Home > Religious Freedom > A Fiqh of Tolerance? Readings from the Hanafi Madhab

A Fiqh of Tolerance? Readings from the Hanafi Madhab

While the contentions between Islamic law, tolerance and pluralism, and human rights are debated today — these questions have never been absent from Muslim scholarship or consciousness. Indeed, as Islam gradually spread to the East and West throughout its first centuries, and encompassed once diverse peoples and cultures, Islamic scholars were forced to confront the questions of tolerance, plurality, and coexistence. With the Koran, and other Islamic source material as their guides, they sought solutions for how to negotiate the religious, linguistic, ethnic, and intellectual pluralities of the newly-formed Muslim states. Often, the answers they came to had much more direct effect than they do in the world today.

Muslim jurists disagreed severely over how to interpret the diverse and often conflicting injunctions found in the Koran, the ahadith (the sayings of the Prophet Muhammad), and words and actions transmitted from early Islamic communities. From the conditions of prayer, to criminal punishment, scholars sometimes came to radically different conceptions of issues that are considered important today: Apostasy, blasphemy, sexual impropriety, the limits of social coexistence, among others. This phenomenon, which is the defining feature of classical Islamic law, is termed ikhtilaf (lit. “disagreement”), and has been subject to a wide ranging literature throughout Islamic history.

Within this mix of legal views and reasoning, however, the opinions the Hanafi madhab — the earliest formal school of Sunni Islamic law, founded by Abu Hanifa al-Numan (d. 148 AH/767 CE) — stand out. An ethnic Persian born in modern-day Iraq, Abu Hanifa’s legal opinions (and those of his students) would come to be endorsed by the Abbassid caliph Harun al-Rashid, which served to propel his ideas across much of the eastern Muslim world. Later, Hanafi law was also officially endorsed by the Ottoman Empire. Today, followers of the Hanafi madhab predominate in Central and South Asia (including Afghanistan, India, and Pakistan), Turkey and the Caucuses, the Balkans, and parts of the Arab world.

Although official schools of Islamic law have been endorsed by formal states in Islamic history — more often than not, scholars often operated in a theoretical and educational capacity. Rulers, by and large, did whatever they wanted — regardless of the formalities and minutiae of Islamic law. While the details are different, much is the case today — by and large (though, with notable exceptions), Islamic scholarship operates in a theoretical realm. However, understanding how early Islamic scholars negotiated the topics of tolerance and plurality can help inform individual Muslim opinion today.

Of note, the Hanafi madhab endorsed the following ideas:

While these might seem like strange or trivial details, they have the ability to impact how modern Muslims think about and conceive of tolerance, plurality, and respect in the world today, and the implications of each of these points will be explored.

While the Hanafi madhab does endorse notions such as the stoning to death for adultery, sexual intercourse with slaves, among many other issues that do not accord with modern conceptions of human rights, I believe it is important to highlight some of these notable opinions related to Islam, equality, and social tolerance, as this topic is very much a reality today. While the majority of Muslims do not relate to their faith through the lens of classical Islamic law — and indeed are tolerant individuals in their own right — for a minority, this legal history is an important source of meaning and identity through which they frame their relations to others and society, and the world as a whole.

The Language of Prayer

Hanafi jurists permitted all forms of ritual worship in local languages, if the individual did not have sufficient command of Arabic (or even if he did, according to Abu Hanifa). This included: The call to prayer (adhan); the opening of the prayer (takbir al-ihram); the recitation of the Koran during prayer; the tashahhud at the end of prayer; the khutbah during Friday prayer and on the days of Eid; the testifying to the shahadatayn when converting to Islam; and the talbiya during Hajj.

While this likely was driven by practical considerations, a number of theological proofs were also advanced, specifically surrounding the nature of the Koran, and whether its miraculousness lay in its meaning, its composition (in Arabic alone), or both. Hanafi jurists concluded that the miracle of the Koran lay both in its composition, and meaning. While a native Arab would be able to comprehend both miracles, a non-Arab (largely focused on speakers of Persian, as this is where most Hanafi jurists lived and it was the language that a large number of non-Arab Muslims spoke) would still be able to understand the miracle of the Koran’s meaning in his own language.

They argued, even Arabs could not reproduce the Koran — and therefore its miraculousness lay in its meaning as much as its structure. Moreover, during the life of the Prophet, he had allowed non-local Arab tribes to recite the Koran in different ahruf (the seven recitations), as not all could speak in the dialect of the Quraysh. This represented an early concession to recite the Koran in different dialects, if it brings ease. And naturally, the Hanafis assumed, this would come to include other languages in total, as Islam spread.

Once this fact was established, Hanafi jurists also allowed the meaning of phrases to be substituted during worship. For instance, instead of the takbir al-ihram needing to consist of “Allahu Akbar” — any phrase that denotes the meaning of God being great could be used. Some even conceded that this was permitted in the call to prayer (adhan).

Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE)Al-Mabsut

وقال أبو حنيفة إن افتتح الصلاة بالفارسية وقرأ بها وهو يحسن العربية أجزاه وقال أبو يوسف ومحمد لا يجزيه إلا أن يكون لا يحسن العربية

Abu Hanifa said: If the opening of the prayer, or recitation, is said in Farsi, and the (person) is proficient in Arabic, then (the prayer) is valid. And Abu Yusuf and Muhammad said: “That is not permissible unless he is not proficient in Arabic.”

Muhammad ibn Ahmad Al-Sarakhsi (d. 490 AH/1096 CE). Usul al-Sarakhsi

أن النبي عليه السلام بعث إلى الناس كافة (وآية نبوته القرآن الذي هو معجز فلا بد من القول بأنه حجة له على الناس كافة) ومعلوم أن عجز العجمي عن الاتيان بمثل القرآن بلغة العرب لا يكون حجة عليه فإنه يعجز أيضا عن الاتيان بمثل شعر امرئ القيس وغيره بلغة العرب وإنما يتحقق عجزه عن الاتيان بمثل القرآن بلغته، فهذا دليل واضح على أن معنى الاعجاز في المعنى تام، ولهذا جوز أبو حنيفة رحمه الله القراءة بالفارسية في الصلاة، ولكنهما قالا في حق من لا يقدر على القراءة بالعربية الجواب هكذا، وهو دليل على أن المعنى عندهما معجز فإن فرض القراءة ساقط عمن لا يقدر على قراءة المعجز أصلا ولم يسقط عنه الفرض أصلا بل يتأدى بالقراءة بالفارسية، فأما إذا كان قادرا على القراءة بالعربية لم يتأد الفرض في حقه بالقراءة بالفارسية عندهما لا لانه غير معجز ولكن لان متابعة رسول الله (ص) والسلف في أداء هذا الركن فرض في حق من يقدر عليه، وهذه المتابعة في القراءة بالعربية

The Prophet was sent to all of mankind, and a sign of his Prophethood is the Koran, and therefore it must be a proof for all of mankind. It is known that the miracle of the Koran in the Arabic language is not a proof for the non-Arab…and for this reason Abu Hanifa permitted recitation in Farsi during prayer…this is proof that the meaning of the Koran is immutable. The obligation to recite the Koran is not dropped from the one who cannot understand the (original) miracle, as he can recite in Farsi. So, if he is able to recite in Arabic, then (it does not suffice) to recite in Farsi. Not because it is not (also) miraculous, but because he must follow the Prophet and the salaf, and perform this obligatory pillar according to its right, and that is recitation in Arabic.

Another issue that seems to have arisen very early in Islamic history was the question of whether it was permitted to recite the Torah, Pslams (zabur), and Gospel (injeel) during prayer. Although this was rejected by Muhammad ibn al-Hassan al-Shaybani, the student of Abu Hanifa, it was endorsed by later Hanafi scholars. The mere idea that someone could recite non-Islamic scriptures during prayer shows the degree to which the societies that were absorbed into the Islamic milieu sought to cope with (or maybe subvert?) the demands of Islamic law, language, and worship. The early date at which this was adressed by al-Shaybani is notable.

Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Al-Mabsut

قلت أرأيت رجلا قرأ بالفارسية في الصلاة وهو يحسن العربية قال تجزيه صلاته قلت وكذلك الدعاء قال نعم وهذا قول أبي حنيفة وقال أبو يوسف ومحمد إذا قرأ الرجل في الصلاة بشيء من التوراة أو الإنجيل أو الزبور وهو يحسن القرآن أو لا يحسن إن هذا لا يجزيه لأن هذا كلام ليس بقرآن ولا تسبيح

I said to Muhammad, “What is your view if a man recites in prayer in Farsi, but he is proficient in Arabic?” He said, “His prayer is valid.” I said, “And supplication (duaa) is like this?” He said, “Yes.” And this is the view of Abu Hanifa.

And Abu Yusuf and Muhammad said, “If a man recites in prayer something from the Torah, Injeel, or Zabur, and he is proficient in the Koran, or even if he is not proficient, this is not permissible. Because it is speech, it is not the Koran, or tasbeeh (remembrance of Allah).”

Masoud ibn Ahmad al-Kasani (d. 587 AH/1191 CE). Badai al-Sanai fi Tartib al-Sharai

و لو قرأ شيئا من التوراة أو الإنجيل أو الزبور في الصلاة إن تيقن أنه غير محرف يجوز عند أبي حنيفة لما قلنا : و إن لم يتيقن لا يجوز لأن الله تعالى أخبر عن تحريفهم بقوله : { يحرفون الكلم عن مواضعه } فيحتمل إن المقروء محرف فيكون من كلام الناس فلا يحكم بالجواز بالشك و الاحتمال
و على هذا الخلاف إذا تشهد أو خطب يوم الجمعة بالفارسية و لو أمن بالفارسية أو سمى عند الذبح بالفارسية أولبى عند الإحرام بالفارسية أو بأي لسان كان يجوز بالإجماع

If (someone) recites something from the Torah, Injeel, or Zabur in prayer, and he is sure that it is not a corrupted (portion), then that is permissible according to Abu Hanifa. And we say, if he is not sure, then it is not permissible, because Allah spoke about their corruption, “They change the words from their places” (4:46). So, there is the chance that these are the words of people (not Divine language), so it is not ruled to be permissible because of doubt and likelihood.

And if (someone) says the tashahhud, or the khutba on the day of jumah in Farsi, or performs a ritual slaughter (dhabiha), or responds (says labbayk) while in ihram in Farsi, or any language, then it is permissible by consensus.

Of course, this brings up the uncomfortable fact that the Koran, in addition to Muslim scholars, misunderstand what the Gospel is: It is the biographical writing of men who recounted the life of Jesus. It is not “divine speech” in any sense of the word. And if the “Gospel” referenced in Islamic sources consists of the words of Jesus that were contained in those biographies, then Muslims must be forced to admit that the early Christian community’s memory of Jesus’ life had not been “corrupted.” And, historically speaking, it is not difficult to prove that early Christians (the generation that wrote and retained the gospels) indeed believed Christ to be the theological son of God, and retained distinctly Christian (non-Muslim, as Muslims claim that Jesus only promoted tawhid) practices from the apostles and their followers. How Muslims are to relate to the earlier Abrahamic revelations is fraught with logical inconsistencies. This dilemma was expressed quite clearly by second-generation Islamic personality and scholar Hassan al-Basri (d. 110 AH/728 CE):

حدثنا يزيد ، عن حماد بن سلمة ، عن حبيب المعلم ، قال : سألت الحسن ، قلت : أعلم أولاد أهل الذمة القرآن ؟ ، فقال : ” نعم ، أو ليس يقرأون التوراة والإنجيل وهما من القرآن ” ، أو قال : ” وهما من كتاب الله عز وجل

Al-Hassan was asked, “Are dhimmi children taught the Koran?” He said, “Yes, do they not recite the Torah and Injeel, and they are part of the Koran?” Or he said, “And they are from the Book of Allah.”

— Al-Qasim ibn Sallam (d. 224 AH/838 CE). Fada’il al-Quran

It is also not realistic to obligate all humans to pray in a single language — this is irrational, and prohibits true communion with God. Memorizing fixed portions of a holy book to recite in a foreign language, multiple times per day does nothing to further one’s spiritual development. Which is why many Muslims memorize the Koran and recite it in prayer without understanding its meaning — which leads to strange social and cultural outcomes. While the Hanafis can be praised for their efforts, it must also be seen that they are only a minority — not only did they disagree with others, but also went to extreme lengths in their legal reasoning that betrays the early spirit of Islamic law and practice. Unfortunately, their reasoning on some issues — despite perhaps being enlightened — does not hold up under independent scrutiny (at least those on prayer). Despite their opinions on prayer, such an opinion, if expressed today, will be met with dissent and discord. And this is one of Islam’s tragedies.

Salvation Within Reach for All: Maturidi Aqeedah

Muslim jurists did consider “the other.” What happened to those who lived in the expanses of time before Islam, and in lands that clearly had no Abrahamic religious influence? Such people were known as ahl al-fatrah (the people of the ‘intermission’), and were usually considered to be those who lived between the time of Jesus and Muhammad, and did not have a Prophet to guide them (as Christ’s message had been distorted and could not be followed). However, by reason, it also has to include people who lived before Islam.

There are two competing views. One — held by the Ashari school of Islamic theology — is that such people will be “tested” on the Day of Judgment by God, and rewarded with heaven or hell accordingly. However, the other — pioneered by Hanafi theologian Abu Mansur al-Maturidi (d. 333 AH/944 CE) — holds that even if they had not been sent a Prophet or a religious message has not reached them, humans still have the capacity to contemplate existence, and come to believe in or reject God.

While this might seem harsh, if conceived of properly, this serves to imbue all humans with dignity and reason. Every human life is valuable, has the intellectual capacity to contemplate God, and the ability to make choices. The world is not simply divided into believers and non-believers, but rather is in a state of flux, and humanity is in a constant and everlasting battle to come to recognize God — even those humans who lived eons ago, and those on small islands or in jungles. Such a belief for the Muslim serves to theoretically connect humans together in new ways. According to al-Maturidi — the role of the Prophets was to work with such innate feelings, and make them externally clear to people.

Muhammad Amin ibn Abidin (d. 1252 AH/1836 CE). Radd al-Muhtar ala Durr al-Mukhtar

أصول الأشاعرة أن من مات ولم تبلغه الدعوى يموت ناجيا ، أما الماتريدية ، فإن مات قبل مضي مدة يمكنه فيها التأمل ولم يعتقد إيمانا ولا كفرا فلا عقاب عليه ، بخلاف ما إذا اعتقد كفرا أو مات بعد المدة غير معتقد شيئا

The foundation of law is that whoever dies, and the message of Islam has not reached him, is saved. However, the Maturidis said, whoever dies before he has time to contemplate, and does not have faith or disbelief, he is not punished. This is different from the person who disbelieves, or dies after sufficient time and (fails to) believe in anything.

Muhammad ibn Muhammad Abu Mansur al-Maturidi (d. 333 AH/944 CE)Tawilat Ahl al-Sunnah

وفي الآية دلالة أن حجة التوحيد قد لزمتهم وقامت عليهم بالعقل، حيث قال: { وَمَا كُنَّا مُعَذِّبِينَ حَتَّىٰ نَبْعَثَ رَسُولاً }؛ فلو لم تلزمهم لكان الرسل إذا دعوهم إلى ذلك يقولون: من أنتم ومن بعثكم إلينا؟ فإذا لم يكن لهم هذا الاحتجاج دل أن الحجة قد قامت عليهم، لكن الله بفضله أراد أن يدفع الشبه عنهم ويقطع عنهم عذرهم برسول يبعث إليهم لما أن أسباب العلم بالأمور ثلاثة: فمنها ما يعلم بظاهر الحواس بالبديهة، ومنها ما يفهم [ويعلم] بالتأمل والنظر، ومنها ما لا يعلم إلا بالتعليم والتنبيه

As for the verse “We do not punish until we send a Messenger” (17:15), it is proof that tawhid (monotheism) is obligated by reason. If it was not, then when a Prophet was sent to call the people, they would say, “Who are you, who sent you to us?”…but Allah wanted to remove doubts from them, and eliminate any excuses, by sending them a Messenger…this is because some of them understand the apparent meanings of the senses; and some who do not understand through contemplation and reflection; while others do not learn except through education, and warnings.

According to some conceptions of this, not only God’s existence, but also morality could be sensed by humans without divine revelation, leading to the possibility of an Islamic conception of natural law.

The Jizya — Coexistence With All Religions?

There is no doubt that the Koran is a limited book. Largely, it is framed within a Judeo-Christian context (a limited one at that, with fragments of stories that can only be understood by recourse to outside material), and smattered with stories of local, Arab prophets. There is no mention of Hindus, Buddhists, or any other non-Abrahamic religion that pre-dates Islam (the “Sabians” and Zoroastrians are the exception). To some, this is indication that — besides Jews and Christians — the rest of humanity are basically no-good polytheists who the Koran doesn’t deem deserving of mention (as they are lumped together with polytheists in general), and are analogous with the Arab idol worshippers (mushrikeen) who Muhammad (and the Koran according to some interpretations) commanded to be fought with force until eradication. Perhaps they had been sent a prophet at some point, but largely they escape theological and legal codification. While some Muslims today might show tolerance towards these other non-Abrahamic groups, largely this is divorced from theological terms.

The question of “the other” — in realistic, non-theological terms — arose relatively early in Islamic legal discourse. Islam spread by the sword, and offered tribes, villages, and states three options: Accept Islam; retain your religion, and pay a submission tax (jizya); or, fight. While none of these options are good, if entities paid the jizya, they were allowed to live in peace within the Islamic state — with some restrictions on religious and social behavior. However, they would not be killed.

Therefore, what happened when the Muslim armies encountered diverse religious groups that were neither Jewish or Christian, nor Arab polytheists? The question arose as to whether they could pay the jizya, and live in coexistence in Muslim states, or, if they had to be killed, like the Arab polytheists.

The Hanafi and Maliki madhabs took the former opinion: Any non-Abrahamic religion, including non-Arab polytheists (and even those “with no religion”), could be offered the jizya, and live in peace within a Muslim society. The other madhabs, however, disagreed and claimed that only Jews, Christians, and Zoroastrians would be eligible for the jizya. Everyone else would be forced to live in a theoretical state of war with the Muslims.

أخبرنا عبد الرزاق قال : أخبرنا ابن جريج قال : حدثنا جعفر بن محمد ، عن أبيه ، أن عمر بن الخطاب ، خرج فمر على ناس من أصحاب النبي – صلى الله عليه وسلم – فيهم عبد الرحمن بن عوف ، فقال : ما أدري ما أصنع في هؤلاء القوم الذين ليسوا من العرب ، ولا من أهل الكتاب ؟ يعني المجوس ، فقال عبد الرحمن بن عوف : أشهد لسمعت رسول الله – صلى الله عليه وسلم – يقول : سنوا بهم سنة أهل الكتاب

Umar ibn al-Khattab left (his house), and passed by a group of the companions of the Prophet, among them Abd al-Rahman ibn Auf. Umar said, “I do not know what to do with these people — the Magians (Zoroastrians) — who are niether Arabs, nor People of the Book.”

Abd al-Rahman said: “I testify that I heard the Messenger of Allah say, ‘Do with them what you do with the People of the Book.'”

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

According to this account, it was not until well after Muhammad’s death that Umar — the second Muslim caliph — knew how to intellectually relate to people of non-Abrahamic faiths. According to the Hanafis and Malikis, the Zoroastrians do not possess any type of book — therefore, by analogy, any group that does not have a “book” can nonetheless attain their legal status. However, the other madhabs — including the Twelver Shias — believe on the basis of other narrations that the Zoroastrians do have a book. Thus, they are legally protected, while other non-Abrahamic faiths are not. However, the more inclusive view was held by some early Muslims.

أخبرنا عبد الرزاق قال : أخبرنا معمر قال : سألت الزهري : أتؤخذ الجزية ممن ليس من أهل الكتاب ؟ فقال : ” نعم ، أخذها رسول الله – صلى الله عليه وسلم – من أهل البحرين ، وعمر من أهل السواد ، وعثمان من بربر

Ibn Shihab al-Zuhri (d. 124 AH/741 CE) was asked, “Is the jizya taken from those who are not People of the Book (ahl al-kitab)? He said, “Yes, the Messenger of Allah took it from the people of Bahrain, and Umar from the people of al-Sawad, and Uthman from the Berbers.

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

This historical notion was supported by Abu Yusuf, the student of Abu Hanifa:

Yaqub ibn Ibrahim al-Ansari (Abu Yusuf) (d. 182 AH/798 CE)Kitab al-Kharaj

وأما العجم فتقبل الجزية من أهل الكتاب منهم والمشركين وعبدة الأوثان والنيران من الرجال منهم . وقد أخذ رسول الله صلى الله عليه وسلم الجزية من مجوس أهل هجر والمجوس أهل شرك وليسوا بأهل كتاب وهؤلاء عندنا من العجم ولا تنكح نسائهم ولا تؤكل ذبائحهم
ووضع عمر بن الخطاب رضي الله عنه على مشركي العجم بالعراق الجزية على رءوس الرجال على الطبقات المعسر والموسر والوسط
وأهل الردة من العرب والعجم الحكم فيهم كالحكم في عبدة الأوثان من العرب : لا يقبل منهم إلا الإسلام أو القتل , ولا توضع عليهم الجزية

As for the non-Arabs, accept the jizya from the People of the Book, the polytheists, and the idol worshippers among them. Because the Messenger of Allah accepted the jizya from the Zoroastrians of Hijr, and the Zoroastrians are polytheists (ahl al-shirk), and they do not have a book. And their women cannot be married, and their meat cannot be eaten.

And Umar ibn al-Khattab accepted the jizya from the non-Arab polytheists in Iraq…but as for the apostates, whether they be Arab or non-Arab, their ruling is the ruling of Arab idol worshippers: Nothing is accepted from them except Islam, or the sword, and they are not given the (option of) the jizya.

According to the Maliki jurist Ibn Abd al-Barr, this even extended to any type of disbeliever in Islam — even those with “no religion.”

Ibn Abd al-Barr (d. 463 AH/1071 CE). Al-Istidhkar

وقال الأوزاعي ، ومالك ، وسعد بن عبد العزيز إن الفرازنة ومن لا دين له من أجناس الترك والهند ، وعبدة النيران ، والأوثان ، وكل جاحد مكذب بدين الله عز وجل يقاتلون حتى يسلموا ، أو يعطوا الجزية ، فإن بذلوا جزية قبلت منهم ، وكانوا كالمجوس في تحريم مناكحهم وذبائحهم وسائر أمورهم

It was the opinion of Al-Awzai (d. 157 AH/774 CE), Malik (d. 179 AH/795 CE), and Saad ibn Abd al-Aziz…that whoever has no religion, from the races of the Turks (al-Turk) and the Indians (al-Hind) — and the fire worshippers and idol worshippers — and everyone who denies the religion of Allah, must be fought, until they convert, or they pay the jizya. If they offer the jizya, it is accepted from them. And they are like the Zoroastrians, in the prohibition of marrying their women, eating their meat, and other prohibitions.

This really gets to some fundamental questions: Are Muslims and Hindus — or Muslims and atheists — going to be studying together, and working together in mutual tolerance? Or, will they be theoretical enemies that there can be no peace between?

Hanafi jurists also maintained that it was possible to engage with non-Muslims within society, and partake in learning of the Koran, and even Islamic law. This is not only for dhimmis, but also warmakers (al-harbi) — which shows that such labels could be merely legal classifications, not indications of how people acted, or should be treated in reality.

في تعليم الكافر القرآن والسنة ذكر محمد عن أبي حنيفة أنه لا بأس بتعليم الحربي والذمي القرآن والفقه ولم يذكر خلافا

About teaching the non-believer (al-kafir) the Koran and sunnah, Abu Hanifa said, “There is no harm in teaching the harbi and the dhimmi the Koran, and fiqh,” and he did not mention any disagreement.

— Ahmad ibn Muhammad al-Tahawi (d. 321 AH/933 CE). Mukhtasar Ikhtilaf al-Ulama

This also shows the dangers of classical Islamic law, and the phenomenon of ikhtilaf. Very basic theological disagreements — the question as to whether the Zoroastrians possess a “book” — can have an enormous effect on not only how Muslims conceive of “the other,” but how action is manifested towards others. The chasm between these two views is enormous, but rests upon minute theological differences. And that is not fair, and does not vouch for Islam’s truth. There are innumerable similar issues.

In the modern day — where there are Muslim-majority states such as Pakistan and Afghanistan, but notable religious minorities — this question has pertinence. While the jizya no longer exists, the example of the Hanafi madhab shows that Muslims, Jews and Christians, and people of all or no faiths, can theoretically live together in coexistence and with social tolerance, and that not only did scholars from the inception of Islam believed this to be possible, but it was the reality for early Muslim communities.

Equality in Qisas (Retribution)

In 1811, Arthur William Hodge — a British slave owner from the Virgin Islands — was hanged for the murder of one of his slaves. He is thought to be one of the only British subjects to have been sentenced for the murder of a slave — something that the law, and society, considered to be his own property. Such legal concerns must have been commonplace in the cultures where slavery was practiced — and this is also the case with Islamic law.

Overwhelmingly, Muslim jurists concluded that if a freeman killed his slave — he might be liable to pay blood money (diyah) in compensation to the next of kin, and (in some limited cases) might even go to jail, but he could never receive qisas (retribution in return). Not only was this inequality present between free men and slaves, but also between Muslims and non-Muslims. The Hanafi madhab, however, served as the sole dissenting voice.

Ahmad ibn Ali al-Jassas (d. 370 AH/981 CE)Sharh Mukhtasar al-Tahawi fi al-Fiqh al-Hanafi, vol. 5, p. 360

مسألة : القصاص بين العبيد والأحرار
قال أبو الجعفر : والعبيدُ والأحرار في القصاص في الأنفس سواء
قال أبو بكر : الدليل على ذلك قولُ الله تعالى : يا أيها الذين آمنوا كتب عليكم القصاص في القتلى ، وذلك عموم في الكل

Issue: Retribution (al-qisas) Between Slaves, and Free Persons

Al-Tahawi said: Free and slave men are equal in retribution.

Al-Jassas said: The proof for this is the saying of Allah, “O ye who believe! the law of equality is prescribed to you in cases of murder” (2:178). And this is general for everyone.

Ahmad ibn Ali al-Jassas (d. 370 AH/981 CE)Sharh Mukhtasar al-Tahawi fi al-Fiqh al-Hanafi, vol. 5, pp. 350-351

مسألة : وجب القصاص بين المسلم والكافر
قال أبو جعفر : والقصاص بين الرجل الأحرار العقلاء البالغين في الأنفس وما دونها، مسلمين كانوا أو كافراً، غير الحربيين
قال أبو بكر : أما الحجة في وجوب القصاص بين المسلم والكفر الذمة، فهو قوله تعالى : يا أيها الذين آمنوا كتب عليكم القصاص في القتلى

Issue: The Obligation of Retribution (al-qisas) Between the Muslim and the Non-Believer (al-kafir)

Al-Tahawi said: (There is) qisas for the taking of a life — between the free, sane man, and a Muslim, or non-believer — as long as they are not warmakers.

Al-Jassas said: The proof for the obligation of qisas between the Muslim and the non-believer who is a dhimmi is the saying of Allah, “O ye who believe! the law of equality is prescribed to you in cases of murder” (2:178).

Hanafi scholars relied largely on the general text of the Koran — which they claimed did not differentiate between the free, and slaves. They also relied to a lesser degree on earlier scholarly precedent, largely through the opinions of the Kufan predecessor to Abu Hanifa, Ibrahim al-Nakhai (d. 96 AH/715 CE) — who provides nearly the sole voice of dissent on these issues in early Islamic legal opinion:

عبد الرزاق ، عن أبي حنيفة ، عن حماد ، عن إبراهيم قال يقتل به إذا كان عمدا قال الثوري إن قتل عبده أو عبد غيره قتل به ، وهو قولنا

Ibrahim said: Kill him (the free man) if he intentionally (kills a slave). And Sufyan al-Thawri (d. 161 AH/778 CE) said, “If he kills his slave, or another’s, then he is killed.”

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

عبد الرزاق ، عن الثوري ، عن منصور ، عن إبراهيم : ” أنه كان يرى قود المسلم بالذمي

Ibrahim believed in the retribution between a Muslim, and a dhimmi.

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

This also seems to have been the practice of the Umayyad caliph Umar ibn Abd al-Aziz (d. 99 AH/720 CE):

عبد الرزاق ، عن معمر ، عن عمرو بن ميمون بن مهران ، قال : شهدت كتاب عمر بن عبد العزيز قدم إلى أميرالجزيرة أو قال : الحيرة  في رجل مسلم قتل رجلا من أهل الذمة أن ادفعه إلى وليه فإن شاء قتله ، وإن شاء عفا عنه  قال  فدفع إليه فضرب عنقه ، وأنا أنظر

Umar ibn Mihran said: I testify that Umar ibn Abd al-Aziz wrote to his deputy about the Muslim man who kills a man from the people of dhimma, “Give him to his guardian (wali), and if he wants, he can kill him, and if he wants, he can forgive him.” So, he turned him over to them, and they struck his neck, and I was watching.

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

While these prior precedents could perhaps serve as proof on their own — despite the more enlightened outlook of Hanafi scholars, their use of the Koranic verse in sanctioning “equality for all” is problematic. Despite this claim, the Hanafis still did not accede to qisas when a father or mother killed their own child. While this might seem obscure, all Islamic schools of law addressed this notion, and agreed upon it. This has pertinence today when we question the phenomenon of honor killings.

While the Hanafi view on these issues can show equality between Muslims and non-believers, there must also be a cognizance that the Hanafi treatment on retribution and murder has fallen short in some ways as well.

Non-Muslims Can Enter Mecca and Medina

Ahmad ibn Ali al-Jassas (d. 370 AH/981 CE)Ahkam al-Quran

وقوله تعالى : فَلا يَقْرَبُوا الْمَسْجِدَ الْحَرَامَ بَعْدَ عَامِهِمْ هَذَا سورة التوبة آية 28 قد تنازع معناه أهل العلم , فقال مالك ، والشافعي : لا يدخل المشرك المسجد الحرام
وقال أصحابنا : يجوز للذمي دخول سائر المساجد

About the saying of Allah, “O ye who believe! Truly the Pagans are unclean; so let them not, after this year of theirs, approach the Sacred Mosque” (9:28), there is a conflict between scholars. Malik and Shafi’i said: The polytheist (al-mushrik) does not enter the Masjid al-Haram. However, our companions (the Hanafis) say: It is permissible for a dhimmi to enter any masjid.

This was also the opinion of the Prophetic companion Jabir ibn Abdallah al-Ansari:

أخبرنا عبد الرزاق قال : أخبرنا ابن جريج ، أخبرنا أبو الزبير ، أنه سمع جابر بن عبد الله ، يقول في هذه الآية : إنما المشركون نجس فلا يقربوا المسجد الحرام : ” إلا أن يكون عبدا أو أحدا من أهل الجزية

Jabir said about the verse, “Truly the Pagans are unclean; so let them not…approach the Sacred Mosque” (9:28): Except if they are a slave, or anyone from the people of jizya.

– Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

Clearly, this has very little practical application, but it shows that some early Muslims accepted social diversity, even in their holiest cities. Moreover, Jabir’s saying affirms that mushrikeen were afforded dhimmi status and lived within the Muslim state during his lifetime.

Non-Muslim Blasphemers Are Not Liable to Be Killed

I have covered this topic extensively in my post here. Hanafi authorities conceived of blasphemy as a type of unbelief and apostasy. Given that non-Muslims were already unbelievers and could not apostatize from Islam, they therefore could not be punished for the offense of insult or blasphemy. However, according to Hanafi scholars — if the ruler were to make it a condition of their contract of dhimma (aqd al-dhimma), that the Prophet or Islam not be insulted, then that would be valid and a punishable offense. However, in countries where there is equal citizenship (like in Pakistan and Afghanistan today), this notion no longer applies.

Ahmad ibn Muhammad al-Tahawi (d. 321 AH/933 CE)Mukhtasar Ikhtilaf al-Ulama, vol. 3, p. 504, #1652

قال أصحابنا فيمن سب النبي صلى الله عليه وسلم أو عابه وكان مسلما فقد صار مرتدا ولو كان ذميا عزر ولم يقتل

As for insult or reproach of the Prophet, our companions (the Hanafis) say: If he is a Muslim, then he has become an apostate, and if he is a dhimmi, then he is given a tazir, and not killed.

Female Apostates From Islam Are Not Killed

I have also covered this extensively in the same post. Acting on legal precedent from some early Muslim scholars, the Hanafis did not kill female apostates from Islam. If the reasoning for the death penalty for apostasy was due to merely changing one’s religion — then both men and women would be equally liable for punishment. However, the Hanafis conceived of apostasy as being linked to warfare, which exempted females from being killed.

Abu al-Layth al-Samarqandi (d. 373 AH/ 983 CE)Mukhtalaf al-Riwayah, vol. 3, pp. 1298-1299

وعن ابن عباس – رضي الله عنهما – أنه قال : «لا تقتل المرتدة» ، ولأن كفر المرأة لا يساوي كفر الرجل في كونه داعياً مفضياً إلى الخراب فلا يساويه في استحقاق القتل لما عرف

It is narrated from Ibn Abbas that he said, “The female apostate is not killed.” This is because the unbelief of the woman is not equal to the unbelief of the man — which leads to (physical) devastation. So, she is not equal in the liability to be killed, as is known.

While the Hanafis ultimately did not take this reasoning all the way to allowing complete freedom of religion (as detailed in the post) this reasoning can help somewhat contribute to a modern understanding of Islam and freedom of belief.

Conclusion

I have studied Islam for the past 10 years, however, I have effectively stopped studying it. The posts on this website represent what I wanted to contribute to the public, state of knowledge with what I had learned. I felt this information might help people better see not only issues of Islam and tolerance — but also, the real and troubling contentions, shortcomings, and contradictions in Islamic scholarship. There are many more issues and a lot that could be said, but I think this is an effective sampling to communicate that, within a framework that can also advance tolerance.

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