Islamic Law and Muslim Minorities: the Juristic Discourse On Muslim Minorities From the Second/Eighth To the Eleventh/Seventeenth Centuries

Abstract

AbstractThis essay examines the juristic discourse on Muslim minorities from the second/eighth century to the eleventh/seventeenth century with regard to (1) whether or not Muslims may reside in non-Muslim territory and under what circumstances; (2) the relationship of these Muslims to dār al-Islām; and (3) the ethical and legal duties that these Muslims owe to the Sharī'a and to their host non-Muslim polity. The juristic discussions on legality of residence in non-Muslim territory in the first Islamic centuries were cryptic and ambiguous. Systematic juristic positions developed only after the sixth/twelfth century as a response to historical challenges. The various positions adopted by the jurists were a function of historical specificity and reflected a dynamic process of legal development. In theory, the position of Muslim minorities residing in non-Muslim territory is problematic because of the traditional dichotomy between dār al-Islām and dār al-harb. In practice, the persistent existence of Muslim minorities residing outside dār al-Islām challenged this dichotomous view. The linguistic dichotomy between dār al-Islām and dār al-harb obscures a much more complex historical reality. The juristic discourse on the issue was not dogmatic and does not lend itself to essentialist positions.