The Status of Religious Minorities in Islamic Law and Modern Muslim States: A Comparative Study of Classical Fiqh and Current National Legal Frameworks

Abstract

of religious minorities and contrasts these legal provisions with the legal provisions of minority groups in the modern Muslim-majority states. Muslim jurists in historical times had created an extensive legal code that classified non-Muslims into legal categories including ahl al-dhimma (protected people), and granted them certain rights and duties as members of an Islamic polity. Such classical models were contextually anchored in the pre-modern political structures and social norms which are not similar to the modern system of the nation-state. As the concept of colonialism, nationalism and constitutionalism entered the Muslim world, the legislative attitudes towards religious minorities were changing, and the law in such countries as Egypt, Pakistan, Indonesia and Morocco started to become characterized by hybridized norms, i.e.- being based on the principles of Islamic law and international human rights law, as well as being being shaped by the needs of local politics. This study by examining classical texts through the prism of doctrinal analysis of the major Sunni and Shia schools (Hanafi, Maliki, Shafi'i, Hanbali and Ja'fari) and comparing the contemporary legal systems with the historical jurisprudence will outline the areas of similarity and difference between the traditional jurisprudence and modern legal frameworks. The paper finds that despite the fact that foundational Islamic legal principles are still present in the statutory protection, there are specific voids between customary norms and the modern international equality and non-discrimination standards. The study has found that there are a lot of differences among states regarding legal recognition and representation of religious minorities, as well as, their socio-legal status. The policy proposals include reform of the law, inclusive constitutionalism, enhanced anti-discrimination statutes, and the alignment of traditional formations with contemporary human rights demands.