International Journal of Law And Criminology
14
https://theusajournals.com/index.php/ijlc
VOLUME
Vol.05 Issue04 2025
PAGE NO.
14-19
10.37547/ijlc/Volume05Issue04-04
Legal Foundations of Regulating War and Peace in
Islamic Law
Toshqulov Jo‘raboy
Doctor of Law, Professor, Head of Department, Institute of State and Law, Academy of Sciences of the Republic of Uzbekistan,
Uzbekistan
Received:
12 February 2025;
Accepted:
13 March 2025;
Published:
10 April 2025
Abstract:
This study explores the foundational legal framework within Islamic law that governs the treatment and
status of non-Muslims (dhimmis), particularly during periods of war and peace. Drawing upon classical Islamic
legal texts, Qur’anic verses, and Hadiths of the Prophet Muhamm
ad (peace be upon him), it outlines the categories
of people under Islamic rule
—
Muslims, dhimmis, musta'mins, combatants, and others. Special emphasis is placed
on the rights, restrictions, and duties of dhimmis (primarily Jews and Christians), and the nature of their treaties
with the Islamic state, including the payment of jizya and kharaj. The paper analyzes social, legal, political, and
economic dimensions of coexistence, including their dress code, religious freedoms, and civil protections. The
work relies on interpretations by classical jurists such as Abu Yusuf and historical precedents set during the era of
the Prophet and early caliphs.
Keywords:
Islamic law, dhimmi, jizya, kharaj, musta'min, Ahl al-Kitab, TRUCE, Sharia, non-believer, apostate,
treaty, legal
status, religious freedom, Hadith, Qur’an
.
Introduction:
According to Islamic law, the population
of a country is classified into several groups based on
their legal status:
1.
From a Political Perspective:
Muslims: Enjoy all political and civil rights and fulfill
their obligations.
Dhimmi: Non-Muslims residing in the territory of the
Islamic state, whose lives and property are protected
by the state under agreements. They benefit from
rights stipulated in the agreements and fulfill their
obligations. This category typically includes Christians
and Jews.
Musta’mi
n: Foreigners in Dar al-Islam who are granted
safety and security.
Combatants: Non-believers who are enemies of Islam
and reside within the Islamic state's territory.
2.
From a Religious Perspective:
Sunnis: The majority group in Islam, adhering to Ahl al-
Sunnah wal-
Jama’ah and constituting the main
population of Muslim states throughout history.
Shiites: A major branch of Islam, followers of Abu Talib
Ali.
Ahl al-Kitab: People of the Book, including Christians
and Jews.
Magians: Worshippers of the sun or fire, typically from
pre-Islamic Persian communities.
Idolaters: Pagans from foreign lands or Arab tribes.
Apostates (Murtads): Those who have left Islam.
3.
From the Perspective of Freedom:
Free Individuals and Slaves: The legal status, rights, and
obligations of slaves differ significantly from those of
free individuals, as slaves were considered the property
of their owners.
The “Ahl al
-
Dhimma” or “Dhimmis” refers to non
-
Muslims residing in the Islamic state, who are under the
state's protection in exchange for paying the jizya tax.
Islamic law places significant emphasis on the rights
and obligations of dhimmis living in Muslim territories.
These typically include Christians, Jews, and Sabians,
who have agreements with the Islamic state specifying
mutual rights and obligations. Dhimmis are often
referred to as “Ahl al
-
Kitab”.
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Under agreements with the Islamic state, dhimmis are
guaranteed protection for their lives, health, property,
religious practices, and customs. In return, dhimmis are
obligated to respect Islamic law, adhere to the
established order, and pay taxes as determined by the
state. Certain restrictions are also placed on dhimmis,
distinguishing them from Muslims. These include
prohibitions on:
•
Riding horses,
•
Owning weapons,
•
Building houses taller than those of Muslims,
•
Marrying Muslims,
•
Owning Muslim slaves,
•
Sitting above Muslims in gatherings,
•
Greeting Muslims first,
•
Engaging in behavior offensive to Muslims
(e.g., drinking wine),
•
Reading the Bible aloud in public,
•
Constructing new churches and synagogues
(though maintaining old ones is permitted).
Islamic law also specifies clothing and outward
appearance for dhimmis to distinguish them from
Muslims. For example:
•
Dhimmis paying jizya must wear a special tag
until the tax is paid.
•
Dhimmis are prohibited from imitating
Muslims in dress, mounts, or appearance.
•
They must wear a thick rope-like belt, their
clothes must be woven, and their saddles must have
wooden handles.
•
Their shoes must have two laces, and dhimmis
must not imitate Muslims in any matter.
•
Dhimmi women are forbidden to use leather
saddles.
Islamic jurists have elaborated on this matter in detail.
Specifically, as noted in Abu Yusuf's Kitab al-Kharaj, the
treaty written by Khalid ibn al-Walid to the inhabitants
of Hira regarding the attire of dhimmis states:
“Dhimmis may wear any clothing except military attire,
provided that their garments do not resemble those of
Muslims. If a dhimmi is found wearing military attire,
they will be questioned about it. If they provide a valid
reason, they will be excused; otherwise, they will be
punished for wearing military clothing”.
According to the treaty between the Islamic state and
the dhimmis, the Islamic state assumes the
responsibility of protecting the safety, lives, and
property of the dhimmis from any form of aggression.
Dhimmis, in turn, are obligated to pay the jizya and
kharaj taxes on time and in the prescribed amounts.
It is essential to emphasize that the primary sources of
Islamic law, the Qur’an and the Hadiths of Prophet
Muhammad (peace be upon him), pay special attention
to the legal status of dhimmis. Several verses in the
Qur'an establish guidelines regulating the interactions
between Muslims and dhimmis, stating that Muslims
should not harbor hostility toward followers of other
religions and should treat them positively. If non-
believers seek protection from Muslims, appropriate
measures must be taken to ensure their safety. Based
on these instructions, the agreements between
Muslims and dhimmis were enriched and clarified.
In particular, treaties between the Islamic state and
dhimmis outlined the rights and responsibilities of both
parties. These agreements detailed the Islamic state's
obligations toward dhimmis, the rights of dhimmis as
individuals and citizens of the Islamic state, guarantees
of their rights, and the fundamental principles
governing their accountability for failing to meet their
obligations. The guiding principles of these agreements
are based on Qur'anic verses and Hadiths dedicated to
the relationship between the Islamic state and
dhimmis.
For instance, in Surah Al-Hashr, verses 6-9, the Qur'an
states:
6.
“And what Allah restored to His Messenger
from them
–
you did not spur for it any horses or
camels. But Allah gives His messengers power over
whom He wills, and Allah is over all things competent”.
7.
“What Allah gave as booty to His Messenger
from the people of the towns
–
it is for Allah and for the
Messenger and for his near relatives and orphans, the
needy, and the traveler
–
so that it will not merely
circulate among the rich from among you. And
whatever the Messenger has given you
–
take; and
what he has forbidden you
–
refrain from. And fear
Allah; indeed, Alla
h is severe in penalty”.
8.
“(It is also for) the poor emigrants who were
expelled from their homes and their properties,
seeking bounty from Allah and His approval and
supporting Allah and His Messenger. Those are the
truthful”.
9.
“And (also for) those who were settled in the
Home (i.e., al-Madina) and (adopted) the faith before
them. They love those who emigrated to them and find
not any want in their breasts of what the emigrants
were given but give them preference over themselves,
even though they are in privation. And whoever is
protected from the stinginess of his soul
–
it is those
who will be the successful”.
Verse 29 of Surah At-Tawbah
: “Fight those who do not
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believe in Allah or in the Last Day and who do not
consider unlawful what Allah and His Messenger have
made unlawful and who do not adopt the religion of
truth from those who were given the Scripture
–
(fight)
until they give the jizyah willingly while they are
humbled”.
On the relationship between the Islamic state and
dhimmis, several hadiths from the Prophet Muhammad
(peace be upon him) provide guidance:
1.
“Whoever oppresses a dhimmi oppresses me”.
2.
“We remain faithful to our treaties with non
-
believers while continuing to seek Allah's support for
our victory”.
3.
“Muslims must strictly adhere to agreed
-upon
trea
ties”.
4.
“Whoever insults a non
-believer will be struck
with a whip of fire on the Day of Judgment”.
5.
“Whoever kills a non
-believer living under a
peace treaty before the expiration of the treaty will be
deprived of Paradise. Whoever harms a dhimmi, I will
be his enemy, and my enmity will be evident on the Day
of Judgment”.
6.
“Whoever kills a non
-believer living under a
treaty in the Muslim land will not even smell the
fragrance of Paradise, though its fragrance can be
detected from a distance of forty
years”.
7.
“Jizyah is to be taken only from the People of
the Book”.
On the issue of magic performed by a dhimmi against
a Muslim:
Ibn Shihab said: “The Messenger of Allah (peace be
upon him) was bewitched, yet he did not kill the one
who bewitched him, and that person was from the
People of the Book”. Aisha (may Allah be pleased with
her) narrated: “The Messenger of Allah (peace be upon
him) was so severely bewitched that he would imagine
doing something he had not done”.
Regarding the sin (punishment) of killing an innocent
dhimmi:
Abdullah ibn Amr (may Allah be pleased with him)
narrated: “The Messenger of Allah (peace be upon him)
said: “Whoever kills an innocent dhimmi will not smell
the fragrance of Paradise, though its fragrance can be
detected from a
distance of forty years””.
On expelling Jews from the Arabian Peninsula:
Hazrat Umar (may Allah be pleased with him) reported:
“The Messenger of Allah (peace be upon him) said to
the Jews of Khaybar: “Allah has decreed your fate, and
so we abide by it. We will let you remain here until Allah
determines otherwise. However, whenever we wish,
we will expel you from here, for Allah has already
decreed your expulsion””.
Abu Hurairah (may Allah be pleased with him) narrated:
“We were sitting in the mosque when t
he Messenger
of Allah (peace be upon him) came out and said: Let us
go to the Jews”. We set out and arrived at their
assembly. The Messenger of Allah said to them:
“Accept Islam, and you will be safe. Truly, the Earth
belongs to Allah and His Messenger. I have decided to
expel you. If anyone of you owns property, let them sell
it. Otherwise, know that the land belongs to Allah and
His Messenger”.
On the Thursday of calamity:
Sa’id ibn Jubayr (may Allah be pleased with him)
narrated: “Ibn Abbas (may Allah be
pleased with him)
said: “Thursday... what a calamity Thursday was!”. He
then wept so profusely that the stones around him
became wet. I asked: “O Ibn Abbas, what happened on
Thursday?”. He replied: “The Messenger of Allah’s
(peace be upon him) illness worsened, and he said:
“Bring me a shoulder blade (or writing material) so I
may write for you instructions, after which you will not
go astray”. However, people began disputing in his
presence, despite the impropriety of doing so in front
of a Prophet. The noise increased, and the Messenger
of Allah said: “Leave me alone! My current state is
better than what you are disputing about”. Then he
commanded three things: “Expel the polytheists from
the Arabian Peninsula, honor the delegations as I used
to do by giv
ing them gifts, and...”. He either mentioned
the third command or I forgot it”.
On the will of the Prophet Muhammad (peace be upon
him) regarding the protection of non-Muslim subjects
(dhimmis):
Juwayriya ibn Qudama al-Tamimi (may Allah be pleased
with him) narrated:
“I heard Umar ibn al
-Khattab (may Allah be pleased
with him) say in his will before his passing: “I urge you
to fulfill Allah’s responsibility, which is to honor the
covenant with the non-Muslim subjects (dhimmis), for
they are under the protection of your Prophet (peace
be upon him). Their payment of jizya is the provision for
your dependents””.
Regarding jizya and treaties with dhimmis and non-
believers:
Allah Almighty says in the Qur’an: “Fight those who do
not believe in Allah or in the Last Day and who do not
consider unlawful what Allah and His Messenger have
made unlawful and who do not adopt the religion of
truth from those who were given the Scripture
–
(fight)
until they give the jizya willingly while they are
humbled”. (Surah At
-Tawbah, Verse 29)
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The caliph is obliged to protect dhimmis and not
burden them with more than they can bear. Umar ibn
al-Khattab (may Allah be pleased with him) said:
“I urge the caliph after me to fulfill the covenant
between the Muslims and the non-Muslims (dhimmis)
under their protection, to ensure their safety, and not
to impose upon them burdens beyond their capacity”.
Umar also expelled polytheists from the Arabian
Peninsula. Hence, his instructions likely referred to
dhimmis residing in territories beyond the Arabian
Peninsula.
Explanation from Islamic legal scholars:
The relationship between the Islamic state and
dhimmis, as outlined in the Qur'anic verses and
Hadiths, has been clarified in works by Islamic jurists. In
Abu Yusuf’s Al
-Kharaj, it is stated:
“The treaty between Muslims and dhimmis is based on
the payment of the jizya tax. Their cities are conquered,
yet their synagogues and churches, both inside and
outside the cities, are not destroyed. Their lives are
protected, and the Muslims defend them against their
enemies. In exchange for this, dhimmis pay the jizya
tax. The peace agreement is written, stating that
dhimmis must not build new synagogues or churches.
The cities and villages of Sham and most of Hira were
conquered under these terms, which is why their
synagogues and churches were not destroyed”.
Abu Yusuf also emphasizes that adherence to the
agreements between the Islamic state leaders and the
dhimmis by both parties strengthened the relations
between Muslims and dhimmis, yielding positive
outcomes for both. He states: “Abu Ubayda al
-Jarrah
made a peace treaty with the people of Sham. When he
arrived there, he did not destroy their synagogues.
However, he stipulated that they should not build new
synagogues or churches, that they guide any lost
Muslim to the right path, construct bridges over rivers
at their own expense, host traveling Muslims for three
days, refrain from insulting or striking Muslims, not
display their crosses during Muslim assemblies, not
release their pigs into the courtyards of Muslims, light
warning fires for Muslim warriors in the path of Allah,
not expose unprotected Muslim lands to the enemies,
and not beat drums before or during the Muslim call to
prayer (adhan). They were also forbidden to raise
banners or carry weapons during their festivals, as well
as to keep weapons in their homes. If they violated any
of these conditions, they would be punished and fined.
The treaty with the dhimmis was based on these
conditions. Later, the dhimmis asked Abu Ubayda,
“Allow us to come out with our crosses once a year on
our most important hol
iday without raising banners”.
Considering their request, Abu Ubayda allowed it. The
dhimmis had no option but to comply fully with the
conditions set upon them”.
Treaties between Muslims and dhimmis also addressed
matters related to dhimmi places of worship,
monasteries, synagogues, religious items, and the
conduct of religious ceremonies. Islamic jurists have
expressed their opinions on these matters. Abu Yusuf
writes:
“...Dhimmis should be prohibited from building new
places of worship or churches in the cities. However,
those places of worship and churches that are
guaranteed to remain under the terms of their
agreements should be preserved, not destroyed, and
left to them. This also applies to the temples of the
Magians. Dhimmis may reside in Muslim cities and
conduct trade in their markets, but they are prohibited
from trading intoxicating drinks and pork, as well as
displaying their crosses in public. Their headwear must
be long and woven” .
According to Ibn Abbas, “Dhimmis are not allowed to
build synagogues and churches, beat drums, display
intoxicating drinks, or show their pigs in cities
conquered by the Arabs” .
According to Islamic law, along with obligations,
dhimmis were also granted several rights. These rights
were guaranteed by verses of the
Qur’an, Hadiths of
Prophet Muhammad (peace be upon him), and treaties
between Muslims and non-Muslims. These rights
included the protection of their dignity and honor, the
right to practice their religion, the right to live
according to their laws, the right to be protected by
justice, the protection of their lives, property, and
honor, defense against external enemies, the right to
demand good treatment from others, social security,
and more.
The Qur’an mentions these rights in several verses,
highlighting the honor of humans above all other
creatures, the subjugation of all things in the heavens
and the earth for human benefit, and the resolution of
disputes between Muslims and the People of the Book
through reconciliation. Relevant verses include:
1.
Surah Al-Isra, Verse 70
: “And We have
certainly honored the children of Adam and carried
them on the land and sea and provided for them of the
good things and preferred them over much of what We
have created, with (definite) preference”.
2.
Surah Ibrahim, Verses 32-34
: “It is Allah who
created the heavens and the earth and sent down rain
from the sky and produced thereby some fruits as
provision for you and subjected for you the ships to sail
through the sea by His command and subjected for you
the rivers”. “An
d He gave you from all you asked of Him.
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And if you should count the favors of Allah, you could
not enumerate them. Indeed, mankind is (generally)
most unjust and ungrateful”.
3.
Surah Al-Hujurat, Verse 13
: “O mankind,
indeed We have created you from male and female and
made you peoples and tribes that you may know one
another. Indeed, the most noble of you in the sight of
Allah is the most righteous of you. Indeed, Allah is
Knowing and Acquainted”.
4.
Surah Al-Ankabut, Verse 46
: “And do not argue
with the People of the Scripture except in a way that is
best, except for those who commit injustice among
them, and say, “We believe in that which has been
revealed to us and revealed to you. And our God and
your God is one; and we are Muslims (in submission) to
H
im””.
On the Prohibition of Insulting the Idols of Non-
Believers in the Qur’an:
The Qur’an prohibits insulting the idols and gods of
non-believers. Although non-believers may deny
monotheism, they do not reject the existence of Allah.
Regarding this, the Q
ur’an states in Surah Al
-
An’am,
verse 108:
“Do not insult those they invoke besides Allah, lest they
insult Allah in enmity without knowledge. Thus, We
have made pleasing to every community their deeds.
Then to their Lord is their return, and He will inform
them about what they used to do”.
On Religious Freedom in the Qur’an:
Several verses in the Qur'an emphasize that no one
should be coerced in matters of faith and that everyone
is free to follow the religion of their choice.
1.
Surah Yunus, verse 99: “If
your Lord had willed,
all those on earth would have believed together. Will
you then compel people to become believers?”
(This means that faith accepted willingly, not through
compulsion, is the true and acceptable faith.)
2.
Surah Al-Baqarah, verse 256:
“There shall be no
compulsion in (acceptance of) the religion. The right
course has become clear from the wrong. So whoever
disbelieves in Taghut and believes in Allah has grasped
the most trustworthy handhold with no break in it. And
Allah is Hearing and
Knowing”.
3.
Surah Al-
Hajj, verse 40: “(They are) those who
have been evicted from their homes without right
–
only because they say, 'Our Lord is Allah”. And were it
not that Allah checks the people, some by means of
others, there would have been demolished
monasteries, churches, synagogues, and mosques in
which the name of Allah is much mentioned. And Allah
will surely support those who support Him. Indeed,
Allah is Powerful and Exalted in Might.
Governance of Non-Muslims in Islamic Law:
According to Islamic law, relations within non-Muslim
communities and among their members are governed
by their own laws. However, interactions between non-
Muslims and Muslims or the Islamic state, as well as
actions by non-Muslims that disrupt public order or
conflict with the interests of Muslims or the Islamic
state, are governed by Islamic legal norms.
Matters such as property, family, inheritance, crimes,
and penalties among non-Muslims are regulated by
their laws and handled by their courts. The legal basis
for such arrangements is provided in Surah Al-
Ma’idah,
verse 42:
“They are avid listeners to falsehood, devourers of
[what is] unlawful. So if they come to you (O
Muhammad), judge between them or turn away from
them. And if you turn away from them, never will they
harm you at all. But if you judge, judge between them
with justice. Indeed, Allah loves those who act justly”.
The legal framework of Islamic law provides a
comprehensive and structured approach to regulating
the relationship between the Islamic state and non-
Muslims (dhimmis) living under its rule. Based on
primary sources such as the Qur’an, the Hadiths of the
Prophet Muhammad (peace be upon him), and the
works of classical Islamic jurists, the status of dhimmis
is defined by a set of mutual obligations and
protections.
Dhimmis are granted safety, religious freedom,
property rights, and civil protections in exchange for
adherence to the conditions of their treaties, including
the payment of jizya and kharaj. While some
restrictions are imposed to maintain the distinct
identity and authority of the Islamic state, Islamic law
strictly forbids injustice, oppression, or harm toward
dhimmis. Numerous Qur'anic verses and Hadiths
emphasize the importance of justice, coexistence, and
the preservation of human dignity, regardless of faith.
The historical application of these legal principles
—
especially during the early Islamic caliphates
—
demonstrates a pragmatic and balanced legal system
that sought to ensure peaceful coexistence, political
stability, and protection for religious minorities. The
agreements made with the dhimmis not only
safeguarded their rights but also obligated the Islamic
state to uphold justice and security, proving that
Islamic law, when properly applied, can foster a
harmonious and inclusive society even in times of
political and religious diversity.
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