1 Introduction

As families and communities were structurally hierarchical in medieval societies, exercising or being subject to authority was crucial to keep social function. Thus, it is not surprising that the topic of non-Muslim authority, or wilāyat al-kāfir, is addressed in the compendia of Islamic law. Jurists were interested in the authority of non-Muslims over Muslims and non-Muslims alike. Early prominent Muslim jurists, such as Abū Ḥanīfa (d. 767) in Iraq and al-Awzāʿī (d. 774) in Syria, addressed the issue in significant manners, albeit we should rely on later sources to read about their positions. However, this question is not discussed in any of the ḥadīth compilations. If we were to rely solely on the sources of fiqh that are available to us, then it is reasonable to claim that the question became standard in Islamic law relatively late, from the 11th century onwards. It is probable that the ḥadīth literature reflected a reality in which Muslims and non-Muslims lived separately and each group had control over its own legal and social matters, with the exception of times when non-Muslims were expected to pay jizya and acknowledge Muslim political authority. Subsequently, the social and legal relations between Muslims and non-Muslims became increasingly complex and dynamic, requiring answers from Muslim public officials and jurists. It should also be mentioned that fiqh, while inquiring on non-Muslim authority, does not deny non-Muslim religious leaders their religious authority over their congregations. It is perhaps assumed to be a religious right guaranteed by the dhimma contract.

In the last three decades, several important studies on authority in medieval Islam were published.¹ All of these studies, however, concentrated on Muslim practice of authority, whether it be political or religious. To the best of my effort, I could not find any research on non-Muslim authority in Islamdom, and this article aims to close that gap. Theoretically speaking, a community cannot be functional without the regulation and practice of authority. Additionally, historians inform us that many non-Muslims were high officials of Muslim states. Thus, I am aware that fiqh, which is the main source I use here,² is a discourse that is both normative and positive in that it describes one aspect of the reality of applying the law in Muslim societies during the Middle Ages, while at the same time taking a normative stance and suggesting which rules should be followed and which should not. This also holds true for non-Muslim authority, which, despite being overall denied in Islamic legal texts, existed in various places and dynasties of Muslim rule. For instance, Christian governors, scribes, and officials were appointed by Muslim rulers in the Umayyad and the Abbasid empires,³ and sometimes enjoyed influence and prestige, such as the Jewish vizier of Granada, Shmuel ibn Naghrillah.⁴

2 The Authority of Non-Muslims over Muslims and Non-Muslims: Preliminary Remarks

The Kuwaiti al-MawsÅ«Ê¿a al-fiqhiyya, which usually presents the most comprehensive and accurate description of the stances taken by medieval Muslim jurists on a given question, states that Islamic law grants no authority to non-Muslims over Muslims, relying on the Quranic verse 4:141: {and God will not grant the unbelievers any way over the believers}.⁵ The same source adds that the Muslim does not have authority with respect to the non-Muslim except for political authority, such as the authority of the ruler or his deputy. On marriage, a consensus has emerged among Muslim jurists that it is not permissible for a non-Muslim to have legal authority over his Muslim daughter and be her guardian, nor for a Muslim to have legal authority over his non-Muslim daughter since the bond of loyalty between them has been severed, following the Quranic verse 9:71: { And the believers, the men and the women, are friends one of the other },⁶ and Q. 8:73 { As for the unbelievers, they are friends one of another }.⁷ Al-MawsÅ«Ê¿a al-fiqhiyya maintains that Muslim jurists also agree to deny non-Muslims judicial authority one of the conditions of which is to be a Muslim; denying judicial authority is justified by the consensus to deny all public authority of non-Muslims and by the Quranic verse 4:141: {and God will not grant the unbelievers any way over the believers}.⁸ As for appointing a non-Muslim judge among non-Muslims, al-MawsÅ«Ê¿a al-fiqhiyya concludes that AbÅ« ḤanÄ«fa has notably permitted a non-Muslim to take charge of judging between the people of his religion.⁹

As is evident at this point, Muslim jurists extensively use Quranic verses as arguments to deny non-Muslims authority over Muslims. Yet, the quoted verses, if put in their context, refer to Quraysh polytheists with whom Muslims were in a state of war and who represented an existential threat to Muslims. In this setting, the authority of non-Muslims was irrelevant, as the relations between Muslims and non-Muslims were severed. The Quranic verse 4:141, which is key to this legal reasoning highlighted by al-Mawsūʿa al-fiqhiyya, speaks of the hereafter and in relation to a dispute between Muslims and hypocrites; the divine promise consists in supporting the believers on judgment day and, thus, unveiling the falsehood of the hypocrites. Christians and Jews who were subjects of the Umayyad and Abbasid Caliphates and other Muslim dynasties lived under radically different conditions than Meccan polytheists; they were subordinated to the Muslim ruler and constituted no threat to Muslims. The Quranic verses, all of which were revealed in later periods of intense conflict with Quraysh, allow jurists to shift the question from law to theology and politics and thus justify the total rupture of relations between Muslims and non-Muslims.

3 The Authority of Non-Muslims in Marriage

In his al-Awsaá¹­, the prominent ShāfiÊ¿Ä« jurist Ibn al-Mundhir (d. 930) dedicates a section to the guardianship of the non-Muslim in marriage. He reports that the majority of jurists, including Mālik b. Anas, al-ShāfiÊ¿Ä«, Aḥmad, AbÅ« Ê¿Ubayd (b. al-Qāsim), al-NuÊ¿mān (AbÅ« ḤanÄ«fa) and his companions, agree that the non-Muslim cannot be the guardian of his Muslim daughter. The only exception that seems to prevent a consensus of the jurists is al-Awzāʿī’s position. Ibn al-Mundhir adds that al-Awzāʿī said “a non-Muslim does not have the right to guardianship over his Muslim daughter, but the Muslim ruler does. When he was asked: What if the non-Muslim father assumes guardianship of her marriage? al-Awzāʿī said: He is a father and it is permissible for him to do so”.¹⁰ Ibn al-Mundhir comments that no one else except al-Awzāʿī holds this position, which he finds unfounded; the general rule for Ibn al-Mundhir is that the dhimmÄ« has no right to the rulings of the Muslims, and marriage is one of their highest rulings. Since a non-Muslim is forbidden by the authority of the Prophet from inheritance and blood money of a Muslim, only a Muslim family member can be a guardian of a Muslim woman. If no such guardian exists, then the Muslim judge would be her guardian.¹¹ Thus, for al-Awzāʿī, as exemplified by guardianship over marriage, loyalty based on family ties—rather than faith—is what matters in the authority relationship between a father and his daughter. This calls into question the prevalent argument among Muslim jurists that faith is the foundation of loyalty.

Al-Awzāʿī (d. 774) who established an authoritative Sunni school of law, lived in Syria, a home to many Christians in his time; perhaps because the interaction between Muslims and non-Muslims was more frequent than in Ḥijāz or Iraq (the birthplaces of others Sunni schools of law) his reasoning was more pragmatic and in line with the diversity of Syrian society. We should also note that Ibn al-Mundhir, in contrast to al-Awzāʿī, was born and raised in Nishapur and lived most of his adult life in Mecca, spending his life in fairly conservative environments. Al-Shāfiʿī may have developed his position in his earlier interpretation while he was living in Iraq or maybe Ḥijāz, and did not modify it when he moved to Egypt, where there were many Christians. Furthermore, Ibn al-Mundhir and al-Awzāʿī lived two centuries apart, and jurists may have evolved to exert more pressure on non-Muslims to convert or simply accept Islam’s dominance.

Al-Awzāʿī’s viewpoint might be better understood if we consider George Makdisi’s comment about the rise of “private” schools of Islamic law in early Islam as individualist systems of law thanks to the open process of ijtihād. Al-Awzāʿī’s was one of the first legal schools out of hundreds, most of which vanished and only a few became canonized.¹² It had profited from the ijtihād option to thrive in Syria (and Muslim Spain) and then vanished soon. Therefore, it is not surprising that the early schools of al-Awzāʿī and AbÅ« ḤanÄ«fa as private systems held more lenient views toward non-Muslims. One of the advantages of the ijtihād process is that it offered relative independent authority in early Islam that jurists enjoyed as persons before the canonization of Sunni law into four schools. For this reason, many jurists displayed more freely the ability to envision the complexities of a legal situation, particularly one that has significant implications for the co-existence of religious communities. Al-Awzāʿī might also be more tolerant and not just pragmatic considering that he believed in fairness towards the Christians of Lebanon, whom he frequently advocated for against the Abbasid-appointed governor of Beirut. Following a Christian minor uprising, the Abbasids sought to evict the Christians from Lebanon, and al-Awzāʿī, also known in the Muslim tradition as ShafÄ«Ê¿ al-naṣārā (the intercessor of Christians), had argued in favor of the Christians.¹³

Another outstanding Shāfiʿī jurist, Abū al-Ḥasan al-Māwardī (d. 1058) who lived in Iraq a century later than Ibn al-Mundhir contributed to this discussion on the authority of non-Muslims in marriage in an interesting way. First, he reports al-Shāfiʿī saying, “A Christian is like a Muslim in marrying off his two young daughters and sons.” Then, al-Māwardī comments:

This is correct, because we have already mentioned that the guardian of a non-Muslim woman should be a non-Muslim, so he may marry off his young daughter if she is a virgin, but he may not marry her off if she has been married before, just like a Muslim. He may marry off his eldest daughter if she is a virgin without permission, and if she is a non-virgin, with permission. He may marry off his young daughter, but he may not marry off an older daughter, as we say in the case of the Muslim father who has authority over his Muslim daughter and son. As for the guardianship of a non-Muslim over the wealth of his minor children, unless it is brought to our judgment, we approve it in absence. If it is brought to us, it is not permissible for the non-Muslim father to be entrusted with the wealth of his minor children, and guardianship over them in this regard is given to the Muslims, unlike guardianship in marriage, because the purpose of guardianship over wealth is trust and trust is stronger among Muslims than among non-Muslims. As for the guardianship in marriage it is founded on loyalty, and it is stronger among non-Muslims for non-Muslims.¹⁴

In this comment on the guardianship in marriage, al-Māwardī provides an equality-based argument, stating that a non-Muslim enjoys the same status as a Muslim with regard to guardianship over young daughters and sons. He also pinpoints the invalidity of this guardianship over older daughters and sons, as is the case of a Muslim guardian. This line of reasoning is rarely encountered in fiqh compilations on the guardianship of a non-Muslim in marriage which tend to focus on denying this authority over a Muslim daughter. Al-Māwardī’s perspective is significant since it does not specifically address whether the guardianship of a non-Muslim over his daughters includes Muslim daughters (although it is assumed that the rule pertains to non-Muslim daughters), and it appears that neither al-Māwardī nor al-Shāfiʿī distinguish between Muslim and non-Muslim daughters. This element would question the previous report by Ibn al-Mundhir who includes al-Shāfiʿī in the camp of the deniers of the father’s authority over his Muslim daughter. Rather than following Ibn al-Mundhir’s traditionalist Shāfiʿī reasoning, al-Māwardī’s argument appears to have been more impacted by his experience as the Abbasid state’s chief judge. His perspective is more concerned with human circumstances (the relationship between fathers and daughters) than with religious identity (Muslim versus non-Muslim). Besides serving as the chief judge in Baghdad, he was also a statesman and diplomat who traveled far, elements that made him more open-minded and sensitive to plurality than Ibn al-Mundhir. As a result, Al-Māwardī argues twice that Muslim and non-Muslim fathers are treated equally under Islamic law with regard to guardianship of their daughters.

Al-Māwardī raises an additional significant argument regarding the guardianship of minor children’s property that was not covered by previous jurists. He asserts that the problem is essentially an internal family or local community issue that shows a practical grasp of how the local economy functions apart from the public authorities. As long as this type of guardianship stays managed among non-Muslims, it is legitimate from an Islamic point of view, acknowledging implicitly the non-Muslim’s right to authority. If the Muslim public authority (ruler or judge) is asked to solve the matter, however, it is a Muslim responsibility to handle the property for the minor children, not the non-Muslim guardian’s. Al-Māwardī claims that Muslims are more trustworthy than non-Muslims, which is why a non-Muslim father loses guardianship over the property of his minor children if conflict arises and trust is undermined in his capacity to manage this wealth. While he bases the legitimacy of guardianship of marriage on loyalty (of blood between relatives), which presupposes the duty to protect daughters due to blood ties, it is a different matter when it comes to finances. In the latter, al-Māwardī ignores the existence of blood ties and considers the betrayal of trust as more probable in this case. Based only on religious differences, it is unfair to assume that Muslim public officials are more reliable than the non-Muslim father. Given this biased reasoning, al-Māwardī presents a contradictory explanation about the non-Muslim’s guardianship of his underage children’s property. He affirms its autonomy and agency, on the one hand. On the other, he claims that Muslims are morally superior to non-Muslims.

The Ḥanafite al-KāsānÄ« (d. 1191) presents the legal reasoning of the ḤanafÄ« school which is distinct from the other schools of law. The reason for establishing guardianship and inheritance is one and the same, which is kinship. Whoever can inherit from someone he could be his guardian, and whoever cannot inherit from someone he cannot be his guardian. Thus, the apostate has no guardianship over anyone, not over a Muslim, nor over a disbeliever, nor over an apostate like him. Since he cannot inherit from anyone, and because he has no guardianship even over himself, it is not permissible for him to marry anyone, whether a Muslim, a disbeliever, or an apostate like himself, and he has no guardianship over anyone else. Similarly, a disbeliever has no guardianship over a Muslim as there is no inheritance between them. Al-KāsānÄ« quotes the Prophetic tradition: “The people of two religions do not inherit from one another” in support of this position.¹⁵ For al-KāsānÄ«, there is another reason the disbeliever is not among those who have guardianship over the Muslim, namely that Islamic law has cut off the guardianship of the disbeliever over the Muslims as the Prophet, said: “Islam will prevail, and no one will prevail over all”. Establishing the guardianship of a non-Muslim over a Muslim gives the impression that the Muslim is humiliated by the non-Muslim, and this is not permissible. For this reason, the Muslim woman is protected from marrying a non-Muslim. Likewise, if the guardian is a Muslim and the person under guardianship is a non-Muslim, then he has no guardianship over him, because a Muslim does not inherit from a non-Muslim, just as a non-Muslim does not inherit from a Muslim.¹⁶

As his Shāfiʿī counterparts, al-Kāsānī shows the same inflexibility in maintaining clear boundaries between Muslims and non-Muslims and exploiting religious distinctions to claim Islam’s superiority and other religions’ inferiority. However, he takes the angle of religious distinctions to approach the question of authority. And so, he uses these differences to make an analogy between guardianship in marriage and inheritance, and authority in general. The same way religious differences prohibit inheritance they ban guardianship in marriages between Muslims and non-Muslims and prohibit non-Muslims from having any kind of authority over Muslims. If the Muslims and non-Muslims are unable to divide property and distribute wealth, they cannot oversee interfaith marriages. Thus, by prohibiting property transfers and intermarriage, Islamic law maintains barriers between Muslims and non-Muslims.

As shown by Bosanquet in her study of Aḥkām ahl al-dhimma of the Ḥanbalite jurist Ibn Qayyim al-Jawziyya (d. 1350), marriage between non-Muslims is not subject to Islamic law and represents a “dhimmi space”, that is to say, a space on which Islamic law has no authority and is entirely a matter to be decided by laws or customs that are legitimate in a given non-Muslim community. Jurists who commented on the status of non-Muslims in this case were concerned mostly about the boundaries of non-Muslim autonomy and the problem of how to integrate this “dhimmi space” into the Muslim space of Islamic law in the event that one of the spouses converts to Islam.¹⁷ Comparing the picture presented by Ibn al-Qayyim on the non-Muslim marriages with the historical data on marriage of non-Muslims, Jews in particular, as shown by the Cairo Genizah documents, makes Bosanquet conclude that non-Muslims enjoyed high levels of autonomy in marriage.¹⁸ The Cairo Genizah documents comprise a range of prenuptial agreements, marriage ceremonies, arguments within the marriage, divorces, and remarriages that seem to have occurred without consulting Islamic authorities. Bosanquet also shows that when sources do mention Islamic legal rulings on domestic or communal matters, it seems that these were made at the request of non-Muslim communities or individuals who were skilled at manipulating the various legal systems to suit their own interests and knew the benefit that an Islamic ruling in a given case could provide.¹⁹

This element enables us to assert that non-Muslims, under Muslim rule, practiced some forms of authority, particularly in relation to marriage and other family issues. In accordance with Islamic law, non-Muslim communities were permitted to handle the legal matters that did not involve Muslims. This practice of authority meant that de facto Muslim public authorities recognized the non-Muslim practice of authority and validated various contracts of marriage or divorce. This practice also operated with authoritative figures like the father, a judge, or a religious leader who can render a decision in a dispute. Non-Muslims were likely responsible for making decisions regarding matters beyond marriage, as numerous personal issues, including inheritance, charity, child custody and divorce are also related to families. Likewise, and because families entertain close social ties with other families, one can imagine that non-Muslims solve issues of communal life (trade conflicts or criminal matters, for example) without having recourse to Muslim public law or authorities. As long as non-Muslims maintained authority, Islamic law ignored their internal disputes; this policy of ignoring what occurs in non-Muslim communities presupposed that some leader holds authority and that this authority is legitimate for the community members.

In his al-Ghāya fÄ« ikhtiṣār al-Nihāya, the celebrated ShāfiÊ¿Ä« jurist al-Ê¿Izz b. Ê¿Abd al-Salām (d. 1262) states that a Muslim cannot be the guardian of his non-Muslim daughter, nor can a non-Muslim be the guardian of his Muslim daughter, but the non-Muslim can be the guardian of his non-Muslim daughter. The ruler may marry non-Muslims where he has authority.²⁰ He criticized al-ḤalÄ«mÄ« (d. 1013) for adopting a far-fetched reasoning, as he compared disbelief (kufr) to sinfulness (fisq), and said: “A Muslim does not accept marriage with a non-Muslim woman with the guardianship of her non-Muslim father, but he should accept guardianship only from the Muslim ruler, and the latter is duty-bound in these types of marriages not to make maintenance or dowry compulsory for the Muslim husband”.²¹ Al-Ê¿Izz b. Ê¿Abd al-Salām comments that this position is close to infringing on consensus. He suggests an alternative position: if the non-Muslim is a sinner according to the norms of his own religion, his guardianship of this daughter will be judged the same as the guardianship of the Muslim sinner. If his immorality in his religion is not proven, then he is like a Muslim whose moral status is un-violated, and then there is no disagreement about his guardianship.²²

Much like al-Māwardī, al-ʿIzz b. ʿAbd al-Salām establishes, here, an equality norm right away. In the same manner that a Muslim father has no authority over his non-Muslim daughter, a non-Muslim father has no authority over his Muslim daughter. For him, allegiance to religion is more important than loyalty to kin, while blood ties are irrelevant. However, the Muslim ruler may act as the guardian of non-Muslim women (married to non-Muslim men) if such a custom exists or the circumstances make it possible. In this case, the authority of a non-Muslim father is significantly reduced. Al-Ḥalīmī endorses here a radical viewpoint, arguing that non-Muslimness is equivalent to sinfulness. He also completely overruled the non-Muslim father’s authority when his daughter married a Muslim man. Even al-ʿIzz b. ʿAbd al-Salām considers this stance to be harsh and makes a distinction between moral and immoral non-Muslims. The Shāfiʿī jurist Abū ʿAbdallāh al-Ḥalīmī al-Qāḍī lived mostly in Transoxiana, particularly in Bukhara and Nishapur, which were completely Islamized and even Sunnized at the time of his death in the early 11th century. As for al-ʿIzz b. ʿAbd al-Salām, he lived under the Mamluks in Syria and Egypt, homes of sizable Christian communities. When it comes to evaluating the moral authority of a non-Muslim, the situational differences between the two Shāfiʿī jurists, who both enjoy prestige in their school of law, are significant. We should also mention that, in addition to being a jurist, al-Ḥalīmī was a traditionalist and theologian as well. This could have contributed to his hostile attitude toward non-Muslims.

4 The Authority of Non-Muslims in the Judiciary

Very few Islamic sources discuss the authority of non-Muslims in the judiciary. Al-Māwardī in his al-Aḥkām al-sulṭāniyya affirms that it is not permissible for a non-Muslim to be appointed as a judge over Muslims or non-Muslims. As he puts it:

It is not permitted to appoint a kafir in judgment over Muslims or kuffar. Abu Hanifah says that he may be appointed to judge between people of his own deen. However even though such appointments are made by the authorities, they are to establish him as a leader and head amongst his people rather than to offices of arbitration and the judiciary. Moreover his judgment over them is binding by virtue of their obligation towards him, and not by any obligatory characteristic of his judgment. The Imam does not have to accept his word regarding his judgment between them. If they refuse to accept him as their judge, they are not to be coerced, and the judgment of Islam is then carried out in preference²³

Al-Māwardī who was a Shāfiʿī finds it challenging that Abū Ḥanīfa’s argument was widely spread in the Abbasid Caliphate, which has traditionally followed the Ḥanafī school of law. Thus, al-Māwardī was a witness that rulers in the Abbasid empire appointed non-Muslims as judges between the people of their religion. He contests this decision and stands to interpret its meaning to alleviate its impact. Judgeship should be taken as an appointment of leadership and commandership, not an appointment of ruling and judgeship. The reason, it seems, is that only a righteous Muslim man ought to be allowed to make judgments. Thus, the religious status defines the right to a position such as judgeship, and a non-Muslim de jure cannot be a judge. Yet, de facto non-Muslims are appointed as judges, and al-Māwardī accepts the validity of a non-Muslim judge’s decisions on the basis that they are binding on non-Muslims as long as they are committed to them, not because it is compulsory for non-Muslims to follow these decisions. Al-Māwardī adds that the caliph should not take the non-Muslim judge’s word regarding the ruling he makes between non-Muslims as authoritative. If non-Muslims refuse to refer their case to a non-Muslim judge, they are not forced to do so, and the ruling of Islam is more effective over them.

Following al-MāwardÄ«, Ibn al-Ukhuwwa (d. 1329), a traditionalist and ShāfiÊ¿Ä« jurist who lived in Egypt during the Mamluk period, asserted in his Maʿālim al-qurba fÄ« marātib al-ḥisba that it is not valid for a non-Muslim to be appointed as a judge over Muslims or over the people of his religion. He reports that AbÅ« ḤanÄ«fa permitted his appointment over the people of his religion and implemented his rulings. Ibn al-Ukhuwwa mentioned other categories whose legal authority (to be appointed as judge) is invalid, including children, women, sinful Muslims (fāsiq), hermaphrodite (khunthā) and slaves.²⁴ These were considered inferior categories in Islamic law, which depends on the authority of righteous and mature Muslim men. Being a later source, Ibn al-Ukhuwwa’s position, compared to AbÅ« ḤanÄ«fa, six centuries earlier, reflects the development of Islamic law towards a much more rigid position on the appointment of non-Muslim judges over non-Muslims.

5 Discussion: Limitations, Figures, Structures, and Functions

This body of legal literature on the authority of non-Muslims illustrates the overall restrictions that Islamic law puts on non-Muslims. Muslim jurists minimize the authority of non-Muslims because it was perceived as antagonistic to the dhimmī status and the disbelief (kufr), which presupposes for the majority of Muslim jurists inferiority, subordination, or submission to the Muslim authority. In theory, the majority of Muslim jurists banned non-Muslims from holding judicial posts, even in non-Muslim communities, and from holding governmental positions. However, some jurists pointed out that the authority of a non-Muslim can be acknowledged in some family matters and local judicial affairs. When Islamic law was still developing, especially in the 8th century, tolerant viewpoints towards non-Muslim authority in family and community issues were more prevalent than in later eras. This suggests that the more diverse Muslim societies (especially in Syria and Iraq), the more some jurists were receptive to acknowledging non-Muslim authority. As diversity diminishes, jurists become more inflexible.

The father is the figure of authority most frequently discussed in Islamic law. He holds the highest status in a Muslim family as the head of the household, and his authority is unquestioned, particularly when it comes to making decisions regarding his minor children and guardianship of marriage. In general, this was consistent with the gender norms established in pre-modern societies. Thus, the majority of Muslim jurists was consistent and acknowledged this role of non-Muslim fathers over non-Muslim daughters. They tended to downplay this authority of non-Muslim fathers over Muslim daughters, though, prioritizing Islam over gender norms. That being the case, Muslim jurists showed little interest in other non-Muslim figures of authority, ignoring the question of who is in charge of the affairs of the non-Muslim community as if the problem does not concern Islamic law. Perhaps the only exception in this regard is Abū Ḥanīfa who acknowledged and permitted non-Muslims to hold judicial positions in non-Muslim communities. As the position of judge entails significant power and influence, the majority of Muslim jurists have made it clear that only Muslims should hold positions of judicial authority.

Some jurists endorse the rule of silence in relation to non-Muslim affairs and prefer Muslim authorities not to be involved in non-Muslim community or family conflicts. As long as non-Muslims manage their affairs in silence, the Muslim ruler or judge ought not to be concerned. The rule of silence can be interpreted as a measure of negative tolerance or a way to avoid the problems that could arise if Muslims meddle in non-Muslim matters. It could also be seen as a burden that Muslim rulers and judges were glad to place on the community itself. In the case that non-Muslims do not ask Muslim public officials to solve their internal matters, one must acknowledge that non-Muslim authority was functioning both within the family and beyond. Thus, the rule of silence implicitly validates non-Muslim authority. As one can infer from the compilations of fiqh, Muslim jurists lack an understanding of internal issues in non-Muslim communities. In light of this element, one may question how prepared Muslim authorities were to deal with disputes between non-Muslims. Then, maybe, the rule of silence shows a lack of understanding of the dynamics and day-to-day life of non-Muslim communities.

With regard to the functions of non-Muslim authority, Muslim jurists vary in their take. Some consider the practice of authority as a mechanism of consolidating religious status. Consequently, one is allowed to practice authority if his religious status is validated by the norms of his own society. Other jurists concede that the role of authority is to validate loyalty, particularly blood ties in the case of fathers’ guardianship of their daughters. Even so, most jurists believe that once the daughter has converted to Islam, this authority is diminished and this type of loyalty is nullified. Beyond family matters, one could argue that the reason Muslim jurists reduce the public authority of non-Muslims is to obtain non-Muslim submission. Thus, by putting numerous obstacles in the way of non-Muslim authority, Muslim jurists ultimately ensured that any non-Muslim individuals with skill or leadership ambitions should convert to Islam in order to claim legal or political authority.

With the exception of family, there is also a conspicuous lack of engagement with the structures of authority in non-Muslim communities. In Muslim contexts, courts, mosques, and councils of tribes or clans are some of the structures that allow the practice of authority in fairly hierarchical and organized systems. Yet, Islamic law ignores the structures in which social or political ties emerge in non-Muslim milieus. This, of course, does not mean that the latter could function properly without an effective system of authority. By all means, the practice of authority is fundamental to any family or community, and its denial puts only states or rulers in conflict with families or communities. The denial of structures of authority could possibly mean that from the point of view of Muslim jurists, the non-Muslim, kāfir was viewed as the other who rejects Muslim beliefs. As such, he is not worthy of being considered in an organic relationship with his family or community.

As mentioned earlier, non-Muslims held executive positions in the Muslim empires and exercised authority within their communities in contexts that went beyond social matters. Yet, Muslim jurists did not deem it necessary to include this fact of history and take it into consideration as they deliberated on the authority of non-Muslims. Being a normative discourse, fiqh does not deliver an accurate image of how communities lived and interacted throughout the history of Islam. The inflated religious condemnation of non-Muslims in this discourse, which responds to the intransigent demands of Muslim traditionalists rather than to evolving realities, might have been a trap for some modern Muslims who took this normative discourse as a reflection of reality.

6 Conclusion

Most classical Muslim jurists believe that a non-Muslim has no authority over the marriage of his Muslim daughter. Nonetheless, some jurists, like al-Awzāʿī, recognized the authority of a non-Muslim father over his Muslim daughter. Overall, Muslim jurists prohibited a non-Muslim from exercising authority over a Muslim in the government or the courts. However, in matters of the judiciary, Abū Ḥanīfa acknowledged the authority of non-Muslims over non-Muslims. Here, it was demonstrated that the intransigence of most jurists reveals devotion to an unyielding theological discourse and substantial restrictions on the authority of non-Muslims, which could only exacerbate mistrust and boundaries between Muslims and non-Muslims. However, in the early days of the creation of fiqh, some Muslim jurists gave non-Muslims some legal authority while in later Islam, a consensus was formed among jurists to deny non-Muslims any type of legal authority.