨ Ư Q 99 99 d n Ʈ Ɨ locum tenens ‘ BN BN , he states at the end of the quote -I al-Fat ya Ư ) 1/5/2015) 9:32 AM n Ɨ R BI llective] agreement of the llective] agreement m in commentsm ruling on the and Ʈ Ɨ [prayers] and judges will be [prayers] and judges rkh ELETE and that it includes non-Muslims (this shall and that it includes non-Muslims d Ɨ Ʈ D HAH t ‘ Ɨ ’ir -S OT Ɨ j N O al-T L AL , which states: states: , which Ɨ Ʈ were generated from were generated from within the legal-literary tradi- Jumu‘a (D ‘ w m on Appointing Judges Ɩ ya ya Ɨ Ư Ɨ Ư ). n SR Ư n I Ɨ DOCX (of Muhammad al-Shayb Muhammad (of l Ɨ ܈ rkh al-Fat BN BN )(4). 81 I Ɨ t rkh al-A Ɨ D Ɨ ǋ jurist Ibn al-Hum t Ư M Ɨ al-T ণ kim shar‘ Ɨ A w M anaf Ɨ Ɨۊ OPERATINGJURISPRUDENCE ISLAMIC al-T A. Ibn al-Hum N ণ Ʈ n’s citation of Ɨ Ư -D w al-Fat bid Ɨ Ɩ wuna) and thirteen and fourteenth century wuna) and thirteen and fourteenth India (in the case of and Ɨ WITH SIGNIFICANT CHANGES ADR AL ( al-Fat B layn In Ibn‘ ) might have impacted the texts here. ) a separate study. This, however, would require have impacted might AIG AIG ܈ǌ n Sam ya 11 (1882) (Egypt). The original text is indeed similar to similar indeed The original text is (Egypt). 11 (1882) n’s discussion is limited to the definition of n’s discussion is limited Ư Ư n has attributed the above to n has attributed the above to , and found in the works of other jurists, that it is only permissible jurists, that it is onlyworks of other permissible the found in , and Ư Id. Ư n Ɨ P04 - B The renowned ya The distinct feature of the The distinct feature where com-above is that it refers to lands In case one wonders whether the jurists onlythe jurists whether one wonders In case territo- those discussed As for those lands where non-Muslims rule, the Muslims are permitted to are permitted rule, the Muslims non-Muslims As for those lands where and of Friday performance the undertake [recognized as official] judges with the [co judges[recognized as official] with the Muslims. It is necessary for the Muslims to request a Muslim governor to request a Muslim Muslims the for necessary It is Muslims. rulers. the non-Muslim from LAYN Ɨ layn. See rkh Ɨ ৡǋ ܈ǌ t mi‘ al-Fu Ɨ U Ɨ Hid to accept judgeships from a tyrannical knows that ruler when one the duty or Islamic sovereign ( or Islamic T here Misk that Misk managing other affairs through the appointment of judges. One may of judges. One as- through the appointment affairs managing other passage does not specifically state that the following that the above sume remained under non- and entirely refers to countries that have permanently Muslim rule, but because this new subject item mentions under countries rule without any condition, one could be assurednon-Muslim other that it is inclusive of non-Muslim countries (such as the United States) if one wishes to apply in that way.What is being said is that Muslims the ruling their own authority,should appoint who is then the tion or whether the special situation of fourteen and fifteenth century Ottoman Turkey (in fifteenth the case of and tion or whether the special situation of fourteen Badr al-D exception of the first two points—that Islam is not a condition for the sultanate and the question of of a condition for the sultanate and the question is not first two points—that Islam exception of the in found whether the views discover to interesting be It would non-Muslims. by occupied lands being J F be discussed in more detail to whatmore in also says this is similar later). He is be discussed in mentioned Fu 81. 81. 2015] 2015] plete authority whetherlies with non-Muslims, and control such lands were or if they rule. previously were lands always Muslim, under non-Muslim lines, it contains matters of im- of a few text consists only Although the it pro- in that countries today non-Muslim living in Muslims portance for vides a basis for performing the ries that are in some way byare in some ries that occupied or dominated or non-Muslims with- essentially non-Muslim were lands that they discussed such whether the Muslim between or engagement of political involvement form out some pas- in the following to appear polities, an answer seems and non-Muslim sage from 35947-ckt_90-1 Sheet No. 57 Side A 01/14/2015 15:25:42 A 01/14/2015 57 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 57 Side B 01/14/2015 15:25:42 85 m, mad note Ɨ ত supra , jurisdiction. Ư note 76, at 547. 76, at 547. note ‘urf UJAYM N with slight variations and Ư supra Ư BN , lw Ɲ N Ɩ shar‘ H In such circumstanc- K 83 n al-Bar ঋƖ Ɨ I [Vol 90:1 90:1 [Vol R ) 1/5/2015) 9:32 AM ) and “[w]here there is no there “[w]here ) and Kh m from the three categories ঌƗ ya Ɨ Ư MAD ELETE note 47, at 43–44. at 43–44. note 47, He discusses a situation where where a situation discusses He n ণ D Ɨ 82 OT mad Ri N supra ত rkh 18 A O , Ɨ N (D Ʈ t See m A Ɨ Ɨ text. For purposes of clarity, both state- BID DOCX Ɩ ‘ left the statement open, but Ibn al-Hum but the statement open, left ya Ư al-T )(4). BN I n Ɨ ya Ɨ Ư w n Ɨ note 53, at 246. His view is also cited in 6 I also cited in 246. His view is 53, at note CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ɨ rkh Ɨ ). t r rkh Ư Ɨ supra supra Ɨ , T al-Fat t M Ɨ Ɩ T UM note 74. note 74. al-Qad -H WITH SIGNIFICANT CHANGES ۊ n gives the corresponding Arabic words from the text to point out where each block of of where each block out the text to point Arabic words from n gives the corresponding ( Ɨ AIG AIG BN AL Fat Kh ঌƗ See supra Id. n’s fatwa, which is essentially a monograph on the appointment of judges in British India, in judges of on the appointment a monograph which is essentially n’s fatwa, 84 Ɨ m, ); then the governor shall appoint a judge who shall adjudicate among shall appoint a judge who shall ); then the governor P04 - B The text of Returning to the ruling of Ibn al-Hum Before discussing the above, it is useful to summarize the above texts the above texts to summarize the above, it is useful Before discussing Ɨ Ư l Kh Ɨ mad Ri ঌƗ ত w after stating the general point about lands where no sultan exists, exempli- lands where no after stating the general point about by non- over taken fies the matter in reference to lands that have been Muslims (such as Cordoba). He does not specificallylands that to refer have always probably been non-Muslim, because classical jurists did not sultan, nor one for whom it is permitted to appoint judges . . .” (Ibn al- .” . . judges to appoint sultan, nor one for whom it is permitted Hum ments cited earlier are juxtaposed here: “As for those countries where non- ments cited earlier are juxtaposed here: Muslims rule . . .” ( them. Similarly, they should appoint an imam who shall lead the Friday who shall lead the imam an should appoint they Similarly, them. prayer. 83. 7 I 7 83. Ri A text from the legal sources starts and ends to denote each category. I should mention here that each category. I should the legal A sources starts and ends to denote text from mention there is neither a sultan, nor anyone who is permitted to appoint judges, appoint to anyone a sultan, nor there is neither who is permitted coun- Muslim some found in the situation is currently this out that pointing as taken control, “such time) tries (in his Cordoba have where non-Muslims today in the and Valenica and Abyssinia.”Maghreb, 82. 82. 100 100 and fairly. out rightfully be carried could warrants it he the distinction between a separate research project; in makes es, they should appoint Muslims from among themselves to collect taxes, themselves to collect es, they Muslims from among should appoint they a person are required to agree on and they will a governor whom make ( in order to keep the discussion more coherent. discussion in order to keep the more 85. fromI have adopted the categories Im 84. 84. mentioned above, he is describing the third category. This is comparable to This is comparable category. third describing the mentioned above, he is the last part of the 48, at 461, and slightly summarized in 8 summarized 48, at 461, and slightly and make clear the various scenarios thatand make clear the have discussed. Thus, the jurists categories of places can identify three one juristic discourse, of the in light countries where the of judges: (1) those with respect appointment to the of authority is under the government but the Muslim Muslim sovereign is but that attain places authority independent judicial those (2) non-Muslims; has appointed Muslim sovereign the (and the sovereign is non-Muslim the are governors); and (3) those lands that ruled entirely by non-Muslims; positions are held bysovereign and all other administrative non-Muslims. 35947-ckt_90-1 Sheet No. 57 Side B 01/14/2015 15:25:42 B 01/14/2015 57 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 58 Side A 01/14/2015 15:25:42 ; - Ư in n ঌƗ l Ɨ al- ܈ mi‘ supra supra Ɨ n (d. , (with J Ư ANZ AL N al-A Ɩ r K m gave gave m H Ɨ Ɨ bid ণ al-Afgh t K mad Ri Ɨ ۊ Ɩ ত al-Nahr al- al-Nahr HAR ঋƖ I ৡ R ’l-Waf (also called IQ IQ ǌ ‘ l Ɩ ܈ MAD n Ibn Nujaym, author of author Nujaym, n Ibn Ư -F ণ m opposed this, he m Ɨ m is “satisfying and al-A 101 101 ), which is which ), contraryto Ɨ Radd al-Mu 18 A AHR AL in n has ascribed to it. The fir , finding that the quote is Ư l -N Ɨ ܈ ) 1/5/2015) 9:32 AM ) in AL Interestingly, A Interestingly, LAYN h , The disagreement is that a is that a The disagreement 90 Ɨ 88 ৡǋ al-A ). . ELETE U al (d. 1340/1921), investigated the investigated (d. 1340/1921), D Ư min k School. In later years, the Indian ܇ -F ya ya Ư ’ UJAYM Ư OT Ɨ N lw n N AL ‘ Ɲ Ɨڲ Ɨ O n states that this is referring to Ibn al- BN anaf MI b al- to signify the opinion (from among other opinions) among the (from other opinions) to signify opinion I Ư (D . As such, this position is attributed to to position is attributed As such, this . m is corroborated by of the text Ɩ Ư Ɨ ণ rkh Ɨ M n Ʈ note 48). note 48). n’s view (which is the same view held in Ɨ 89 bid Ɨ Ư H t DOCX j al-Dir Kit Ɩ Ɨ Ɩ Ɨ n Ibn Nujaym’s (d. 1005/1596) n Ibn Nujaym’s rif, Hyderabad in 1966, edited by Ab by edited 1966, in rif, Hyderabad T n al-Bar BR Ư )(4). Ɨ I note 76, at 545–46. I was not able to find the quote in the quote in find not able to I was 76, at 545–46. note supra supra Ɨ n referenced his view to n referenced Ư BN Mi‘r I Ibn ‘ Kh supra 87 , j al-D t al-Ma‘ ঌƗ N Ɨ note 48, at 461; J Ɨ note 47, at 44. MAR MAR mu‘tamad ‘alay-hi Ɩ ’ir OPERATINGJURISPRUDENCE ISLAMIC H ‘U Ɨ n) cites Misk at taqallud al-qa K Ư N supra Ʈ supra , , ۊۊ ঋƖ -D I N mad Ri Ʈ R ত J AL BID ) regarding the permissibility of accepting judgeships from as a statement in opposition to the former, although, Ibn al- although, to the former, in opposition as a statement that is disagreed upon. In a similar elder Ibn fashion, the In a similar upon. that is disagreed UJAYM Ɩ WITH SIGNIFICANT CHANGES ( Ɩ , who died in 970/1563, (which does not mention that it is permissible to accept judi- that it is permissible (which does not mention MAD N ‘ IR ya ya ya ণ Ư Ư Ư S ’iq AIG AIG BN Ɨ BN n n n adam si as saying al-Hum of Ibn that the position Ɨ Ɨ Ɨ layn ) of Muhammad al-Shayb See (2002) (Leb.) (Not to be confused with his elder brother, Zayn al-D his elder (2002) (Leb.) (Not to be confused with m himselfexplicitlydoes not m of any rebut the views jurists. earlier m’s passage is sometimes passage m’s presented by after the of citation jurists m’s position regarding the invalidity of non-Muslims appointing appointing of non-Muslims positionm’s regarding the invalidity ܈ǌ 86 ǌܒ IQ P04 - B Both parts of the text discuss the of the text discuss Both parts same issue. Nevertheless,al- Ibn As noted earlier, Misk Ɨ Ɨ Ɨ r al-R rkh rkh rkh ’ n finds that there is no mention of what Misk n finds that there is no mention of ۊ Ɩ Ɨ Ɨ Ɨ Ɨ ‘iq t t t Ɨ Ɨ Ɨ Ɨ AQ al-Fu non-Muslims). from cial positions non-Muslim rulers. After making clear that Ibn al-Hum rulers. After making clear non-Muslim states that the view of Ibn al-Hum F 1252/1836), quotes Sir 1252/1836), T Hum between the jurists lies in whodifference appoint of to is eligible The point judges. One of the last authorities of the school,major Ibn ‘ Nujaym (ZaynNujaym al-D 87. Jurists use the term which the school depends upon. upon. which the school depends 88. 8 I 89. 6 I 6 89. D 90. 18 A 18 note 76, at 542. 90. 86. 86. 2015] 2015] Ibn al-Hum lands. Thus, in such residing to be Muslims envisage affectingof a practical at that time.the example Muslims the problem Hum T non-Muslim authority cannot appoint judges; it is only this element of judges; authority cannot appoint non-Muslim T what has been mentioned in what has been mentioned al-Ba should be depended on.” should be depended Mabs Kh the edition published by D by published the edition Hum judges (‘ the most authoritative works of the authoritative the most perhaps a more thorough look may unveil it or another manuscript or published edition may reveal or published the edition may manuscript thoroughunveil it or another perhaps a look more may actual text. reference to another text, another reference to jurisprudent, A matter further. He traced the original text of cited in the chapter of prayer ( 35947-ckt_90-1 Sheet No. 58 Side A 01/14/2015 15:25:42 A 01/14/2015 58 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 58 Side B 01/14/2015 15:25:42 n is Ư and Misk and ya Ư point of view) for point of view) for n Ư If the findings of of If the findings Ɨ 91 jurists have discussed Ư rkh , except for the opening the opening for except , shar‘ Ɨ t ya [Vol 90:1 90:1 [Vol Ɨ Ư anaf ) 1/5/2015) 9:32 AM n T ণ Ɨ ELETE rkh D Ɨ t OT Ɨ N O T (D ) juristic point of view. The Muslims Ư ) can also be implemented there as well there be implemented also ) can d DOCX ǌ anaf )(4). ud ণ ۊ note 47, at 43. CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW nor is there any concept of a Muslim governor who 93 prayers. Again, this prayers. is because the administrativeof supra m’s opinion be depended upon, as bymentioned upon, Ibn be depended opinion m’s , d Ɨ Ʈ N Ʈ 92 ‘ n are to be accepted by all subsequent jurists then not only by all subsequent jurists then not n are to be accepted BID Ɨ Ɩ ‘ WITH SIGNIFICANT CHANGES Kh ( BN ঌƗ 8I AIG AIG at 44. at 44. See Id. Ibn al-Hum n adds an interesting point: if a non-Muslim sovereign designates a non-Muslim a if an interesting point: n adds n, but rather it will ruling of the the authoritative or official become n, but Ư Ư B. Where it is not Possible to Officially Appoint a Governor or Judge a to Officially Appoint B. Where it is not Possible P04 - B The above scenarios are not ones that are found in the United States or are found in the United States or The above scenarios are not ones that Therefore, in a modern United States United Therefore, in a or Western modern context, and in the It is necessary unpack the various layers to discussion here of textual mad Ri bid bid ত Ɩ Ɩ power and jurisdiction that Muslims that Muslims power and jurisdiction possess there. as the Friday and line, which states that Islamline, which The the sultanate. not a condition for is only have been where governors lands that, for those point it adds is significant category (the second sovereign mentioned by a non-Muslim appointed ( penal laws earlier), Islamic U.S. governments to appoint Islamic judges in America. The to U.S. governments majority appoint Islamic of be only shall judges it is not possible, and that jurists, however, rule that Nevertheless, Ibnof the Muslims. by the choice and agreement appointed ‘ would appoint a judge over the Muslims. Late would appoint a judge over the Muslims. this situation and suggest that Muslims should appoint a scholar competent a scholar competent should appoint Muslims and suggest that this situation either nominate a person to adjudicate among them or the government pro- or the government them a person to adjudicate among either nominate that the Muslims are condition sat- the poses a person who is appointed on to office. appointment isfied with such a person’s elsewhere, such as in Europe. Presently, there are no judges in offi- Islamic cial judicial positions, discussion regarding the implementation of certain elements of Islamic law of Islamic certain elements of implementation discussion regarding the two options are available for into the legal system, and incorporating them discussion from an Islamic ( 91. 91. 102 102 verytext is to similar found in what is 92. 92. and apply Muslim secular lawthe of the land (of which there are many). 93. are that Shari‘a rulings and not judges referring to judges that apply Islamic judges, I am By adopted, then it would be legallyadopted, then it would (from possible a and the judge over them Muslims accept it, then such an appointment is valid. undoubtedly A should ‘ school. school. because of the implications juristic discourse in have on it modern might United States. If the view of countries like the 35947-ckt_90-1 Sheet No. 58 Side B 01/14/2015 15:25:42 B 01/14/2015 58 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 59 Side A 01/14/2015 15:25:42 i r - ৢ al- Ɨঌ al- Ư AL ALIK ণ Na ǌ -M note 77, HAR S ) not vested asan ‘Al an BD AL BD supra ণ YA YA , Ʈ ) vested in these ) vested ‘A laq (Muslim (Muslim N ܒ a Ʈ al- . . .” Ɩ AD L ǌ H mu Ɩ Ɨ܈܈ ‘ -N bi, that is Ab K A (d. 1143/1731), 1143/1731), (d. Ư ৬৬Ɨ n Ab note 95, at 351–52. The note 95, at 351–52. Ư School; in fact, it would fact, School; in ঋƖ 95 Ư -M umma I al-kh R Ɨ QA AL QA Ʈ y AL anaf Ɨ ǋ 103 103 r al-D supra bulus AD ণ B ), for example, states something states something ), for example, ǌ , Ư Ɨ MAD ণ Ʈ A b - ণ ) is a work of the Islamic govern- ) is a work of the Islamic ) akin to the contemporaneous contemporaneous to the ) akin Ɨ Ư Ư al-wil n writing in British India) British n writing in AL m th Ɨ ) 1/5/2015) 9:32 AM , Ɨ Ɨ Ʈ al-N BULUS Ư Ɩ scholar N ELETE Ư Kh -N al-isl ARAMAYN 280–83 (1979) he belongs Although (Egypt). D Ư BULUS fi‘ s al-Ghiy ণ ঌƗ Ɨ Ɩ Ɨ - OT those in authority among you those in authority L L AL (scholars) [to will be empowered N Ʈ -N ’ Ɩ ‘ O ULAM Ɨ Ɩ ’, d. 458/1066). The contents of the book tend to The contents of the book ’, d. 458/1066). M ਋ (D Ɨ - Ɩ L AL SM Ʈ I M ‘ (d. 586/1190). Although the passage does not specify specify not passage does the Although (d. 586/1190). mad Ri (“when has allowed the contemporary the era is void”) Ɩ Ư ulam . I r DOCX Ư ত BN Ɨ TH AL is also not restricted to the not is also SM Ư Ɩ I note 42, and the book of the same name (and time) (and time) al-Q by name the same book of note 42, and the )(4). (also known as (also known note 76, at 549. I have obtained an unpublished fatwa from the fatwa from unpublished an obtained 76, at 549. I have note bulus BN Ɨ I LTIY bulus general writing a century before al-‘Att century before writing a I Ɨ Ʈ Ʈ supra al-Bukh Ȅ supra Ư , Ư , b usayn Ibn al-Farr usayn Ibn It delegates the legal affairs of It delegates the legal to compe- Muslims In fact, ‘Abd al-Ghan In fact, ‘Abd HAN N ya/al-fikr (al-fiqh) al-siy (al-fiqh) ya/al-fikr Ư ৬৬Ɨ ণ Ɩ 96 94 -G MAM F OPERATINGJURISPRUDENCE ISLAMIC H 351 (1994) (Turkey). His reference is to al-‘A himself in fact cites the Sh himself ward th al-Umam Ư Ɨ Ɨ K -U YA Ʈ ঋƖ BD AL I bulus Ghiy n to cite it in the context of British India (18 A of context n to cite it in the Ɨ R (d. 478/1085 (d. TH AL Ư Ɨ ‘A of al-M Ɩ sa al-shari‘ Ɨ AMMAD WITH SIGNIFICANT CHANGES ya of an Islamic sovereign. sovereign. of an Islamic Kh ( Ư scholars (such as A MAD ণ HIY Ư n ণ ঌƗ U AYYID ܒƗ School, AIG AIG ,G Ư al-siy Ʈ -M Mufti Ghulam Rasool who lived in London (on file with author). He similarly states that in author). He similarly with (on file Rasool who lived in London Mufti Ghulam (Muhamad Ibn al- Ibn (Muhamad Ư fi‘ Ɨ anaf legal thinking. Ɨ (d. 911 /1506), who says that this specific type of power ( of that this specific type says who (d. 911 /1506), Ư Ư mad Ri ণ P04 - B d The issue in this is case comparatively straightforward, and no differ- When the era is void of an appropriate sultan [to administer the affairs of the affairs sultan [to administer of an appropriate the era is void When ‘ the subjects], then his Muslim community) to take recourse to these scholars. The scholars will become scholars. The scholars will become to these recourse to take community) one scholar recourse to to take is difficult for all of them If it governors. administer their affairs] and it is necessary upon the and their affairs] administer then each region should independently adhere to their [local] scholars. If scholars. [local] to their adhere independently should region then each knowledgeable [scholars in one area] then the most there are many knowledge] [in If they are all equal followed. should be them among them. among casting lots by [one should be selected] then ত anaf ǌ m al-Sul QA AL UWAYN Ʈ Ya‘l ণ Ɨ locum tenens mad Ibn Muhammad al-‘A Muhammad Ibn mad ǌ k -J anaf ত ۊ AR scholars does not negate the general obligation to follow other Muslims scholars ( Muslims other follow negate the general obligation to scholars does not Samh accord with the consensus of the schools, indicating that there is convergence of the schools on this on this schools there is convergence of the schools, indicating that accord with the consensus of the particular issue. Al-N Ab non-Muslim lands and may well have been written in the context of Muslim lands without appropriate lands without well have Muslim context of the been written in lands and may non-Muslim is rulers, the fact that the statement A mufti mentioned above (Ghulam Rasool) to cite the passage in his fatwa addressing Muslims in Britain, fatwa addressing Muslims in his passage Rasool) to cite the above (Ghulam mentioned mufti and A refers back to a sixth/twelfth century to a sixth/twelfth refers back conclu- the subject who covered legist sively: ance genre ( A similar to the above passage from al-N from to the above passage similar 94. 18 A 18 94. 2015] 2015] as faith, Sunni of the correct and is upright who jurisprudence, a in Islamic facto judge. sort of de not be considered a legal work as suchnot be considered disciplines to because it engages with the full breath of Islamic I guidance” to believers). “religious provide scriptural basis for this obedience to scholars would stem from the Qur’anic verse (4:59): “O you who from the Qur’anic verse (4:59): “O you scholars would stem scriptural basis for this obedience to the Messenger, Allah and obey and have believed, obey to the Sh 96. Al-Juwayn can appoint judges. that non-Muslims this with rulings cited above at 549-50). Couple 96. late ৫ with such powers (this work by al-N with such powers AL tent Muslim scholars in society.tent Muslim does not de- Although the above passage fine the scope of which areasadministered of Shari‘a are to be by scholars, later have outlined a practical set of areas that should be governed by Muslim thathave outlined a practical set of areas be governed by should ence of opinion within the school has been cited here. In fact, school a similar within the ence of opinion schools so concept can not restricted toit is among the other be found ণ 95. 1 S 1 sovereign, reliable and trustworthy scholars are representativethose places where there is no Islamic or the 95. 35947-ckt_90-1 Sheet No. 59 Side A 01/14/2015 15:25:42 A 01/14/2015 59 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 59 Side B 01/14/2015 15:25:42 97 USLIMS IN IN USLIMS 98 M [Vol 90:1 90:1 [Vol ) 1/14/2015) 9:27 AM ELETE ISCOURSE OF ANDS D D L OT N O (D ), marrying unable and others orphans ), jihad reveals that it is not a body lit- of USLIM USLIM ۊƗ SLAMIC ), the political and social circumstancespolitical ), the DOCX I note 76, at 549. Also see, Mufti Ghulam Rasool’s fatwa Also 76, at 549. see, Mufti Ghulam note -M and coming under non-Muslim and coming Alt- rule. under non-Muslim siyar/ )(4). m ON Ɨ n is writing in the context of British India while Mufti Ghulam context of British India while Mufti Ghulam n is writing in the N supra Ɨ , CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N madhhab Ɩ Kh faskh al-nik H ঌƗ r al-Isl K Ɨ D ঋƖ I R mad Ri VALUATING THE ত E WITH SIGNIFICANT CHANGES MAD ( V. ণ AIG AIG prayers, sighting of the new moon (establishing the new months), months), new the (establishing new moon sighting of the prayers, d Ʈ P04 - B A study of the section on At the outset, it was noted that the and Qur’an discusses emigration, ‘ erature solely between Muslims and non- concerned with hostile relations discuss Muslims. Instead,jurists do the not only is its nature multifaceted: matters that regulate military same section, they also warfare, but, in the territory.discuss matters relating to peaceful abidance in non-Muslim Thus, lands through war- non-Muslim law contemplates entry into just as Islamic fare, Islamic law clearly makes space for peaceful relations in non-Muslim some use jihad lands. In American public discourse, a catchallas phrase to But, even in this is clearlyencapsulate all of Shari‘a, which misguided. of the Shari‘a, misconstrued of jihad continue to notions single element for a calls is in the section on jihad perpetuate. The fact that this guidance Because of section comprises. understanding of what the panoptic more issues the arising from wider context of jihad, discussions centered on jihad have a wider rubric than are often assumed. dissolving marriages ( marriages dissolving 97. 18 A 18 97. 104 104 an offi- of remit judicial under the normally would which scholars, come ciallyThese areasappointed judge. of thethe Friday include leading law and mentioned above. A above. mentioned Rasool’s fatwa was penned in present day London. 98. There was not sufficient space in the present article to discuss these in any detail. that it is a very important part of the religious history of the early commu- of the early history part of the religious that it is a very important nity in other instances (and for Muslims of history). Muslim The earliest the socialscholars addressed and commercial phenomenon Muslims of traveling outside sometimes contributed to the cementing of these positions. hough these Muslims werehough these Muslims discussed in the legal the context of traders, matters discussed with respect traders to those were limited not only to financial transactions, but they also covered penal law and other matters. living under toward Muslims jurists expressed a variety of attitudes Islamic were largely informed by the posi- rule. While these opinions non-Muslim school ( tions of their to marry independently, and other areas of Islamic law that are not at con- law that independently,areas of Islamic and other to marry of the land. the laws anydo not face or flict with, from, hindrance 35947-ckt_90-1 Sheet No. 59 Side B 01/14/2015 15:25:42 B 01/14/2015 59 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 60 Side A 01/14/2015 15:25:42 101 s. Ư OLITICAL P can still anaf jurists in Ư m HE ণ Ɨ ,T anaf s), Islamic law s), Islamic EWIS ণ Ư L r al-Isl Ɨ anaf D 105 105 ণ ERNARD ) 1/5/2015) 9:32 AM but contained a central con- ELETE 100 s hold a distinctive one. In terms of extra- one. In terms s hold a distinctive D Ư lik OT Ɨ N O (D s stress that inviolability (of life and Ư School is unique in contrast to the other three that are to the other contrast in is unique School Ư DOCX anaf anaf ণ )(4). ণ , classical Islamic codified complex jurists also m Ɨ School—in the event of escaping legal justice for event of School—in the Ư OPERATINGJURISPRUDENCE ISLAMIC r al-Isl anaf Ɨ 71–80 (1988). 71–80 (1988). ণ D WITH SIGNIFICANT CHANGES ( SLAM I F AIG AIG O ), one can observe here that on the issue of migration and residence in non-Muslim lands, non-Muslim and residence in migration ), one can observe here that on the issue of Choice-of-law questions were clearly central here to Islamic jurists Choice-of-law questions were clearly jurists central here to Islamic 99 hib P04 - B Although legal manuals legal predominantlywere Mus- to address designed manuals Although Contrary to the rhetoric found in sections of the media, blogosphere, sections of the media, rhetoric found in Contrary to the Ɨ ANGUAGE madh in agreement. territorial jurisdiction, the position of the three of the schools hold the same view while the M three of the schools hold the same cern for the principle of territorial jurisdiction, especially for the cern for the principle of territorial jurisdiction, 99. schools here, as the other alluded to earlier. among There are differences 100. In the way put forward by Bernard Lewis for B example. L 2015] 2015] in discussing the extra-territorial jurisdiction of Islam. The division of the of Islam. in discussing the extra-territorial jurisdiction a was not to indicate and “Abode of War” world into the “Abode of Islam” and necessarypermanent state of hostility, legal schools Islamic among and difference of understanding concordance In terms 101. ( lims living in lims living and political sphere, Muslims are not commanded penal law to implement jurisdictions. And contraryin non-Muslim today to assertions made by to the Shari‘a, this paper shows to adhere certain radical groups claiming are obliged to observe the local law ofthat Muslims the land (which in- citizens and property).least ac- Not onlycludes not harming that, but—at cording to the and profound legal rulings pertaining to Muslims in non-Muslim lands. In in non-Muslim Muslims to pertaining legal rulings and profound concerns the practical one is able to discern particular, of transgressing the law in a non-Muslim country (or being the victim of an of being the victim countrytransgressing the law in a non-Muslim (or access or onlyoffense), they will be deprived of all limited access receive while, All the country. a Muslim if a case is brought to justice to Islamic a theological point responsible from them law to hold Islamic will continue extending the jurisdiction of Islam to non-Muslim lands. While judges in lands. Islam to non-Muslim jurisdiction of the extending committed law for acts landsnon- Islamic in enforce cannot Muslim of a “territorialist” of a lack of jurisdiction (in light Muslim lands because or “anti-extraterritorialism” adopted by approach makes a subtle, yet important, qualification: a Muslim will not be relieved will not be makes Muslim qualification: a a subtle, yet important, event of breaking the obligations in the his religious his moral sin or from although law. Furthermore, exercise some of its judicial authority. fact However, this is in light of the to non- sojourners of as temporary were onlyconceived that Muslims lands, we can understand case of permanent residency, and in the Muslim non-Muslim law in be no question of applying Islamic that there would lands. property) stems from territory, and not from religion, property) territory, from from stems and not 35947-ckt_90-1 Sheet No. 60 Side A 01/14/2015 15:25:42 A 01/14/2015 60 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 60 Side B 01/14/2015 15:25:42 schol- Ư ELIGION AND lik R Ɨ HE :T prayers), leaving it SLAM , I d Ʈ ‘ [Vol 90:1 90:1 [Vol ) 1/5/2015) 9:32 AM HURCHILL C ELETE D LLIS E OT N O (D UNTZIE While the jurists do not explicitly While the jurists do not explicitly men- DOCX &B 102 )(4). EWIS EWIS L CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ERNARD WITH SIGNIFICANT CHANGES ( AIG AIG 10 (2009). Lewis basically says that Muslims came under non-Muslim rule either by under non-Muslim came that Muslims says 10 (2009). Lewis basically P04 - B This perhaps challenges, or provides a new perspective to, the state- This perhaps challenges, or provides In terms of independent jurisdiction in non-Muslim territories, Muslim territories, in non-Muslim jurisdiction of independent In terms EOPLE P open to the Muslims of a particular time time open to the Muslims of a particular and place. ments made by writers some that voluntary Muslim migration to non- to have entered the minds of seems lands is a question that never Muslim Muslim jurists and theologians. ars’ concerns that Muslims would be subject to non-Islamic laws. At the laws. At the non-Islamic be subject to ars’ concerns that Muslims would concern is the needheart of the jurists’ enunciate how Muslims to could life, in all the lead a practicing Muslim or practical possible situations that they face. It would not may anachronistic to assert that be early Muslim onlyjurists provided, not some cases, precise detailsa blueprint, but in to directly very address, in practical terms,issue of the contentiously debated by laws beyond to live Muslims being able matters. Islamic This is ritual and binding that have legal authorityconceived by vesting in personalities power in the of anabsence imam terri- (Muslim sovereign) in non-Muslim Is- of of judges and administration appointment to the respect tory. With law, the by different scenarios addressed lamic the jurists depended on how theyMuslims were governed. As such, that reflect different considerations the community.result from particular Muslim realities of the The same the practical process of determining circumstances of Muslims can be the of defining today,in terms in the United States Muslims adopted for theyscope of Islamic jurisprudence that immediatelymost need to be con- not clearlycerned with. Traditional jurists did which areas of the delineate the Friday (except law should be administered and THE conquest or by imperialism, and the thought of voluntary emigration never entered their thoughts. of voluntary and the thought imperialism, conquest or by 102. See for example, B 106 106 law them respon- will hold Islamic schools, the other to According of view. bothof view. point and judicial-legal a theological sible from scenariosdiscussed the different scholars could which Muslims in find Muslims the guidance for jurists laid out ago, those Centuries themselves. their manage should how they detailed lands, and non-Muslim living in legal affairs. perhaps go some The rulings way the M to address tion voluntary migration, the fact that they the were hardly concerned with the tion voluntary migration, means by which these Muslims had arrived lands (except by in non-Muslim that they may as traders or converts in the land), suggests referring to them completely not to in order this discussion have deliberatelyfrom refrained restrict this activity. Permanent residency does not seem to be encouraged governing the appoint- works. However, the detailing of rules in the early in a permanent and stable setting, occur ment of judges, which can only 35947-ckt_90-1 Sheet No. 60 Side B 01/14/2015 15:25:42 B 01/14/2015 60 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 61 Side A 01/14/2015 15:25:42 L. 104 KLA 103 , 66 O , 2 (1893-95, Ʈণ YSTEM S AH ৡ - AL 107 107 ‘ EGAL MI L Ɩ -J ) 1/5/2015) 9:32 AM , 48 of the Istanbul reprint (1963, AL , H Ʈ R ণƮ ELETE Ɩ A D -S MERICAN OT UKH N A AL O ‘ -B (D MI Such cases are often covered under the the Such cases are often covered under Ɩ L AL -J Ʈ 106 ‘ DOCX Ɩ AL , J )(4). SM I Ɩ AW IN THE AJJ BN BN L I ণ - OPERATINGJURISPRUDENCE ISLAMIC BN AL BN I Religious Law (Especially Islamic Law) in American Courts Islamic Law) in American Religious Law (Especially AMMAD SLAMIC ণ 105 I U M USLIM VI. H M Ɩ WITH SIGNIFICANT CHANGES ( 441–43. The Religious Freedom Restoration Act is a federal law but since 1997 (after Restoration Act is a federal law but since 1997 Religious Freedom The 441–43. AIG AIG at 431, 434–35, 437–38. 437–38. 434–35, at 431, BDULL USAYN Id. Id. at ণ ‘A - P04 - B Reviewing the different instances whereReviewing the different Mus- law, or general Islamic Likewise, some of the areas where U.S. for law has provisions made ǋ Actions are only [judged] by intention. And for every person is what he has intended. So So has intended. what he person is every for And intention. [judged] by Actions are only and for Allah whosoever His Messenger,migrates is for Allah and His then his migration then to for worldly affair to gain, or for a woman marry, Messenger. And whosoever migrates is for what he has for. his migration migrated AL . 431, 433 (2014). 433 (2014). 431, . B ǋ B EV the Supreme Court ruled that it could not be applied to states), 22 states have passed their own RFRAs states), 22 states not be applied to Court ruled that it could the Supreme state and local governments. to their individual that apply edition 1911-1915) (Egypt) (Hadith report 1907); and mentioned in all major collections (with in all (Egypt) (Hadith and major report 1907); mentioned edition 1911-1915) Sufi travelers to non-Muslim unrestrictedly. the Hadith apply different wording). Scholars slightly Volokh, for their faith as ambassadors who also served as well as traders lands are also well-documented Eugene intentions for migrating). within religious was embedded one’s financial state (so improving 104. lim practice, considered byhas been that no lim one finds American courts, are granted to Muslims that are notspecial exemptions others on to granted Eugene Volokh has (convincingly) argued that of religion. the grounds “[m]any other complaints about incidents of alleged ‘creeping Shari‘a’ in law areAmerican partlymisguided, the because complaints the way miss those incidents simply American reflect well-settled (and sound) law.” reprint of the Bulaq edition)reprint of the Bulaq other places in his collection; (Egypt) (Hadith report 1), and five 6 103. on of ‘Umar: Hadith narrated the authority Note the famous 1 A 2015] 2015] todayto Mus- object do not jurists that traditional The fact this. mitigates the of much lands, although indefinitelylims remaining in non-Muslim it was in pre- reasons as economic for was initially migration modern times, also shows there in the modern was nothing prohibitive explicitly sacred texts the home to mention that This is not regarding emigration. of these immigrantscountries (always) did/do not rule by God’s law. R 106. 106. 105. 105. American religious principles, provides law, recognizing an individual’s for freedom of contract and testamentary dispossession of propertyat death. So Muslims, like Christians, Jews and others, can therefore write their understanding to implement and wills contracts (including marriage) of their religious obligations. Accordingly, their Muslims can route dis- to route their disputes others often tribunals in the way putes to Muslim private arbitrators. A religious accommodation for Muslims in include religiously the workplace for Muslims religious accommodation ormandated dress, such as the headscarf dress, religious holidays modest and objecting to carrying alcohol. 35947-ckt_90-1 Sheet No. 61 Side A 01/14/2015 15:25:42 A 01/14/2015 61 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 61 Side B 01/14/2015 15:25:42 a choice-of-law . fact, In 219 (2014). EV , Nov. 29, 2010, 29, Nov. , L. R note 55. There is scope here The American Civil IMES T ), Mark Rosen has argued that argued that ), Mark Rosen has 111 KLA supra [Vol 90:1 90:1 [Vol , N.Y. 66 O ) 1/5/2015) 9:32 AM lex fori ELETE Rosen, D at 61–62 (a point pertinent to the politicized See OT Id. Id. N O (D DOCX 107 )(4). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Courts may also deal with issues relating to private with issues relating to private Courts also deal may Foreign Law in American Courts, American Courts, in Foreign Law 108 for example, cases as an has handled over 100 for example, attor- 110 note 3. 109 WITH SIGNIFICANT CHANGES supra ( 435–37, 443–45. 443–45. 435–37, AIG AIG The Clause of the First Amendment, alreadyEstablishment for example, prevents courts Id. Id. at that bans state courts from that bans the law ofapplying C. other nations or cultures.” James McKinley P04 - B Abed Awad, Government entities also provide religious accommodations entities also provide Government that bene- Judge Blocks Law in Court Oklahoma’s Ban on Using Shariah at 448. 108. other acts but by the above courts under These accommodations by implemented are not etc. students, customers, the desires of employers, relative to basis hoc on an ad agencies government Id. 109. See Eugene Volokh, 110. Awad, http://www.nytimes.com/2010/11/30/us/30oklahoma.html. 110. 111. 111. one could say that the value the United States places on the diversity found in its interstate legal sys- found in the diversity States places on United say that the value the one could tem—which acts to in each state—makescitizens it amenable to values of reflect the distinctive more that choice-of-law was conceptualized as fact foreignaccommodate a law. Particularly considering the “generalsubset of the the country’s history. for of commercial private international law most law” of a federal court declared sitting in in 1941) upheld and Court rulings (in 1938 Although two Supreme state ( forum laws of the the substantive should apply diversity Liberties Union has examined similar cases and demonstrably cases and Liberties Union has examined similar reported that law is encroaching “there is no evidence that Islamic on our courts. On the applying foreign, international or religious laws that violate public policy. that violate public policy. foreign, international or religious laws applying to examine how such a framework could be useful for dealing with Islamic law with Islamic for dealing (and foreign laws in how suchcould be useful a framework to examine (of choice-of-law predicta- procedures) is necessary to determine general), not only because uniformity bility, but it would also reduce political interference. provision Jr., choice-of-law be re-conceptualizedmust as federal law. the Okla- in defendants the Incidentally, above). law mentioned Islamic surrounding nature of debates law] is amendment merely the “[anti-Shari’a that case cited above contended homa 107. 107. 108 108 Restoration of Act Freedom Religious and the 1964 Act of Rights Civil that prevent in place 1993. There constitutional limitations are, of course, compellingthat interfere with or penalties of contracts the enforcement safety or interests. government international law involving companies counties based in Muslim involving companies international law ad- (that here to certain laws of Islamic commerce) that operate in the United States Traditional American States’ employees/partners. and/or have United choice-of-law rules apply here theyas for all other interactions would with foreign laws. ney, consultant or expert witness involving components of Shari‘a. They ney,witness involving components consultant or expert include international business contracts where courts deemed that the law in an and enforcing dower payment Islamic country applied of a Muslim marriage contract. U.S. courts, he notes, also refuse to recognize such or- reasons. process ders due to constitutional and due fit employees, students or customers. Some of these include public school Somecustomers. school students or public of these include fit employees, Muslims, in areas where there are on religious occasions holidays many food in halal of and airports, provision in universities ablution facilities for- lenders offering loans that run cafeterias, and government government mally interest. avoid 35947-ckt_90-1 Sheet No. 61 Side B 01/14/2015 15:25:42 B 01/14/2015 61 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 62 Side A 01/14/2015 15:25:42 (Mar. , ACLU 1 HINGS T (May 16, 2013), IRST , F 109 109 112 ) 1/5/2015) 9:32 AM 113 ELETE D Anti-Sharia Movements’ Unintended Conse- Anti-Sharia Movements’ THE AMERICAN MUSLIM of the “Shari‘a” in the media and OT , N Ȅ O (D ONCLUSION C DOCX The Dangers of Anti-Sharia Laws The Dangers of Anti-Sharia Anti-Sharia Laws Stir Concerns That Halachah Could Be Could Halachah That Stir Concerns Anti-Sharia Laws , as is the case , as is the other faiths,with people of )(4). ). n Ɨ am OPERATINGJURISPRUDENCE ISLAMIC American law American or even constructions Ȅ WITH SIGNIFICANT CHANGES ( AIG AIG Nothing to Fear: Debunking the Mythical “Sharia Threat” to Our Judicial System Threat” “Sharia the Mythical Debunking Nothing to Fear: P04 - B This paper has demonstrated that what a common is required is This paper has demonstrated sense a plat- an Islamicview, the ideas discussed here provide point of From There is no “special case” for Islam or a change in law that is required. or a change “special case” There is no Islam for .theamericanmuslim.org/tam.php/features/articles/anti-sharia-movements-unintended- When the court cases cited by anti-Muslim groups are examined more closely, the myth of the of the the closely, myth more are examined groups anti-Muslim cited by the court cases When “Sharia threat” to some fabricat- our judicial system quickly disappears. Far from confirming ed conspiracy, these cases illustrate that is alive and our judicial system well, and in no dan- or taken over by Islam. ger of being co-opted , JTA, Apr. 28, 2011, http://www.jta.org/2011/04/28/life-religion/anti-sharia-laws-stir-concerns- at 5. WWW 112. 112. 2011), (May https://www.aclu.org/files/assets/Nothing_To_Fear_Report_FINAL_MAY_2011.pdf. presenting After various cases (as Volokh does) to illustrate the point, the report concludes: Id. Shari‘a inbanning of ramifications and consequences” 113. of the “unintended To see some courts, as well as the above sources visit: Sheila Musaji, Others Native Americans, and quences for Jews, 2015] 2015] contrary, cited cases court the by purportedly as groups anti-Muslim illus- actuallyopposite.” show the problem this trative of approach that recognizes the accommodatingapproach that recognizes principles contained within Islamic legal system the body of and American both the the repositories of very there are onlynumber limited a Especiallylaw as laid out above. since mayof areas where Shari‘a principles interact with courts in the United States in the first place. theform for Muslims to both engage with of the Islamic tradi- continuity tion, and to applytradition to local circumstances. that Reductive representations that serves to demonstrate theyin the views of some populist politicians potential in this area, not least the unanimityof Shari‘a’s grasp of have no a peaceful life underthe jurists on living and maintaining law non-Muslim (as necessitated by the such as Jews observing Halakhic law. observing Halakhic such as Jews principleThe same for is applied have thus such bills would of The passing foreign law. cases involving community Jewish the other U.S. citizens including for wider ramifications law cases. international in and those involved Although motivated by motivated Although faith, Muslims their claimants are simply seeking of an application consquences/0018763; Robert K. Vischer, Robert consquences/0018763; Next that-halachah-could-be-next. 2012), http://www.firstthings.com/index.php?permalink=article&entry_permalink=2012/03/the- dangers-of-anti-sharia-laws; Ron Kampeas, 35947-ckt_90-1 Sheet No. 62 Side A 01/14/2015 15:25:42 A 01/14/2015 62 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 62 Side B 01/14/2015 15:25:42 [Vol 90:1 90:1 [Vol ) 1/5/2015) 9:32 AM ELETE D OT N O (D DOCX )(4). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW WITH SIGNIFICANT CHANGES ( AIG AIG P04 - B Such a study therefore provides valuable information, resources, and resources, information, valuable provides therefore a study Such 110 110 insights for approaching the contemporary debates surrounding co- surrounding debates the contemporary approaching for insights existence the United lands such as in non-Muslim Muslims living and States, in legal which affairs to feature prominently. continue into This ties peaceful of having law that Islamic the point the importance incorporates lands, and in non-Muslim with non-Muslims relationships and pragmatic peaceful relationsenable such to be maintainedprinciples to provides the alike. and non-Muslims of Muslims for the benefit 35947-ckt_90-1 Sheet No. 62 Side B 01/14/2015 15:25:42 B 01/14/2015 62 Side Sheet No. 35947-ckt_90-1