A New Treatise on the Jurisprudence of Religious Minorities and the Principle of Citizenship

**malak** الثلاثاء مارس 05, 2019 9:14 pm

27 يناير، 2016

A New Treatise on the Jurisprudence
of Religious Minorities and the Principle of Citizenship.

HE Sayyid Ali Al-Amin

A New Treatise on the Jurisprudence of Religious Minorities and the Principle of Citizenship 12651369_10153614822926284_8123551356343181087_n-1

A New Treatise on the Jurisprudence of Religious Minorities and the Principle of Citizenship Binbayyah-alamine-1

The Religious Identity and the National identity

Man acquires a religious identity when he or she believes in a divine message, or in other beliefs which he or she considers religious. Such a religious identity of a human being often comes about at a later phase of their acquisition of a national identity, which is gained through one’s natural belonging to a nation. In fact, the members of a nation or a people bond to each other with ties of history which take shape on the common land of their living and coexistence. It is hence part and parcel of their shared culture including language, traditions, customs, and experiences.

These ties upon which individuals and groups of people converge, engenders a nation or united people. This, thereby, creates out of the land on which they live a ‘motherland’. For this purpose, the notion of the people is essentially included in the definition of a homeland and vice versa. In implication, these facts reveal to us the vital relationship between the homeland and the people, for there cannot be a homeland without a people and vice versa, because a homeland without a people becomes a mere territory lacking any aspects of human civilization.

Similarly, a people without a definite homeland becomes groups of migrants and refugees stripped of a national identity and destined to follow the trends of locals within communities to which they migrated.

Such a degree of strong attachment between a people and their homeland, illustrates in some of its facets the extent to which the human being is connected to his or her homeland and people, and his or her love for both of them, in addition to his or her sacrifice for their sake. Within this instance, it appears that love for the motherland and its people is in the forefront of virtues upon which wise people strive to adopt. For this reason, you see them take genuine pride in their homelands and in the history of their people.

Furthermore, this relationship between the homeland and the nation conforms to the concept that man’s love for his land and people is innately born, with him as a being with a pure innate nature which is shared by all nations of different ethnicities, languages, and traditions. This meaning is also noticed in some religious texts encouraging the love for the homeland, attachment to it, and defence of it such as:

– “Patriotism is part of one’s faith”,

– “If you want to know how faithful a man is, examine his nostalgia to be reunited with his homeland”.

– “Prejudice isn’t in the act of love for one’s people, but prejudice is when one prefers the shortcomings of his people over the good of another”.

Altogether, the spirit of the aforementioned traditions demonstrates that the relationship between man’s sense of belonging to his people and land on the one hand, and his doctrinal or religious ties on the other hand is not conflictual in essence. This is because religion preaches and commands the human being to protect and to take care of these ties from which the national identity is established. Such dual harmony between national and religious identities is further supported by Sharia, which obligates defensive Jihad for the homeland and the people by considering those who are killed for the sake of defending both of them a ‘martyr’.

The homeland

The prince of poets Ahmad Shawqi has described the motherland by remarking: “The motherland is the place of birth, and the source of the yearnings of the heart, and the comfort place of the fathers and ancestors, and the small world, and the doorstep to the other world. The motherland is the first air that moved the two lungs, and the first soil that touched the pair of hands, and the sun ray which penetrated both eyes. It is the stream into youth period and its playground, and the wedding of the youth and its caravan, and the aim of the favour of sustenance and its desire, and the sky of genius and its planet, and the road of glory and its ferry…”

Even upon reviewing all the definitions of homeland and people, one would be certain that religious and political beliefs are matters unrelated to gaining a national identity for a people or an individual, and are irrelevant with respect to a geographical land in assuming the characteristic of a homeland as well. The human being rather belongs to his land and people, through the ties that unite him with others from the same nation – such ties are born with him. National ties that form the national identity are fundamentally prior to faith in the divine message. Religious messages are delivered by a Messenger to his people as they form human groups and develop into a nation already bonded by virtue of primordial ties, such as the homeland, history and culture. In their existence, these people precede the message thus presuming the existence of such receivers before the descent of divine message in the specified homeland.

This can be deduced from a number of verses in the Quran such as:

(وما أرسلنا من رسول إلّا بلسان قومه)إبراهيم: 4.

(And We did not send any messenger except [speaking] in the language of his people)

( كان الناس أمّة واحدة فبعث الله النبيين مبشرين ومنذرين …) البقرة: 213.

(Mankind constituted one nation then Allah sent the prophets as bringers of good tidings and warners)

( وإن من أمّة إلاّ خلا فيها نذير ) فاطر: 24.

(And there was no nation but that there had passed within it a warner.)

( وإنّه لذكر لك ولقومك ) الزخرف: 44.

(And indeed, it is a remembrance for you and your people)

Therefore, the interrelations persisting among the members of these communities, in fact, defined them as a single nation, and marked them as a people at a stage prior to the message of the prophets and messengers. It means that before their acquisition of a particular religious identity, they attained a national identity through these communal codes, before the divine message and the identity combined into religious messages.

The National Identity and the Plurality of the Religious Identity

Just like other messages, religious messages were accepted by some and rejected by others. In most instances, people who refused to believe in a divine message were greater in number than the believers in it, as outlined in some verses in the Quran:

(وأوحي الى نوح أنه لن يؤمن من قومك إلا من قد آمن ) هود: 36.

(And it was revealed to Noah that, “No one will believe among your people except those who have already believed)

(ولكنَّ أكثر الناس لا يؤمنون ) غافر: 59.

(But most people do not believe.)

(ولقد جئناكم بالحق ولكن أكثركم للحق كارهون ) الزخرف: 78.

(We had certainly brought you the truth, but most of you, to the truth, were averse.)

Despite the difference with respect to the religious identity, this did not create division on the level of the national identity including belonging to the nation and the homeland. For example, the believing group did not stigmatize or address the disbelieving group by excluding them from their nationality and native belongingness and vice versa. Also, it was impossible for any group to detach the national identity of the other although the intensity of difference would reach the extent of oppression and boycott until the outbreak of an announced war between both groups. This was the case with Prophet Muhammad (PBUH) when divine revelation ordered him to address his people who rejected his message: (For you is your religion, and for me is my religion.)

or when he said to them in the Ta’if incident: (O my Lord, forgive my people for they do not know). Notice how the Prophet did not say: “For you is your homeland, and for me is mine, or for you is your nation, and for me is mine!” Instead the native identity that connected him with his people remained despite the clear difference in belief between the Prophet and some of his people. It is a demonstration how the national identity that the human being attains from his people and homeland is not eroded whatsoever by another religious identity possessed because of belief in a specific religion. At the same time, the value and reality of a national identity is not overlooked even in the event of not holding a religious identity (which is usually later in the rank of existence and birth to that of the former regardless of its noble position and high status in the sight of Allah the Almighty, and the believers in it).

Therefore, we wonder about the new reality which emerged as a result of some people believing in the divine message, while others disbelieving in it. Consequently, some have gained a religious identity by embracing the divine message, whereas others who chose to disbelieve had not gained a religious identity. Doctrinal and intellectual division thus occurred among the members of the one nation and community which were coalesced but now separated as Allah mentions in the Quran:

(وما كان الناس إلا أمة واحدة فاختلفوا) يونس19

(And people were not but one nation, but then they disagreed)

(ولكن اختلفوا فمنهم من آمن ومنهم من كفر …) البقرة253.

(But they disagreed, and some of them believed and some of them disbelieved)

The Relationship between the National identity and the Religious Identity

One question that needs to be asked however in the light of the differences among citizens in their religious identity, goes as follows: What is the ideal practical framework by which integration is achieved between individuals and subgroups varying in their religious identity, from which arises diversity in beliefs, and out of which does difference in opinions and ideas also emerge?

Therefore, could the cycle of social life rely on a non-existent agreement?

Or might the conflict continue between the religious identity, other identities and cultures till domination is achieved for one against the rest of identities and cultures?

Or, is it possible to construct a model of a shared living between these communities despite the differences in their religious identities, and diversity of cultural sources?

In other words, is there a common denominator around which they could gather, a shelter in which they seek refuge such that it preserves their unity and solidarity, and offers them the right to preserve the varying religious and cultural particularities?

Such is the question that many have attempted to answer, on behalf of sociologists, political scientists, and reformist leaders, by benefiting from the accumulative experiences in governance and its various forms enacted in pluralistic human societies. As a matter of fact, never has been a homeland, or a people, or a nation in comparison to others devoid of the particularity in cultures, religions, opinions, ideas, and so on.

As a possible reference to this difference in terms of variety and diversity, Allah says in the Quran:

( ولو شاء ربك لجعل الناس أمَّةً واحدة ولا يزالون مختلفين إلاّ من رحم ربُّك ولذلك خلقهم. . )هود: 119.

(And if your Lord had willed, He could have made mankind one community; but they will not cease to differ. Except whom your Lord has given mercy, and for that He created them)

The Jurisprudence of Religious Minorities and the Principle of Citizenship in the Book of Allah and the Sunna

It is clear from the apparent verses in the Quran and in the Prophetic Sunna (practical teachings of prophet Muhammad) that the process of building societies and homelands are based on the common ground between the different components and communities in a society. This shared ground becomes the source from which the rights of individuals and communities in such a society emerge. In this case, the national identity constitutes the expression of harmonization, in a way that each and every individual with such an identity becomes a citizen, and accordingly holds a trait common to all individuals and communities of non-religious interrelations. Therefore, this notion of citizenship validates and guarantees the mutual duties and rights for all in relation to society and their homeland.

We do not see that there is opposition either in the Quran or the tradition of the Prophet against applying the principle of citizenship in the realm of governance, administration, and in the fair and equal distribution of rights and responsibilities among citizens differing in their religious and cultural identities. Rather, adherence to this principle fulfils the principle of justice and fairness extrapolated from a number of verses in the Quran such as:

( وإذا حكمتم بين الناس أن تحكموا بالعدل) النساء:85

( and when you judge between people to judge with justice(,

(ولا يجرمنّكم شنآن قوم على ألا تعدلوا اعدلوا هو أقرب للتقوى) المائدة: 8.

(and do not let the hatred of a people prevent you from being just. Be just; that is closer to righteousness.)

Definitely, justice to which there is a command, emerging from the equality viewed in the Quran as a reality between all people whom Allah honoured in his words:

(ولقد كرّمنا بني آدم وحملناهم في البر والبحر ورزقناهم من الطيبات وفضلناهم على كثير ممّن خلقنا تفضيلا) الإسراء: 70.

(And We have certainly honoured the children of Adam and carried them on the land and sea and provided them with the good things and favored them to much of what We have created, with [definite] preference.(

The Quran also expressed the equality among all humans in the following verses:

( يا أيها الناس إنا خلقناكم من ذكر وأنثى وجعلناكم شعوباً وقبائل لتعارفوا إنّ أكرمكم عند الله أتقاكم) الحجرات13

(O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble among you in the sight of Allah is the most righteous among you.(

( يا أيها الناس اتقوا ربكم الذي خلقكم من نفس واحدة) النساء:1.

(O mankind, fear your Lord, who created you from one soul).

In essence, it seems that equality found in the origin of creation was the prime motive in legislating humanitarian rights upon which the verdicts of justice rested.

Citizenship and Equality in the Charter of Medina

Since the principle of citizenship is applied to all citizens without differentiation between them, citizens could acquire a national identity that requires equality of rights evolving from national affiliations. As a result, such a civic initiative might then reflect an application of the verses that clarified the absence of any differentiation between one nation and another, let alone between one individual and another within a unified people and a shared homeland.

This is what we see embodied in the Charter of Medina which was created by the Prophet as a contract with the plural constituents of the Medina society, at the beginning of the new era which marked the establishment of a state for managing the affairs of that society. The city of Medina was a shared homeland for the Aws and Khazraj tribes, Jews, the Muslim migrants, and the Ansar. While the religious identity between these groups varied, the national identity was the solidifying commonality among them. Moreover, the Charter of Medina recognized all groups as equal including Jews and others who did not believe in the message of Islam. One of the distinct qualities of the Charter was that it comprised of a social contract that anchored the foundations of brotherhood between the Muhajireen and the Ansar, and preserved the state of coexistence between Muslims and their fellow citizens who shared them the loyalty to the same homeland even though they were not believers in the new message. The Charter of Medina gave non-Muslims the right of equality with their fellow Muslims in relation to the general interest, as well as guaranteeing the rest of their rights in practising their rituals, personal freedom, customs, traditions, on the basis of coexistence with their fellow citizens in the same homeland, as deduced from the following verse in the Quran:

( لا ينهاكم الله عن الذين لم يقاتلوكم في الدين ولم يخرجوكم من دياركم أن تبروهم وتقسطواإليهم إنّ الله يحب المقسطين) الممتحنة: 8.

(Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes – from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly).

Hence, when you say: the “other” or the “counterpart” or my “counterpart”, this indicates the presence of the person who differs from you, and this does not necessarily mean that this person differs with you, even if ideas, opinions, and beliefs vary. One of you is equal to the other in citizenship and humanity both of which bring about equality in rights and responsibilities on the basis of the principle of justice as presented earlier in the verses of the Quran.

So when you say: “I live with my counterpart”, or “my counterpart lives with me”, this also means the existence of your fellow citizen in relation to mutual living in the shared homeland. Subsequently, there are rights and responsibilities to consider, hence the religious tradition then addresses you: “Whatever you like for yourself, like for others, and whatever you dislike to happen to you, spare others from such happenings.”

The above-mentioned meaning of equality is also strongly supported and encouraged by the Prophetic tradition: (People are equal like the teeth of a comb; there is no preference for the Arab over the non-Arab nor for the white over the black except in piety), (All God’s creatures are His family; and he or she is the most beloved of God who tries to do most good to God’s creatures). Citizens might differ in the origins of their ethnicities, religions, and affiliations, yet the common tie between them in the one homeland is citizenship which they are all equal.

In other words, these texts, besides the its similar traditions, with their universality and call for removing the dissimilarities between people not living together, and between a nation and another distanced from each other geographically (among which there is a lack of national and historical ties, in addition to a lack of kinship ties) – if that is the case with the latter, then how would the case be with respect to a unified people and a one nation whose members live with each other in a common homeland? Therefore, referring to what unifies them – that is equality in citizenship becomes more demanding as a fruitful solution to be adopted and implemented in the system of life and mutual relations.

The Citizens and the Ra’iyya (subjects of the ruler)

The modern concept of citizen is referred to as the “ra’iyya” in the political jurisprudence, as mentioned in a number of traditions: (All of you are shepherds and all of you are responsible for your flocks. The Imam who rules the people is a shepherd and is responsible for whom he governs). What further denotes that the term ra’iyya is used for citizens equally even when their religious affiliations differ is the political wisdom found in the covenant of Imam Ali to Malik al-Ashtar upon the latter’s appointment as a governor over the people of Egypt whom non-Muslim Coptics where part of, he advises him: ( Accustom your heart to mercy towards your ra’iyya (citizens); be fond of them, and kind by way of being thoughtful towards them. Never rule over them like a wild beast to take advantage of their profit, for they are of two types; either a brother to you in religion, or a counterpart to you in creation), (Let the moderate issues be the best to you in the way of right, the most common on the path of justice and largely suitable to the citizens).

And there is no doubt that justice and equality in civic rights and responsibilities are the most suitable to the ra’iyya who are referred to in modern terms as “citizens”. In this context, the rights springing from partnership in living together in a homeland are not distributed on a religious and sectarian ground, but on the basis of humanity before which all are equal. It is on the basis of national partnership that made them a united ra’iyya who deserve sponsorship and protection without exception. This is what we mean by citizenship upon which the political system of governance is founded, and, thus, functions through its laws, rules, and legislations to make all citizens equal with the right of each individual and community to preserve their religious and cultural privacy. Hence, such an approach does not repudiate the social contract which forms the basis for the political system of citizenship, as a guarantee for the unity of the people and nation, since it is the principle for equality between all citizens of different religious and cultural identities.

The Peaceful Coexistence of Identities

For the promotion of a culture based on peaceful coexistence, and for enhancing the welfare of relations within society, there is a variety of religious texts denoting an ethical approach which rests on the system of moral values and humane principles. These principles repel from the sphere of discord and conflict, and prepare the climate for the welfare of internal relations in society as stated in the traditions of Prophet Mohammad: (The best believer in respect of Islam is the one whom the believers were safe from his tongue and hand, and the most perfect believers in their faith are the ones with the most righteous behaviour). (The most perfect believers in their faith are the ones with highest character and morals, who have “soft shoulders” (i.e. they are not stiff and unwilling to help), who are friendly and get others to be friendly. Then he said, a worshipper of Allah would not reach the truth of faith in Allah until he loves for others what he loves for himself, and until his neighbour is safe from his evil deeds.”

“A Muslim is the one who avoids harming Muslims with his tongue or his hands.”

“And a Muhajir (an emigrant) is the one who (abandon) all what Allah has forbidden.”

“The believer is the one from whom the people’s lives and wealth are safe.”

In addition, there are hadiths (traditions) that emphasizing the care of the Islamic Sharia to the peaceful internal relations such as the following tradition by the Messenger of Allah (PBUH): “Shall I not inform you of what is more virtuous than the rank of fasting, Salat (prayer), and charity?” They said: ” Of course!” He said: “Making peace between each other. For indeed spoiling relations with each other is the Haliqah (shaver). I will not say it shaves (i.e. destructs) the hair, but it shaves religion.”

In another narration by Abi Ayoub al-Ansari, the Prophet said: (Would you like me to guide you to a charity which is better for you than the red camels (i.e. high breed camels). He said: yes O the Messenger of Allah. He said: “To make reconciliation between people if they were in conflict, and to bring them closer to each other if they were separated”. Hence, traditions that refer us to this meaning are numerous.

Clearly, these guidelines and instructions are not reduced just to the relations of Muslims among themselves, but are also inclusive and relevant to all the constituents of society, including Muslims and non-Muslims. One should take into regard that the term ‘Na’aas’ (people) in some of these traditions, and the term “Ja’aar” (neighbour), both indicate generality and universality, and are free of any religious, sectarian or other restrictions.

The verses in the Quran outlined above, in addition to the traditions of the Sunna of the Prophet, altogether construct a new jurisprudence concerning the rights of society and the responsibilities of its members on the ground of both humanity and citizenship. This new model overcomes the jurisprudence of minorities, whose deductions were subject to prevailing circumstances during the historical phase of the original texts and during following periods of past eras. At some stages of these historical phases, wars and long-term conflicts prevailed, thus causing division and discord among people, which is against the goals of Sharia which aimed at upholding justice and peace in society. Nevertheless, these historical circumstances have perished, just as the circumstances and reasons behind woman captivity, slavery, and female-slavery no longer have any relevance.

Therefore, we argue that what the jurists mentioned in the legal sections specified for the rules and verdicts of minorities has become legally abolished. Accordingly, the rights of minorities no longer differ from those of the majorities, since the effect of past legal verdicts and the reasons for researching into it in this context have come to an end. Dealing with the precepts of slavery, captivity of women and female-slavery should be closed because it no longer has any relevance to life of Muslims, and was closed with the end of its circumstances. Hence, we call upon the religious authorities to undertake renewal and re-examination in such precepts, in light of the fundamental verses that indicate justice and equality, and which is ruling over all Fatawas (legal opinions in Islamic law) and narrations.

The Responsibility of Religious Scholars and Political Rulers

It is recorded in the prophetic tradition that: “Two types of people in my nation if they are good then the state of the nation will be good. These two types of people are the scholars and the rulers.” This tradition reveals the critical role they should play for the interest of society and the nation they should work on applying these guidelines and teachings because, through its implementation, desired reform will be achieved.

Moreover, in this tradition, there is also an indication to the fact that desired reform requires cooperation between political power and intellectual authorities for the sake of good and piety, in the frame of commanding good and forbidding evil. Power cannot be self-dispensable in its application of the justice of law without the scholarly power which spreads awareness, and a culture of moderation necessary for reaching the desired purpose.

Some might try to escape this responsibility in this world, as if they postpone it to the afterlife when there would no longer be a need for it. This group of people tend to apologise for assuming this responsibility as for protecting society and the nation against the voices that call for disunity and extremism under the pretext of fear of harm. But in reality, the goal of these people is to guard their personal interests which will not in any case be under protection, especially as the general interests of society become subject to danger when the public space is left for the culture of extremism, conflicts and violence surrounding society and the nation.

When people of responsibility and reform give up their required role for reformation, then oppression and collapse of society will occur as Allah said in the Quran:

(وما كان ربك ليهلك القرى بظلم وأهلها مصلحون).

(And your Lord would not have destroyed any towns unjustly while their people were reformers.(

For this purpose, it is necessary to emphasise, in the first place, the role of political rulers in this crucial issue, as well as other matters, for they occupy the first position of responsibility, and in their hands are the resources and tools for confronting the culture of extremism and terrorism threatening both discipline and stability in our countries.

Such a confrontation requires the promotion of the discourse of religious moderation which is capable of keeping religion away from the sphere of manipulation and false mobilization, threatening the well being of society alongside the unity of the nation.

The importance of this role is further highlighted nowadays, especially in the Middle East where sectarian load has reached a dangerous level causing threat to the national fabric and cultural diversity in our nations and societies. As a result, this level of sectarianism has also created a climate conducive for the spread of a culture of enmity and hate towards anybody who is different. This clearly deforms the image of religion, and alarms to the fragility of relations with other nations and countries.

Therefore, what follows is a number of suggestions presented in other occasions. We introduce them in the trust of officials in hope of contributing to the construction of a culture based on moderation, besides the principle of citizenship which rests on fairness and equality among all citizens:

1. To support the advocates of the discourse of moderation

2. To create common institutes for religious studies

3. To organize religious actors, alongside the renewal of the curriculums of religious education

4. To compose a shared religious book for the students of academic schools that teach religious commonalities and humane virtues. The privacy of religions and sects on the other hand, is the responsibility of mosques, churches, colleges, and temples specific to each religion and sect.

5. To make use of media and television channels that promote moderate thought in our local societies, and worldwide.

6. It is also expected and required that religious scholars adhere to the moderate and centric approach to which the monotheistic messages invited. They should also avoid engaging in party-specific situations which often influence its members and adherents to become extreme adopters of their party’s views. The Ulama (scholars) are the inheritors of the prophets, and the prophets were advocates of solidarity and harmony, not division and discord.

This is the text of the paper that his eminence Sayyid Ali El-Amin presented to the conference on: ‘The Rights of Religious Minorities in Predominantly Muslim Majority Communities: Legal Framework and a Call to Action’, hosted in the city of MARRAKESH between the 25th and the 27th of January, 2016