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Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law [NOOK Book]

Overview

The question of tolerance and Islam is not a new one. Polemicists are certain that Islam is not a tolerant religion. As evidence they point to the rules governing the treatment of non-Muslim permanent residents in Muslim lands, namely the dhimmi rules that are at the center of this study. These rules, when read in isolation, are certainly discriminatory in nature. They legitimate discriminatory treatment on grounds of what could be said to be religious faith and
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Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law

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Overview

The question of tolerance and Islam is not a new one. Polemicists are certain that Islam is not a tolerant religion. As evidence they point to the rules governing the treatment of non-Muslim permanent residents in Muslim lands, namely the dhimmi rules that are at the center of this study. These rules, when read in isolation, are certainly discriminatory in nature. They legitimate discriminatory treatment on grounds of what could be said to be religious faith and
religious difference. The dhimmi rules are often invoked as proof-positive of the inherent intolerance of the Islamic faith (and thereby of any believing Muslim) toward the non-Muslim.

This book addresses the problem of the concept of 'tolerance' for understanding the significance of the dhimmi rules that governed and regulated non-Muslim permanent residents in Islamic lands. In doing so, it suggests that the Islamic legal treatment of non-Muslims is symptomatic of the more general challenge of governing a diverse polity. Far from being constitutive of an Islamic ethos, the dhimmi rules raise important thematic questions about Rule of Law, governance, and how the pursuit of
pluralism through the institutions of law and governance is a messy business.

As argued throughout this book, an inescapable, and all-too-often painful, bottom line in the pursuit of pluralism is that it requires impositions and limitations on freedoms that are considered central and fundamental to an individual's well-being, but which must be limited for some people in some circumstances for reasons extending well beyond the claims of a given individual. A comparison to recent cases from the United States, United Kingdom, and the European Court of Human Rights reveals
that however different and distant premodern Islamic and modern democratic societies may be in terms of time, space, and values, legal systems face similar challenges when governing a populace in which minority and majority groups diverge on the meaning and implication of values deemed fundamental to
a particular polity.
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Editorial Reviews

From the Publisher
"This brilliant and ground-breaking work of scholarship brings about a revolution in the way non-Muslim minorities are viewed in Muslim societies and Shari'a Law. By conceptualising Shari'a more broadly as the 'rule of law' in relation to the 'enterprise of governance', minorities (Dhimmis) in Islamic law and governance are seen and analysed in a new and more accurate light and then compared properly to the governance of diversity within Western societies and legal systems. This is a must read for anyone interested in the comparative study of religious pluralism in Islamic and Western law."
—James Tully, Distinguished Professor of Law and Political Science, University of Victoria, Canada

"Anver Emon's book provides a much needed corrective. Emon tackles some of the most controversial features of Islamic law - the status of the dhimmi and attitudes towards the "other" - and shows how they are part of a broader project of implementing the rule of law within a diverse populace...Emon's book is to be read carefully. It will be the touchstone of much future work on a subject that is of increasing relevance across disciplines and polities, the world over."
—Adam Seligman, Professor of Religion at Boston University

"Anver Emon's Religious Pluralism and Islamic Law is a major contribution to the recent debates on Shari'a and rule of law and pluralism. Very few studies have analyzed the problematic issue of the "legal other" and pluralism in both the premodern Muslim world and the present day. The author analyzes Muslim jurists' discourses on the legal rights of Dhimmis, offering detailed accounts of the normative framework that Muslim jurists developed to deal with the challenge of the 'legal other' in a religious legal system...Furthermore, comparing the legal debates on the dhimmis with recent legal debates on the hijab, niqab and minarets in the US, Canada and Europe, the author argues that despite claims for legal pluralism, legal systems cannot escape from being hegemonic against the interests of minorities."
—Muhammad Khalid Masud, Former Chairman, Council of Islamic Ideology, Islamabad, Pakistan

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Product Details

  • ISBN-13: 9780191637742
  • Publisher: OUP Oxford
  • Publication date: 7/26/2012
  • Series: Oxford Islamic Legal Studies
  • Sold by: Barnes & Noble
  • Format: eBook
  • File size: 17 MB
  • Note: This product may take a few minutes to download.

Meet the Author

Anver M. Emon is Professor of Law at the University of Toronto's Faculty of Law. Emon's research focuses on premodern and modern Islamic legal history and theory; premodern modes of governance and adjudication; and the role of Shari'a both inside and outside the Muslim world. The author of Islamic Natural Law Theories (OUP 2010) and Natural Law: A Jewish, Christian, and Islamic Trialogue (with M Levering and D Novak, OUP 2014), Professor Emon is the founding editor of Middle East Law and Governance: An Interdisciplinary Journal, and one of the general editors of the Oxford Islamic Legal Studies series.

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Table of Contents

Introduction 1

Theme A The limits of "tolerance" 3

Theme B "Shari'a" as "Rule of Law" 7

Theme C Rule of Law, history, and the enterprise of governance 17

Theme D Minorities and the hegemony of law 23

An overview 24

Part I After Tolerance: The Dhimmi Rules and The Rule of Law 31

1 Dhimmis, Shari'a, and Empire 33

1.1 After "tolerance" in dhimmi studies: From myth to Rule of Law 34

1.2 In the beginning … 46

1.3 Islamic universalism, empire, and governance 60

1.4 Empire, universalism, and Shari'a as Rule of Law 66

1.5 The contract of protection: A legal instrument of political inclusion and marginalization 69

1.6 A genealogy of the dhimmi rules: Dhimmi in the Qur'an and Sunna 72

1.7 Conclusion 76

2 Reason, Contract, and the Obligation to Obey: The Dhimmi as Legal Subject 77

2.1 Reason and the obligation to obey 79

2.2 Contract in the law and politics of pluralism 87

2.3 Conclusion 91

3 Pluralism, Dhimmi Rules, and the Regulation of Difference 95

3.1 Contract and poll-tax (jizya): Imagining the pluralist polity 97

3.2 Inclusion and its limits: Contract theory and liability for theft 106

3.3 Accommodation and its limits: Contraband or consumer goods? 108

3.4 Property, piety, and securing the polity: The case of dhimmis and charitable endowments 113

3.5 The sites and sounds of the religious Other: Dhimmis' religion in the public sphere 119

3.6 From principle of superiority to home construction regulation 126

3.7 Dhimmis in public: On attire and transport 131

3.8 Construing the character of justice: Witnessing in the courtroom 136

3.9 Conclusion 141

4 The Rationale of Empire and the Hegemony of Law 145

4.1 Sex, shame, and the dignity (ihsan) of the Other 146

4.2 Sexual slander and the dhimmi: Recognition and redress 152

4.3 Traditions and their context: Ibn 'Umar and 'Abd Allah b. Salam 155

4.4 Conclusion 162

Part II Pluralism, Rule of Law, And The Modern State 165

5 Shari'a as Rule of Law 167

5.1 Reason, authority, and Shari'a as Rule of Law 174

5.2 Shari'a as Rule of Law: Legitimating and enabling the enterprise of governance (A) 177

5.3 Shari'a as Rule of Law: Legitimating and enabling the enterprise of governance (B) 183

5.4 Madrasas and curriculum: Institutional site and pedagogic discipline 189

5.5 Ijtihad and epistemic authority: Staying within the bounds 195

5.6 The modern state and the disruptions of history on the claim space of Shari'a 206

5.7 Conclusion 219

6 The Dhimmi Rules in the Post-Colonial Muslim State 223

6.1 From empire to state: Rule of Law, Saudi Arabia, and wrongful death damages 232

6.2 The post-colonial Muslim state and the hegemony of law: Shari'a and the Lina Joy case 245

6.3 Conclusion: The hegemony of Rule of Law 257

7 Religious Minorities and the Empire of Law 260

7.1 Rule of Law and the empire of the public good 260

7.2 Regulating the covered Muslim woman 269

7.3 Conclusion: Is there an escape from hegemony? 309

Conclusion 314

Bibliography 327

Arabic Sources 327

English Sources 331

Cases, Statutes, Treaties, and Government Documents 351

Index 355

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