The payment of the Jizyah and the acceptance of the non-Muslims from the people of war to submit to the rulings of Islaam
What concerns us in this section is whether the payment of the Jizyah from the people at war and their commitment to submitting to the rulings of Islaam, is considered a cause from amongst the causes for the cessation of fighting according to Islaam. As such the issues that are dealt with in this section are only studied from this angle i.e. the angle of the cessation of the Qitaal if the contract of Dhimmah with the people of war is completed, a matter that dictates their payment of the Jizyah and their submission to the rule of Islaam, meaning their entry into being Islamic subjects and henceforth carrying the citizenship of the Islamic State.
As such we will not delve into the issues that enter into the subject of the Jizyah as this would require an independent paper in itself and in addition it would distract us from the purpose for which this chapter was aimed at which is to examine a cause or reason from amongst the causes that lead to the stopping of Al-Qitaal according to Al-Islaam.
Indeed it has been necessary for us to present a number of issues that relate to the study of the Jizyah and these are those that are of importance in regards to clarifying this reason from amongst the reasons or causes for the cessation of Al-Qitaal in Al-Islaam. These issues include the like of: Who from amongst the Ahlu-l-Harb (people of war) is it permitted to cease the fighting with and who is it not permitted to do so if they pay the Jizyah and announce their acceptance of the contract of the Dhimmah? What are the conditions for the obligation of the Jizyah? What can take its place (i.e. substitute for it)?
So the issues that we will address in this section are the following:
PART 1: What is meant (or intended) by Al-Jizyah? What are the Shar'iyah Adillah (evidences) in regards to the obligation of stopping the fighting against the people of war if they give the Jizyah and the contract of Dhimmah is completed by them?
PART 2: Who is the Jizyah accepted from, from amongst the people of war (Ahl-ul-Harb) as well as their entering into the Dhimmah of the Muslims?
PART 3: The Shuroot (conditions) of the obligation (Wujoob) of the Jizyah.
PART 4: The alternative to the Jizyah.
What is meant or intended by Al-Jizyah? What are the Shar'iyah Adillah (evidences) in regards to the obligation of stopping the fighting against the people of war if they give the Jizyah and the contract of Dhimmah is completed upon them?
1. What is meant or intended by Al-Jizyah?
It was stated in 'Mukhtaar As-Sihhaah' (dictionary): (Al-Jizyah: What is taken from the Ahlu-dh-Dhimmah. The plural: Al-Jizaa like Lihyah and Lihaa (Beard/s)) (Mukhtaar As-Sihhaah p86).
It was stated in 'Al-Mughni': "It is the Wazheefah (amount presented to the authority in the form of an annual financial tax) taken from the disbeliever every year so that he can reside in the Daar (land)" (Al-Mughni, Ibn Qudaamah 567/10).
In addition, the word 'Al-Jizyah' has been used to mean the contract of the Dhimmah itself just as it has been applied with the meaning of the Dareebah (tax) (Imaam Ash-Shaafi'iy named the Jizyah as Dareebah, Al-Umm 200/4) or the money that the Ahlu-dh-Dhimmah have been made to commit to paying it to the Islamic State annually.
The following was stated in Al-Mughni Al-Muhtaaj in relation to the word 'Al-Jizyah': "And it has been applied to the 'Aqd' (contract) or the money that has been committed to be paid by it" (Mughni Al-Muhtaaj, Ash-Sherbeeni Al-Khateeb, 242/4). Also refer to 'Tuhfah At-Tullaab' of Ash-Sheikh Al-Islaam Zakariyah Al-Ansaari p278).
Just as An-Nawawi explained in 'Al-Minhaaj', how the Imaam of the Muslims or the one he has delegated, manages the contract of the contract of the Dhhimmah, or the 'Aqd of Al-Jizyah with the people of war. He states: "An example (blueprint) of the 'Aqd (contract): I grant you settlement in the land of Islaam or I permit you to reside in it on the basis that you pay the Jizyah and that you yield/submit to the rule of Islaam" (Al-Minhaaj, An-Nawawi quoted in Al-Mughni Al-Muhtaaj: 242/4).
So this in summary is what has been related in regards to the word 'Al-Jizyah' and this definition is sufficient for our requirements here and there is no need to delve any further into this matter in a manner greater than we have mentioned.
2. What are the Shar'iyah Adillah (evidences) in regards to the obligation of stopping the fighting against the people of war, if they give the Jizyah and the contract of Dhimmah is completed upon them?
The origin in regards to the obligation of ceasing the fighting against the people of war upon their acceptance of the giving of the Jizyah and their acceptance of the rule of Islaam is the Qawl (statement) of Allah سبحانه وتعالى:
قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنَ الَّذِينَ أُوتُوا الْكِتَابَ حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ
"Fight against those who believe not in Allah, nor In the Last day, nor forbid that which has been forbidden by Allah and his Messenger and those who acknowledge not the Religion of Truth among the people of the Scripture (Jews and Christians), until they pay the Jizyah with willing submission, and feel themselves subdued."
This Aayah states that the goal that is necessary in respect to stopping the fight against the disbelievers is the giving of the Jizyah and to abide by the Saghaar i.e. submit to the ruling of Islaam in other than what has been left to them like the 'Ibaadaat, foods, drinks, clothing and matters related to marriage and the like.
In the Tafseer of Al-Qurtubiy he said: "And Al-Qitaal has been given an aim which is the giving of the Jizyah instead of fighting" (Al-Jaami' LiAhkaam Al-Qur'aan, Al-Qurtubiy 110/8).
Ibn Qudaamah stated: "The giving of the Jizyah has been made the aim (target) for fighting them so when they give it, it is not permissible to fight them" (Al-Mughni 577/10).
In addition from amongst the Shar'iyah evidences in relation to it, there is also that which came in the Saheeh of Al-Bukhaari that Al-Mugheerah Bin Shu'bah said the following to a worker of Kisraa (ruler of Persia) during the battle of Nahaawand (Refer to Fat'h-ul-Baari 264/6) in the land of the Persians: "Our Nabi, the Messenger of Allah صلى الله عليه وسلم has ordered us to fight you until you worship Allah alone or that you give the Jizyah. And our Nabi صلى الله عليه وسلم has informed us about the message of his Lord that whoever from amongst us is killed is in Al-Jannah in pleasurable comfort that none has ever seen the like of and that whoever is left alive from us will take possession of your necks (i.e. become master over you)." (Saheeh Al-Bukhaari 3159, Fat'h-ul-Baari 258/6).
So this Hadeeth is a text in regards to fighting the Kuffaar (disbelievers) until one of two matters comes to pass: Either they worship Allah alone i.e. entering into the folds of Islaam, or for the Jizyah to be given. The meaning of this is the obligation of refraining from Al-Qitaal (fighting) and ceasing the state of war with the disbelievers who have responded positively to the payment of the Jizyah in the case where they have abstained from entering into Al-Islaam. What is intended by the Jizyah here is the Jizyah that the Ahlu-dh-Dhimmah are bound by, those who have submitted to the authority of Islaam and have become Islamic subjects. It does not mean the Jizyah that the Ahl-ul-Harb (people of war) could pay built upon the contract of Muwaada'ah i.e. a foreign peace agreement with them dictating the cessation of fighting against them, whilst they remain independent in their lands without submitting to the authority of Islaam. This is like what Ibn Haja mentioned when he said: "That the Jizyah is with the Ahlu-dh-Dhimmah whilst the Muwaada'ah is with the Ahl-ul-Harb" (Fat'h-ul-Baari 259/6).
Also from amongst the evidences that indicate that the acceptance of the Ahl-ul-Harb to the payment of Jizyah is a reason/cause (Sabab) from amongst the reasons/causes (Asbaab) for refraining from Al-Qitaal against them in addition to ceasing the state of war with them is what came in the Hadeeth of Buraidah in Saheeh Muslim in relation to the advice given by the Nabi صلى الله عليه وسلم to the Ameer of the army or expedition who was heading out to fight the people of war in relation to the Islamic manners that are necessary to be observed when fighting and the demands that are presented before the commencement of war against them. In regards to what is obligatory in terms of refraining from fighting them if they respond to these demands.
The following came in the Hadeeth: "Then if they refuse (i.e. entering into Islaam) then ask them for the Jizyah. If they respond positively to you, then accept this from them and refrain from (fighting) them."(Saheeh Muslim 1731).
This Hadeeth is a text guiding to the obligation of refraining from Al-Qitaal with the people of war (Ahl-ul-Harb) if they respond positively to committing to the giving of the Jizyah which would mean them entering into the Dhimmah and their acceptance of the Islamic rule as was mentioned in respect of the Aayah of Al-Jizyah.
Based upon these evidences from the preceding Shar'iyah texts there followed the written texts of the Fuqahaa who affirmed the obligation (Wujoob) of ending the state of war with the disbelievers upon their acceptance of giving the Jizyah.
The author of 'Al-Muhadh'dhab' stated: "The contraction of the contract ('Aqd) of Adh-Dhimmah is not valid except from the Imaam or from the one who has been delegated by the Imaam because it falls under the greatest of the interests and as such belongs to the Imaam. And whoever requests the contraction of the Dhimmah and he is from amongst those whom it is permitted to be affirmed in his disbelief with the Jizyah, then it is obligatory to contract it with him" (Al-Muhadh'dhab, Ash-Shiraaziy 253/2).
Imaam An-Nawawi exempted from this obligation some situations in which harm befalling the Muslims is feared as a result of contracting the 'Aqd of the Jizyah or the Dhimmah and he stated: "Except for the spy who we fear" (Al-Mughni Al-Muhtaaj, Ash-Sherbeeni Al-Khateeb 244/4 and he stated in his explanation: "Except for when the plotting/scheming of the person requesting the contract is feared like if he was a spy who we feared and hence rejected due to the damage that we feared might result").
Ibn Qudaamah stated: "If they give the Jizyah then it is binding to accept it and it is Haraam to fight them" (Al-Mughni, Ibn Qudaamah 577/10).
It is worth noting here that the acceptance of the people of war to choose the Jizyah or convene the contract of the Dhimmah could occur before the forces of the Islamic State arrive at their doorstep where this acceptance could occur as the result of merely being presented with these three choices or options and with their acceptance from the beginning of the option of paying the Jizyah. Similarly it is possible that they respond positively to giving the Jizyah after war has been initiated with them and then before their defeat is completed and the victory for the Muslims has been secured they come forward to announce that they will accept the Jizyah and convene the contract of the Dhimmah. It is also permitted for them to accept the Jizyah after a long or short period of siege and they see in these circumstances that it is wise to accept the judgement of the Jizyah and to enter into the Dhimmah in order to break the siege encompassing them and their land.
I say: In all of these cases the declaration of the people of war of their acceptance to enter into the Dhimmah of the Muslims is considered to be a Sabab (cause/reason) from amongst the reasons (Asbaab) for the cessation of Al-Qitaal in accordance with Islaam.
With that we end the discussion of this Mas'alah (issue) and move on to the following Mas'alah.
To be continued in Part 2...
The above is a draft translation from the book: 'Al-Jihad wa'l Qital fi as-Siyasa ash-Shar'iyya' by Sheikh Dr. Muhammad Khayr Haykal.