作者從伊斯蘭法與歷史說明，過去穆斯林統治的地區，如何處理非穆斯林的習慣，特別是違背伊斯蘭的信仰(如釀酒、賺利息，印度還有寡婦自焚的傳統)。作者表示，即使非穆斯林的生活習慣有違背伊斯蘭信仰，但根據伊斯蘭法的原則，只要沒有影響到穆斯林社群，穆斯林統治者不應該介入非穆斯林社群的生活。
A few months ago, I wrote that, as a Muslim and as an American:
I support the right of same-sex couples to have civil marriages according to US law. Islam does not approve of same-sex acts, but I don’t believe that the social or religious traditions of any one group should dictate what sort of contracts or unions those of other beliefs can engage in. I want to preserve my right to have my Shariah marriage contract with my wife recognized by US law even though I know many Americans consider Islam’s conception of marriage to be unpalatable. I don’t see the desire of gay couples as any different.
In the near-carpal-tunnel-syndrome inducing outrage that followed that piece, many Muslims objected that I was ‘enjoining wrong’ instead of forbidding it. My response was that the Shariah has always, to a certain degree, allowed practices that Islam condemns as reprehensible among religious minorities (ahl al-dhimma) living under Muslim rule, practices that Muslim rulers could easily have banned (at least on paper). I wrote:
In classical Islamic civilization, Muslim authorities allowed Zoroastrians to engage in brother-sister marriage, Jews to charge interest, and Christians to cultivate wine and pigs. (Correction! In the previous article I added ‘Muslim judges could even hear such cases brought by non-Muslim litigants by applying the laws of their respective communities instead of the Shariah.’ I cannot actually find any evidence to back this up. To the contrary, all evidence seems to be against this!)
Because the scholars who built up the Shariah system could easily have prohibited such practices among its subjects but did not, the Shariah effectively facilitated them. If Muslim scholars and rulers permitted practices that they considered reprehensible and were in a position to deracinate, a fortiori (min bāb al-awlā), a Muslim minority with no power to regulate the conduct of those around it, like ours in the West, can condone the rights of others to reprehensible practices.
Some scholars objected that I was engaging in fallacious analogical reasoning (qiyas), since practices like wine drinking, usury and immediate-family incestuous marriages were specifically allowed by the respective religions above while liwat (sodomy) has not been allowed in any revealed scripture (at least as Muslims understand them). That seems like a good argument at first, but the closer one looks the more it falls apart. In this piece I’ll examine this argument as part of an attempt to answer the question: How far can Muslims go in condoning the reprehensible? Or, to phrase this as a bigger question facing Muslims: How do we Muslims orient ourselves towards the practices and beliefs of non-Muslims around us?
The founding sources of Islamic law and doctrine (the Quran, the Sunna and the early practice and interpretations of the Muslim community) provide our instruction, as does the reasoning of later Muslim jurists. The fully mature rules derived by the Islamic schools of law may have been developed when Muslims were the ruling class of the early caliphate, and the Prophet ﷺ may have issued edicts about the treatment of non-Muslims when he was the acknowledged leader and chief judge of Medina, but even in Medina (Yathrib) the Muslims were for many years a minority among a mostly Jewish population.1 Even as the Muslim state based in Medina expanded in its power and territory during the last years of the Prophet’s life, it was still only a marginal player in a region dominated by the powerful Persian and Byzantine empires. In the famous ‘Constitution of Medina,’ the Prophet ﷺ agreed with the major tribes of Medina (pagan and Muslim) as well as with many smaller Jewish clans that they are all ‘one umma’ that makes war and peace together under the Prophet’s command. Although the document never specifically mentions the right of the non-Muslims in Medina to practice their religions freely, there was no need to. They were simply accepted as they were in the ‘one community,’ with no mention even of paying any special tax. (Jews也是為社群的一部份)
As the Muslim state expanded further into northern and southern Arabia, the Quran revealed the duty of the jizya tax for Christians and Jews who came under Muslim rule (Quran 9:29, this was later expanded to include every other religious community the Muslims encountered, starting with the Prophet’s treating Zoroastrians similarly to the ahl al-kitab mentioned in the Quran). The Prophet ﷺ arrived at specific agreements with various non-Muslim communities, either after defeating them in war or through treaties recognizing Muslim suzerainty. After the Prophet ﷺ defeated them in battle, the Jews of the oasis town of Khaybar agreed to pay a portion of their date harvest to Medina in return for being allowed to remain in their town. The Christians of Ayla (present day Aqaba in Jordan) paid tribute to the Muslim state in return for protection, as did the Christians in the ancient south Arabian city of Najran. The Prophet ﷺ also accepted jizya payment from the Zoroastrians of the eastern Arabian city of Hajar in return for their right to continue living there under Muslim rule.2
What is crucial to note is that, in allowing these non-Muslims to continue practicing their religions under Muslim ruler, the Prophet ﷺ was countenancing the reprehensible. Although we know from one treaty that has survived reliably,3 that with the Christians of Najran, that the Prophet promised that their churches and clergy would be guaranteed protection by the Muslims, most of the details of Islamic law on this issue come from the various treaties struck by the caliph Umar (collectively referred to as the Pact of Umar). These guarantee the protection of non-Muslims’ lives, property, places of worship and sacred symbols in return for the jiyza payment.4
Are There Any Limits?
The one instance we know of from the life of the Prophet ﷺ in which limits were placed on what was allowed for non-Muslims comes in his treaty with the Christians of Najran. It prohibits them from engaging in riba (usury, interest).5 More limits come from the Pact of Umar body of treaty material. Several versions of the Pact of Umar include a clause prohibiting Christians from selling wine. These treaties differed from city to city, however, often for obvious reasons: in cities like Damascus and Bukhara, Muslims settled right in the heart of the town, side by side with Christians, Jews, Buddhists, etc. In many places, such as Kufa, Fustat (later Cairo) and Isfahan, Muslims set up their own cities either as military outposts or as camps just outside established urban centers. That meant that their non-Muslim subjects lived apart from them. According to Imam Shafi’i’s understanding of the laws regulating non-Muslims, non-Muslims were only not allowed to sell wine (or anything else Islam prohibited) to Muslims. If non-Muslims live in separate areas they could have their own processions, consume wine and raise pigs.6 Oddly, the question of riba does not arise very often in Muslim legal discussions. The most Muslim jurists write is that Muslims should avoid commercial transactions with non-Muslims if those activities would bring them into proximity with the use of interest.7
In general, however, Muslim scholars had a ‘don’t ask, don’t tell’ approach to the reprehensible practices of non-Muslims. They wanted minimum involvement. Imam Shafi’i wrote, “We shall not supervise transactions between you and your coreligionists or other unbelievers nor inquire into them as long as you are content.” Muslim scholars fell into two camps regarding how Muslim judges should deal with non-Muslims who come to their courts for adjudicating disputes. This was a not uncommon occurrence, as evidence from tenth-century Egypt and Baghdad makes clear.8 One camp, most associated with the Shafi’i and Hanbali schools, did not acknowledge the validity of non-Muslim laws in the face of the Shariah; non-Muslim contracts, etc. would only be recognized in as much as they accorded with the Shariah. Imam Shafi’i wrote to non-Muslims who came to a Muslim court that they would be dealt with “according to our law.” According to him, a Muslim judge should not acknowledge the property rights of a Christian over a pig or a barrel of wine, since these items were forbidden and valueless in Islam.9 The second camp, mostly associated with the Hanafi and Maliki schools, took a more subjective approach: because Christians and Jews treated items like wine as property with value to them, Muslims had to acknowledge that status as property.10 So if a Muslim destroyed a Christian’s wine barrel, the Muslim would be liable for compensating the Christian for the damage caused. Even the stricter camp had to accept the realistic inevitability of this subjective approach. For example, a Muslim was allowed to engage in a commercial partnership with non-Muslims even if the non-Muslims’ wealth was acquired from selling wine, pigs or riba, since they believed it was permissible for themselves.11
Although the regime for non-Muslims allowed them to retain their own courts and their own laws, Muslim states would intervene in certain circumstances. If there was a dispute between a Muslim and a non-Muslim or if a non-Muslim engaged in some threat to public order, then the case would be handled by a Muslim court.
Widow Burning in Muslim India
The Muslim scholars who elaborated the Shariah allowed a remarkable accommodation for the beliefs and practices of religious minorities. They did so because their authoritative sources, the Quran and the Prophet’s Sunna, permitted non-Muslims to retain their religions under Muslim rule. In general, non-Muslims were allowed to engage in practices that Muslims considered reprehensible provided that 1) this practice or belief was really part of their religion; and 2) it did not actually contravene their religion. For example, Christians had to be allowed to drink wine because it formed a crucial part of their church service. But neither Christians nor Jews could engage in fornication or adultery, since such acts were prohibited in their religions. Thus the Prophet had ordered Jews in Medina to be executed for zina not on the basis of Islamic law but rather on the basis of the Torah.12 Theft and murder could not be permitted amongst non-Muslims because they were prohibited in every law that Muslims knew of.
This notion of crimes condemned by all religions verges on the notion of a universal wrong. Some Muslim schools of thought, like the Mu’tazila, asserted that there were universal moral rights and wrongs that were knowable by human reason alone – for example, murder. Some early Sunnis considered right and wrong to be obvious to the human mind, but what became the majority school of theology in Sunni Islam, the Ash’ari school, held that right and wrong were not inherent characteristics in an act but rather were determined solely by God. So murder was not universally wrong in and of itself, it was only wrong in so far as God prohibited it in every law He revealed. Ash’ari scholars acknowledged that human beings, as a species, shared certain reactions or characteristics. For example, roses smell good to us and we tend to love our immediate family. But these are not moral facts any more than a dog liking bones is.
What this entailed for Muslims’ dealing with religious minorities was that there was no universal moral test for approving or disapproving of their practices. As we will see, there was a minimal notion of human rights that could not be violated, but overall the Shariah allowed religious practices if they were permitted by the religion in question even if they horrified Muslim sensibilities.
What has long been invoked in the West as the archetypal ‘barbaric’ religious practice is widow burning among Hindus. Known since British colonial times as sati (technically, this refers to the widow herself, since it means ‘virtuous woman’. The most common words for the practice include sahagamana, ‘going with’). Since Alexander the Great’s army encountered the custom in India, sati has fascinated and horrified first the Greeks and then Christian Europeans. It was regularly sensationalized by European travelers to India from the 1500’s onward until the British finally prohibited the custom in 1829, in part due to the efforts of Christian organizations to raise awareness of sati in Britain.13 In the famous US Supreme Court case Reynolds v. United States (1878), which established the rule that, while the government cannot restrict religious belief, it can restrict actions, “a wife [who] religiously believed it was her duty to burn herself upon the funeral pile of her dead husband” was the textbook example of why the government should be allowed to intervene in religious practice.
There has been much debate over whether sati has authentic roots in Hinduism, but this is not the subject at hand. The default assumption about sati is that the widow chooses to burn herself after her husband’s death, either next to him on the same pyre or separately. However, it is also clear from European travelers’ descriptions that sometimes widows were burned against their will or prevented from changing their minds at the last moment. British authorities who witnessed instances of sati from the beginning of British administration in India in the late 1700’s sometimes noted that the widow appeared to be sedated or intoxicated so as not to protest. After first trying to regulate sati to make sure it was only done voluntarily, the British finally concluded that the only way to prevent abuse was to prohibit the act altogether.
This accorded well with the moral perspectives of British officials. The governor who banned sati described it as an “inhuman and impious rite” that was “revolting to the feelings of human reason” and could not be tolerated by “the government of a civilized nation.” British moral revulsion at sati was not simply because it could be involuntary; unlike societies like ancient Rome or Japan, suicide was a moral affront and social taboo in Western Europe. Since the thirteenth century, it had been a grave crime in England. Those who killed themselves had committed “one of the most heinous crimes we can be guilty of” and were denied normal burials. Until 1823, someone in Britain who committed suicide forfeited all their assets to the crown.14
But the Muslim states that ruled parts or most of India since the thirteenth century had never prohibited sati. Although I have not found any Muslim scholar discussing the legal question of sati, we know from the famous Moroccan alim and traveler Ibn Battuta, who spent years in Delhi in the 1330’s, that the Delhi sultan Muhammad ibn Tughluq (d. 1351) allowed widows to perform sati if they first sought permission from the Muslim governor. Ibn Battuta himself witnessed three instances of sati, describing how the widows were active participants in extended and elaborate ceremonies. Although he notes that Hindu widows lived “wretched lives” and faced social reprimand if they did not perform sati, he confirms that it was not required.15
We have much more information about the policy of the Muslim Mughal Empire, which ruled northern India from around 1526 to (officially) 1857. From the time of Akbar the Great (r. 1556-1605) through the emperor Aurangzeb (r. 1658-1707), we know from both travelers in India and from Mughal historians that sati was allowed with certain restrictions.
First, like the Delhi Sultans, the widow had to receive permission from either the local police chief (fawjdar), the provincial governor or the emperor himself, depending on the location. According to his very admiring authorized biographer, Akbar made sure that every province and district had officials charged with making sure an instance of sati was purely voluntary.16 An Italian traveler, Pietra della Valle (d. 1652), states that widows or families who wanted sati done had to pay a license fee.17 Another traveler described how this sizable fee, which he perceived as a bribe, actually resulted in deterring many families from pursuing sati to begin with.18
Second, Mughal officials were instructed by the emperors to try and dissuade the widow from her course of action. William Hawkins (d. circa 1613), a British East India Company agent who visited the court of the emperor Jahangir (r. 1605-27), notes that he witnessed many times the emperor himself offering widows all sorts of financial and social support in an effort to sway her. But if she insisted on sati, Hawkins wrote, then the emperor “giveth his leave for her to be carried to the fire, where she burneth herself alive with her dead husband.”19 The Dutch East India Company official Francisco Pelsaert (d. 1630) saw a local governor who “urged many sound arguments to show that what she proposed to do was a sin, and merely the inspiration of the devil to secure her voluntary death; and, because she was a handsome young woman of about 18 years of age, he pressed her strongly to dissuade her if possible from her undertaking, and even offered her 500 rupees yearly as long as she should live.” She refused his pleas, however, and when he finally granted her permission she ran off gladly.20
The French physician Francois Bernier (d. 1688), who actually worked for a time in the employment of senior Mughal officials, writes that widows required permission from the provincial governor, “and he never grants it until he shall have ascertained that she is not to be turned aside from her purpose: to accomplish this desirable end, the governor reasons with the widow and makes her enticing promises….” If his initial efforts failed, Bernier recalls that the governor would then send the widow to his own wives so they could try and convince her. Once Bernier himself was sent to plead with a widow of a friend. He begged her to think of her young children and told her that the governor had promised her two sons lifetime pensions if only she would change her mind about sati. Only by dwelling on what would happen to her orphaned children if she killed herself was he able to convince her to give up her mission.21
The Mughal rulers also introduced a number of restrictions on sati. In 1587, Emperor Akbar issued a decree that Hindus could not prohibit widows from remarrying, and a new husband should be found for a widow immediately to prevent others from insisting that she be burnt, and that a widow who was too young to have actually consummated her marriage with her husband could not be burned. In 1591 Akbar issued another edict prohibiting any Hindu widow from being burned against her will.22
We don’t have any explicit discussion of why the Mughal rulers allowed sati to occur, but their reasons are easily deduced. One was the Shariah principle of the religious freedom of dhimmis. Akbar’s 1591 edict prohibited forced sati, but it also instructed governors that, “if a Hindu woman wished to be burned with her husband, they should not prevent her.” There were also practical and politically pragmatic concerns. Unlike areas like Syria or Iraq, where Muslims made up the vast majority of the population by 1000 CE, Muslims were and have always been a minority in South Asia (an 1875 census taken by the British counted Muslims as about 25% of the population). Bernier, who had extensive experience with the Mughal administration, explains that Jahangir allowed practices such as sati “not wishing, or not daring, to disturb [Hindus] in the free exercise of their religion.”23 An Ottoman visitor to India during the reign of Akbar’s father, Humayun (d. 1556), observed how there was a widespread belief that if the Muslims interfered with sati then fate decreed that their kingdom would fall.24 Bernier, who was a obsessive critic of the Hindu Brahmin clerical class, whom he saw as corrupt and greedy, explains that their power meant that one could find no Mughal official “who does not dread the consequences of contributing to the preservation of a woman devoted to the burning pile, or who will venture to afford an asylum to one who escapes from the fangs of the Brahmens.”25
European observers repeatedly noted that sati occurred much less frequently under Mughal rule that previously, though one wonders how they knew this.26 There is debate amongst modern scholars over whether the Mughal state ever categorically banned sati. One Italian traveler reported that Aurangzeb banned sati in 1663, but most modern scholars deny that this occurred or explain that it only applied to forced sati. Though the practice continued even after 1663, numerous British travelers noted that it had almost abated completely in India by the end of Aurangzeb’s reign.27
Muslim policies towards sati tell us a great deal about the Shariah perspective on reprehensible practices and their limits. Every description we have of sati done under Muslim rule portrays the widow as alert and interacting, so there is no evidence that they were sedated. To the contrary, Muslim rulers required face-to-face meetings with the widows to hear their requests. If a widow wanted to burn herself and would not be convinced otherwise, Muslim rulers acceded to her wishes.
That we have evidence that the Mughals prohibited forced sati is also instructive. What probably lies behind this prohibition is the notion huquq al-‘ibad (literally, ‘the rights of God’s servants,’ i.e., human beings), which was essentially a concept of human rights developed by Muslim jurists almost a millennium before the first glimmer of the notion in Western scholarship.
These were rights to physical integrity (in other words, against unjust killing or injury), property and dignity that human beings enjoyed simply by virtue of being human beings, regardless of their religion.28 While the Shariah could accept a non-Muslim killing themselves for religious reasons, killing another non-Muslim against their will was a transgression of that person’s human right and could not be condoned.
Incestuous Marriage under Muslim Rule
If there is any one universal moral taboo in human societies, it is against immediate family incest.29 Well, almost universal. Some royal families, such as the Hawaiian and ancient Egyptian, practiced brother-sister marriage (and so, of course, do the Targaryens). And it was permissible, if not widely practiced, in the Zoroastrian religion of ancient Iran. This type of marriage, called xvetodah marriage in Pahlevi Persian, included brother/sister, father/daughter and mother/son couplings and served to make procreation possible in unusual circumstances. It continued to be permissible in Zoroastrianism up through the 1400’s (after which it was limited to cousin marriage).30
Xvetodah marriage was most probably very rare, but it left a strong impression on Muslim scholars. It proved an extreme case for testing their principles of law governing non-Muslim minorities. One school of thought (represented by one opinion of Imam Ahmad Ibn Hanbal) held that this should not be permitted for Zoroastrians, citing a 643 CE ruling of the caliph Umar that “all those married to mahrams among the Zoroastrians must be separated.”31 The majority opinion, however, allowed xvetodah marriage as long as Zoroastrians did not come to Muslim courts for this type of marriage to be adjudicated (this was the opinion of the Shafi’i, Hanafi and Hanbali schools). Those who held this position responded to the evidence of Umar’s ruling by noting that it was not well known enough to be binding and that it broke with the Prophet’s commands in some respects (for example, it described Umar refusing to accept the jizya from Zoroastrians when the Prophet had done so). Moreover, the Prophet had sent ‘Ala’ ibn al-Hadrami to reach agreements with Zoroastrian communities in northeastern Arabia and had affirmed their marriage practice there.32
Muslim scholars who did not allow incestuous marriage among Zoroastrians challenged those who did by asking if they would then allow sodomy and fornication amongst non-Muslims as well. No, their opponents replied, since sodomy and fornication were widespread faults in human society while immediate family incest was a rare practice only allowed in Zoroastrian law. More importantly, and crucially for our discussion in the US, the majority replied that the Shariah had affirmed the right of non-Muslims to continue engaging in unbelief (kufr), which was far worse a sin than incest.33
Muslims and Gay Marriage in the West
So where does this leave us in terms of how Muslims here should orient themselves towards the gay marriage issue? The Quran and the Sunna of the Prophet allowed non-Muslims living under Muslim rule to continue practicing their religions. The agreements that the early Muslims struck with their non-Muslim subjects often allowed them to continue such practices as raising pigs and making wine, and Muslim jurists soon extended this umbrella of tolerance to other practices reprehensible in Islam, such as dealing in riba and even immediate-family incestuous marriage. Though this did not sit easily with Muslim scholars, they had to acknowledge the single most powerful piece of evidence before them: God had clearly allowed Muslims to tolerate and even protect non-Muslims living under their rule, communities that had rejected Islam generation after generation even after generations of Muslim scholars had provided them with clear explanations of Islam’s tenets. So God and His prophet had allowed kufr to continue under the aegis of Muslim rule, and, from the perspective of Muslim jurists, there was nothing viler than denying God and His messenger.
Some Muslim scholars criticized my earlier article because, they stated, liwat is not analogous to sati or xvetodah marriage. The latter two were specifically allowed by religions that the Shariah tolerated. Liwat, meanwhile, has not been allowed by any revealed religion. But this objection does not stand, since neither has any revealed religion deemed the denial of God’s true messengers permissible (at least not from the Muslim perspective of divine revelations). Yet the Shariah has always allowed and effectively condoned this.
Enjoining right and forbidden wrong is a duty for Muslims in general, but it is not without limits or appreciation for context. There is no question that liwat is a grave sin in Islam and thus clearly a wrong to be condemned. But this does not dictate Muslim policy or behavior towards those who might engage in it. As a Mughal scholar who had strayed into hedonistic habits said while reprimanding the market police who had climbed over the wall of his house to break up his cocktail party, “I may have committed one sin, but you have committed three”: they had sought out what he was doing in his home (tajassus), climbed over his wall and entered his home all without permission.34 The Shariah indeed prohibits needlessly uncovering wrongs in the private sphere, and the police left the scholar’s house in shame (the scholar subsequently reformed himself, al-Hamdulillah).35
Just because one recognizes that there are protected spaces where reprehensible activities can take place does not mean that one is enjoining those acts. And just because the Shariah allowed non-Muslims to engage in practices that Islam, and many other moral systems, condemned as reprehensible does not mean that the Shariah approves of them. The affirmation of a party’s free choice to engage in a wrong does not entail approving of it. It only recognizes something that the Quran, the Sunna of the Prophet ﷺ and Muslim scholars since early times have all affirmed: that human societies are too diverse for us to enforce even the most rightly guided systems of law or morality on all. The best one can do is to curb excesses and prevent individuals from depriving others of the basic rights they enjoy regardless of their confessional identity.
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