Ikhtilaf al-din (difference of religion and its rulings)

Difference of religion (ikhtilaf al-din) brings specific rulings, such as the bar to inheritance; it is either the difference of Islam and unbelief, or two unbelievers of different faiths, such as a Jew and a Zoroastrian. ¹ Inheritance: difference of religion bars inheritance, since inheritance rests on support; an unbeliever does not inherit from a Muslim, by agreement, though some Companions allowed inheritance by clientage, on the hadith «Islam is exalted and not exalted» and «Islam increases and does not decrease». Unbelievers inherit among themselves, according to Abu Hanifa, al-Shafi'i and a view of Ahmad, even if their faiths differ, on the verse in al-Anfal (73) that unbelievers are protectors of one another, and since unbelievers are one soul in hostility to Muslims; Malik held they are three faiths, and Ahmad in one narration that they are diverse faiths, on the hadith «the people of two diverse faiths do not inherit from one another». ^{1 2} Marriage: no unbeliever may marry a Muslim woman, nor a Muslim an unbelieving woman, except a woman of the book; if one of two unbelieving spouses becomes Muslim, they are separated if the marriage could not be contracted between them at the outset. ² Guardianship in marriage: difference of religion between Islam and unbelief bars guardianship in marriage by agreement of the four schools, on the verses «the unbelievers are protectors of one another» and «your protector is God, His messenger and those who believe»; they all except a Muslim's marriage of his unbelieving slave-woman, since he marries her by ownership, not guardianship, and the Muslim ruler marries an unbelieving woman when her special guardian is absent. ² If the difference is not of Islam and unbelief, as when a Jew marries his Christian ward, the Shafi'is allowed it and others said nothing; the Hanbalis deduce it from the two views on inheritance, the preferred one forbidding it. ² A Muslim's guardianship over an unbeliever is not explicitly forbidden, on the verse «God will not make for the unbelievers a way over the believers», but the jurists give a Muslim judge guardianship over a dhimmi under restraint. ³ Custody: three views: the Shafi'is and Hanbalis hold custody is not due to an unbeliever over a Muslim child, even if the unbeliever is the mother, and is due to a Muslim over an unbeliever; the Malikis hold difference of religion has no effect, and if corruption is feared the child is placed with a Muslim as supervisor without being removed; the Hanafis distinguish women from men: for women the unity of religion is not required, since tenderness does not vary by religion, while for men the difference bars custody, since the agnate's right is barred by difference of religion. ³ Following the religion: if the parents differ and one is Muslim, the child, young or grown but mad, is a Muslim following the better of the two in religion, according to the Hanafis, Shafi'is and Hanbalis; the Hanafis require that the child and the better parent be in the same abode in fact and in ruling; the Malikis hold that the non-discerning child follows only his father in Islam, not his mother or grandfather. ^{3 4} If neither parent is Muslim: the non-discerning child follows the better of them by the Hanafis, the father by the Malikis, while the Shafi'is let him choose upon reaching age. ⁴ Maintenance: difference of religion does not prevent a wife's maintenance by agreement, nor that of slaves; maintenance of kin is prevented by it except among ascendants and descendants: the majority of Hanafis, Malikis and Shafi'is require it despite difference of religion, while the Hanbalis do not, since it is a kindness due by a mutual support. ⁴ Blood-money (bearing the aql): difference of Islam and unbelief bars bearing blood-money by agreement; the Malikis and Hanbalis hold a Jew does not bear for a Christian nor a Christian for a Jew; the Hanafis and Shafi'is hold unbelievers bear for one another even with different faiths. ⁴ Aql (continued): the four schools, in some cases, do not let an unbeliever of one faith bear for an unbeliever of another; al-Durr's commentator says unbelief is one faith, while the Nihayat al-Muhtaj requires the unity of abode. ⁵ Bequest: the Hanafis, Hanbalis and most Shafi'is hold a bequest valid if from a Muslim to a dhimmi or from a dhimmi to a Muslim, on the verse of al-Mumtahana (8) that God does not forbid kindness to those who did not fight you in religion; unbelief does not preclude the capacity to own, so as a sale and gift by an unbeliever are valid, so is a bequest. Some Shafi'is hold it is valid for a dhimmi only if named, not to «the Jews» or «the Christians». The Malikis agree that a dhimmi's bequest to a Muslim is valid; Ibn al-Qasim and Ashhab allow a Muslim's bequest to a dhimmi if it is a kindness on account of kinship, and dislike it otherwise. The Hanafis state that an unbeliever's bequest to an unbeliever of another faith is valid, by analogy with inheritance, since all unbelief is one faith. ⁵ Partnership: difference of religion does not prevent a partnership between a Muslim and an unbeliever; the Malikis and Hanbalis require that the unbeliever not act alone, since he deals in usury and does not avoid what a Muslim avoids; the Hanbalis say what an unbelieving Scripture-holder buys or sells of wine with partnership funds is void, and he is liable for it. The Malikis hold a dhimmi's partnership with a Muslim valid on condition that the Muslim be present for the dhimmi's dealings; if the Muslim doubts the dhimmi's usury, he is recommended to give away the profit only; if he doubts his dealing in wine, the profit and capital both. The Shafi'is generalise disapproval for partnership with any unbeliever; the Hanbalis dislike partnership with a Magian. The Hanafis require equality of religion for a full partnership, so it is valid between two Muslims or two Christians, but not between a Muslim and a Christian; partnership of joint capital is valid between a Muslim and an unbeliever. ^{5 6} Slander: if a dhimmi slanders a Muslim man or woman with adultery, the hadd of slander applies when its conditions are met, by agreement of the schools; if a Muslim slanders an unbeliever, dhimmi or other, there is no hadd by agreement, since the slandered's chastity is a condition of the hadd and chastity requires Islam; the slanderer is disciplined for the lie. Sa'id ibn al-Musayyab and Ibn Abi Layla disagreed on a dhimmi woman with a Muslim son, holding the hadd applies. ⁶ Ikhtilaf al-matali' (differences of rising points): see «matali'»; no separate entry. ⁶