حقوق غير المسلمين في التزام شرائعهم في الدولة الإسلامية

الملخص EN

Islamic Law is characterised by a global attitude in legislating، transcending the political، gerographical and human barriers.

It used to be applied in all the provinces under the Muslim reign.

The Dhimmis (Non-Muslims who lived on Islamic lands and contracted a covenant with Muslims) had to contemplate the provisions of Islamic Law، for they became، on the basis of the contract they concluded with the Muslim authorities، holders of the nationality of Islamic Law.

Thus، the Dimmis have to comply with the provisions that do not violate their creed and religious freedom.

On the other hand، they are not required to carry out the prescribed acts of worship of Muslims or other acts of a worshipping or religious nature.

As a geberal rule، the Dimmis are treated like Muslims when it comes to Mu3amalat، like slae، lease and other financial dealings.

There are، however، some exceptions to this rule: Dimmis have the right to deal in wine and pork among themselves on the condition that they do not do so in public.

According to the Hanafi school of Fiqh، If one damages wine or pork belonging to a Dimmi، he has to compensate said Dimmi for said wine or pork for the latter are seen as a property with a pecunary value، a view also shared by the Maliki school of Fiqh but opposed to by the Shafi3i and Hanbali schools of Fiqh.

Also، the marriages of the Dimmis are invalid in Islam but Islam can render them valid.

Also، Qisas and Ghassoub (appropriated property) do not apply to them and what they inflicted on Muslims in thier souls، property and honour.

What they earn from riba and any proceed from wine or pork are their dues.

All of this indulgence with the Dimmis aims to encourage them to embrace Islam.

As for wine drinking، thay are not to be punished for it as long as they do not do so in public (doing so in public subjects them to Ta3zir، a punishment that is less painful than hadd)، and this is because they believe that wine drinking is not sinful.

The Hanafi school، however، sees that Qisas applies equally to Muslims and Dimmis if the conditions are satisfied، while the Maliki school prohibited Qisas if it is not for murder be it between Muslims or Dimmis.

The different shools all agree on the application of Qisas among the Dimmis if it relates to wounds and the conditions are fulfilled.

The person who was given a security over special rights has the same privileges as a Dimmi for he enjoys the status of a Dimmi as long as he lives on Islamic soil.

If he commits a crime transgressing the limits set by Allah، like fornication or adultery، Islamic Law provides for special penalties applicable to non-Muslims who commit crimes on islamic soil.

Muslim scholars hold different views on this issue، for there are three different theories with regard to the applicability of penalty as to place: 1- The theory of the territoriality of the appilicability of Islamic Law; 2- The theory of Abu Yussuf; and3- The theory of the extraterritoriality of the applicablity of Islamic Law.

Jurists have dealt with this issue in their discussions about the applicability of foreign law before the judge of a national jurisdiction، and hold in this regard very differing views and elaboarte several theories.