Document 5
ANOTHER MEDIEVAL LEGAL DOCUMENT
TREATMENT OF UNBELIEVERS
Ibn-abī-Zayd al-Qayrawānī
Risāla[1]
30.01 How and when jihād is obligatory
37.01 Conviction for homicide
37.04 Blood rate to other than Muslim men
37.19 Crimes against Islām
37.20 Banditry (hirāba)
37.27 A Christian rapist
39.14 Non-heirs
43.01 Greeting
30.01 How and when jihād is obligatory[2]
Jihād is an obligation which some people fulfil in place of others.
In our opinion, it is preferable not to fight the enemy until they are called to the religion of God, unless they precipitate [hostilities] towards us. When [they are called to the religion of God, they have the choice of] becoming Muslims or of paying the jizya;[3] otherwise war should be made on them. The jizya should be collected from them only if they live where our administration governs them. If they are far from us, no jizya should be collected from them ─ unless they travel to our lands ─ but war should be made on them.
Fleeing from the enemy is a major sin if they are twice the number of the Muslims or less. But if they are more than twice the number of the Muslims it is not wrong to flee.
All governors, whether of good or evil character, should be followed in fighting the enemy.
It is not wrong to kill a non-Arab unbelieving prisoner, but no one is to be killed after being given a guarantee of safety (amān), and treaties with the enemy are not to be violated. Women and children are not to be killed; neither are monks or clergy unless they take part in the fighting. Likewise a woman may be killed if she takes part in the fighting.
The least [prominent] Muslim may give a guarantee of safety [binding] all other Muslims. So may a woman or a child, if she or he understands what a guarantee of safety is. Another opinion is that women and children may give a guarantee of safety only if the imām permits them.
37.01 Conviction for homicide
...A sworn indictment is not to be made when the victim was only wounded, or if the homicide victim was a slave or a Jew or a Christian...
37.04 Blood rate to other than Muslim men
The blood rate due to a woman is half that due to a man. A Jewish or a Christian man likewise receives half what would be paid to a Muslim man. A Jewish or a Christian woman, moreover, receives only half what her male counterpart would be paid.
37.19 Crimes against Islām
A zindīq should be put to death as a matter of fixed penalty (hadd), and his repentance is not to be accepted. A zindīq is one who conceals his disbelief and professes faith.[4]
Likewise a sorcerer (sāhir) should be put to death without accepting his repentance.
An apostate (murtadd) should be put to death, unless he repents.[5] He should be given three days to repent. A woman apostate is treated the same as a man.
If someone does not apostatize, but recognizing [the obligation of] salāt, says "I will not do salāt", he should be given respite until the time for the next salāt has expired, and then should be put to death as a matter of fixed penalty.
If someone refuses to pay his zakāt, it should be collected from him by force.
If someone [is able and] omits going on the hajj pilgrimage, God is his judge.
Someone who omits doing salāt out of spite for it (jahdan) is like an apostate, and should be given three days to repent. If he doesn't repent he should be put to death.
If someone speaks disrespectfully of the Messenger of God (sabb an-nabī), he should be put to death without accepting his repentance. If someone from a tolerated class[6] speaks disrespectfully of him, aside from simply expressing his disbelief, or speaks disrespectfully of God, aside from simply expressing his disbelief, he should be put to death,[7] unless he becomes a Muslim.
The estate of an executed apostate goes to the Muslim community.
37.20 Banditry (hirāba)[8]
...A Muslim is to be put to death for killing a person of a tolerated class in banditry or for money...
37.27 A Christian rapist
A Christian who abducts and rapes a Muslim woman should be put to death.[9]
39.14 Non-heirs
...A Muslim does not inherit from an unbeliever, nor an unbeliever from a Muslim...
43.01 Greeting
...One should not initiate greeting a Jew or a Christian. If someone [forgetfully] greets a member of the tolerated classes, he should not wait for an answer. If a Jew or a Christian first greets a Muslim, the Muslim should answer "`alay-ka (upon you)" It is also said that one may answer "wa-`alay-ka s-silām" with an "i", meaning "Upon you be a stone."[10]
[1]The Risāla, Treatise on Mālikī Law of `Abdallāh ibn-Abī-Zayd al-Qayrawānī(922-996), an annotated translation by Joseph Kenny (Minna: Islamic Education Trust, 1992).
[2]Cf. 40.11. The Qur'ān encourages and regulates fighting unbelievers: 2:190,244-6; 3:154-6; 4:74-7,84,89ff.; 5:35; 8:38-9; 9:13,29; 22:29-40; 47:4,35; 8:45; 61:10ff.
[3]Cf. Qur'ān 9:29 and above, 25.10.
[4]According to an-Nafrāwī, II, pp. 273-4, a zindīq is the same as a munāfiq; the latter was left to the judgement of God in Muhammad=s time, but later practice was to put such persons to death. On the original and other meanings of zindīq, cf. L. Massignon, AZindī±A, in the Shorter Encyclopaedia of Islam, and W.M. Watt, The formative period of Islamic thought, pp. 171-2.
[5]Cf. 40.18. See, however, Muhammad Talbi, "Religious liberty: a Muslim perspective", in Islamochristiana, 11 (1985), pp. 99-113, where it is maintained that the Qur'ān provides no hadd for apostasy, and that the hadīths which support it are not authentic.
[6]Such as a Jew or a Christian.
[7]Something which directly indicates unbelief, such as saying Muhammad was only a sorcerer and not a prophet, or that Jesus is the Son of God, may be said with impunity; cf. an-Nafrāwī, II, p. 277.
[8]Banditry (hirāba) is setting up a road block to prevent passage or to rob or kill an inviolable person; killing for money (ghīla) is a kind of banditry; cf. an-Nafrāwī, II, p. 272. Banditry is distinguished from killing an enemy for revenge, and from revolution against the imām (baghy); cf. an-Nafrāwī, II, p. 255.
[9]If four witnesses see him in the act, as was said above; cf. an-Nafrāwī, II, p. 284.
[10]An-Nafrāwī, II, p. 426, explains that the Christian or Jew may have used the word as-samm (poison) or silām (rock) in place of salām. If the Muslim is not sure what he heard, "`alayka will return the statement as it was meant. But if the Muslim is sure he heard "salām he must return the greeting. If he is sure he heard "sām" or "silām", he may answer with the word "silām", referring to the legal penalty of stoning for adultery. On the presence of Christians and Jews in Tunisia at the time of al-Qayrawānī, cf. Hady R. Idris, La Berbérie orientale sous les Zīrīdes, Xe-XIIe sičcles (Paris, 1962), II, pp. 757 ff.