By Sheikh Youssef Sbeity
Translated by: Manal Samhat
The Quran constitutes what Allah has revealed to His Messenger, (Al-Mustapha – “The Chosen”) (p.) with the aim of guiding people to the straight path. Such guidance requires talking about the doctrinal, social and legislative matters, knowing that the latter mainly aim at organizing people’s lives, whether at the individual, social or general political level.
The Quran is the last of the Heavenly books, and the Messenger Muhammad is the last of the prophets: “Muhammad is not the father of any of your men, but he is the Messenger of Allah and the Last of the prophets; and Allah is cognizant of all things” (33:40). The signification of being the last Prophet is that the legislation he brought along is the last of the heavenly legislations, which means that it must be fit for every time and place and is not restricted to the time in which it was revealed. This also means that the legislations found in the Quran are not historic as some secularists try to confirm, claiming that the legislative rulings are historic and are suitable for the uncivilized desert communities and not for civic and civilized ones, especially with regards to those rulings dealing with inheritance and polygamy, where they call for equality of inheritance between the man and the woman and for ending polygamy.
Some even went as far as considering that the human and moral values constitute the unchanging aspect of religion and surpass every time and place, for they are not historic, whereas the legislative matters whereby the Messenger used to answer the questions of the Muslims and that constituted the Islamic Legislation (Shariah) should undergo discussion to establish whether they surpass time or not and whether they are historic or not.
This places us before a main issue: The Quran is Allah’s seal of books and the Messenger of Allah is the seal of the messengers, which means that its legislations should apply to every time and place and that they are not historic. In any case, is it acceptable to call certain Quranic rulings historic? Does this contradict the Quran being the last of the heavenly books and its legislations being the last of the legislations, and could a state of conciliation be established between the Quranic legislations being eternal as a result of the Quran itself being eternal and the last of the heavenly books on the one hand and the historicity of some of its texts on the other?
We will limit ourselves here to the legislations in the historicity of the Quranic rulings, for they are problematic and in need of research. That is why this paper will focus on the Shariah rulings whilst trying to prove their historicity.
The legislations or Shariah rulings in the Quranic text are divided into two parts: the first has to do with the acts of worship Allah has made incumbent on the people, which are the Ayahs related to prayers, fasting, pilgrimage and Zakat, and the second has to do with what the jurisprudents call Mu’amalat; i.e. transactions, which constitute a set of laws that aim at organizing people’s lives, such as marriage, divorce, inheritance. There is also what is called “right hand possessions”, and another part related to what is called “the people of the Dhimma” or “Dhimmis”.
Our paper will focus on the last two titles: “right hand possessions” and “the people of the Dhimma”.
Right hand possessions
The Quran is loaded with a number of texts that allow the man to make love to the woman if she was among his “right hand possessions”, and a right hand possession is the term used to call the woman that used to be taken as part of the war’s spoils after the Muslims would win over their enemies, so they would enslave their men and take their women as captives (bondwomen), or the woman one would buy from the slave market.
Allah says in An-Nisa’ Surah: “And whoever among you has not within his power ampleness of means to marry free believing women, then (he may marry) of those whom your right hands possess from among your believing maidens” and: “And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess” (04:03) and: “And all married women except those whom your right hands possess” (04:24), and the last Ayah comes in the context of counting the women the man is not allowed to marry, excluding the ones whom his right hand possesses, allowing him to make love to them without a marriage contract.
Actually, this issue comes under a wider and more comprehensive title, which is “enslavement”, where a man would enslave another man like him, and this constitutes one of the biggest problematic issues Islam faced, for [it comes to mind] how could it legislate such abnormal phenomenon in the human community? How did it not forbid these two things?
Before getting through the reason of not explicitly forbidding captivity or enslavement and before generally talking about not forbidding captivity or enslavement in the Quranic texts in an explicit manner, knowing that we only find special rulings related to the issue, as we have seen in the aforementioned Ayahs, we ought to bring forth a few remarks that are directly related to determining the course of the research. The first is that any human phenomenon found in the Islamic community or was present until the time of the advent of Islam cannot be read according to the concepts and titles of our time. Rather, it ought to be read according to the concepts and titles of the time of the phenomenon per se, for the human community is continuously developing and moving and it is never fixed and stable, and this is clearly obvious. What was suitable in the past times is not suitable in our time and what is suitable in our time is not suitable in the past times. This has to do with the customs and traditions prevalent back then, so it is not acceptable to project the general custom that humanity is living on the custom that was prevalent in the time of the Islamic legislation, for customs too undergo change and development and they are never fixed and stable. As such, it is not acceptable to read that custom prevalent at the time of legislation through the custom of humanity nowadays, for what is prevalent in our present time was not prevalent back then in the time of legislation.
The second remark is that there are concepts and titles that differ from one time to another, and the change of customs in the human life will automatically lead to a change in the titles and concepts, for the latter are not detached from these customs; rather, they emanate from them. And perhaps the most obvious two examples in this regard are the titles of “captivity” and “the Dhimmis”. This will become clear when I talk about these two titles in details later in this paper.
The third remark is that the Holy Quran did not explicitly legalize taking women as captives; neither were there an Ayah which says that this act is permissible. All there is are Ayahs that talk about rulings pertaining to something that exists and cannot be disregarded or left unhanded without organizing it, although the Quran called them “prisoners”, and this will also be clarified later in this paper.
The fourth remark is that the historicity of some Quranic Ayahs that include certain titles and concepts does not contradict the fact that the Divine Message embodied in the Quran is the last of the Divine messages, for being the last, even if it means that its rulings are suitable for every time and place, it also means that these rulings are flexible in a way that goes with the present titles.
And back to “captivity” or “enslavement”, we should point out that this phenomenon was prevalent in all the human communities, even in the communities that were considered civilized, such as the Roman or Pharaonic or Assyrian communities, and they were not restricted to the backward or uncivilized communities according to the standards of that time. Actually, this phenomenon was part of every war that took place, where the triumphant army would take over the men and women of its enemy under the title of enslavement and captivity. This phenomenon persisted for centuries later, for Athens that took over Milos Island after a siege and having captured the men sold the women and children as slaves (ref. David Fisher, A’alam Al-Ma’rifah (the World of Knowledge), issue no. 414).
This phenomenon is no longer present in the human society, and the men and women captured during war are but prisoners and not slaves or captives. The human community has become more civilized and it no longer accepts the idea of enslavement and captivity. As a matter of fact, there are international laws and agreements related to the prisoners of war. Article 118 in section II of the Geneva Agreement, under the title “Release and Repatriation”, stipulates: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”. And article 14 of the same Agreement that talks about how to treat women in war stipulates: “Prisoners of war are entitled in all circumstances to respect for their persons and their honor. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favorable as that granted to men”, and article 13 stipulates: “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited… Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity”. All this reflects that the concept of taking women as captives and enslaving men has come to an end, for the woman and the man are no longer sold in what is called the “slave market”, and the woman is no longer the possession of he who captures her, and neither is the man. What is prevalent now is that the prisoner, be he male or female, should be protected and repatriated to his homeland.
The concept of captivity and enslavement in the human communities has come to an end, and the title of slavery has changed into that of imprisonment. As such, the men and women who are captured by the triumphant army or state after war cannot be treated as captives or slaves.
The Quran denotes them as prisoners
It is interesting that the Holy Quran not only refrained from calling the enemies who were captured by the Muslims slaves or captives, it also did not allow the Messenger (p.) and the people to capture any of the polytheists under the title of “prisoners” unless a battle takes place, so before such thing happens, the denotation is refused. Allah says: “It is not fit for a prophet that he should take captives unless he has fought and triumphed in the land” (08:67), and in another Ayah: “So when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make (them) prisoners, and afterwards either set them free as a favor or let them ransom (themselves) until the war terminates” (47:04).
The ruling regarding prisoners is manifested in these two Ayahs: First is that taking people as prisoners is not acceptable unless there was a war or a battle, thus, it is impermissible to take people as prisoners before the break of war or a battle. The second is that the captured should not remain with the Muslims who have to choose one of the following: either they set them free without any return: “either… as a favor” or they set them free in return of something: “let them ransom (themselves) until the war terminates”. As such, it becomes clear that in these two rulings there is no place for enslavement or taking people as captives.
The stand of the Prophet (p.) from taking captives
In all his wars, the Messenger (p.) never took the women as captives, for in the Battle of Badr, for example, he was triumphant and there were women present in that battle, yet, when the battle ended and the polytheists were defeated, we never found in the historic narrations any indication that he took the women who were in the battlefield as captives. Rather, his instructions to his Muslim army and soldiers were always: “Do not go after women, do not kill the wounded and do not cut any tree…”, and this is clear enough that he forbade taking women as captives or prisoners. And when he (p.) conquered Mecca, all he did was that he gave people safety: “whoever enters his house will be safe”, so he did not kill the men or take the women as captives. The only case that witnessed taking women as captives was what happened with Bani Quraytha, which was an exception. Actually, the reader and researcher feel that this case is out of context and it is the only case that witnessed this act, so it needs a separate thorough and objective research, for it contradicts the Quranic text and all the biography of the Messenger of Allah (p.) in all his wars, even those which he fought against the Jews besides Bani Quraytha.
Citizens, not Dhimmis
The other title in the Quranic text is “the Dhimmis”. Allah says: “Fight those who do not believe in Allah, nor in the latter day, nor do they prohibit what Allah and His Messenger have prohibited, nor follow the religion of truth, out of those who have been given the Book, until they pay the tax in acknowledgment of superiority and they are in a state of subjection” (09:29). Obviously, the term “Dhimmis” is not explicitly used in this Ayah, rather it is inspired from it, for it entails imposing on the People of the Book paying the Jizyah (tax in acknowledgment of superiority), for they live under the rule of Muslims and their custody. This means, according to the modern laws of the states, that they are second-degree citizens who do not enjoy the same rights as the Muslims. This issue angers the Christians, on the one hand, who always say that they do not want to be Dhimmis, and the secularists, on the other, who object on the ground that people are not equal under the Islamic rule, for there are citizens of a first degree and others of a second degree.
What is the truth behind this issue? I will not move to justify whether this issue is legitimate or not, for this is a separate matter. What I want to say is that paying this Jizyah was related to certain historic circumstances and concepts that no longer exist in our contemporary world, for the prevalent title in our present time and in the relation of the states with the people is “citizenship”. This means that the members of each state are citizens with equal rights and obligations, for each state has an army composed of all its members, regardless of their religious and confessional affiliations, with the mission of defending the land and warding off any danger that could threaten the citizens’ security and safety. So, if it was not incumbent on the People of the Book in the past times to enroll in the Muslim army or they were exempted from that, then this is not the case anymore in the present time. Nowadays, the military and security forces in all the sectors are open to every individual of the society, either as voluntary enlistment or conscription. Moreover, there are employees from all confessions in all the governmental departments and ministries, and each citizen has the right to work in these positions and to assume the position of president, or prime minister or member of parliament if he has the required competency, regardless of his religious belonging, and it is incumbent on every citizen to pay taxes to the state.
Therefore, the title “Dhimmis” no longer exists, and it got replaced with “citizen” and “citizenship”. The best example to that is the Islamic Republic of Iran that treats its citizen according to the concept of citizenship and not “Dhimmi”. All its citizens have equal rights and obligations and it does not impose on any group of them paying the Jizyah.