Burhan al-Din al-Murghinani Quotes

Zimmies may testify concerning each other--THE testimony of Zimmiees with respect to each other is admissible, notwithstanding they be of different religion.--Malik and Shafei have said that their evidence is absolutely inadmissible, because, as infidels are unjust, it is requisite to be slow in believing any thing they may advance, GOD having said (in the Koran). WHEN AN UNJUST PERSON TELLS YOU ANY THING: BE SLOW IN BELIEVING HIM;"--whence it is that the evidence of an infidel is not admitted concerning a Mussulman; and consequently, that an infidels stands (in this particular) in the same predicament with an apostate.--The arguments of our doctors upon this point are twofold--FIRST, it is related of the Prophet, that he permitted and held lawful the testimony some Christians concerning other of their sect.--SECONDLY, and infidel having power over himself, and his minor children is on that account qualified to be a witness with regard to his own sect; and the depravity which proceeds from his faith is not destructive of this qualification, because he is supposed to abstain from everything prohibited in his own religion, and falsehood is prohibited in every religion. It is otherwise with respect to an apostate, as he possesses no power, either over his own person, or over that of another; and it is also otherwise with respect to a Zimme in relation to a Mussulman because a Zimme has no power over the person of a Mussulman--Besides, a Zimme may be suspected of inventing falsehoods against a Mussulman from the hatred he bears to him on account of the superiority of the Mussulmans over him.
OJECTION.--In the same manner as there subsists an enmity between Musulmans and Zimmees, so also is there an enmity between the followers of other religions, sects as the Jews, the Christians, and the Magians: it would follow, therefore, that amongst these testimony of those of one religion cannot be admitted with relation to other of a different religion; whereas it hath been declared admissible.
REPLY.--Although the religions of these be different, yet none of them being under subjection to another, so as to engender reciprocal hatred; there is no cause to suspect that they will invent falsehoods against each other.

WHEN a 'Mussulman apostizes from the faith, and exposition thereof is to be laid before him, in such manner that if his apostacy should have arisen from any religious doubts or scruples, those may be removed. The reason for laying an exposition of the faith before him is that it is possible some doubt or errors may have arisen in his mind, which may be removed by such exposition; and as there are only two modes of repelling the sin of apostacy, namely, destruction or Islám, and Islám is preferable to destruction, the evil is rather to be removed by means of an exposition of the faith;—but yet this exposition of the faith is not incumbent, (according to what the learned have remarked upon this head,) since a call to the faith has already reached the apostate. AN apostate is to be imprisoned for three days, within which time if he return to the faith, it is well: but if not, he must be slain.—It is recorded in the Jama Sagbeer that "an exposition of the faith is to be laid before an apostate, and if he refuse the faith, he must be slain:"—and with respect to what is above stated, that "he is to be imprisoned for three days," it only implies that if he require a delay, three days may be granted him, as such is the term generally admitted and allowed for the purpose of consideration. It is recorded from Haneefa and Aboo Yoosaf that the granting of a delay of three days is laudable, whether the apostate require it or not: and it is recorded from Shafei that it is incumbent on the Iman to delay for three days, and that it is not lawful for him to put the apostate to death before the lapse of that time; since it is most probable that a Mussulman will not apostatise but from some doubt or error arising in his mind; wherefore some time is necessary for consideration; and this is fixed at three days. THe arguments of our doctors upon this point are twofold.—FIRST, GOD says, in the Korán, "SLAY THE UNBELIEVERS," without any reserve of a delay of three days being granted to them; and the prophet has also said "Slay the man who changes his religion," without mentioning any thing concerning a delay: SECONDLY, an apostate is an infidel enemy, who has received a call to the faith, wherefore he may be slain upon the instant, without delay. An apostate is termed on this occasion and infidel enemy, because he is undoubtedly such; and he is not protected, since he has not requered a protection, neither is he a Zimmee, because capitation-tax has not been accepted from him; hence is proved that he is an infidel enemy. It is to be observed that, in these rules, there is no difference made between an apostate who is a freeman, and one who is a slave, as the arguments upon which they are established apply equally to both descriptions.

The construction of churches or synagogues in the Mussulman territory is unlawful, this being forbidden in the traditions:—but if places of worship originally belonging to Jews or Christians be destroyed, or fall to decay, they are at liberty to repair them,—because buildings cannot endure for ever, and as the Imán has left these people to the exercise of their own religion, it is a necessary inference that he has engaged not to prevent them from rebuilding or repairing their church and synagogues. If, however, they attempt to remove these, and to build them in a place different from their former situation, the Imán must prevent them, since this is and actual construction: and the places which they use as bermitages are held in the same light as their churches, wherefore the construction of those also is unlawful. It is otherwise with respect to such places of prayer as are within their dwellings, which they are not prohibited from constructing, because these are an appearance to the habitation. What is here said is the rule with respect to the cities; but not with respect to villages or hamlets; because as the tokens of Islám (such as public prayer, festivals, and so forth) appear in cities, Zimmees should not be permitted to celebrate the tokens of infidelity there, in the face of them; but as tokens of Islám do not appear in villages or hamlets, there is no occasion to prevent the construction of synagogues, not only in cities, but also in villages and hamlets; because in the villages of our country various tokens of Islám appear; and what is recorded from Haneefa, (that the prohibition against building churches and synagogues is confined to cities, and does not extend to villages and hamlets) relates solely to the villages of Koofa, because the greater part of the inhabitants of the villages are Zimmes, there being few Mussulmans among them, wherefore the tokens of Islám do not there appear: moreover, in the territory of Arabia, Zimmees are prohibited from constructing churches or synagogues either in cities or villages, because the prophet has said "Two religions cannot be professed together in the peninsula of Arabia."

Whoredom and bastardy are defects with regard to a female slave, but not with regard to a male ; because the object in the purchase of female slave, is cohabitation and the generation of children...

A man may gratify his passion with his female slave in whatever way he pleases—It is lawful for a man to perform the act of Azil with his female slave without her consent, whereas he cannot lawfully do so by his wife unless with her permission. –The reason of this is that the Prophet has forbidden the act of Azil with a free woman without her consent but has permitted it to a master in the case of his female slave. Besides, carnal connexion is the right of a free woman for the gratifying of her passion, and the propagation of children (whence it is that a wife is at liberty to reject a husband who is an eunuch or impotent); whereas a slave possesses no such right.—A man, therefore, is not at liberty to injure the right of his wife, whereas a master is absolute with respect to his slave. If, also, a man should marry the female slave of another, he must not perform the act of Azil with her without the consent of her master.

Definition of the term.—Nifka, in the language of the law, signifies all those things which are necessary to the support of life, such as food, clothes, and lodging: many confine it solely to food and the latter poor; and as the Prophet in his decision left this to the judgment of the parties themselves, the proportion is not specifically determined by the law.— Shafei has so determined it, saying that the Nifka or maintenance incumbent upon a husband in behalf of his wife, if he be opulent, is two Mids, or about one thousand Dirms annually,— if he be poor, one Mid: and if in middling circumstances, one and a half: this, however, is not admitted, because a thing declared to be incumbent "so far as may suffice" cannot be legally fixed at any specific rate, as the proportion must neces- sarily vary according to circumstances. And this, although she withhold herself on account of her dower. — If a woman refuse to surrender herself to her husband, on account of her dower (that is, on account of its not having been paid to her), her maintenance does not drop, but is incumbent upon the husband, although she be not yet within his custody, since her refusal is only in pursuance of her right, and consequently the object; on to the matrimonial custody originates with the husband. But not if she be refractory. — If a wife be disobedient or refractory, and go abroad without her husband's consent, she is not entitled to any support from him, until she return and make submission, because the rejection of the matrimonial restraint in this instance originates with her; but when she returns home, she is then subject to it, for which reason she again becomes entitled to her support as before. It is otherwise where a woman, residing in the house of her husband, refuses to admit him to the conjugal embrace, as she is entitled to maintenance, notwithstanding her opposition, because being then in his power, he may, if he please, enjoy her by force. But not if she be refractory.—If a wife be disobedient or refractory and go abroad without her husband’s consent, she is not entitled to any support from him, until she return and make submission, because the rejection of the matrimonial restraint in this instance originates with her; but when she returns home, she is then subject to it, for which reason she again becomes entitled to her support as before. It is otherwise where a woman, residing in the house of her husband, refuses to admit him to the conjugal embrace, as she is entitled to maintenance, notwithstanding her opposition, because being then in his power, he may, if he please, enjoy her by force.

JIZYAT, or capitation-tax, is or two kinds. The first species is that which is established voluntarily, and by composition,—the rate of which si such as may be agreed upon by both parties,—because the prophet entered into a composition with the tribe of Bimmey Birán, for twelve hundred pieces of cloth, and not more,—and also, because the fixing of tribute in this mode is mutual act of both parties, and therefore is not lawful to swerve from what has been so mutually agreed upon. The second species is that which the Imán himself imposes, where he conquers infidels, and then confirms them in their possessions, the common rate of which is fixed by his imposing upon every avowedly rich person a tax of forty-eight dirms per annum, or four dirms per month;—and upon every person in middling circumstances, twenty-four dirms per annum, or two dirms per month;—and upon the labouring poor twelve dirms per annum, or one dirm per month. This is according to our doctors. Shafei maintains that he should exact from each sane and adult person, one deenar, or something to that amount;—and the poor and wealthy are on an equal footing in this point; because the prophet said to Máaz, "Take from every male and female adult one DEENAR, or cloth to that value, —from wich it appears that there is no manner of difference between the rich and the poor, as the prophet spoke generally, without making any distinction: moreover, capitation-tax is due only in lieu of destruction, (whence is that it is not due from persons the destruction of whom on account of infidelity is illegal, namely women and children,) and in this sense it applies equally to the rich and the poor.—The arguments of our doctors upon this head are twofold.—FIRST, their doctrine is adopted from Omar, Othman, and Ali, with whom all the companions agreed upon this point: SECONDLY, capitation-tax serves as an aid to the troops, and therefore differs in its rate, according to the difference of men's circumstances, in the same manner as tribute upon land. The ground of this is the capitation-tax is due in lieu of assistance, with person and property; but as property is different with respect to being more or less, so in the same manner that is different, which is a substitute for it.—With respect to the tradition adduced by Shafei, we are only to understand from it that the taking of deenars, and so forth, from the tribe to whom he alluded was in the way of a composition, in which there is no difference between the poor and the rich, as is further proved by the term female adults, im the saying referred to, since capitation-tax is not incumbent upon women. It is to be observed that in the exaction of capitation-tax from the labouring poor, it is a condition that the person upon whom it is levied be in state or health for greater part of the year. ... Whence it is that it cannot be accepted of the infidel if he send it by the hands of a messenger, but must be exacted in a mortifying and humiliating manner, by the collector sitting and receiving it from him in a standing posture; (according to one tradition), the collector is to seize him by the throat, and shake him saying ‘Pay your tax, Zimmee’.

"If a Muslim attack infidels without previously calling them to the faith, he is an offender, because this is forbidden; but yet if he do attack them before thus inviting them and slay them, and take their property, neither fine, expiation, nor atonement are due, because that which protects (namely, Islam) does not exist in them, nor are they under protection by place (namely the Daru ‘l-Islam, or Muslim territory), and the mere prohibition of the act is not sufficient to sanction the exaction either of fine or of atonement for property; in the same manner as the slaying of the women or infant children of infidels is forbidden, but if, notwithstanding, a person were to slay such, he is not liable to a fine. It is laudable to call to the faith a people to whom a call has already come, in order that they may have the more full and ample warning; but yet this is not incumbent, as it appears in the Traditions that the Prophet plundered and despoiled the tribe of al-Mustaliq by surprise, and he also agreed with Asamah to make a predatory attack upon Qubna at an early hour, and to set it on fire, and such attacks are not preceded by a call. (Qubna is a place in Syria: some assert it is the name of a tribe).

CAPITATION-TAX is to be imposed upon Kitabees, because this is mentioned in the Koran: and it is in the same manner to be imposed upon Majoosees, as the prophet imposed capitation-tax upon Majoosees.—Capitation-tax is also imposed upon the idolaters of Ajim, [Persia.] This is contrary to the opinion of Shafei, for he argues that destruction is incurred by all infidels; but the legality of abstaining from it, in consideration of a capitation-tax, with respect to Kitabees. is known from the word of KORAN, and with respect to Majoosees, from the traditions; any others, therefore, than those, (namely, idolaters,) remain subject to the original penalty, which is destruction. The argument of our doctors is that it is lawful to make slaves of the Idolaters of Ajim, it follows that it is also lawful to impose capitation-tax upon them because, in the same manner as, by reducing them to slavery, they are deprived of power over their own persons, so also, they are deprived of power over their own persons by the imposition of capitation-tax, since they must in this case work, and pay the Mussalmans the produce of their labour, and their subsistence is furnished from their labour. If a Mussulman army subdue an infidel territory before any capitation-tax be established, the inhabitants, together with their wives and children, are all plunder, and the property of the state, as it is lawful to reduce to slavery all infidels, whether they be Kitcbees, Majoofees, or idolaters.

"It is not lawful to make war upon any people who have never before been called to the faith, without previously requiring them to embrace it, because the Prophet so instructed his commanders, directing them to call the infidels to the faith, and also because the people will hence perceive that they are attacked for the sake of religion, and not for the sake of taking their property, or making slaves of their children, and on this consideration it is possible that they may be induced to agree to the call, in order to save themselves from the troubles of war.

If the Imám should not bestow in gratuity the Sillib (or personal property) of one who is slain, upon the slayer, it becomes a part of the general plunder, in which the slayer and other have all an equal share. Shafei maintains that the personal effects of the person slain belong to the slayer, provided the latter be one of those who are entitled to share in the plunder, and that he killed the slain in open fight, because the prophet has said, "Whoever slays an INFIDEL is "entitled to his personal property."
OBJECTION.—It is possible that the prophet may have mentioned this merely in a gratious sense, and not as the award of the LAW.
REPLY.—It is evident, from the situation of the prophet, that he spoke this as an award of the LAW; since he was sent to enforce the awards of the LAW. A person, moreover, who kills another prepared to oppose him in open fight exposes himself in a superior degree, and hence the personal property of the slain goes to him, for the purpose of making a distinction between him and others.

If the infidels, upon receiving the call, neither consent to it nor agree to pay capitation tax, it is then incumbent on the Muslims to call upon God for assistance, and to make war upon them, because God is the assistant of those who serve Him, and the destroyer of His enemies, the infidels, and it is necessary to implore His aid upon every occasion; the Prophet, moreover, commands us so to do. And having so done, the Muslims must then with God's assistance attack the infidels with all manner of warlike engines (as the Prophet did by the people of Ta'if), and must also set fire to their habitations (in the same manner as the Prophet fired Baweera), and must inundate them with water and tear up their plantations and tread down their grain because by these means they will become weakened, and their resolution will fail and their force be broken; these means are, therefore, all sanctified by the law.

The following is the teaching of the Hanafi school of Sunnis on the subject of Jihad, as given in the Hidayah...:--
"The sacred injunction concerning war is sufficiently observed when it is carried on by any one party or tribe of Muslims, and it is then no longer of any force with respect to the rest. It is established as a divine ordinance, by the word of God, who said in the Qur’an, ‘Slay the infidels,’ and also by a saying of the Prophet, ‘War is permanently established until the Day of Judgment’ (meaning the ordinance respecting war). The observance, however, in the degree above mentioned, suffices, because war is not a positive injunction, as it is in its nature murderous and destructive, and is enjoined only for the purpose of advancing the true faith or repelling evil from the servants of God; and when this end is answered by any single tribe or party of Muslims making war, the obligation is no longer binding upon the rest, in the same manner as in the prayers for the dead-(if, however, no one Muslim were to make war, the whole of the Muslim, would incur the criminality of neglecting it) – and also because if the injunction were positive, the whole of the Muslims must consequently engage in war, in which case the materials for war (such as horses, armour, and so forth) could not be procured. Thus it appears that the observance of war as aforesaid suffices, except where there is a general summons (that is, where the infidels invade a Muslim territory, and the Imam for the time being issues a general proclamation requiring all persons to go forth to fight), for in this case war becomes a positive injunction with respect to the whole of the inhabitants, whether men or women, and whether the Imam be a just or an unjust person; and if the people of that territory be unable to repulse the infidels, then war becomes a positive injunction with respect to all in that neighbourhood; and if these also do not suffice it, then comes a positive injunction with respect to the next neighbours; and in same manner with respect to all the Muslims from east to west. The destruction of the sword is incurred by infidels, although they be not the first aggressors, as appears from various passages in the traditions which are generally received to this effect.

People take pride on the basis of wealth and are looked down on the basis of poverty.

If a person becomes a Mussulman, who is indebted for any arrear of capitation-tax, such arrear is remitted: and in the same manner, the arrear of capitation-tax due from Zimmee is remitted upon his dying in a state of infidelity. Shafei holds that the tax is not remitted in either case; because it was due either in return for protection to the person, or in return for permission to reside in the mussulman territory; and the Zimmee or convert has continued under protection, and resided in the Mussulman territory: the return from him, therefore, is not to be remitted in consequence of the supervenient circumstance of death, or convention of the faith; in the same manner, as in case of hire, or of composition for blood;—in other words, if capitation tax be a return for residence, it comes under the construction hire, and is not remitted in consequence of death, or conversion to the faith, in the same manner as if a Zimme were to hire a house and reside therein for the period agreed upon, and then die, or embrace the faith, in which case the rent of the house does not cease; and so likewise with respect to capitation-tax:—or, if capitation-tax be a return for protection to the person, it comes under the construction of a composition for blood, and is not remitted in consequence of death or conversion to the faith, in the same manner as if a Zimme were wilfully to kill a person, and afterwards enter into composition for the murder with the friends of the deceased, for a certain consideration, and them become a Mussulman, or die, in which case the consideration is not remitted from him;—and so likewise capitation-tax, (which is the consideration for protection to his person,) is not remitted. The arguments of our doctors upon this point are threefold.—First, the prophet has declared that "capitation-tax is not incumbent upon Mussulmans:"—Secondly, capitation-tax is a species of punishment, inflicted upon infidels on account of their infidelity, whence it is termed Yizyat, which is derived from Yizya, meaning retribution; now the temporal punishment of infidelity is remitted in consequence of conversion to the faith; and after death it cannot be inflicted, because temporal punishments are instituted solely for the purpose of removing evil, which is removed by either death or Islám:—THIRDLY, capitation-tax is a substitute for aid to the Mussulmans, and as the infidel in question, upon embracing the faith, becomes enabled to aid them in his own person, capitation-tax consequently drops upon his Islám.—With respect to the a to the argument adduced by Shafei, we reply that capitation-tax is neither consideration for protection to person, nor residence, because protection to the person is established in virtue of humanity, and a Zimme resides, in the mussulman territory, within his own dwelling; wherefore the case does not admit that a consideration, for protection to his person, or for residence, should be exacted from him.