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Fiqh Al-Aqalliyyāt (Jurisprudence for Minorities) and the Problems of Contemporary Muslim Minorities of Britain from the Perspective of Islamic Jurisprudence

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Fiqh Al-Aqalliyyāt (Jurisprudence for Minorities) and the Problems of Contemporary Muslim Minorities of Britain from the Perspective of Islamic Jurisprudence Fiqh al-Aqalliyyāt (Jurisprudence for Minorities) and the Problems of Contemporary Muslim Minorities of Britain from the Perspective of Islamic Jurisprudence This thesis is submitted in partial fulfilment of the requirements for the award of the degree of Doctor of Philosophy of the University of Portsmouth & Markfield Institute of Higher Education M.M.M. Rafeek 2012 Abstract This study seeks to explore some of the main problems contemporary British Muslims encounter from the perspective of Islamic jurisprudence. In so doing, it mainly aims to shed light on the extent Muslims in Britain face problems and what impact they might have on their religious identity as well as relationship, belonging, and contribution to the wider society. In so doing, the study will strive to examine whether existing fiqh (Isalmic jurisprudence) literature is adequate to guide contemporary fiqh scholars to deal with such issues effectively and how some contemporary answers to such issues are inappropriate. If that is the case, what would be the way forward jurists should take to find appropriate solutions? Hence, this study will use qualitative methodology to investigate such issues and questions and it will lead the study to emphasise the necessity to find answers to such problems and a mechanism to handle them, which this study would seek to suggest as a jurisprudential approach called fiqh al-aqalliyyāt al-Muslimah (Islamic Jurisprudence for Muslim Minorities) based on values, principles, universalities, and higher objectives of Islamic law: maqāsid al-Sharī‘ah (Purposes of Islamic Sharī‘ah) presented by revisiting textual sources of Islamic law as well as lived examples of early generations of Islam. It will also make some suggestions about further studies needed as regards to fiqh for Muslim minorities. 2 Declaration: ‘Whilst registered as a candidate for the above degree, I have not been registered for any other research award. The results and conclusions embodied in this thesis are work of named candidate and have not been submitted for any other academic award.’ 3 Dedication This thesis is dedicated to three important people in my life. Firstly, to the memory of my late grandparent Pakeer Tambi Mahmood whose pious life mostly stimulated me for the pursuit of Qur’ān and Islamic studies. Secondly, to the memory of my beloved father who is not with me any more to enjoy the fruit of my achievement. Thirdly, to the lifetime president of the Jamiah Naleemiah Institute, Sri-Lanka, Al-Haj Naleem whose institute enhanced my knowledge of Arabic and Islamic studies. May Almighty Allah blesss all of them. 4 Transliteration Table Consonants: Arabic Initial: unexpressed medial and final k : ك d : ض d : د ’ :ﺀ ط : t ل : l ذ : hd ﺏ : b m : م z ظ : ر : t r : ﺖ ن : n ع : ‘ z : ز th : ﺙ ﻫ : h غ : s hg س : j ج : و : f w ف : ش : h hs : ح y : ي q : ق s : ص خ: hk Vowels, diphthongs…etc. ٫ _ Short: — : a —: i —: u ‾ , ī: ِ ﻲ ū : ─و ā : ﺎ :Long _ .aw : ─ﻮ :Diphthongs ay. 5 Acknowledgments: First and foremost, I thank God Almightly who implanted in me the academic skills and talent to successfully complete this research. Without the divine guidance on me, this work would not have been possible within the time limits. I should like to express my profound thanks and gratitude to Dr Fareed El- Shayyal, my supervisor, for his continual support and advice throughout the research of this work. I have been fortunate enough to have Dr Shayyal as my supervisor whose academic advice and comments improved my research skills and writings. Moreover, without his moral and academic support, which sometimes extended beyond the official hours, this thesis would not have possible. Along side Dr Shayyal, Dr Mike Nash, my Portsmouth university supervisor, was also of help in every way possible. His unconditional help and support coming sincerely from the heart was of great importance to my research. Moreover his much valued academic imput helped me to form the thesis as it is now. For that I am ever grateful to him. I should also like to express my gratefulness and thanks to Dr Ataullah Siddiqui for all the encouragement and support he afforded me during this study. I am also very much thankful to Dr Rifai Sulaiman for his constant encouragement, support, and invaluable suggestions to complete my studies and for being a close friend for me and my family. I am very much grateful to Br. Badruzzaman for taking his time in amongst his busy schedule to read my thesis and provide me with his indispensable suggestions and opinions. I also should not fail to thank Br. Nizam Mohamed, the former registrar of Markfield Institutite of Higher Education for his sincere encouragement and support. I also thank Dr. Manazir Ahsan and Mr. 6 Rasheed Siddeequi for their encouragement and support and Sheikh Yūsuf al-Hijji and Br Irshad Baqui for their help and support. I am also very much thankful to Sister Humeyra Ceylan Izhar, the former librarian of Islamic Foundation, for her sincere encouragement, persistent help, and support. My sincere thanks go to Br. Hilmun Izhar for his sincere encouragement, relentless help, and support. I also thank Br. Abdul Hai and the other library staff at the Foundation who helped me in many ways during my study at MIHE. I also express my gratitude to the South Eastern University officials for granting me all the necessary help and support during my study leave, which encouraged me to continue this research, and to my teachers at Jamiah Naleemiah Institute for their support and encouragement. Especially my sincere thanks also go to Ustath Mansoor, Ustath Aghar, and the late Ustath Bukhari. I must also appreciate all the assistance and support afforded by my family members and close relatives back home. Furthermore, Rushdi and Tareema, Riyasi, and Farzan sincerely encouraged me to complete this research. I am very much thankfiul to all of them. Moreover, many friends of mine supported me financially or morally during my study of whom I am grateful to Dr Mustafa Rayes, Dr Abdul Cader Chachi, Sheikh Salman, Sheikh Mufassal, Br Zia Ali, Br Nazmi, Hamza Hajiar, Liyaudeen Hajiar, Br Zahran, Br Riyas, Br Shihar, Br Rizvi, Br Amanullah, Sr Jasmine Ansari, and Sr Zahra Rizvi. My relatives sincerely encouraged me throughout my researching of this study. I express my sincere thanks to my beloved mother, Zainul Inaya, for her love, affection, consistent support and unconditional sacrifice. I should also remember here my Uncles for there great moral support. I also thank my beloved and wonderful wife Rishana for her patience, continual support, persuasion and 7 unconditional love to complete this work in time and without her moral support, this study would not have been possible. I should also like to express my thanks to my loving, daughters Sameeha, Shahama and Umama whose leisure time was immensely taken away by my workloads. Morevoer, my siblings, brother in laws Shaikh M.J.M Mansoor and Br Nowfan who genuinely encouraged me to complete this research and I thank them for their encouragement. I should also thank Brs: Mazoomy, Mohamed, Hamzath, Mishkat, Nizam and Jawzi, who consistently persuaded me to successfully complete this work. Finally, many members of my extended family and many of my friends supported me in many ways, even those whom I have not mentioned here; all of them deserve my sincere thanks for their good wishes and prayers. 8 Chapter 1: Introduction Primary objective of this research is to examine definitions, themes, and contents of the legal theories of Muslim minority law in Britain: to examine arguments for and against the development of particular Muslim minority law in addition to the corpus of Islamic laws are applicable in Muslim and Non-Muslim countries. Do Muslim communities live under Non-Muslim political authorities need a separate set of Muslim minority law? Why do the Muslim communities in Europe in general and particularly in British context need for such guidance? What is the scope and limitation of this minority Muslim law? What are the rationales and justification for the development of Muslim minority law within European contexts? Why do Muslim jurist consultants (fuqahā) cannot utilize the primary and supplementary sources of Islamic law to solve the challenges and problems faced by Muslim minorities in Britain in particular and in Europe in general? How does this Minority fiqh differ from traditional fiqhi approach of main four schools of Islamic law? Unlike traditional Muslim minorities, who live hundreds of years under non-Muslim lands, Muslims in western nations face some modern social problems and challenges which are different from those of traditional Muslim minorities. Social, religious, cultural, and political problems and challenges of people in Europe are unique which considerably differ from the problems faced by people in other countries, particularly in Muslim countries. There are ever increasing socio-religious, cultural, and legal problems encountered by Muslims living in European nations in general and in Britain in particular. In traditional Muslim minority countries, Muslim communities have identical Islamic judiciary system that helps Muslim communities to come to 9 terms with some religious and legal problems. They have their own marriage and divorces laws, laws of inheritance, and some customary laws that help Muslim communities in those traditional Muslim minority countries to solve their religious issues legally. Muslims in India and Sri Lanka are unique in that sense where Muslims have been accommodated with the provision of Muslim personal law for centuries, which is a fresh area of Muslim minority law studies. Muslim minority communities in Britain and European countries do not have a parallel legal system with English laws to solve problems faced by Muslims.
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