Ikhtilaf al-dar (difference of abodes in law)

Ikhtilaf al-dar (difference of abodes). In the lexicon dar is the place, comprising the open ground and the building, and it is also used for a city; for the jurists the difference of the two abodes means the difference of the two states to which the two persons belong. ¹ A difference of abodes between two Muslims has no effect, since all the lands of Islam are one abode; al-Sarakhsi said: people of justice inherit from one another, because the abode of Islam is an abode of rulings, and difference of power and ownership does not separate the abode among Muslims, since Islam's ruling joins them. ² What al-Attabi said, that one who became Muslim without migrating to us does not inherit from an original Muslim, is answered by Ibn Abidin: that was at the start of Islam when migration was obligatory, and God denied guardianship between one who migrated and one who did not; now the rule of migration is abrogated, on the saying «there is no migration after the conquest». ² Al-Sarakhsi said: the abode of war is not an abode of rulings but of domination; with the difference of power and ownership the abodes differ among them, and when their abodes differ, inheritance ceases; likewise those who come to us under safe-conduct, who are each taken as in the power of the realm from which he came. ² The dhimmis are of the abode of Islam, and so differ in abode from the people of war. The people of war among themselves may share an abode or not; Ibn Abidin: their difference is by the difference of power and of rule, so inheritance ends, since it is built on protection and guardianship; but if there is mutual support against their enemies, the abode and inheritance stand. ² Kinds of difference of abodes in the Hanafi school: two abodes may differ in fact only, in ruling only, or in both. In fact only: a safe-conduct holder in our land and a warrior in theirs, whose abodes differ in fact but who are one in ruling, since the safe-conduct holder is in ruling of the people of war. In ruling only: a safe-conduct holder and a dhimmi in our land, who are in two abodes in ruling, since the safe-conduct holder is in ruling of the people of war as he may return. In both: a warrior in their land and a dhimmi in ours, like two warriors in two different abodes. ³ Inheritance: difference of abodes in ruling only or in ruling and fact is one of the bars to inheritance for the Hanafis, so a dhimmi does not inherit from a warrior or safe-conduct holder, nor they from him, even if their religion is one; and a warrior does not inherit from a warrior if their abodes differ. Inheritance stands among safe-conduct holders of our land from the same abode, and between a safe-conduct holder in our land and a warrior in theirs since their abode is one in ruling. ³ The Shafi'is are close: no inheritance between a dhimmi and a warrior; the safe-conduct holder and the treaty-holder are, on the sounder view, in the ruling of the dhimmis, so they inherit from and to the dhimmi, but not from the warriors; another view makes them like warriors. ³ The Hanbalis and Malikis hold that difference of abodes does not prevent inheritance as long as the religions agree; one Hanbali view, of Abu Ya'la, is that a warrior does not inherit from a dhimmi nor a dhimmi from a warrior, while the people of the abode of Islam and of war inherit from a safe-conduct holder. ^{3 3} The religion of a child: a child follows the better of his parents in religion, and the Hanafis require for following that abode be one for the follower and the followed; if the child is in the abode of war and his father in the abode of Islam, and the father becomes Muslim, the child does not follow him; but if the father is in the abode of war and becomes Muslim and the child is in the abode of Islam, the child follows him. ³ Separation of spouses: the Malikis, Shafi'is and Hanbalis hold that separation does not occur merely through difference of abodes; the Hanafis hold that a difference of the spouses' abodes, in fact and in ruling, requires separation; so if a warrior married a warrior woman and one of them entered the abode of Islam and became Muslim... ³ Separation of spouses (continued): if two dhimmi spouses married, and one of them enters the abode of war, breaking the treaty, leaving the other spouse in the abode of Islam, the marriage is dissolved according to the Hanafis, because the abodes differ in fact and in ruling; but if one entered as a safe-conduct holder the marriage is not dissolved. If a Muslim married his unbelieving wife in the abode of war and she went out alone, it is dissolved. ³ The Hanafis argue that when the abodes are wholly different, the interests for which marriage was legislated are not realized, so it does not persist without them, like a forbidden kinship that intervenes; the people of war are like the dead to the people of the abode of Islam, and a marriage between living and dead is not legislated. The majority argue that the Prophet ﷺ returned his daughter Zaynab to her husband on the first contract, though she had become Muslim before him, and that the wives of Safwan and of Ikrima became Muslim on the day of the conquest while their husbands fled and then became Muslim, and were left with their marriages. ⁴ Maintenance: the difference of abodes does not prevent a wife's maintenance for any who uphold the marriage despite the difference. For the maintenance of kin, the Hanafis hold that the difference of abodes prevents maintenance among ascendants, descendants and collaterals; al-Zayla'i said a Muslim is not required to maintain his unbelieving parents, nor is the warrior compelled to maintain his Muslim or dhimmi father, since the entitlement is by way of kindness, and kindness is not due to the warrior or dhimmi, God having forbidden kindness to them. Al-Bada'i' differed in part: maintenance of ascendants and descendants is not prevented by difference of abodes, since it is due by the bond of parentage, which does not differ. The Shafi'is seem to hold maintenance is due between a dhimmi and a safe-conduct holder among ascendants and descendants; the Malikis' view is not clear. ^{4 5} Bequest: the jurists differ over a Muslim's or dhimmi's bequest to a warrior. The Hanbalis allow it absolutely; the Shafi'is have two views, the sounder being validity; the Malikis have two, and the stronger is that it is invalid. The Hanafis forbid it when the testator is in the abode of Islam and the legatee a warrior in the abode of war, since giving property to them aids the war against Muslims; those who allow it see a bequest as a transfer, which is not forbidden to a warrior, by analogy with sale. A safe-conduct holder who receives a bequest from a Muslim or dhimmi is valid by the Hanafis on the apparent narration; a bequest by a safe-conduct holder to a Muslim or dhimmi is valid by the Hanafis, since he is bound by Islam's rulings, and his heirs in the abode of war are like the dead for us. ⁵ Retaliation: if a dhimmi kills a safe-conduct holder, or a safe-conduct holder a dhimmi, retaliation is due by agreement of the four schools, except that the Hanafis exempt a dhimmi who kills a safe-conduct holder, since the safe-conduct holder's protection is limited to his stay in the abode of Islam; Abu Yusuf held he is retaliated against. A dhimmi is not retaliated against for killing a warrior, by agreement, since the warrior has no protection at all. ⁵ Bearing the blood-money: according to the Shafi'is, a dhimmi Jew or treaty-holder or safe-conduct holder bears the blood-money of a Christian treaty-holder or safe-conduct holder, and the reverse, on the more likely view; a warrior does not bear for a dhimmi, nor the reverse, since aid ceases through difference of abode. The preferred Hanbali view: a dhimmi does not bear for a warrior nor a warrior for a dhimmi. ⁶ Slander: there is no hadd for a Muslim or dhimmi who slanders a warrior, even a safe-conduct holder, by agreement of the schools, since the slandered is not ihsan by his unbelief; but if a safe-conduct holder slanders a Muslim he is flogged, since by entering the abode of Islam under safe-conduct he undertook to render the rights of men, and the hadd of slander is a right of the servant. The Mudawwana says that if a warrior in the abode of war slanders a Muslim with adultery, then becomes Muslim and enters the abode of Islam, there is no hadd on him. ⁶