The Fiqh of Minorities

Fiqh of Minorities

By Taha Jabir Alalwani,
Web Summery by Omar Tarazi

Fiqh Al-‘Galliyyat

Fiqh- (i.e. Islamic Jurisprudence) is defined by Ibn-Khaldun as the classification of actions/obligations as: obligatory, encouraged, permissible, discouraged, forbidden, based on the Qur'an, the Sunnah, and the decisions of prior jurists.

Al-‘Jalliyyat- (i.e. Minorities) is a current political term signifying those groups of citizens of a state who differ in race, language, culture, or religion from the majority of the population

Fiqh Al-‘Jalliyyat or Fiqh of minorities is the idea that the Muslim Jurist must relate the general Islamic jurisprudence to the specific circumstances of a specific community, living in specific circumstances where what is suitable for them may not be suitable for others. This jurist must not only have a strong background in Islamic sciences, but must also be well versed in the sociology, economics, politics, and international relations relating to that community. The purpose of Fiqh Al-‘Jalliyyat is not to recreate Islam, rather it is a set of methodologies that govern how a jurist would work within the flexibility of the religion to best apply it to particular circumstances. Some of the methodologies include:

Reworking the question:

A wrong question can lead to a wrong answer. Before answering a question the Jurist must know the problem that caused the question to be asked, and rework the question to deal with the core issue involved. When the people asked the Prophet how the moon worked, their core issue was to understand its purpose. The answer came, “They ask you concerning the new moons, Say: they are but signs to mark fixed periods of time for people and pilgrimage”(2:189). The Qur'an reworked the question and answered regarding the purpose of the cycle of new moons, not regarding the scientific mechanism that runs it.

Example #1:

A questioner asks, “Is it forbidden (haram) for a Muslim woman to be married to a non Muslim, and what should one do?”

The standard answer based on the Qur'an is that it is forbidden for a Muslim woman to be married to a non-Muslim so she should be divorced immediately

However in this particular case the circumstances are as follows:

The woman has just converted to Islam and she has a husband and two young kids

The husband is very supportive, but is not at this time interested in converting

The woman was told immediately after converting that she had to divorce her husband of 20 years

Within these circumstances the question should have been:

Is it worse for a Muslim woman to be married to a non-Muslim husband or for her to leave the religion?

The answer is that leaving the religion is much worse, so therefore it is acceptable for her to continue with her marriage and she is responsible before Allah on Judgment Day.

Example #2:

A questioner asks: “Is it forbidden to be involved in an un-Islamic/corrupt government or institution?”

The standard Fiqh answer would be yes it is forbidden, because you do not want to be corrupted by the system or be seen as supporting a corrupt system in front of other weaker Muslims who might be negatively influenced

However in this particular case the circumstances are as follows:

The government's actions can be influenced by being involved in the system.

The government has secular authority over the Muslims in that country and gives them the right to freely practice their religion.

The Muslims are awarded by the government the right to hold public office.

The government currently exerts laws and policies that are not in the best interest of the global or local Muslim community.

The Muslims have the obligation of spreading their religion.

With this information the question must be reworked to reflect the totality of the situation:

Is it permissible for Muslims to participate in the political arena of a democratic government in order to affect policy in favor of the Muslims, or is it better to not get involved for fear of being corrupted by the system?

Under these circumstances the answer is that it is permissible and an obligation on the part of the Muslim community to get involved as long as they are not forced to sacrifice their integrity. For the community it would be considered a type of jihad. If a particular member of the community feels him/her self to be too weak in religion then there is no harm if that person does not directly participate, but supports financially or in other ways instead.

Example #3:

A questioner asks: “If a Muslim sees the new moon for Ramadan should we follow him?”

The standard Islamic answer is yes. If a trustworthy Muslim sees the moon then it would be Ramadan.

However in this particular case:

The questioner is part of a local community and the answer to the question will determine whether the community fasts together or is split.

The question should be reworked to say:

Which is worse, being off a day one way or the other for Ramadan or splitting the local Muslim community and not following the local leadership.

Absolutely without question the unity of the community is more important, and the Prophet Mohammed commanded us to follow our leaders even if we don't like what they do.

Learning from prior rulings:

The golden rule of Fiqh is: ‘changes of Al-‘Ahkam (judgments) are permissible with the change in times'. The schools of Fiqh and the past judgments were different because they were generated for different times and different people. For this reason a jurist should not apply prior historical rulings to modern situation without a careful analysis of the circumstances and reasoning that generated the prior ruling.

For example, the prophet first forbade visiting cemeteries than he allowed it later saying, “Formerly, I forbade you from visiting cemeteries. You may visit them for they remind you of Al'Akhira (i.e. the next life). The reason is that there were some bad pagan customs surrounding cemeteries, and he wanted to distance his people from that. After a time when the Muslims were stronger in their Imaan the restriction was no longer necessary so it was removed. Indeed there are many documented cases of the four enlightened caliphs making changes to the established rulings. Occasionally minor or major changes were even made to the rulings of the Prophet, because the circumstances had changed.

Some things to keep in mind regarding the early Jurists rulings:

Many early scholars did not thoroughly document how they arrived at rulings.

Many mistakes are found in historical books on Fiqh because the jurists didn't always have access to all of the relevant material. It has been only recently that jurists have been able to make computer searches to speed up research on issues.

The Muslims were not under conditions such that they had to escape to non-Islamic countries seeking lost rights or escaping from persecution.

The concept of citizen, duties of a citizen, international law, and diplomatic relations didn't exist in the form that they are today.

In ancient times, the language of military power was supreme. A country's borders were only established because the military found it difficult to move forwards.

Globalization didn't exist. People in ancient times lived on a planet of islands.

Therefore we should not fight each other over the literal rulings of the past. Rather we should study the methodology, wisdom, and intent of the prior rulings to best understand how they should apply to the modern world. The mere stress on minor issues of rulings without understanding intent will inevitably cause us to become like the people of “Al-Baqarah”.

Understanding the purpose and intent:

The central theme of Fiqh is: the performance of man as inheritor of the earth particularly from the point of view of man's compliance or resistance to the divine purpose of the creation and how he falls short of that purpose. The debate regarding the realties of man's mind and our abilities to evaluate ourselves independent of revaluation has gone on for centuries. Islam recognizes the role of the human intellect as part of the decision making process. Also, we are provided with two books to help guide us in our decisions, the revelation (Qur'an) and the moving cosmos which is the sum total of all aspects of life. The study of each book leads to a better understanding of the other. Some of the criteria for the method of study that emerge to facilitate a better understanding of ultimate purposes are:

Realize the unity of message and structure within the Qur'an and studying its application by the Prophet Mohammed in specific practical everyday matters. Because the documentation of the Sunnah was not perfect and some questionable sayings have been mixed in, we should hold everything to the benchmark of the Qur'an. If a saying does not appear to be in keeping with the Qur'an, we should follow the Qur'an in such circumstances and simply acknowledge that we might not have all the information surrounding that Sunnah (i.e. the circumstances that generated it).

Be in line with the concept that the Qur'an and the Prophethood in general are a completion of the legacy of past prophets. The message and purpose have always remained the same but the form has changed as human society has matured.

Grasp the delicate differences between humanity and the individual, and how the Qur'an relates to each.

Be alert to the inherit logic of the Qur'an, and the parallel nature of that logic for both capturing the divine purpose, and the spiritual logic of the All Knowing, and yet speaking to and being logical to the unlettered human mind.

Adopt the Qur'anic concept of geography on the basis that the world is completely for Allah, and so the Qur'an is inherently a global message, and should be treated and understood as such.

Contemplate the facts of life, so that when a question is formulated it is done while taking into consideration all aspects involved.

Understand the aims and purposes of the Shari'ah as well as the resulting outcomes

Test the Fiqh verdicts to evaluate their validity by seeing if they provoke the desired outcome of bringing people closer to the pure path of Allah.

Consequences

The Problem of Daru-Kufer (land of infidels)

Some modern scholars, and certain groups of people have thrown a significant monkey wrench in the Muslims' ability to live and interact with western countries like the United States. They pose the argument that we should all move back to Darul-Islam (land of Islam), and if we are forced to live in Daru-Kufer (land of infidels) we should consider it a temporary stay and should either not participate or fight the “Kufer” government. The answer to this argument is three fold:

The Muslim Ummah (nation/model)

Daru-Kufer and Daru-Islam are not concepts that existed at the time of the prophet. They were introduced later to describe the war torn oppressive world outside the borders of the Islamic state, and the peace and justice that existed within. The only group/nation concept that exists within the Qur'an and Sunnah is the concept of the Muslim Ummah. The Muslim Ummah as described in the Shari'ah is completely independent from association in any way with numbers of people or geographical locations / boundaries. Rather it is associated with the Islamic principles and the Islamic way of life as a model for people. So even a single people can represent this principle, as in fact the Qur'an does in referring to the Prophet Abraham.

(16:120) Abraham was indeed an Ummah , devoutly obedient to Allah, and true in faith, and he did not worship other than Allah.

(3:110) You (Muslims) are the best Ummah sent out to mankind, to encourage righteousness and to forbid the harmful, and to have complete faith in Allah….

The above ayah summarizes the definition of the Muslim Ummah. The Muslim Ummah is those people who are linked no matter where they are in the world with a common love of Allah, and they stand up for justice equally even if it is against them. Both later and early Jurists understood that being the “best” for all people meant that in the past people didn't feel safe with people from other groups, but everyone feels safe and secure within and in contact with the Muslim Ummah.

Fighting & Relationships with others

(60:8) Allah does not forbid you from dealing kindly and justly with those who did not fight and drive you out of your homes for your religion, For Allah loves those who are just. (60:9) Allah does however forbid you from those who fought you for your religion and drove you out of your homes and supported others against you so that you will be forced to submit, and turn to them for friendship and protection, and whoever submits to them (in these circumstances) has wronged himself.

These two verses lay the legal foundation for the relations between the Muslims and Non-Muslims, and they speak for themselves. At all times justice is obligatory on the Muslim, and kindness is also until it is used as an excuse for committing treason against Allah. Other than that we should treat everyone both Muslim and non with justice, respect, and kindness so that we will get closer to Allah and attract people to Islam. Therefore, even if a government or institution is not perfect in its Islamic practices, but does not commit open and severe oppression against the Muslims, Muslims are allowed to work within the system to try to improve it. This concept is not a new one to Fiqh because all the scholars and teachers after the end of the enlightened Caliphate and the beginning of royalty continued to teach and worked within the imperfect system to serve the greater Muslim Ummah despite the problems within the government.

The Example of Abyssinia (present Ethiopia)

The example we have of Muslims taking refuge in another country to protect themselves and their religion is the emigration in Abyssinia Like today the Muslims at that time were being persecuted in their homeland, and the Prophet Mohammed sent them to Abyssinia because their rights would be protected there.

The Quraish (the leading tribe of Makkah) sent two emissaries to make a plea before the Abyssinia king Negus to return the refugees back to Quraish. Negus however, was not about to make a judgment on people in absentia. So after hearing the arguments of the emissaries (Amr, and Abdullah) he asked to hear the defense of the Muslims. When Negus's messenger informed the Muslims of Negus's decision to hear them, they had a discussion amongst themselves and decided to stick to the truth no matter what. They also agreed upon Ja'far ibnu ‘Abi Talib as a spokesperson.

When they came before the King, the Muslims didn't bow to the king, and when asked explained that they only bowed to Allah. Then Jafar said, “O King! We were a people in ignorance, we worshipped idols, rejected kin, abused our neighbors, and the strong among us oppressed the weak. We continued so until Allah sent us a prophet from among us.. He invited us to worship the one God, leaving the idols of wood and stone, and to tell the truth, guard the trust, to keep good relations with both family and neighbors, to give charity… We have come to your country, chosen you and not anybody else, and desire being near you, and hope that we would not be treated unfairly in your audience, O king”

The king was impressed with the Muslims argument and granted them “political asylum”. During their stay they developed very strong relations with the Negus and his people, and when his throne was challenged they prayed for him and were ready to help defend him if requested. They continued to live in Abyssinia until they were obligated to go support the new Muslim state in Madina fighting off its enemies.

Some lessons to learn:

Existence of Muslims in any country should be planned on the bases of being permanent, not temporary or accidental.

We should drop concepts like Darul-Islam and Darul-Kufr and consider all land to be for Allah as the Qur'an says:

(7:128) Moses said to his people: “Seek support from Allah and be patient, surly the earth is Allah's to grant to the servants of his choice, and the best is for righteous”

Muslims in a foreign country should work together, within the established system to better their position as long as they do not get so carried away that they sacrifice a core pillar to their religion.

We must present Islam in our own words, in the most tactful way possible so that we gain the interest and respect of those around us.