Zaydi fiqh and the Jews of Yemen
How can the study of Zaydi jurisprudence help us understand the relationship between Imam Yaḥyā Ḥamīd al-Dīn (r. 1904-1948) and the Jews of Yemen? What sources are available for study? What further questions does the focus on dhimma law raise regarding Zaydi law and political thought?
The relationship between Imam Yaḥyā Ḥamīd al-Dīn and his Jewish subjects was a “protection”, or dhimma relationship. Dhimma law, however, does not exist in a vacuum simply to regulate the life of non-Muslims in Islamic territory, but is an integral part of both Islamic jurisprudence (fiqh) and sharia governance. Yaḥyā Ḥamīd a-Dīn’s imamate (daʿwa 1322/1904), and later the Mutawakkilite Kingdom of Yemen (until 1962), was a Zaydi imamate legitimized by Zaydi political theory and the enforcement of sharia for all its inhabitants, including Jews. Understanding the relationship between Imam Yaḥyā Ḥamīd al-Dīn, the Amīr al-muʾminīn (“commander of the faithful”), and his Jewish subjects, hence requires understanding the overall political context and theoretical foundations of the imamate, references to earlier Zaydi-Yemeni history and currents of Zaydi political thought, and the multiple function of the imam as all things at one time: protector of his non-Muslim subjects, head of state and Zaydi imam.
Imam Yaḥyā’s dhimma contract with the Jews of Sanaa (1905) and its legal foundations
The imam’s office handed out the document officially initiating the dhimma relationship between Imam Yaḥyā and his Jewish subjects to a Jewish delegation from Sanaa in 1323/1905, shortly after Imam Yaḥyā had temporarily conquered the capital from the Ottomans. The document has been digitalized under the title Niẓām al-yahūd (JER NLI Ar. 120) and is available in what is now the National Library of Israel (Hünefeld 2022 and 2013). Its content, however, and notably the part that constitutes the actual dhimma contract, cannot fully be understood without studying the legal foundations as explained meticulously in Zaydi jurisprudence itself, such as the the Kitāb al-Intiṣār ʿalā ʿulamāʿ al-amṣār by imam al-Muʿayyad Yaḥyā b. Ḥamza (d. 749/1348) and the Sharḥ al-Azhār, Ibn Miftāḥ’s (d. 877/1472) commentary on Ibn al-Murtaḍā’s (840/1436-7) Kitāb al-Azhār (see Hovden and Mansoor 2023)
The dhimma contract in the Intiṣār
One of the subchapters of the Intiṣār’s political section (Kitāb al-siyar) on the treatment of Jews, Christians and other non-Muslims outlines the guidelines for a legally valid dhimma contract (ʿaqd al-dhimma), or permanent security guarantee. It rests upon four principles (arkān) related to conditions that apply to 1) the form of the contract (sīghat al-ʿaqd), 2) the contractor (al-ʿāqid), 3) the contracted (al-maʿqūd lahu), and 4) the manner of its realization (kayfīyat al-ʿaqd). According to these guidelines, the purpose of a dhimma contract is the permanent (muʾabbad) and secure anchoring of the dhimmi community within Islamic territory. In order to be valid, the dhimma contract must mention the poll tax (dhikr al-jizya) and impose Islamic jurisdiction (iltizām al-aḥkām al-Islāmiyya) on the dhimmis. This includes regulations similar to those known from the Pact of Umar, such as riding side-saddle only and not pointing to “the weaknesses of the Muslims.” The dhimma treaty must be contracted by the imam himself or his authorized representative. The Intiṣār, however, also points out that the imam may not refuse to draw up a dhimma contract, but is obliged to (wājib ʿalaihi) provide it to anyone who is eligible and requests (ṭalab) a permanent security guarantee. This refers primarily to Jews and Christians from the Ahl al-kitāb. According to Zaydi fiqh, however, the jizya could also be accepted from non-Arab polytheists who reside permanently in Islamic territory. Should the imam be unable to provide security, dhimmis, in line with the Intiṣār, are exempted from poll tax for the period during which neither their lives nor their belongings were secured by him.
A comparison of Imam Yaḥyā’s writing to the Jewish community of Sanaa and the Intiṣār regulations shows that the dhimma regulations included comply with the Zaydi guidelines for a legally valid dhimma contract. This also involves identifying the parts of Imam Yaḥyā’s writing that do not belong to the dhimma contract itself, such as the authorization that empowers the Jewish court (bet din). These findings constitute a first step in evaluating the overall political function of the document for both sides of this concrete dhimma relationship: Imam Yaḥyā Ḥamid al-Dīn and the Jews of Sanaa. Apart from Zaydi jurisprudential texts, it should be cross read with Yemeni-Jewish memoire literature, Yemeni-Muslim historiography and other sources related to the historico-political context in which it was composed, such as early drafts of the treaty of Daʿʿān. Comparing Imam Yaḥyā’s writing in 1905 to the copy of an earlier dhimma contract from Yemen given to the Jews of Nihm (Fig. 3) by Imam al-Muʾayyad Muḥammad b. al-Qāsim (r. 1029-1054/1619-1644) helps to evaluate the function of dhimma contracts vis à vis the validity of their rulings as part of the general enforcement of sharia and sheds light on the genre of protection letters in a more general sense.
Jizya and aḥkām in the Sharḥ al-Azhār
Comparing Imam Yaḥyā’s writing with the dhimma regulations from the Sharḥ al-Azhār, it can be understood that Imam Yaḥyā took an explicit Zaydi stand on dhimma law in 1905. From the tax regulations for non-Muslims (Kitāb al-khums) and the relevant discussions, it is evident that the five per cent trade tax (niṣf ʿushr) was legal according to the Zaydi mahdhab – as outlined in the Sharḥ al-Azhār – but illegal from other perspectives, such as that expressed in Muḥammad b. ʿAlī al-Shawkānī’s (d. 1215/1834) late work, the Sayl al-Jarrār.
Further, the two chapters included in Sharḥ al-Azhār’s Kitāb al-siyar that refer specifically to the treatment of dhimmis according to Islamic jurisdiction (al-aḥkām al-Islāmiyya) clarify the qualitative differences between the individual regulations mentioned in Imam Yaḥyā’s dhimma contract with the Jews of Sanaa that are not apparent from the writing itself. Comparison with the discussion of the individual regulations in the Sharḥ al-Azhār itself makes it possible to understand which violations would break the dhimma contract and which would not. Following the Sharḥ al-Azhār, cursing one of the prophets (sabb nabīyan) acknowledged as such in the Islamic tradition, for example, is a serious offence that may lead to infringement of the dhimma contract, as can the act of persuading a Muslim to turn away from their religion. Other violations of the aḥkām mentioned in Imam Yaḥyā’s 1905 writing, on the other hand, are not considered breaches of the dhimma contract according to Zaydi fiqh, but should be sanctioned with ḥudūd punishments via the general application of sharia, as in the case of highway robbery or forbidden sexual relations. Violations of some of the aḥkām, such as riding a horse despite the prohibition to do so according to the Sharḥ al-Azhār, are frowned upon, but do not entail concrete legal consequences; again, this is something that cannot be understood from Imam Yaḥyā’s writing itself.
The study of the dhimma regulations in Zaydi fiqh makes the original sense of some of these regulations clear: from an Islamic legal perspective, the critical aspect of riding astride lies in the stirrups of the saddle, which provide a secure foothold while using weapons in the event of war. The prohibition of “pointing to the weaknesses of the Muslims” (lā yadullu ʿalaʿawrat Muslim), according to the contextual reading of the provision that involves Q 33:13, refers in turn to the prohibition of leading military opponents to Muslim possessions and of pointing to their strategic weaknesses rather than to their “genitals” (ʿawra) when they meet at the bathhouse, as earlier research had suggested. Understanding the original intent of the dhimma regulations is a precondition to appreciating the consistency of Imam Yahya’s dhimma policy and thus part of his general mode of governance.
Fatwas on the worldly judgement of Jewish minor orphans
For some Islamic legal issues that affected Jews living under Imam Yaḥyā’s rule there are no specific instruction in the major Zaydi fiqh works. One such legal debate concerns the forced conversion of Jewish minor orphans (Eraqi Klorman 2001 and 1995, Tobi 1990), a practice that was not initiated by Imam Yaḥyā but nevertheless took place within his realm. Two new findings from the Dār al-Makhṭūṭāt in Sanaa throw light on the much discussed question of which school of thought (madhhab) was behind the legal opinion that endorsed the “return” of minor Jewish orphans to their “natural religion” (fiṭra) of Islam, and their forced “removal” (intizāʿ) from their remaining non-Muslim family environment: the Zaydi madhhab (as suggested by S. D. Goitein, Jews and Arabs) or the neo-Sunni school of thought as expressed by Muḥammad b. ʿAlī al-Shawkānī (Haykel 2003 and Tobi 1990).
A comparison between al-Shawkānī’s fatwa (including two other opinions in the version from the Dār al-Makhṭūṭāt, ms. 2392, entitled Baḥṯ fī man māta abawāhu min aṭfāl al-yahūd) and a fatwa of Ibrāhīm b. ʿAbd al-Qādir al-Kawkabānī (d. 1223/1808) that has not yet been discussed in research to my knowledge, clearly shows that this practice was opposed by al-Shawkānī and other neo-Sunni thinkers with reference to the practice of the prophet and the “pious predecessors” (al-salaf al-ṣāliḥ), none of whom are mentioned in Islamic tradition as having been involved in internal Jewish affairs of this kind. In fact, as suggested by Goitein, the legal opinion that provided legitimacy for the practice of forcibly removing Jewish minor orphans from their non-Muslim surroundings and thereafter treating them as Muslims goes back to scholars such as Ibrāhīm al-Kawkabānī in the Zaydi spectrum. Referring to works of pre-Qāsimī Zaydi fiqh and the practice of Imam Sharaf al-Dīn Yaḥyā (d. 965/1558), he strongly supports this practice, which is also mentioned by the questioner of al-Shawkānī’s fatwa. But what precise current of Zaydi thought does he represent? And what did it mean politically to revive this practice during the reign of Imam Yaḥyā Ḥamīd al-Din in the twentieth century?
The advantage of studying the Jews of Yemen in conjunction with Zaydi jurisprudence is not confined to better understanding the circumstances of the Jews and their agency as dhimmis. It also leads to discoveries and new questions about the landscape of Zaydi law, political thought, and practice, suggesting that we are not dealing here with a binary between two schools, Zaydi and neo-Sunni, but with a spectrum of thought that sees the Sharḥ al-Azhār representing its intellectual and political “middle ground.” This middle course reflects a certain degree of “Sunnification,” but clearly remains Zaydi, and distances itself from two positions: the neo-Sunni – or proto-Salafi – late position of al-Shawkānī, on the one hand, and a not yet clearly discernible position, on the other: this is also Zaydi, but stands outside the Sharḥ al-Azhār’s middle course and adopts an anti-Qāsimī political position. Research has yet to discover how exactly it reaches back to pre-Qāsimī times and how its anti-Qāsimī stance was made use of in later times, perhaps even up until today. Further research is also needed to redefine terminology (see also Eirik Hovden and Ebrahim Mansoor 2023). In the current state of research, it is not clear to what extent, for example, any of the aforementioned Zaydi currents can be described as closer or more distant to the actual “Hādawiyya,” or where precisely to draw the line between “Sunnified” Zaydi, neo-Sunni, or proto-Salafi approaches.
For a broader study of the dhimma relationship between Imam Yaḥyā Ḥamīd al-Dīn and the Jews of Sanaa, and its historico-political context, see Kerstin Hünefeld, Dhimma im Kontext des zaiditischen Jemen: Imam Yahya Hamid al-Din (1869-1948), die Juden:Jüdinnen Sanaas und die Aushandlung islamrechtlich legitimierter Regierungsführung [Dhimma in Zaydi Yemen: Imam Yahya Hamid al-Din (1869-1948), the Jews of Sanaa and the negotiation of Islamic governance] (Berlin: De Gruyter, forthcoming 2023)
This blog entry is part of the Zaydi Studies Series commissioned and edited by Ekaterina (Kate) Pukhovaia, Leiden University.