IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

of provisions to ensure the social superiority of Muslims, such as forbidding non-Muslims
symbols of social standing such as riding horses and using saddles. 121 In addition, Islamic
scholars institutionalized certain legal inequalities between Muslims and dhimmīs, such as the
ability to testify as an ‘adl or as part of a lafīf. 122 Although Islamic law provided for the just
treatment of Jews, there was little in the tradition to suggest that Jews and Muslims deserved
equal status. 123 Aḥmad al-Nāṣirī, Morocco’s most famous historian in the nineteenth century,
offered a succinct interpretation of the difference between the rights of non-Muslims as
envisioned by the dhimma contract and the equality of religion preached by foreigners. He
explained that the Western perception of “freedom” (ḥurrīya) amounted to atheism and social
anarchy. The Islamic conception of rights (ḥuqūq) and “lawful freedom” (al-ḥurrīya al-
shara‘īya), on the other hand, were laid out in the divine texts of the Quran and Hadith—as
explicated by qualified jurists—and ensured that God’s will would be done on earth. 124
Yet despite the differences between Islamic and Western conceptions of minority rights,
the Makhzan’s new language of equality was not mere lip service to European ideals of justice.
On the contrary, the fact that Islamic law emphasizes the need to treat all with justice, regardless
of religion, means that an emphasis on the equal treatment of Jews and Muslims did not
necessarily betray the principles of the dhimma contract. Even if Jews and Muslims were not
equal, Islamic ideals of justice were to be applied equally regardless of religion. The Makhzan
121 See the discussion on the Pact of ‘Umar and the dhimma contract in Chapter Six. On the provisions for Muslim
social superiority, see Albrecht Noth, “Problems of Differentiation between Muslims and non-Muslims: Re-reading
the “Ordinances of ‘Umar’ (al-Shurūṭ al-‘Umariyya)”,” in Muslims and Others in Early Islamic Society, ed. Robert
Hoyland (Burlington: Ashgate Variorum, 2004).
122 See Friedmann, Tolerance and Coercion, Chapter 1. Friedmann suggests that early Islamic scholars were more
open to the idea of Muslim and non-Muslim equality before the law, but that this increasingly disappeared from the
tradition as Islam gained more political power (50).
123 On the requirement to treat dhimmīs justly, see, e.g., Lawrence I. Conrad, “A Nestorian Diploma of Investiture
from the Taḍkira of Ibn Ḥamdūn: The Text and its Significance,” in Studia Arabica et Islamica: Festschrift for
Iḥsān ‘Abbās, ed. Wadād al-Qāḍī (Beirut: American University of Beirut, 1981), 96-7.
124 al-Nāṣirī, Kitāb al-istiqṣā, 130.
362