Authored by: Dr. Anver M. Emon, Professor of Law, University of Toronto Faculty of Law, author of Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law, available through Oxford Scholarship Online.
The dhimmi is the Arabic term used in medieval Islamic legal sources to refer to non-Muslim permanent residents in Islamic lands. The dhimmis were, effectively, the principal Other that Muslim jurists contended with as they imagined an Islamic polity governed by Islamic law. The dhimmi rules were the rules Muslim jurists developed as they anticipated an imperial order governing amidst diversity. A close reading of the dhimmi rules offers important insight into the way in which early Islamic law anticipated differences among legal subjects, accounted for that difference as a matter of law, and contributed to the ultimate aims of an imperial enterprise of governance.
An initial question from the reader might be, ‘What’s the point of examining in great detail nuanced legal debates about ancient rules of a legal tradition, none of which are legislated in modern Muslim states today?’ The fact is that despite the historical vintage of these rules, they still matter today as the political climate in Europe, North America and elsewhere seethes with anxiety about Islam, Muslims, and concerns about security. Indeed, the dhimmi rules are all the evidence securocrats in Washington DC and Europe need to justify increased surveillance of Muslims, and a decreased commitment to multicultural policies in highly diverse Europe and North America. The dhimmi rules are invoked today by neo-cons and the political right (if not xenophobic right) as proof positive that Muslims are intolerant of others, cannot be trusted, and so must be subjected to increased surveillance and security measures.
To view the dhimmi rules through the lens of “tolerance”, however, ignores how the rules are themselves symptomatic of the larger challenges of governing a diverse polity. It would be reductive to say that the rules were inherently discriminatory, just as it would be disingenuous to suggest that the rules did not discriminate. Rather, the rules reflected a tension between accommodating difference while upholding a particular vision of public order and public good that was closely identified with an Islamic ethos. So for instance, despite the Islamic legal ban on alcohol, Muslim jurists accommodated the dhimmis’ difference by exempting them from the general ban. At the same time, however, Muslim jurists transformed the general ban against alcohol into a public policy principle that led them to punish dhimmis for public drunkenness. The exemption from the general ban, along with the public square regulation, reflect competing tendencies in early Islamic law to accommodate, regulate, manage, and in some cases subordinate the Other in furtherance of a conception of an Islamic public ethos.
The tenor, tone, and overall effect of the dhimmi rules, though, are not unique to the Islamic legal tradition. Rather, legal systems across time, space, and tradition evince similar anxieties about the minority who seeks an accommodation from the prevailing governing authorities, whether a medieval imperial order or a modern constitutional democratic state. An analysis of legal arguments in recent US, UK, and French cases concerning covered Muslim women reveals a startling similarity between these more recent cases and the dhimmi rules. Just as early Muslim jurists rendered the dhimmi an unbeliever, so too did the Conseil d’Etat deem Ms. Faiza Silmi an “unbeliever” in core French values when it upheld the government’s rejection of her application for citizenship. Just as Muslim jurists held dhimmis to rarified conceptions of their own legal traditions, so too did a Florida court in Sultaana Freeman v. Department of Motor Vehicles decide upon a US citizen’s expectation of religious freedom by reference to vague foreign norms held by unspecified Islamic countries, which the court presumed to be meaningful for her. And just as Muslim jurists sometimes deemed the dhimmi a potential security threat whose liberties had to be curtailed, so too did the House of Lords in the UK invoke the spectre of extremism when it decided the Shabina Begum v Denibigh Highschool case.
Despite what some consider progress in law and civil rights in liberal democratic regimes, there is something endemic to law qua law that will always render minorities subject to adverse legal decisions. This is not to say that minorities will always lose or that they should always win; rather it is to suggest that when they lose, it will often be to the benefit of an enterprise of governance that presumes to reflect a majoritarianism that is deemed obvious, natural or self-evident. Consequently, it is at the moment when a minority comes before the court seeking an accommodation or benefit from the state that we must be most vigilant, given the tendency of the law to subordinate the minority to the interests of the state and the majoritarian values it presumes to protect and often holds out as universal.
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