How can one write the history of Convivencia from the perspective of Islamic Legal History? In front of such a big task, one must confront an empty space in legal historiography.
The central place of Dhimma (the religious minority) has not been sufficiently studied in the context of Islamic Studies, thus remaining quasi unexplored in juristic matters. Why is this so? It is so much more difficult to understand because the episode of Al-Andalus has grounded two points of view: first of all, one knows that the concept is rather old as it arose just some centuries after the death of the Prophet. Two texts are at the basis of developing the juristic status of dhimmi, one of which is ṣaḥīfat al-Medina (The Charter of Medina), better known as the “constitution” of Medina (7th century). This is the Prophet Muhammad’s first legal document. The establishment of peace—necessary for the cohabitation of different tribes that had been in conflict in Medina for ages (with very complex alliances and divisions between the Arab Jewish tribes, on the one hand, and polytheistic Arab tribes, on the other)—through the “constitution” of Medina took place thanks to the religious and moral authority of the Prophet.
The second text is the Convention of Najrān (7th century) promulgated between the Prophet and the Christians. And even if the juristic framing between Muslims and Christians had been formalized in the famous pact of Umar—the second successor of the Prophet—the document would still remain a very controversial document; but the major turning point took place in Al-Andalus with Abu Bakr Muhammad al-Turtucī (1059–1126), by way of fixing the applicable juristic rules definitely. But why did this all happen in Al-Andalus? Why did one have to wait for the contact of Islam with non-Islamic Europe? The theory of Dhimma implies that Jews and Christians—as a counterpart to paying taxes, called Jizya—profited from a far reaching protection (himāyā): the integrity of their physical and moral security; the free practice of religious liberty, belief, and practice by their cults; and freedom of trade and residence. Even more: the status of dhimmi was a guarantee to have access to science. Respect for their language, costumes, religious places, temples, schools, and tribunals were as sacred as those of Muslims! The Dhimma as a category of Islamic Law embraces, for example, the obligation of a debtor towards the creditor. This etymological origin underlines that the concept is highly normatively loaded. In its origin, it is a kind of contractual hospitality. This normativity is very much embedded in ethics and philosophy: Convivencia is only possible by exteriorizing one’s relationship to oneself—the creation of an alter ego, which demarcates the frontiers of a normative transgression.
Secondly, the Andalusian episode is additionally fundamental in the opposite direction. Indeed, it refers also to the re-conquest of Al-Andalus by Almohadi puritans and their abolition of dhimmitude by targeting and massacring not only Jews and Christians, but also tolerant Muslims. This was followed, albeit much later, by texts from jurists of the Hanbali school—the legal and ideological wing of present day Wahhabism—who increasingly strove for and advocated intolerance and repression of Christians and Jews in the land of Islam (dār al-islām). The founding texts of the three Sunni Islamic legal schools (al-islām al-sunnī) malikite, ḥanafite, and šhāfiīte only dedicated short chapters to the question of dhimmi and dhimmitude, the governing of the payment of jizya (tribute), and sometimes inter-religious marriage but with very little—almost nothing, in fact—on cohabitation between them and Muslims or about the regulation or details of daily life. Where does this lack of regulation originate? The question merits more in-depth legal and sociological study.
Finally, Dhimma and dhimmitude are key concepts to approach Convivencia in a different and conceptually as well as historically more profound way. These issues deserve a deeper examination.
Similarities, differences, and tensions between the relationship to the collective identity of the Self and of the “Other” as well as of the “Other” as the Self deserve to be further explored and better understood by returning to Iberian origins. Transfer from the Iberian dhimmi under Muslim domination to the “Indio dhimmi” under Christian domination merits study as well.
Thus, Convivencia has to be reflected in the light of theorizing the fundamental relation between the Self and the “Other”: The question of living together among others. The “Other” casts a special light on this issue. Besides being read from a religious as well political, lingual, and cultural dimension, Convivencia must be examined in the context of the complex discourse about Otherness in the sense of transforming the particularized “otherhood” into a kind of universal “samehood.”
The limits to this universalization are too obvious, but we need more theoretical insight into “Dhiminess” in the context of a discourse about the forms and origins of “citizenship”—a concept of the modern world—as a central membership role in society, on the one hand, and the legal conceptualization of a variety of legal cultures within the Islamic tradition on the other hand.
Thereby, the project will try to deepen our knowledge of the legal basis of cohabitation in a specific historical context as seen through the lens of those dominating, that is the Islamic culture of the time, while also elucidating some limits and possibilities of learning from the fascinating historical experience known as “Convivencia.”
