Rethinking Islamic Law for Minorities: Towards a Western-Muslim Identity

Rethinking Islamic Law for Minorities: Towards a Western-Muslim Identity Edited and Introduction by: Jasser Auda Contributors: Taha al Alwani, Mustafa Cerić, Mohamed Mestiri, Louay Safi, Tahar Mahdi, Ihsan Yilmaz, Soumaya Pernilla Ouis, Charles Le Gai Eaton TABLE OF CONTENTS Introduction: Rethinking the Basic Premises of Islamic Law for Minorities …… Jasser Auda Islamic Law for Minorities: Historical Context and Essential Questions …Taha Jabir al Alwani Towards a European-Islamic Identity … Mustafa Cerić From the Fiqh of Minorities to the Fiqh of Citizenship: Challenges of Conceptualization and Implementation ……. Mohamed Mestiri The Creative Mission of Muslim Minorities in the West: Synthesizing the Ethos of Islam and Modernity …. Louay M. Safi The Rights of Minorities and Their Aims: The Rights of Citizenship … Tahar Mahdi Micro-Mujtahids and Implementation of Fiqh al-‘Aqalliyāt … Ihsan Yilmaz Marriage Strategies among Young Muslims in Europe …. Soumaya Pernilla Ouis New Fiqh for Minorities: For the Sake of our Youth … Charles Le Gai Eaton Index Introduction Rethinking Islamic Law for Minorities: Towards a Western-Muslim Identity Jasser Auda This book presents rethinking attempts and critical revisions of ‘Islamic law for Muslim minorities’ (Arabic: fiqh al-aqalliyat), in the form of a number of articles that question and challenge some basic premises of that fiqh. In this introductory chapter, a critique is presented for one basic premise of fiqh al- aqalliyat, which is the need of Muslim minorities for special rulings or law because they line in ‘non-Muslim land’. At the end of the chapter, the articles presented in the rest of the book will be outlined. A Different ‘Fiqh for Minorities’: On what basis? Technically, a ‘minority’ is a community that counts for less than 50% of a larger community. ‘Muslim Minorities’ are believed to comprise somewhere between 40 and 50 percent of Muslims worldwide.1 However, a quick look at the body of literature developed for fiqh al-aqalliyat shows that the basic consideration for ‘aqalliyat’ is not a matter of numbers. It is rather the issue of Muslims living in a non-Muslim ‘Country’,2 ‘society’,3 ‘context’,4 ‘polity’,5 or 1 Jasser Auda, “Islam.” In: Encyclopedia of the Developing World. New York: Routledge, 2005, and Omar Khalidi, “Muslim Minorities: Theory and Experience of Muslim Interaction in non-Muslim Societies”, in Journal Institutre of Muslim Minorities Affairs, vol. x, no. 2, July, 1989, p. 426. 2 Abdul Hadi Christian H. Hoffman, “Muslim Minorities in non-Muslim Countries”, paper presented in the 14th General Conference of the Supreme Council for Islamic Affairs on: “The Reality of Islam in a Changeable World”, Cairo, May 2002, p. 2. 3 Rath, Jan, Penninx, Rinus, Groenendijk, Kees, and Meyer, Astrid, Western Europe and its Islam, Brill, Leiden, 2001, p.2. 4 Abdul Hakim Murad, “British and Muslim”, a paper presented to a conference of British converts, September 1997, p. 3. http://www.Geocities.com/islamicissues/britishmuslim.html 5 Muhammad Khalid Masud, “Being Muslim in a non-Muslim Polity: Three Alternative Models”, in Journal Institute of Muslim Minorities Affairs, vol. X, no. 1, January, 1989, p. 124. under ‘non-Muslim rule’.6 Thus, the ‘exceptional circumstance’ here are not about the number of Muslims but rather about how the country runs its ‘polity’, ‘system’, or ‘rule’, which could be labelled ‘non-Muslim’. Therefore, the view of the political view of Muslims necessitated a special law or fiqh that is called fiqh al-aqalliyat, fiqh al-ghurbah (Islamic law for refuge), al-Madhab al- Urupi (European School of Law), European Shari’ah, or European Islam.7 However, questions that are typically raised under the ‘fiqh of minorities’ theme do not signify a clear relation with the above basic premise. Examples of such questions are whether or not it is lawful: to deal with banks, insurance companies, or mortgage; work in restaurants or supermarkets that sell wine or serve pork; to apply for citizenship from the ‘non-Muslim’ country of residence, especially if the oath of citizenship involves adherence to its monarchy, constitution, or military service; to participate in a ‘secular political system’ by joining a political party, support certain (non-Muslim) candidates, or run for elections; to great non-Muslims, congratulate them on their festivals, or attend their weddings or funerals; to accept a marriage or divorce ceremony or court ruling from a non-Muslim judge or based on the ‘non-Muslim law’, and so on.8 In all of the above queries, one cannot see a clear link (from the juridical point of view) with the fact that the inquirer does or does not live in a ‘non-Muslim country’. In fact, all of these questions are valid everywhere in any case, however, the basic premise of a ‘non-Muslim country’ is not about a percentage of minority or majority – from the classic fiqh point of view. If one re-visits the wide fiqhi literature looking for what makes a certain territory ‘Islamic’ to start with, one will realize that: 6 Jacques Waardenburg, “Normative Islam in Europe” in Islamic Words: Individuals, Societies and Discourse in Contemporary European Islam, Felice Dassetto [dir.], Maisonneuve & Larose, European Science Foundation, 2000, p. 55. 7 For example: Yvonne Yazbeck Haddad, “ The Challenge of Muslim Minorityness: the American Experience”, in W.A.R. Shadid & P.S. van Koningsveld (eds), the integration of Islam and Hinduism in Western Europe, Kok Pharos, Kampen, NL, 1991, p. 135; Murad Wilfred Hoffman, “Muslims as Co- Citizens of the West, Rights, Duties & Prospects”, [interview], Islam-Online website, 25/05/2002, p. 3; Mathias Rohe, “The Formation of European Shari’ah”, a paper presented to the “Muslim Minority Societies in Europe International Workshop” in the University of Erfut, 2-3 March 2001; and Tariq Ramadan, To be a European Muslim, Leicester, The Islamic Foundation, 2000. 8 Mahmoud al-Saify, Fiqh for Muslim Minorities: a New Era for Islamic Jurisprudence, MA Thesis, University of Leiden, 2004. 1. The criteria of ‘having a 50% +1 majority of Muslims’, regardless of whether the constitution states that it is a ‘secular country’, such as Turkey, whether the constitution does not define any specific religion for that country, such as Nigeria or Indonesia, whether the head of state is non-Muslim, such as Lebanon, or whether the Islamic rituals and acts of worship are not generally practiced, such as a number of former Soviet Union States – is not true. In fact, classic judicial sources clearly state that the issue of Muslims being a majority or a minority in a certain country is irrelevant to a land being a ‘Land of Islam’, and some other criteria are suggested instead.9 2. The other popular criteria, which was recently applied to a rural region of tribal Pakistan in an attempt to get it out of the ‘Land of War’ zone (!), is the application of the ‘Islamic’ criminal law (or hudud). However, I also did not find any explicit mention in any school of law that relates the ‘Islamicity of a state’ or the concept of the ‘Land of Islam’ specifically to the hudud. What is the ‘Land of Islam’ or ‘Islamic Territory’? The question now is: What are the classic criteria for being outside the ‘Land of Islam’, or the ‘Islamic territory’, which fiqh al-aqalliyat is supposedly addressing? The results of a survey, which I carried out on various Sunni, Shia, and Ibadi Schools of Law, could be summarised in the following five criteria. 10 1. A land where Islamic rules (ahkam al-islam) apply. 11 2. A land where a Muslim ruler has control (isteela’) over its affairs. 9 For example: Al-Qummi Al-Naisaburi, Nizamuddin (d. 728 h). Tafsir Ghara’ib al-Qur’an, Dar al-Kutub al-Ilmiyyah, Beirut, 1996, vol.3, p.459, and Al-Bayhaqi, Ahmad Ibn Al-Hussein (d. 458 h). Sunan al- Bayhaqi al-Kubra, Dar al-Bazz, Mecca, 1994, vol.9, p.16. 10 For example: Ibn Al-Qayyim, Shamsuddin (d. 751 h). Ahkam Ahl al-Dhimmah, Ramady/Ibn Hazm, Beirut, 1997, vol.2, p.728, Reda, Rashid. Fatawa, Compiled by: Salahuddin Al-Munajjid and Yusuf Khouri, Dar al-Kitab-al-Jadeed, Beirut, 1390 h, Al-Qummi Al-Naisaburi, Tafsir Ghara’ib al-Qur’an, vol.3, p.459, Al-Sarakhsi, Shamsuddin (d. 483 h). Dar Al-Marifa, Beirut, without date, vol.9, p. 182, and Al-Yunini, Qutbuddin (d. 726 h). Dhail Mir’at al-Zaman, Al-Turath, Amman, without date, vol.2, p.58. 11 For example: Al-Mawardi, Ali Ibn Mohammad (d. 450 h) Al-Hawi al-Kabeer fi Fiqh Madhab al-Imam al-Shafie, Dar al-Kutub, Beirut, 1999, vol.14, p.267, Reda, Fatawa, Reda, Rashid. Al-Khilafah, Al- Zahraa, Cairo, without date, p.50, Al-Mawardi, Ali Ibn Mohammad (d. 450 h). Al-Ahkam al-Sultaniyah 3. A land of security (al-amn).12 4. A land where the practicing of public acts of worship (shaà’ir al-islam) is allowed.13 5. A ‘Land of Justice’ (dar al-àdl).14 The following is a brief analysis of each of these concepts and their implications. The ‘Land of Islamic Rulings’ wal-Wilayat al-Diniyah, Dar al-Kutub al-Ilmiyah, Beirut, 1985, vol..1, p.22, Al-Mawsili, Abdullah (d. 683 h). Al-Ikhtiyan, Dar al-Kutub Al-Ilmiyah, Beirut, 2005, vol.4, p.178, and Al-Qummi Al-Naisaburi, vol.3, p.459. 12 For example: Al-Bayhaqi, vol.9, p.16, Al-Kasani, Alauddin(d. 587 h). Bada’i` al-Sana’i` fi Tartib al- Shara’i`, Dar al-Kitab al-Àrabi, Beirut, 1982, vol.7, p.131, Al-Sarakhsi, vol.9, p. 182. 13 For example: Ibn Taymiyah, Ahmad (d. 728 h).

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