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Juristic Discourse for Muslim Minorities Towards Studying the Distinctive Features of Fiqh of Minorities
 By Dr. Wael Shihab
Introduction
In July 2011, the International Union for Muslim Scholars (IUMS) organized a significant international conference in Cairo to discuss “Features of Islamic Discourse”. The conference is attended by a galaxy of world and azharite scholars and representatives of Islamic movements including Dr. Hasan ash-Shafi`i, who represented the Grand Imam of al-Azhar, Dr. `Ali al-Qara Daghi, Secretary General of the IUMS, Dr. `Essam al-Bashir, Dr. Muhammad `Emarah, Dr. Muhammad al-Mukhtar al-Mahdi, and many others. The conference is headed by Dr. Yusuf al-Qaradawi, Head of the IUMS, and sponsored by his eminence Dr. Ahmad at-Tayyib, Grand Imam of al-Azhar.
The conference covered important topics, among which were da`wah discourse, fiqhidiscourse, women, etc.
Owing to my interest in studying and writing about Muslim minorities, I presented a paper to the conference entitled “Features of Juristic Discourse for Muslim Minorities”. The paper aimed at studying the contemporary juristic discourse for Muslim minorities and laying down maxims and ethics that discipline and guide it in order to secure the legal benefits of Muslim communities. In the following lines, I would outline the in-depth Arabic paper I presented to the conference hoping that concerned imams, researchers, and scholars would further discuss and raise awareness regarding the points the paper dealt with.
Defining “Muslim Minorities”
The term “minorities” has become common in the modern time owing many reasons, among which are the increasing immigrations between countries. The concept “minority” applies to any human group in a country that is distinct from the majority of its population in religion, sect, race, language, etc., from the basics that differentiate human groups from each other.[1]
As for the concept of “Muslim Minorities”, it applies to-
- Minorities in number of people such as the Muslim minorities in Europe, America, India, China and others, and these may be native Muslims of the country or immigrants.
- Minorities in the legal rights because of persecution and/or discrimination, where Muslims are living in conditions far worse than Muslims living in the West.[2]
Muslim Minorities Vs. Majorities
Some people may raise some significant questions such as: are there particular juristic maxims and rulings for Muslim minorities? Does the Islamic/juristic discourse change from time to time or from place to another? Isn’t Islamic law one and the same for all?
It is very important to make it clear that Muslim minorities face peculiar problems, challenges, and hardships that majorities may not encounter. Some Muslim minorities, in the West or the East, face considerable difficulties in performing the daily prayers, fasting in the month of Ramadan, raising their children on the ethics and morals of Islam, etc.
Early Muslim scholars agreed on the principle that fatwas may change according to changes in times, places, customs, and conditions. Sheikh Qaradawi has added six factors to these four, among which are change in people’s needs, social conditions, economic situations, etc.[3]
Therefore, it is valid to argue that Muslim minorities are in need of particular juristic discourse that best suits their conditions, legal situations, social affairs, economic challenges, etc.
Features of Juristic Discourse for Muslim Minorities
To achieve the objectives of shari`ah, juristic discourse for Muslim minorities should consider some principles and maxims. Imams and juristic councils should give due attention to these principles so as to secure the valid benefits of Muslim communities living in Europe, USA, or elsewhere.
It goes without saying that juristic discourse, for minorities or majorities, should be founded on and be in full harmony with the main springs of Islam, namely the Qur’an and the sunnah. The principles that will be explored in the following lines are meant to discipline and guide the fiqhi discourse for Muslim minorities in order to be in line with the Qur’an and the Sunnah, as far as I understand them, and to help Muslims live Islam as much as they can.
Below are the main futures of the fiqhi discourse for Muslim minorities:
1. Ease and Removal of Undue Hardship
Islamic shari`ah, per se, is characterized by ease and removal of undue hardship. Allah Almighty says, "He (Allah) did not place any constraint on you in the din,"[4]and “Allah desires ease for you; He does not desire difficulty for you”[5]. Thesunnah also confirms that “whenever the Prophet had to choose between two options, he always opted for the easier choice as long as it is not a sin.”[6]
When ease and removal of undue hardship are to be generally applied and sought by Islamic discourse, they are more required in case of Muslim minorities who live in tough conditions and face extreme challenges that threaten their Muslim identity and even presence.
An example of the fatwas that consider ease and removal of undue hardship is the concession of combining maghrib and `isha’ prayers due to the extremely late entrance of `isha’ time or the disappearance of its legal signs in some European countries. In this regard, the European Council for Fatwa and Research (ECFR) has issued the following fatwa:
The Council concluded that it is permitted to combine these two prayers (maghrib and `isha’) in Europe during Summer when `isha’ enters around midnight, or the signs of `isha’ disappear totally, so that Muslims do not face difficulty which was lifted from upon them by virtue of the Holy Qur’an. This permission is also due to the hadith of ibn `Abbas in Sahih Muslim: “The Prophet, peace be upon him, combined the zuhr and `asr prayers and maghriband `isha’ prayers when he was not in a state of danger and when there was no rain. Ibn `Abbas was asked: Why did he do so? He replied: He wanted to lift the difficulty from upon his Ummah”[7].
In the same respect, it is also permitted for a Muslim to combine zuhr and `asrprayers in these countries during winter when the day is very short and it becomes increasingly difficult for employees to pray each in its own time. The Council, however, warns Muslims against combining the said prayers without the actual need to and against making this permission a constant habit.[8]
2. Unity of Community Members
Unity of the members of Muslim communities, particularly those who live as minorities, should be given due consideration by scholars and imams in their juristic discourse. Muslims’ unity is a religious obligation and life necessity. Though Islam, the true religion of Allah, accepts ikhtilaf (juristic disagreements) in the far`i(secondary) issues of shari`ah, it makes the unity of the Muslim community a must, which should be observed. This fact is evident in the Glorious Qur’an and the purified sunnah of the Prophet (peace and blessings of Allah be upon him). In the Qur’an, Allah, Most High, addresses the believers, saying: “O you who believe fear Allah, as He should be feared, and die not except in a state of Islam. And holdfast, all together, by the rope which Allah (stretches out for you), and be not divided among yourselves.”[9]
Also, in the sunnah we read the following hadith:
Whoever forsakes the jama`ah (Muslim community)… and dies (in that state), will die in the way of jahiliyyah (pre-Islam era).[10]
Given the above, juristic discourse should aim at unifying members of the Muslim community as much as possible. For instance, in issues such as the start and end of fasting and `eid celebrations, members of the community should be united. Five years ago, I have been to the USA to spend Ramadan with the Northern Nevada Muslim Community (NNMC), where members of the community asked me whether to follow the ISNA decision regarding the start of Ramadan or to follow other different Muslim countries. I replied them that it is their duty to be united over the beginning and end of Ramadan in order to secure the public interest of the community. In this regard, sheikh Qaradawi states:
We should be keen and strive to achieve the unity of Muslims regarding the beginning and end of fasting and all other rituals. We should not lose hope in achieving this goal or removing the obstacles in its way.
However, it is to be stressed that anyhow if we fail to achieve the unity of the whole Muslim nation, we should at least be keen to achieve the unity of Muslims in each country. It is not acceptable at all that Muslims of the one country or city be divided among themselves and differ regarding the beginning of the fast so that some of them start fasting on one day while the others do not observe the fast on that day.
It is agreed upon that the decision of the ruler or the people in authority and charge of Muslims affairs lifts the differences in disputable matters. Therefore, if the authority in charge of ascertaining the sighting of the moon in a given country (such as Dar al-Iftaa [House of Fatwa], Supreme Court, or Presidency of Religious Affairs) announces the sighting of the new moon, then Muslims in such region should follow its decisions, as it is obedience in goodness even if the decision differs with other countries.[11]
3. Realization of People’s Conditions and Customs
As stated above, a fatwa may change owing to various conditions, circumstances, cultures, and customs of people. A juristic discourse for Muslim minorities, in particular, should be aware of people’s complicated conditions, customs, needs, etc.
In his I`lam al-Muwaq`in `an Rabb al-`Ålamin, Ibn al-Qayyim al-Jawziyyah (d. 751 AH) makes it clear that a mufti cannot issue a fatwa regarding an issue without understanding the surrounding circumstances of the questioner, saying:
A mufti or a ruler cannot issue a fatwa or give a right verdict without two types of understanding:
First, understanding the surrounding conditions and circumstances.
Second, understanding what is applicable on such conditions and circumstance from Allah’s commands in His Book or in His Prophet’s sayings.[12]
4. Consideration of Prevailing Laws
A mufti should be aware of and consider the prevailing laws that are applicable on Muslim minorities. Members of the Muslim community should respect the laws and legal regulations of the countries they are living in.
In this regard, the European Council for Fatwa and Research issued the following resolution:
The Council encourages the Muslim community in Europe to exercise every possible effort to secure recognition for Islam. Muslims are also encouraged to seek their rights to arrange their affairs in compliance with their faith. For this very reason, the Council urges Muslims in the West to establish judicial bodies to preside over their personal status and religious affairs. Due respect, however, should be paid to the host European nations' laws and regulations.
Laws and regulations of the hosting countries should be abided by since these countries have been in fact providing shelter, protection and sustenance to all those who live on their lands. Allah (SWT) says: "Is there any Reward for Good other than Good" (55:60).[13]
Here, I would like to refer, as an example, to the question of polygamy in some western countries that criminalize it. Muslims living in such countries should not violate the laws. Though Islam allows polygamy in some cases, Muslims living in countries that ban polygamy should respect and abide by the law. They may resort to legal channels, with cooperation with other faith communities, to ask for laws that consider particular religious values and teachings.
5. Concern about Public Interest of the Community
Public interest of the community takes precedence over individuals’ or private interests. Juristic discourse for Muslim minorities, in particular, should be keen to secure the public benefits of the community in the light of fiqh (understanding) of priorities and balance of harms and benefits.
When facing a public problem, imams or community scholars should spare no efforts to reach solutions that are compatible with shari`ah and secure the public and greater benefits of the community. Imams, therefore, should be well aware of the principles and maxims of fiqh of priorities. Among the well-established values of fiqhof priorities are “the interest of the community takes precedence over the interests of the individuals” and “the permanent benefit takes priority over the temporal one.”
This is in no way means that private or individuals’ interests are disregarded. Rather, it indicates the significance and priority of the public benefits, which is usually greater, over the private one. In the Islamic shari`ah, both private and public interests are considered and given due attention.
Imam al-Ghazali (d. 505 AH) unequivocally affirms the principle that shari`ah gives priority to the public general interests over the partial ones, saying,
We certainly know that shari`ah does give precedence for protecting and securing the kulli (public [interests]) over the juz'i (partial [benefits]).[14]
6. Clearness and Simplicity
Juristic discourse for Muslim minorities, in particular, should be clear, simple, and convincing. It is not acceptable for a mufti or an imam to approach people though vague, unclear, complicated, or unconvincing talks, fatwas, or writings. The essential objective of juristic discourse, which is to convey shari`ah values and teachings to people, could not be attained except through clear and convincing discourse.
Moreover, imams and muftis should communicate with members of the community in the latter’s languages in order to maintain mutual understanding and clearness. The Glorious Qur’an says, “And We never sent a messenger save with the language of his people, that he might make (the message) clear for them.”[15]
The above Qur’anic verse clearly indicates that divine messages should be conveyed in the languages of the audience. Therefore, scholars and juristic councils in Europe, USA, and elsewhere should address people in their own languages. This duty is afard kifaiyyah (communal obligation) that all members of the Muslim ummah will be sinful if no one, or no group, sufficiently carried it out. It is not acceptable to address in Arabic people who don’t know Arabic. Ibn al-Qayyim says,
A mufti is not allowed to perplex or disturb the questioner’s mind. Rather, a mufti should present his fatwa in a way that is not complicated and does clearly introduce its meaning.[16]
Concluding Remarks
In conclusion, I would like emphasize the necessity of training imams and scholars who communicate with and approach Muslims living in minorities on the peculiar features of fiqh of minorities. Juristic councils that address Muslim minorities should pay due attention to shari`ah-based principles and maxims that secure people’s valid benefits and meet their particular needs.
Islamic shari`ah is distinguished by its applicability to all times and places. It is all about mercy, justice, peace, and wellbeing. That is because it is “based on wisdom and consideration of people’s interests both in this world and the world to come. It is all about justice, mercy, and welfare. Therefore, any case that brings about injustice, cruelty, evil, and disorder is not of shari`ah, even if some people may interpret it to be so; shari`ah signifies Allah’s mercy and justice among His servants. Shari`ahreflects Allah’s wisdom, which does prove, beyond any shadow of doubt, His existence and the truthfulness of His Messengers.”[17]
Notes:
[1] See Yusuf Al-Qaradawi, Fi Fiqh al-Qaliyyat al-Muslimah (Cairo: Dar ash-Shuruq, 2001), p. 15.
[2] See Ibid, Fiqh al-Qaliyyat, pp. 16-20; Salah Sultan, Ad-Dwabit al-Manhajiyyah li Fiqh al-Qaliyyat, http://www.salahsoltan.com/future-scientists/865--1.html, 10-7-2011.
[3] See ibn al-Qayyim al-Jawziyyah, I`lam al-Muwaq`in `an Rabb al-`Ålamin, 4 vols., ed. Ta-ha `abder-Ra’uf Sa`ad (Cairo: Maktabat al-Kuliyyat al-Azhariyyah, 1388 AH – 1968 AC), 3: pp. 3ff ; Al-Qaradawi, Mujibat Taghur al-Fatwa fi `Asrina (Doha: International Union for Muslim Scholars, 2007), pp. 10-11.
[4] Qur’an, surat al-Hajj, verse no. 78.
[5] Qur’an, surat al-Baqarah, verse no. 185.
[6] Reported by Muslim in his Sahih, hadith No. 6047.
[7] Ibid, hadith No.705.
[8] Fatwas of the European Council for Fatwa and Research, translated by Anas Osama Altikriti and Shakir Nasif Al-Ubaydi (Cairo, Islamic Inc. Publishing and Distribution, 2002), pp. 17-18.
[9] Qur’an, surat Al `Imran, verses 102-103.
[10] Agreed upon hadith, on the authority of ibn `Umar.
[11] Yusuf Al-Qaradawi, “Ramadan & Unity of the Muslim Community”,http://www.onislam.net/english/ask-the-scholar/acts-of-worship/fasting/start-and-end-of-ramadan/169000-ramadan-aamp-unity-of-the-muslim-community.html?End_of_Ramadan=, September 25, 2011.
[12] Ibn al-Qayyim al-Jawziyyah, I`lam al-Muwaq`in `an Rabb al-`Ålamin, 7 vols., ed. abu `Ubaydah Mash-hur ibn Hasan Al Salman and abu `Umar Ahmad `abd Allah Ahmad (Ad-Damamm: Dar ibn al-Jawzi, 1423 AH), 1: pp. 95-96.
[13] Fatwas of the European Council, pp. 11-12.
[14] Abu Hamid Al-Ghazali, al-Mustasfa min `Im al-Usul, 2 vols. (n.p., Dar al-Fikr li at-Tiba`ah wa an-Nashr wa at-Tawzi`, n.d.), 1: p. 303.
[15] Qur’an, surat Ibrahim, verse no. 4.
[16] Ibn al-Qayyim, I`lam al-Muwaq`in, 4: p. 194.
[17] Ibid, 4: p. 337.
Dr. Wael Shihab has a PhD in Islamic Studies from Al-Azhar University and is the Ex-Head of the Fatwa Unit at the English web site of IslamOnline.net. He is currently the Shari`ah Consultant of the Shari`ah Dept. of Onislam.net website.
Source: onislam.net
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