Dhimmi - The "dhimma Contract"

The "dhimma Contract"

Based on Quranic verses and Islamic traditions, classical sharia distinguishes between Muslims, followers of other Abrahamic monotheistic religions, and pagans or people belonging to other polytheistic religions. As monotheists, Jews and Christians have traditionally been considered "People of The Book," and afforded a special status known as dhimmi derived from a theoretical contract - "dhimma" or "residence in return for taxes". There are parallels for this in Roman and Jewish law. Muslim governments in the Indus basin readily extended the dhimmi status to the Hindus and Buddhists of India. Eventually, the largest school of Islamic scholarship applied this term to all non-Muslims living in Islamic lands outside the sacred area surrounding Mecca, Saudi Arabia.

Classical sharia attributes different legal rights and obligations to different religious groups; in practice, this consisted of curbs on the rights and freedoms of non-Muslims.

Classical sharia incorporated the religious laws and courts of Christians, Jews and Hindus, as seen in the early Caliphate, Al-Andalus, Indian subcontinent, and the Ottoman Millet system. In medieval Islamic societies, the qadi (Islamic judges) usually could not interfere in the matters of non-Muslims unless the parties voluntarily choose to be judged according to Islamic law, thus the dhimmi communities living in Islamic states usually had their own laws independent from the sharia law, such as the Jews who would have their own Halakha courts. These courts did not cover cases involved other religious groups, or capital offences or threats to public order. By the 18th century, however, dhimmis frequently attended the Ottoman Muslim courts, where cases were taken against them by Muslims, or they took cases against Muslims or other dhimmis. Oaths sworn by dhimmis in these courts were tailored to their beliefs.

Non-Muslims were allowed to engage in certain practices (such as the consumption of alcohol and pork) that were usually forbidden by Islamic law. Zoroastrian "self-marriages", that were considered incestuous under sharia, were also tolerated. Ibn Qayyim (1292–1350) opined that non-Muslims were entitled to such practices since they could not be presented to sharia courts and the religious minorities in question held it permissible. This ruling was based on the precedent that the prophet Muhammad did not forbid such self-marriages among Zoroastrians despite coming into contact with Zoroastrians and knowing about this practice. Religious minorities were also free to do whatever they wished in their own homes, provided they did not publicly engage in illicit sexual activity in ways that could threaten public morals.

However, the classical dhimma contract is no longer enforced. Western influence has been instrumental in eliminating the restrictions and protections of the dhimma contract, thereby contributing to the current state of relations between Muslims and non-Muslims living in Islamic lands.

According to law professor H. Patrick Glenn of the Canadian McGill University, located in Montreal, Quebec, "oday it is said that the dhimmi are 'excluded from the specifically Muslim privileges, but on the other hand they are excluded from the specifically Muslim duties' while (and here there are clear parallels with western public and private law treatment of aliens – Fremdenrecht, la condition de estrangers), 'or the rest, the Muslim and the dhimmi are equal in practically the whole of the law of property and of contracts and obligations'."