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Understanding Fiqh of Muslim Minorities

By Sheikh Abdullah ibn Bayyah

Deputy President of the International Union of Muslim Scholars

Fiqh of Muslim minorities is denied by some people while others take it


beyond its limits. Thus, this is a field in which to seek moderation as it
needs to establish its foundations. The foundations of the fiqh of
Muslim minorities can be divided into objectives and rules.

The objectives are:

First, a general objective, which is to preserve the religious life of the


Muslim minority on both individual and community levels.

Second, spreading Islam among the majority of the population.

Third, establishing the basis of the relation with the other amid the
cultural and international status quo in order to find a state of mutual
trust and acceptance, a matter which may not be confined to the case
of Muslim minorities due to the international situation.

Fourth, establishing the communal fiqh in the life of Muslim


minorities; that is, moving from individuality to collectivity.

As for the rules:

First, it is not meant to reinvent new jurisprudential or juristic rules.


This means rather to focus while searching on the rules existing in our
jurisprudential and juristic heritage which are closer to the status quo
of the minorities so as to re-examine it and to discover the possibilities
of dealing with the situations of the minorities.

Like other branches of fiqh, the fiqh of Muslim minorities refers to the
two sources of shari`ah; namely, the Qur'an and the Sunnah.

But with regard to the details, it refers to the universals of the


shari`ah that requires removing hardship, applying the rulings of
necessity, taking into consideration the widespread cases in both acts
of worship and transactions, considering the change of place equal to
the change of time, warding off evils, inclining to the lesser of two
evils which some people call the fiqh of balancing and the
consideration of the considerable public interests not the
inconsiderable one.

The shari`ah is based on wisdom and on achieving peoples interests


in this world and in the hereafter, as ibn al-Qayyim said in I`lam al-
Muwaqqi`een.

The shari`ah has attested to the genus of these universal principles in


innumerable texts.

Second, the fiqh of Muslim minorities refers to particular texts that


apply to issues found in the countries of minorities and shared by the
Muslim majorities.

Ijtihad seeks to give preponderance either on selective or


innovative basis.
Third, the fiqh of Muslim minorities refers to a particular principle
adopted by some scholars who consider the situation of Muslims who
live in non-Muslim lands as a reason to drop some of the shari`ah
rulings. This is known as the issue of the abode, which we call the
ruling of the place.

This position is reported on the authority Amr ibn al-`As, a Companion


of the Prophet (peace and blessings be upon him), and on the
authority of some scholars such as al-Nakh`iy, al-Thawry, Abu Hanifah,
Muhammad, Ahmad, according to one narration, and `Abd al-Malik ibn
Habeeb, a Malikite scholar.

This is based on some hadiths such as the prohibition of executing


penalties on non-Muslim lands. Abu Dawoud, At-Tirmidhi, and Ahmad
reported with a strong chain of narrators Hands shall not be cut off
while being in a state of travelling.

Based on these principles, on universal and particular evidences, and


on the opinions of the people of knowledge, ijtihad seeks to give
preponderance either on selective or innovative basis.

Personally I prefer the first kind and dare not adopt the second except
on the basis of ramifying from a previous scholarly opinion; because in
the first kind one chooses from among the opinions of the scholars to
achieve an interest that requires this choice or to keep away an evil
that may result from the application of the other abandoned opinion.

To be more precise, ijtihad here has three kinds:

1. New ijtihad in order to bring about new opinion concerning new


issues by using the process of analogy with the rulings stated in the
Qur'an and the Sunnah.

2. There is also ijtihad that is concerned with the proper application of


ruling to the case. This kind of ijtihad never ceases, as Ash-Shatibi
said, because it is concerned with the application of an agreed upon
rule to a new status quo. This kind is not like the first one which only
the mujtahidun (practitioners of ijtihad) can assume. Rather, both the
mujtahid and the muqalled (imitator) are equal in this regard.

3. As for the third kind, it is ijtihad to give preponderance to one


juristic position. This position could be non-preponderant at some time
due to the weakness, not the nonexistence, of its bases. Thus,
scholars choose it for an interest that requires this choice. This is what
is called by the Malikites as the running practice.

Thus, handling these three kinds of ijtihad should be in the light of the
three aspects that govern the process of fatwa; namely, the status quo
of the Muslim minorities, the universal evidence, and the particular
evidence.

Muslim minorities face stubborn challenges on the level of the


individual who lives in an environment which has its material
philosophy.
From all this, the fatwa comes up amid dialectic, interrelations,
integration, and interaction that result in balancing between the
evidence and the status quo that enables the jurist to regulate the
fatwa and see the ruling through the rank of need, the rank of
evidence, and the rank of issuing the ruling and also through balancing
between the universal and the particular.

This is a subtle sort of treatment where neither of them could be


neglected. Rather, each of them should be duly considered when
forming the ruling.

Therefore, the Malikites have set what they called the intermediary
rule according to which when there is one issue that has two aspects,
two different rulings should be given due to the presence of two pieces
of evidence.

You will see these kinds of ijtihad through observing the situation of
Muslim minorities with regard to their marriages, financial
transactions, food and clothes habits, dealing with people, offering
congratulations in times of joy and condolences in times sadness,
participating in political parties, nominations, elections, etc.

Life in the US and Objectives of


Shari`ah
Muslim minorities face stubborn challenges on the level of the
individual who lives in an environment which has its material
philosophy where there is no room for religious motives and on the
level of the family that attempts to keep together in a society where
familial ties have broken and the relation between the two spouses
and between the parents and their children has no longer become
founded on positive guardianship.

As for the level of the minor Muslim community that dwells among
these societies, they are scattered, unregulated, and uncollected. The
challenges face also the creed in the sense of being a Muslim who
believes in Allah, His Angels, His Books, and His Messengers, whether
according to the methodology of the Ash`arites, the Salafites, the
Mu`tazilites or the like methods of interpretations that confuse
laypeople.

Perhaps the article of faith written by Muhammad ibn Abu Zayd al-
Qayrawaniy in the introduction of his treatise, which has reference in
the texts of the Qur'an and the Sunnah that are beyond controversy, is
the best thing Muslims should learn in the lands to which they
migrated owing to its simplicity and its being free from argumentation
and confusion.

This also applies to acts of worship that require the formation of


Muslim groups and Islamic institutions such as mosques, schools, and
centers.

In addition, it applies to the relation with the other and how to find
means of coexistence that keep the Muslim away from melting away in
the other culture and at the same time safeguard him against isolation
and seclusion to be an active member in the society following the suit
of Joseph the Prophet (peace and blessings be upon him) when he said
to Egypts king,

{Appoint me over the treasures of the land. I am a good keeper


and knowledgeable.} (Yusuf 12:55)

All this needs a juristic aptitude to balance between the evidence and
the status quo with piety that is free from hesitation and brevity that is
free from boldness.

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