Section: Anyone from the People of the Covenant (Ahl al-Dhimma) who initiates a new building shall not be prevented from it unless it is taller than the buildings of the neighboring Muslims, due to what was narrated from the Prophet, peace and blessings of God be upon him, that he said: "Islam elevates and is not elevated." Furthermore, that involves a status of superiority over the Muslims, and the People of the Covenant are prohibited from such things. For this reason, they are prohibited from taking the lead in gatherings, and they are restricted to the narrowest of paths. They are not prevented from raising their building higher than those who are not their neighbors, because the height of their structure is only harmful to the one neighboring it, not others. There are two opinions regarding the permissibility of being equal to the Muslims in height: one is that it is permissible, because it is not considered superior to the Muslims. The second is that it is prohibited, due to his saying, peace be upon him: "Islam elevates and is not elevated," and because they are prohibited from being equal to the Muslims in their clothing, hair, and mode of transport, and likewise in their buildings. If a dhimmi has a tall house, and a Muslim owns a house next to it, or a Muslim builds a house lower than it next to the dhimmi's house, or a dhimmi buys a tall house from a Muslim, he is permitted to reside in his house, and he is not required to demolish it, because he has not raised anything above the Muslims. If his tall house falls into ruin and he then rebuilds it, it is not permissible for him to make it taller than the Muslim's building. If the part that was high falls down, he is not permitted to restore it. If some part of it becomes dilapidated but does not fall, he may repair and maintain it, because he possesses the right to its continued existence, thus he possesses the right to repair its dilapidation, just like a church.
Section: It is not permissible for any of them to reside in the Hijaz. Malik and al-Shafi'i stated this. However, Malik said: "I believe they should be evicted from the entire land of the Arabs," because the Messenger of God, peace and blessings of God be upon him, said: "Two religions shall not coexist in the Arabian Peninsula." Abu Dawud narrated with his chain of transmission from Umar, that he heard the Messenger of God, peace and blessings of God be upon him, saying...
(32) Recorded by al-Bukhari as a hanging narration (ta'liq) in the Chapter on "If a boy becomes Muslim and then dies..." from the Book of Funerals, Sahih al-Bukhari 2/117. And by al-Bayhaqi as a connected narration (mawsul) in the Chapter on "Mention of some who became Muslim through the Islam of their parents" from the Book of Found Property, Al-Sunan al-Kubra 6/205. (33) In the original and A: "bina'uhu" (its building). (34) Recorded by Imam Malik in the Chapter on what has come regarding the eviction of the Jews from Medina, from the Book of Al-Jami', Al-Muwatta 2/892. And by Imam Ahmad in Al-Musnad 6/275. (35) In the Chapter on the eviction of the Jews from the Arabian Peninsula, from the Book of Leadership, Sunan Abi Dawud 2/147. And by al-Tirmidhi in the Chapter on what has come regarding the eviction of the Jews and Christians from the Arabian Peninsula, from the Chapters of Siyar, 'Aridat al-Ahwadhi 7/107, 108. It was also recorded by Muslim in the Chapter on the eviction of the Jews and Christians from the Arabian Peninsula, from the Book of Jihad and Siyar, Sahih Muslim 3/1388. And by Imam Ahmad in Al-Musnad 1/29, 32, 3/345.
