Document Type : Original Article

Authors

• mahdi moazzami godarzi ¹
• mahmood akbari ²

¹ Assistant Professor, Faculty of Humanities, Law Department, Ayatollah Boroujerdi University, Boroujerd (Iran)

² Assistant Professor, Department of Law, Faculty of Humanities, Ayatollah Boroujerdi University

Abstract

The primary legal basis for the residence of the People of the Book (Ahl al-Kitāb) in Islamic territories is the pact of protection, known as the dhimma. This pact grants them the right of domicile (ḥaq -al-istīṭān), the implications of which for their religious sites are the central issue of this study. This paper, specifically, examines the legal rulings on maintaining (ibqā') the existing places of worship and constructing (iḥdāth) new ones. Using an analytical-descriptive approach, it is shown that a clear juristic consensus (ijmā') permits the People of the Book—Jews, Christians, and Zoroastrians—to maintain their pre-existing religious sites.
However, the construction of new sites is a matter of juristic disagreement. The legal status of this prohibition is debated, with three main views: that it is a fundamental pillar (rukn) of the dhimma pact, an ancillary stipulation (sharṭ ḍimn al-'aqd), or an absolute rule. This paper argues for the ancillary stipulation view, based on juristic consensus and the sound narration (ṣaḥīḥa) of Zurāra. Furthermore, the ruling on construction is contingent on the city's history. In cities founded by Muslims or taken by force ('unwa), construction is prohibited by consensus and supported by three narrations. Conversely, in cities acquired through a peace treaty (ṣulḥ), the ruling varies. If the treaty allows non-Muslims to retain land ownership in exchange for a land tax (kharāj), they possess full authority to build new places of worship. If, however, the land becomes Muslim property, the right to build depends entirely on the specific conditions stipulated in the dhimma pact.

Keywords

• ‘Ad- al- Dhimma’ (Pact of Protection)
• Dhimmi- Religious Freedom
• Places of Worship
• Right of Residence
• Jizya
• Islamic Law (Fiqh)