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Judicial Process for Non-Muslimsin an Islamic State At this point, it should be borne in mind that these Jews who sent their cases to the court of the Holy Prophet (SM) did not believe in him or his Shari'ah nor were they Dhimmis (non-Muslim citizens) protected by Muslims. However, they did have a no-war pact with the Holy Prophet (SM). This is why he was given the option to either turn away from them, or give a decision in their case according to his Shari'ah because no responsibility for them falls on the Islamic state. If they were Dhimmis (protected non-Muslim citizens of a Muslim State) and approached the Islamic government, the responsible Muslim official would have been duty-bound to give a verdict in their case. Avoiding it would have not been permissible because watching over their rights and removing injustice done to them is the duty of an Islamic government. Therefore, in a verse which will appear a little later (49), it has also been said: وَأَنِ احْكُم بَيْنَهُم بِمَا أَنزَلَ اللَّهُ وَلَا تَتَّبِعْ أَهْوَاءَهُمْ (And judge between them by what Allah has sent down and do not follow their desires ...) In other words, it means: If these people bring their case to you, decide it in accordance with your Shari'ah.
No choice has been given in this verse. Instead, the command is to decide as prescribed. In Ahkam al-Qur'an, Imam Abu Bakr al-Jassas has accomodated the sense of both these verses by suggesting that the first verse where a choice has been given relates to non-Muslims who are not citizens or Dhimmis of the Islamic state but continue to live where they are under a pact, such as, the position of the tribes of Banu Qurayzah and Banu Nadir. They had nothing to do with the Islamic state except that they were bound by a no-war pact. And the second verse concerns particular non-Muslims for whom Muslims are responsible and who are citizens of the Islamic state and owe allegiance to its legal government.
Worth pondering here is that in both these verses the first verse which gives a choice and the second which gives a specified command the instruction given to the Holy Prophet (SM) is that he should decide cases of these non-Muslims, whenever he does so, in accordance with the injunctions revealed by Almighty Allah, that is, in accordance with his Shari'ah and not in accordance with the wishes of these non-Muslims or the religion they follow.
To explain, it can be said that this injunction is related to events which have been described under the background of the revelation of these verses. Of these, one concerned the punishment for killing and blood money while the other was that of adultery and its punishment. In such punishments of crimes, the universal practice is to have a common law for the whole country. In this common law, no discrimination is on the basis of classes or religions, for example, amputating the hand of the thief which would not apply to Muslims alone, but would be the punishment for every citizen of the country. Similarly, the punishments for killing and adultery will also be common to everyone. But, it does not make it necessary that personal and purely religious matters of non-Muslims should also be decided in accordance with the Islamic Shari'ah.
Take an example from the conduct of the Holy Prophet (SM) himself. though he did declare liquor and swine unlawful for Muslims and prescribed a punishment for it, but he left non-Muslims free of any obligations in this matter. In addition to that, he never interfered in the personal law of non-Muslims pertaining to marriages and similar other matters. In fact, he accepted their marriages as valid.
With the rise of Islam in the Arabian Peninsula, the Magians of Hajar and the Jews and Christians of Najran and Wadi al-Qur'an became Dhimmis (protected non-Muslim citizens) of the Islamic state. That the Magians believed in marriage with even a mother and sister as lawful was known to the Holy Prophet (SM). Similarly, marriage without 'Iddah (waiting period), or witnesses, was valid among Jews and Christians. But, he did not interfere in their personal matters and took their marriages as valid.
In short, it can be said that decisions about personal law and religious matters of non-Muslims who are citizens of a Muslim state shall be left to their own religion and thinking and should there be the need to arrive at a judicial settlement of their cases, a judge from their own religion will be appointed to decide them
However, in the event that they turn to a Muslim judge or ruler and show that the concerned parties would agree with the decision given, then, the Muslim judge or ruler will deliver his judgement but in accordance with his Shari'ah because he is now the legally appointed arbitrator as approved by the parties concerned. In the noble verse: وَأَنِ احْكُم بَيْنَهُم بِمَا أَنزَلَ اللَّهُ (Judge between them by what Allah has sent down and do not follow their desires - 49) appearing a little later, the command to decide in accordance with the Islamic Sharl'ah given to the Holy Prophet (SM) is based either on the matter being that of common law from which no section can be exempted, or rests on the basis that such people have themselves come to the Holy Prophet (SM), have taken him as the arbitrator and wish that he himself should decide their case. Thus, it becomes obvious that his decision should be the one he believes in and which is also the mandate of his Shari'ah.
Now as we move on to other aspects of verse 41, we see that it begins with words of comfort for the Holy Prophet (SM), after which, he has been informed of the conspiracy hatched by the Jews, the description of which goes right upto its end. It reveals that the deputation coming to him was comprised of hypocrites who were secretly in league with the Jews and it is at their behest that they were going to see him. After that, there is a description of some evil traits of character the visiting group has against which Muslims have been warned. As an adjunct, it has been pointed out that these traits of character are rejectionist in nature, therefore, effort should be made to stay safe from them. Listed below are these four evil traits of character.
1. The first trait identified is: سَمَّاعُونَ لِلْكَذِبِ (They are listeners of the lie). It means that they are used to listening to and going by what is false. They are the kind of blind followers of unfaithful Jews who see to it that they are called men of learning who would go on following them despite noticing that they were openly negating the injunctions of the Torah, worse still, they would continue being satisfied with their fictional interpretations of it.
Following 'Ulama':The Norm for People
The way those making alterations and adulterations in the injunctions of Allah and His Messengers have been warned here, indicted similarly are those too who take such people as their leaders in religion and get used to listening to false and fabricated presentations from them. Offered here is an important rule of guidance for Muslims that, though the only way of following the obligations of religion open to unlettered masses is to act in accordance with the ruling (Fatwa) and teaching (Ta'lim) of 'Ulama (traditionally trained, morally groomed, professionally equipped men and women of learning and living and teaching in accordance with the inviolable truth of the Qur'an and Sunnah a sense not carried by stray equivalents of scholars, the learned, religious leaders, divines, priests, et al. Tr.). But, this is a responsibility from which the masses too cannot escape. It is their duty to first find out what they are doing. Before they take a Fatwa or hope to act correctly in a religious matter, they must at least investigate into the antecedents of those they are going to follow. This is like a sick person looking for a good physician. He consults people who know about the best in the field, about their education, expertise, practice, professionalism moral quality and human dealing. After this possible assessment, if one makes a mistake and falls into the trap of a quack or charlatan, a reasonable person would not blame him. But, anyone who did not take the trouble of investigating and landed into the lair of a false practitioner and messed up his life, then, he alone will be responsible for his suicide.