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Published in the 1-15 May 2004 print edition of MG; send me the print edition

ISLAMIC PERSPECTIVES
Fiqh of minorities - i
By Taha Jabir Alalwani

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

Aqalliyyat (i.e., “minorities” in Arabic) is a current political term signifying groups of citizens of a state who differ in race, language, culture or religion from the majority of the population. Fiqh Al-Aqalliyyat, or Fiqh of minorities, is based on 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. Such a 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-Aqalliyyat 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 re-work the question to deal with the core issue involved. When the people asked the Prophet (pbuh) 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 re-worked 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 supportive, but is not at this time interested in converting. The woman was told immediately after converting that she must 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 of Islam”?

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 but Muslims enjoy the right to propagate their religion. With this information the question must be re-worked 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 its policies in favour 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, rather an obligation on the part of the Muslim community, to get involved as long as they are not forced to sacrifice their integrity or religion. For the community it would be considered a type of jihad. If a particular member of the community feels him-/herself to be too weak in religion then there is no harm if that person does not directly participate in government.

Example 3:
A questioner asks: “If a Muslim sees the new moon of 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 re-worked 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 Prophet Muhammed (pbuh) 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 Ahkam (rules) are permissible with the change in times’. 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 (pbuh) first forbade from visiting cemeteries but allowed it later saying, “Earlier, I forbade you from visiting cemeteries. You may visit them for they remind you of the Hereafter.” The reason is that there were some bad pagan customs surrounding cemeteries, and he wanted to distance his people from them. After a time when Muslims were stronger in their Iman the restriction was no longer necessary and therefore 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 made to the rulings of the Prophet, because the circumstances had changed.

We should also keep in mind about early jurists rulings that many early scholars did not thoroughly document how they arrived at a certain ruling. Many mistakes are found in historical books on Fiqh because the jurists in those times did not always have access to all the relevant material. It has been only recently that jurists are able to make computer searches to speed up research on issues and all books may be made available anywhere in the world.
Earlier Muslims were not under conditions which would force them 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 did not 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 did not 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 their intent will inevitably cause us to become like the people of “Al-Baqarah”.

(Continued)

See also: Fiqh of minorities - ii  

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