The Conditions of Residence in an non-Muslim Polity

As noted earlier, Muslim legal and political thinkers have often found it necessary to justify residence within non-Muslim societies and submission to non-Muslim legal and political authority. Although those proclaiming an outright prohibition form a minority school, many of the scholars who permit residence concur that life under non-Muslim law and in a position of inferiority to non-Muslims is deeply unfortunate. It is the nature of Islamic legal discourses that scholars permitting residence find it necessary to show first that residence is not, in fact, categorically banned by the authoritative texts (the Qur'an and the hadith). For our purposes it is enough to note that most Islamic legal scholars reject on technical grounds the evidence advanced by the minority school: they dispute the interpretation of the two Qur'anic passages cited earlier (4: 97–100 and 8: 72), arguing that they referred specifically to the Muslim community living in Mecca during Muhammad's exile and offer another series of hadith reports where Muhammad or his Companions declare the duty to migrate to the Islamic polity lifted on the return of Muhammad, victorious, to Mecca (e.g., Abu Dawud 1997, 3: 8).

In addition to rejecting the evidence in favor of a ban on residence on technical grounds, Muslim jurists and exegetes have advanced roughly four further arguments for the legitimacy of living permanently in a non-Muslim state: (1) that one may live safely and that it may be possible to fulfill the basic duty to ‘manifest one's religion’ even in the absence of sovereign Muslim political authority; (2) that great benefits to Islam, including its possible spread and the strengthening of Muslim communities, can be gained by living in non-Muslim lands (e.g., Qaradawi 2001a, 33–34); (3) that the duty to migrate can be understand as a spiritual duty to avoid sin and sinners in one's own life rather than merely as a duty to live in a certain state (Ibn Taymiyya 1980, 28: 204–206); and (4) that even if there were reasons to believe that migration to a Muslim polity is a religious duty, it is practically infeasible for masses of Muslim communities to migrate from one country to another, and, moreover, it is not obvious to which country they would migrate today in the absence of an Islamic caliphate (e.g., Topoljak 1997, 54).

Most interesting for us is the first argument and the related juridical discussions on the conditions of such residence and what behavior towards their host state and society Muslims are expected to maintain. The crucial conditions underlying the two technical arguments for the permissibility of residing in a non-Muslim land are, of course, the Muslim's security, his lack of fear of seduction away from Islam, and his freedom to ‘manifest his religion.’ In fact, many jurists and exegetes do not see the freedom to practice religion as a mitigating factor on a general ban supposedly implied by Q. 4: 97– 100; rather, they read these verses themselves as only requiring migration because of the oppression experienced in Mecca. The argument is that those verses refer specifically to Muslims who were oppressed, harried, and constantly being induced to abandon Islam. Thus, the obligation to migrate is only for those who find themselves in this condition. For all others, jurists arrive at a variety of recommendations. Some argue that residence in non-Muslim lands where one is safe and can ‘manifest one's religion’ is permitted, but that migration is still preferred in order to avoid the negative consequences of such residence already discussed, such as increasing the strength of non-Muslims (e.g., al-Tabari 1999, 4: 147–51; Ibn Qudama 1990, 13: 151). Other jurists, however, go so far as to argue that residence in non-Muslim lands, given the conditions of security and freedom, is even recommended, in rare cases required, or that ‘if a Muslim is able to manifest his religion in one of the unbeliever's countries, this country becomes a part of the Abode of Islam’ (al-Nawawi 2000, 21: 5–7). The argument in these cases is invariably that Muslims residing in non-Muslim lands may be the cause of the eventual return of Islam (in the cases of conquered lands) or of its spread, which is grounded in the belief that Islam is a universal religion, that the entire earth belongs to God, and that Muslims have the duty of ‘calling’ (da'wa) to Islam. Given this paramount duty, present-day Muslim jurists ask how is could be possible for residence in non-Muslim lands to be forbidden (e.g., al-Qaradawi 2001a, 33–34; al-Fawzan 1992, 236).

These arguments leave some important questions for the evaluative stage of conjecture, foremost: What do Muslim jurists mean when they refer to freedom from seduction from religion [al-fitna min al-din] and the freedom to manifest [izhar] or practice/uphold [iqama] one's religion? Do these discourses include a conception of practicing one's religion that is consistent with liberal restraints on communal and paternal authority over group and family members, or do they presume some form of communal autonomy within non-Muslim states where certain areas of Islamic law will be applied? (Lewis 1992)

‘Manifesting One's Religion’

All Muslim jurists have insisted on the condition of enjoying religious freedom as crucial to justifying residence in a non-Muslim polity. However, the majority of these jurists do not specify what these terms require. Indeed, Abou El Fadl remarks that ‘there is no consensus among jurists with regard to the level of freedom necessary for Muslims in a non-Muslim territory. Perhaps the vagueness of their expressions on this point indicates that the jurists did not wish to articulate a fixed, nonnegotiable rule that might be difficult to apply to specific situations, especially situations in which Muslim territory is occupied by non-Muslims’ (Abou El Fadl 1994, 159). Even scholars who refer in some way to a duty to ‘live according to the Shari'a’ in non-Muslim lands do not always discuss whether this requires coercive political authority or indeed whether present freedoms guaranteed by liberal states permit such a life. The essential question in Islamic juridical terms is whether the duty to manifest or practice religion is satisfied by the rituals of worship ('ibadat) or only by some quasipolitical authority applying the laws of social relations (mu'amalat).

The concern, for our inquiry into an Islamic doctrine of citizenship in a non-Muslim state compatible with the liberal conception, is that Muslim jurists will insist that religious freedom for Muslim communities entail some form of communal autonomy with substate institutions of authority competent to enforce Islamic family, commercial, and certain criminal codes. Indeed, a number of jurists have suggested this more or less explicitly (e.g., Ibn al-Humam n.d., 8: 131; Ibn 'Abidin 1994, 3: 252–53). Helpfully, one of the most preeminent legal scholars of the medieval period, al-Nawawi, distinguishes among levels of religious freedom by contrasting the conditions of self-protection [al-imtina': related to refusal, abstention, forbearance, etc.] and segregation [al-i'tizal: related to self-seclusion, withdrawal, disassociation, etc.]. For al-Nawawi (2000), the second more demanding condition is clearly analogous to some form of parallel political authority, as demonstrated by his expectation that such a community will be in a position to challenge the wider non-Muslim polity. He writes that if ‘they are capable of self-protection and segregation, then it is obligatory that they reside in the Abode of War [i.e., non-Muslim polity] because its [legal] status is actually the Abode of Islam, and if they were to migrate then it would then become the Abode of War, which is forbidden. And while living there it is necessary for them to call the polytheists to Islam by argumentation or fighting’ (al-Nawawi, 21: 5). It is al-Nawawi's position on a condition without this form of communal autonomy that is interesting for our purposes:

Although the Islamic political imagination certainly can include a call for some communal autonomy within non-Muslim states (such as that enjoyed in countries like India and Israel), modern theorists by and large endorse the weaker condition of a liberal conception of free practice as sufficient. Particularly helpful here is a fatwa by the prominent twentieth-century Syrian jurist and exegete Rashid Rida, which was his response to a questioner from Bosnia inquiring whether migration was required of the Muslims of Bosnia after that territory's incorporation into Hapsburg Austria. This fatwa is important because Rida, unlike most of the classical jurists, actually specifies what constitutes ‘seduction away from religion,’ the condition which virtually all jurists agree mandates emigration. Rida writes: ‘Migration is not required for those who are able to practice their religion free from seduction away from it, that is, coerced abandonment of religion or the prohibition on performing religious duties. This is akin to what Aisha is reported to have said when she was asked about migration: 'There is no migration today. Before a believer fled with his religion to God and His Messenger out of fear of temptation away from it, but today God has made Islam manifest and a believer may worship his Lord wherever he may be’' (Rida 1980, 2: 773–74). Further on, he denies arguments that worship and marriage are invalid under non-Muslim rule: ‘There is no difference between the worship and marriage of a Muslim in the Abode of Unbelief and a Muslim in the Abode of Islam but only in the ordinances of political, civil and military relations.’ The implication of Rida's justification of life lived under these conditions is that the latter ordinances are not prerequisites for living a just life or securing salvation.

A more satisfactory treatment of this problem would involve a much deeper investigation of plausible Islamic arguments for strictly noncoercive maintenance of Islamic ideals of virtue and the good. Because such an investigation goes beyond the more narrow task set for this paper, I will limit this present discussion of what jurists mean when they speak of freedom from ‘seduction away from religion’ and freedom to manifest one's religion to the above demonstration that most jurists prefer vagueness to precise descriptions of conditions, and that within those texts that are less vague there is a range of positions that includes both calls for communal authority and for satisfaction with freedom of worship and practice. I believe this is sufficient at least to demonstrate that we are not proceeding with a radical misunderstanding of some obvious and universally held conception of manifesting, practicing, or upholding religion.

The previous discussion contains some important resources for our construction of an Islamic social contract with non-Muslim liberal democracies. The first thing we have established is that not only is it permitted to reside in a non-Muslim polity, but also it is permitted to do so while being subject to and obeying non-Muslim law. It is true that we have not yet introduced any substantive arguments for the potential justness of non-Islamic law, which would have to occur for a case to be made for a comprehensive Islamic doctrine of citizenship in a non-Muslim liberal democracy. However, given that some Islamic scholars have argued that living under non-Muslim law is a sin, it is surely significant to find some of the most authoritative classical jurists (such as al-Nawawi) refuting this position. Second—remembering that the search for an overlapping consensus through the practice of ‘conjecture’ is primarily an exercise in evaluating reasons—it is important that we have encountered reasons for permitting residence in a non-Muslim state that are deeply compatible with liberal aims: namely, the possibility that a Muslim may enjoy safety and freedom of religion. These two goods, although not exclusive to liberal polities, might not be enjoyed in all non-Muslim societies (or, indeed, all nominally Muslim ones, which is a common theme in the Muslim literature on these questions). Muslim scholars have given us Islamic grounds for arguing that liberal societies that protect individual rights and liberties (including security, freedom of property, and freedom of religion) are particularly worthy of loyalty and recognition.

Establishing the permissibility of residing in a non-Muslim state and obeying its laws, however, does not alone make the case for the possibility of a full social contract. How have Muslim jurists conceived of the status of Muslims residing in non-Muslim polities? Affirming the legitimacy of one's (potentially permanent) physical presence in such a space does not resolve this. As we will see, some thinkers that are on record permitting residence are explicitly opposed to Muslims fulfilling certain duties of citizenship such as military service, or even adopting the citizenship of these countries in the first place (Topoljak 1997, 79).

The assumption of Muslim jurists was that Muslims would reside under non-Muslim authority under a contractual guarantee of security known as the aman (as would non-Muslims visiting or residing in a Muslim polity). In the following section I examine Islamic juridical discussions of what moral obligations the acceptance of the aman places on Muslims, focusing in particular on the question of loyalty during wartime. Like the question of migration, the question of contributing to the self-defense of a non-Muslim state relates to the problem of balancing loyalties between a state of residence and the global community of believers, and will thus serve as the complement to the above discussion of residence in a non-Muslim state.

The Aman: Foundation for a Social Contract of Civic Loyalty

The most prominent contemporary advocate of the notion that Muslims can fully and without contradiction embrace their citizenship in European countries, Tariq Ramadan, has written that ‘contracts determine our status, fix our duties and rights and direct the nature and scope of our actions. Once agreed, the terms of a covenant should be respected and if there is a point which seems to work against Muslim rights—or even their conscience as Believers—this has to be discussed and negotiated because Muslims are, unilaterally, not allowed to breach a treaty’ (Ramadan 1999, 162). Ramadan argues further that ‘millions of Muslims have tacitly or explicitly recognized the binding character of the constitution or the laws of the country they enter into and then live in. By signing a work contract or asking for a visa, they acknowledge the validity and authority of the constitution, the laws and the state all at once’ (Ramadan, 164).

For most contemporary Islamic scholars, even those less ambitious than Ramadan, the question of general political obligation to a non-Muslim state does indeed fall under the rubric of the duty to uphold contracts. Once a Muslim has accepted the security of a non-Muslim state he is bound to follow all of its laws, including paying taxes that contribute to general social welfare. Crucially, for most scholars this is a moral duty grounded in religion, and not a mere quietest exhortation to avoid punishment or other negative consequences for the Muslim community.

Is loyalty during wartime, however, an obligation of citizenship to a which a Muslim may legitimately contract himself? In what follows, I examine in more detail the specific contours of this idea of contract in classical and contemporary juridical works. The question to be addressed here is to what extent the duty to uphold contracts can ground compatible responses to the specific demands of civic loyalty as I characterized them, particularly the second statement. (‘In conflicts when a non-Muslim state in which Muslims live is under attack by a Muslim force, even if a Muslim finds it morally impermissible by divine imperative to kill a fellow Muslim, it is nonetheless legitimate for a Muslim to forswear on grounds of principle any active aid to the Muslim force and promise to engage in no activities damaging to their non-Muslim state's activities of self-defense.’)

A well-known series of Qur'anic verses exhort Muslims to honor any contract into which they enter, including:

There is also a famous hadith reported through multiple chains and in multiple forms about the sinfulness of breaching contracts: ‘When God gathers all earlier and later generations of mankind on the Day of Judgment he will raise a flag for every person who betrays a trust so it might be said that this is the perfidy of so-and-so, son of so-and-so’ (Muslim 1998, 3: 1094).

In addition to these texts which deal generally with the status of promises and contracts there are a number of revelatory texts which apply this duty to the context of military conflict with non-Muslims. Verse 8:72 speaks of those who failed to join the Islamic community through migration: ‘If they [Muslims living amongst non-Muslims] seek your aid in religion, it is your duty to help them, except against a people with whom you have a treaty.’ This verse has been traditionally read to impose upon the Islamic polity a duty of restraint toward non-Muslim states harboring Muslim subjects if there is a treaty between them (e.g., al-Qurtubi 1996, 8: 37; Ibn Kathir 1998, 4: 84–86).

Another hadith applies the principle of upholding promises to non-Muslims not to fight them to a personal level. A certain Companion of the Prophet is reported to have said

Although this episode does not deal with a contract with non-Muslims arising as a consequence of legal residence, it seems a perfect example of the justification of some Muslims refraining from fighting non-believers because of a promise made to them. The fact that the hadith is situated during the lifetime of Muhammad (when there can be no question about a Muslim's fealty to the leader of the community and his obligation to participate in jihad) can only add to its potency as a guide for Muslim behavior in non-apostolic times.

Jurists from across the Sunni schools are quite clear that contracts made with non-Muslims, including the aman, are as morally binding as those made with Muslims. They are unanimous in holding that the enjoyment of an aman imposes on the Muslim certain moral and sometimes legal obligations to the non-Muslim entity in question ('Abd al-Qadir 1998, 160). Eleventh-century jurist al-Sarakhsi declared that ‘it is abhorred for a Muslim who requests an aman from them [by swearing] on his religion to deceive or betray them, for treachery is forbidden in Islam. The Prophet said: ‘He who betrays a trust will have a flag raised for him on the day of judgment so that his betrayal may be known’’ (al-Sarakhsi 2001, 10: 105). The thirteenth-century jurist Ibn Qudama agrees with, and in fact goes beyond, Sarakhsi's position:

Note a number of additional elements to this basic position, most importantly: (like many Western doctrines of political obligation) a recognition of tacit agreements, the usage of parity and reciprocity as operative ethical values, as well as the legal point that Muslim authorities may in fact enforce the rights of non-Muslims. Interestingly, Ibn Qudama was a jurist of the Hanbali school, often regarded as the most conservative and usually the source of inspiration for modern fundamentalists. That such a position is to be found within this school would seem to be particularly strong evidence of the plausibility of this aspect of the overlapping consensus.

On this section's narrower question of loyalty in wartime Muslim jurists have traditionally spoken in surprisingly precise terms. It is quite clear for the majority that this duty to honor contracts and to abide by conditions freely endorsed overrides for many jurists any general duty to contribute to an Islamic polity's military efforts against a non-Muslim state. Indicative here are the juridical treatments on the behavior of Muslim prisoners. Note how seriously al-Nawawi takes the act of agreeing to conditions even as a prisoner:

Ibn Qudama advances a similar position with the addendum that even the condition to remain in the country rather than return to the Islamic polity must be honored, again ‘for the Prophet said: ‘Muslims are bound by their conditions’,’ (Ibn Qudama 1990, 13: 184–85). Although the jurists in question do not seem to address directly the obligations of Muslims residing or visiting non-Muslim countries for purposes other than war to the war effort of a Muslim polity, the only reasonable interpretation is that if the above applies to prisoners during wartime then it does a forteriori to non-prisoners and non-combatants who reside or enter there willingly under an aman. The duty to honor contracts, even tacit ones, is binding on all Muslims, and entering a non-Muslim land is only done under an aman, which is regarded as a contract including among its conditions the obligation to do no harm to non-Muslim interests. If a Muslim decides that it is his duty to serve in a jihad or otherwise advance Muslim interests over non-Muslim ones, then jurists require that he first renounce his aman as a way of advising non-Muslims honorably of his intentions.

This value, articulated deeply and widely in the classical legal tradition, is the most common present-day Islamic justification (in both Sunni and Shi'ite sources) for honoring non-Muslim interests while residing in non-Muslim lands (European Council for Fatwa and Research 1999, 19–20; Fadl Allah 1999, 80–81). The contemporary system of visas and naturalization are commonly referred to as the legal and moral equivalent of the former aman; thus fidelity to their terms is exhorted (Mawlawi 1999, 222). Importantly, the most prominent clerics issuing fatwas on these matters, including through their co-chairmanship of the European Council for Fatwa and Research, Faysal Mawlawi and Yusuf Qaradawi, extract from the duty to honor contracts an even more robust position than my original wording, which refers only to a Muslim's behavior when his state of citizenship itself is under attack. They insist that the duty extends to self-restraint during times when one's non-Muslim state of residence is attacking a Muslim state, and when it thus may be held that all Muslims have a duty to resist or oppose this action (al-Qaradawi 2003; Mawlawi 2003).

Mawlawi, Qaradawi, and the European Council for Fatwa and Research represent what we might refer to as the ‘neoclassical’ strand of contemporary Islamic ethical thought, insofar as they seek to articulate their positions as much as possible within the framework of the classical juridical tradition and thus claim a certain conservative authority and authenticity. The articulation of compatible positions from within such conservative or canonical discourses represents particularly strong evidence of a plausible overlapping consensus. In this case it seems quite clear that there are very stable Islamic foundations for a principled, religiously grounded affirmation of our first statement of loyalty, the abstention from and repudiation of any acts damaging to one's state of citizenship even when it is engaged in conflict with a Muslim force or entity.

Defending a non-Muslim State

A Muslim could coherently affirm the moral obligation to refrain from harming his state of residence while at the same time asserting that it is impermissible for him to risk his life for a non-Muslim society or to advance non-Muslim communal interests. Such a position was indeed that generally advocated by the classical jurists, who held that it is impermissible to contribute to the military strength of non-Muslims. Yet, because Islamic law does not proclaim a general doctrine of pacifism but rather a duty on the part of individuals to contribute to their society's self-defense, I argue that in the Islamic case a doctrine of refusal in the context of a non-Muslim state may in fact suggest a rejection of the bonds of solidarity characteristic of citizenship and an indifference to the fate of the society in which they live. While recognizing that liberalism has traditionally placed limits on the goals for which a state may demand that its subjects risk their lives, we can assert that ‘there are likely to be moments when all residents, aliens and citizens alike, are morally obligated to defend the state that defends their everyday social life…. The existence of borderline cases does not call the original distinction into question’ (Walzer 1970, 105–6). I thus submit that a doctrine of citizenship in a non-Muslim state would include the justification of direct contribution to self-defense efforts (whether or not in the form of direct military participation), particularly when the aggressing force is a non-Muslim one.

Although classical jurists did not argue on principled grounds for a Muslim resident's contribution to a non-Muslim polity's self-defense efforts, it is not rare for contemporary ‘neoclassical’ scholars—some of whom hold that fighting fellow Muslims on behalf of non-Muslims constitutes apostasy—to assert that there is no moral dilemma in serving in non-Muslim armies against other non-Muslim armies. There are three basic categories of argument for permitting this: one, that the revelatory texts do not prohibit such service and, therefore, it is presumed to be permitted; two, that it is undesirable, but there may be certain benefits to Muslims arising as a double-effect of such service; three, what the Qur'an and hadith prohibit is serving to advance the ‘word of unbelief,’ which is not what service in a modern-day non-Muslim army constitutes. The second two categories are clearly the most interesting for our purposes; indeed, it is the third category that justifies my claim that states proclaiming political liberalism will be more attractive to Muslims than states proclaiming perfectionist forms of liberalism.

Statements permitting military service of the first category are not generally based on positive textual evidence of the permissibility of this, and are usually satisfied with noting the various restrictions on such service. In his book devoted entirely to Muslim minority issues, Qaradawi simply remarks ‘Muslims are confronted with the question of mandatory military service in these countries, and there is no objection to this unless such a country declares war against a Muslim country,’ before moving on to other questions (al-Qaradawi 2001a, 25). A typical statement is that of Canadian Muslim Sheikh Ahmad Kutty, who emphasizes not the Muslim or non-Muslim character of the state but the ethical status of the war:

In the case of the positions here, the primary reason for holding that it is permissible to serve in a non-Muslim army is merely that this is not one of the things specifically forbidden by the revelatory texts. Thus, one can do whatever is not specifically forbidden, limited here to fighting brother Muslims, contributing to a war of aggression, or aggressing within war. The response to the variety of arguments against serving in a non-Muslim army—that it is wrong to add to the strength of unbelievers, that one is not allowed to befriend or associate with them at all, that one cannot uphold the law of unbelief, that war is only just when it is to advance the cause of Islam, and so forth—is one of silence rather than direct engagement or refutation. Legitimating service in a non-Muslim army simply on the grounds that nothing in Islam forbids it is an acceptable form of the type of argument we are looking for: it is an Islamic argument (rather than public), and it is principled. The only potential question relates to its plausibility: if aware of Islamic arguments against such service which rely on authoritative texts, then the Muslim believer looking for guidance may not be satisfied with anything less than direct refutation of the incompatible positions or at least similar citation of evidence.

An example of the second type of argument, that is, referring to benefits accruing to Muslims from serving in a non-Muslim army, is Rashid Rida's 1907 fatwa on Russian Muslims participating in the Russo-Japanese War. Rida proclaimed that he did ‘not consider that fighting on behalf of the Muslims of Russia against Japan is disobedience to God [sin] nor forbidden by shari'a, and in fact may be one of the things rewarded by God if engaged in with the correct intention’ (Rida 1980, 2: 565). He proceeds to outline two different rationales for fighting in the Russian army which would qualify as correct intentions.

The first reads: ‘His obedience to the state [by serving in the army] protects his brothers from among the state's subjects from any oppression or evil that may befall them if the state is an oppressive, autocratic one; it makes them equal to any other citizen in rights and privileges if it is a representative, just state; and it benefits them in other ways if the state is in between.’ The concerns in this statement all relate to benefits that accrue to the Muslim community from participating in the war and have nothing to do with either the rights or interests of the state of citizenship or the justness of the war in question.

A concern with advancing the interests of Muslim communities is also central in the justifications of many contemporary scholars of Muslims serving in non-Muslim armies. The argument is that there may be a certain general communal interest (maslaha) in the performance of otherwise forbidden acts. Yusuf Qaradawi, for example, who declares fighting fellow Muslims on behalf of non-Muslims ‘unbelief,’ also holds that Muslims should be willing to accept noncombatant positions to avoid accusations of ‘high treason’ which would ‘pose a threat to the Muslim community and also disrupt the course of missionary activities’ and that ‘individuals should not set their conscience at ease and refuse to participate in the war, if this will endanger the whole Muslim community. This is based on the juristic rules, which state that the lesser harm may be borne to prevent a greater harm, the private harm may be borne to prevent a general one and the right of the group takes precedence over that of the individual’ (al-Qaradawi 2001b). This fatwa is not directly relevant to our present discussion (because it deals with fighting Muslims, which is uniformly held to be impermissible), but it serves as a more crude and obvious example of justifications for performing certain acts that are not actually arguments for an overlapping consensus because they still hold the acts to be wrong and unjust.

Thus, the concern is that Rida's rationale might be read as implying more problematic positions, including: one, that if none of the benefits here described will in fact accrue to Muslims then there is no justification for aiding non-Muslims; two, that if the benefits accrue then Muslims are permitted to engage in whatever acts secure them, including unjust wars; and, three, that even if Muslims are permitted to join non-Muslim armies to secure benefits for themselves, there is no suggestion that the cause of the non-Muslim state is in itself just or reasonable. Thus, there might be a reading of Rida's first rationale that sees it as either insufficiently principled or principled in the wrong way (i.e., only concerned with the interests of Muslims).

The case for the compatibility of Rida's rationale with a liberal conception of citizenship rests in his recognition of some states as ‘representative and just.’ This statement alone constitutes a major step toward an overlapping consensus in its suggestion that states might be at the same time non-Muslim and just, quite a break indeed from the implications of some jurists which equate non-Muslim states' unjustness precisely with their non-Muslimness. More specifically, however, he seems to be accepting the desirability of a social contract in which Muslims enjoy equality with non-Muslims in exchange for sharing the same duties. Even if his comprehensive motivations are the welfare of a given substate community, his long-term method for increasing that welfare is precisely the greater integration of the Muslim population as citizens in a non-Muslim state. In terms of our interest in the specifically Islamic grounding of the desirability or acceptability of this type of social contract, we can infer a similar type of ‘no prohibition’ justification discussed previously: if there is nothing specifically contrary to Islamic requirements in a given act, then it is in that way the object of an overlapping consensus. Note that this argument would also resolve the dilemma of dealing with the fatwa on its utilitarian interpretation from the previous paragraph: it doesn't matter if the jurist is advancing consequentialist reasons for doing something if he does not think that these are reasons for doing something that would otherwise be impermissible or sinful, as is the case with Qaradawi's justification for taking noncombatant positions in wars against Muslim forces. The utilitarian justification can simply be an added benefit to one's conception of the good, but the legitimation of the act consists in the statement that nothing in the conception of the good contradicts it.

Rida (1980) also offers a second rationale for serving in a non-Muslim army which requires separate analysis:

The question to be addressed here is whether Rida's emphasis on strength and pride for Muslims, as well as military knowledge, is a questionable justification for discharging a civic duty. By comparison, note the response of Topoljak, which is that ‘participation in the army of a non-Muslim country with the intention of training and gaining fighting skills for jihad is permitted, even required’ (Topoljak 1997, 113). He gives the examples of those Muslims who had been trained in non-Muslim armies but later helped used those skills in the wars in Bosnia and the Caucasus, and in fact cites this fatwa by Rida. What is problematic about Topoljak's argument are the auxiliary beliefs by which they are legitimated: namely, that Muslims ought not be citizens of a non-Muslim country if the Islamic state exists, that there is a duty to prepare for jihad in the classical sense and that Muslims are not supposed to strengthen non-Muslims if they can help it. For Topoljak, serving in a non-Muslim army is justified by the jurisprudential principle of necessity (darura) as the only way of acquiring the skills to discharge a duty that is directly hostile to the interests and rights of a non-Muslim state, a further step away from compatibility from Qaradawi's jurisprudential principle of utility or public interest (maslaha).

For Rida, despite some similar use of language, it appears that the benefit in question is quite different. He speaks generally in terms of ‘strength’ (quwwa) and ‘pride’ ('izza) without referring, as does Topoljak, to jihad or to the acquisition of these qualities at the expense of non-Muslims or in order to use military skills against them. Thus, his understanding of these qualities does not seem to be incompatible with the aims of a liberal democratic society, if enjoying a status of equality in relation to non-Muslims constitutes ‘strength’ and ‘pride.’ It is likely that given his historical context, the alternative for him was a situation of hostility, marginalization, and suspicion. Countering this potentially destructive majority–minority dynamic through insisting on full inclusion and full participation is precisely the response that liberalism prefers minority communities to articulate.

Rida's (1980) three justifications of service in a non-Muslim army (as something that might earn Muslims equal treatment in a non-Muslim democracy, as a way of acquiring the military knowledge which Islam prescribes, and as a path to communal strength and pride) are thus presented as beneficial double-effects of the given civic duty in question. Even though the citizen is affirming a civic duty for a different set of reasons than the ones for which it is required by the state, and even though there is no direct consideration of the interests of the non-Muslim community, they must be judged as compatible motivations: all of these goals are themselves consistent with the aims of a liberal society (i.e., a Muslim can both pursue these aims without violating any of the legitimate interests of a non-Muslim society and hold these motivations alongside a recognition of non-Muslim rights without incoherence or self-contradiction), and they presume the desirability of political integration into the non-Muslim community.

The third path to compatibility on this question is one of great interest for political liberalism's aspirations. I first introduce two positions I previously cited to demonstrate the traditional Islamic rejection of serving in non-Muslim armies:

A similar view is advanced today by Topoljak (1997, 119–21): ‘It is permitted to fight on behalf of non-Muslims against other non-Muslims if they are defending themselves, their families and their property from the same attacking non-Muslims and if the non-Muslim commander respects the Muslims, grants them their rights and if they fear that he may be defeated by someone who will oppress them. If Muslims fear a greater enemy then they can co-operate with a smaller enemy.’

There are two possible reasons to think that the views encountered in the previously cited three quotations might be approaching a compatible position. The first is that the scholars all implicitly allow for the possibility of identifying Muslim interests with those of the non-Muslim majority, and with the consideration that a Muslim would naturally prefer the state which practices the least oppression towards them. It is, of course, central to liberal justification that the rights it gives citizens, particularly minorities, give those citizens reasons to support and be loyal toward liberal institutions. This is the very idea of a social contract. Furthermore, there are prominent theories of political obligation (from Hobbes to Nozick) that presume that the ‘citizen’ (if he can be so called) will be interested in the fate of his state and fellow citizens no further than it concerns his own safety and welfare. Political liberalism cannot require as part of a minimal doctrine of citizenship any robust or emotional attachment to one's community of citizenship, or principled altruism, beyond what is necessary to secure the equal rights of all. Thus, there is an argument to be made that even if Muslims are fighting an invading force only to defend their own property, families, and persons, that that is all some theories of citizenship assume any citizen is doing.

In the case of these particular scholars, this is probably an optimistic reading. The potential difference between Shaybani, Sarakhsi, and Topoljak's reasoning and that of individualist theories of political obligation lies in the distinction between initial motivations for endorsing a social contract and subsequent reasoning in society (and, of course, that fellow citizens are not regarded as ‘enemies’ merely because of their conception of the good). A social contract may appeal to individual (or group) self-interest (whether in the form of appeals to reciprocity or mutual advantage) as a justification for the general structure of rights and duties, but cannot allow that every discrete demand made by the state be accepted or rejected in situ by the individual according to some self-regarding utility calculus. This latter scenario seems to be precisely what Topoljak has in mind: that Muslims residing in non-Muslim states (let us presume that they enjoy both security and religious freedom) can adopt a stance toward a war of aggression against their state depending on whether it directly threatens them and their interests or on whether they have more to gain by their state preserving itself or being conquered. That is, there is no suggestion of general moral duties toward a state that has fulfilled the needs of protection, respect for rights, and welfare provision, nor of the independent rights and interests of non-Muslims except when and where they align narrowly with those of Muslims. There is no question but that this justification of serving a non-Muslim state as it stands in Topoljak's present formulation does not indicate the existence of an overlapping consensus.

However, a believing Muslim could plausibly draw different conclusions on the basis of the same basic reasoning. First, a Muslim could accept that the only justification for fighting is to defend himself and his family without necessarily adopting the auxiliary mistrust and hostility toward non-Muslim polities one finds in Topoljak's reasoning. He could also accept that the only reliable way to defend himself is not alone or in groups selected by him personally (such as substate religious communities), but by supporting the institutions of his political community. But then, on this reading, the Muslim's reasoning is no different from that of any other citizen entering into a social contract. The only difference is for him, in that he does not feel in this case the additional motivations and reasons that he has for defending a Muslim state. But his reasons, as they stand, are certainly sufficient for the Rawlsian liberal. The question is: does he have reasons not to adopt Topoljak's indifference cum hostility toward the non-Muslim polity?

Here I would like to draw attention once again to the underlying objection to serving in a non-Muslim army in the views of Shaybani and Sarakhsi, namely, that Muslims should not be ‘enforcing non-Muslim rulings’ or ‘exalting the word of idolatry.’ I believe that this objection has a strong and a weak form. The strong form holds that all non-Muslim authority is illegitimate simply in being un-Islamic. Here, a Muslim would have no good reason for making a moral distinction between, say, liberal and communist forms of government. He may have reasons to prefer one over the other, but they would be equally illegitimate in their being non-Muslim and he would be equally committed to overturning both.

There is also a weaker form implied in Islamic legal discourses; here that is reflected in Sarakhsi's phrase ‘any fighting on their part would take the form of exaltation of the word of idolatry.’ An argument could be made (and here I venture into a stronger form of conjecture) that Sarakhsi is assuming not only will that non-Muslim polities be non-Muslim in not applying Islamic conceptions of justice, but also that they will be so in applying conceptions of truth which directly contradict Islamic metaphysical claims—the ‘laws of idolatry.’ Thus, this is what a Muslim is never permitted to do: to uphold or strengthen forces that proclaim the falsity of Islam.

And here is where political liberalism feels it can sincerely and transparently address Muslim citizens in light of Islamic concerns. Of course, the whole project of political liberalism aims at responding to just this kind of objection to a political system: that it is based on the public affirmation of a controversial truth-claim. To the Muslim invoking an argument like Sarakhsi's, the political liberal responds: ‘But we are not asking you to ‘exalt of the word of idolatry.’ We are asking you to recognize that at times our interests in security and welfare overlap, for no other reason than that we live in a common state. We, too, prefer a political system which does not ask you to proclaim the truth of anything which contradicts Islam. We, too, are committed to only permitting laws which can be justified based on common civic interests, rather than particular, un-Islamic moral ones.’ Of course, the Muslim may deny this. He may assert that merely in not affirming Islamic truth-claims, the non-Islamic state in fact rejects and denies them, or that democracy is in fact idolatry in calling for obedience to the will of humans. Here we have no response beyond what we have said. However, what I believe I have shown is something very important: that the Muslim might not deny this. He might look at his authoritative sources and decide that there is a crucial difference between what a Marxist non-Muslim state or another militantly secular republic would demand of him and what a politically liberal regime demands. This distinction may very well determine whether the Muslim feels that he can in good conscience contribute to that society's security and well-being.