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Published in the 16-30 Apr 2004 print edition of MG; send me the print edition

Book Review
Towards a Fiqh for Muslim minorities - i

By Yoginder Sikand

Almost half the world’s Muslim population today live as minorities. In some countries, such as India and China, Muslim minorities number in the tens of millions. In addition to these traditional Muslim minorities that have been in existence for centuries, recent decades have witnessed the emergence of thriving Muslim communities in countries that previously have had no significant Muslim presence, such as is the case of several West European states. 

Some of the world’s leading Islamic scholars today are members of Muslim minority communities, and many of them are playing an important role in developing new Islamic perspectives on a range of issues that modernity has forced Muslims to engage with, such as religious pluralism, inter-religious relations, gender justice and politics. However, despite the growing salience of Muslim minorities in shaping global Islamic discourse, the tradition of Islamic jurisprudence (fiqh) has not seriously taken the Muslim minority condition into account. Consequently, leading Islamic scholars, for the most part members of Muslim minority groups themselves, are now calling for new fiqh perspectives that reflect the particular socio-political contexts as well as concerns of Muslim minorities. One such scholar is the US-based Dr. Taha Jabir al-Alwani. Author of numerous books on Islamic law, al-Alwani is a graduate of the renowned al-Azhar University, Cairo. He has served as the President of the International Institute of Islamic Thought, USA, and is currently the president of the Graduate School of Islamic and Social Sciences and the Fiqh Council of North America. 

In his recently published book Towards A Fiqh For Minorities: Some Basic Reflections (International Institute of Islamic Thought, Richmond, UK, 2003), al-Alwani develops a theoretical framework for an Islamic jurisprudence attuned specifically to the contemporary Muslim minority context. Al-Alwani sees this as an urgent necessity, given that the classical Muslim jurisprudents (fuqaha) produced a corpus of law based on the assumption of Muslims being in a majority, hence ignoring the need for a systematic formulation of the status of Muslims as minorities. Al-Alwani writes that the medieval fuqaha typically regarded the Muslim minority condition as ‘casual’ and ‘transient’, and hence it did not merit their attention. Accordingly, the rules that they formulated for Muslim minorities through their fatwas were ‘restricted’ and ‘isolated’, and the body of laws that they formulated for such communities was regarded simply as the ‘fiqh of crises’ or ‘emergency’.

Al-Alwani sees the attacks of 11 September, 2001, as constituting a crucial defining moment for Muslim minorities, particularly those living in the West, and as necessitating new fiqh formulations for these communities. He writes that the attacks led to a surge of anti-Muslim sentiment, while at the same time also occasioning a sudden growth in interest in Islam among ordinary Americans. On the whole, however, considerable misunderstanding about Islam continues to exist and flourish. Al-Alwani refers to Islamophobic Western writers who refer to classical works of fiqh, randomly selecting passages in order to deliberately create the impression of Islam being synonymous with terror, hatred of adherents of other faiths, oppression of women and so on. In short, these writers seem to suggest that Muslim minorities can never be loyal citizens of their countries. To add to this growing crisis facing contemporary Muslim minorities from rapidly escalating Islamophobia is the almost complete absence of appropriate guidance for such communities in the existing works of fiqh. Hence, al-Alwani argues, the need for developing a new fiqh for Muslim minority communities (fiqh al-aqaliyya) has probably never been as urgent as it is today.

Al-Alwani defines ‘fiqh for minorities’ as ‘a specific discipline which takes into account the relationship between the religious ruling and the conditions of the community and the location where it exists’. In this sense, ‘fiqh for minorities’ consists of a contextual application of the rules and principles of the primary sources of Islamic jurisprudence that is rooted in a recognition and appreciation of the particular conditions facing Muslims living as minorities. In developing this project al-Alwani opposes taqlid or the blind imitation of jurisprudential precedent on the grounds that the formulations of the classical fuqaha were a response to vastly different socio-political conditions, and hence are of little or no relevance as far as contemporary Muslim minorities are concerned. The corpus of medieval fiqh, he says, ‘was associated with the historic circumstances in which it was developed’. Being a product of its own time, it can hardly be applied in the vastly different social context of today. New perspectives on a range of old as well as new issues are urgently required, he says, for which ijtihad is indispensable. This does not mean that the entire corpus of medieval fiqh is, from today’s point of view, wholly irrelevant. al-Alwani suggests that while it can no longer be blindly followed, it must be closely studied, in order to discern the principles on which it is based, which, in turn, would provide contemporary jurists with the necessary skills to respond to issues of present-day import. In al-Alwani’s words, ‘The aim should not be to apply the old fatwas literally, but to use them as a guide, learning how to obtain the original principles […] from which earlier jurists derived and articulated them’.

A sensitive appreciation of the social context, al-Alwani writes, is indispensable in order to develop new fiqh responses to issues relating to Muslim minorities. Fuqaha providing Islamically appropriate answers to specific questions related to Muslim minorities in the form of fatwas must carefully examine the wider social context in which these questions emerge, as well as the social implications of implementing these fatwas. Furthermore, al-Alwani says, the fatwas should be guided not by a literalist reading of the sources of law, but, instead, should be shaped by the broader aims of the shari‘ah (maqasid al-shari‘ah), Islam’s missionary imperative as well as by the recognition of the fact that the shari‘ah ‘permits all that is clean and wholesome and forbids what is harmful’, and hence is ‘aimed at making life easier and more convenient’. The jurist must constantly remember that ‘the fulfillment of religious obligations is concomitant upon human ability’, and that everything is permissible unless specifically and categorically forbidden in the Qur’an and the authentic Prophetic traditions. 

The ‘fiqh for minorities’ project that al-Alwani seeks to develop is also aimed at reviving the dynamism of Islamic jurisprudence. This is related to al-Alwani’s critique of taqlid and his call for ijtihad and the use of critical reason. al-Alwani makes a clear distinction between the divine shari‘ah, on the one hand, and fiqh, on the other, which he recognizes as a human product. He marshals historical evidence to back his plea for fiqh formulations for Muslim minorities that might depart from the classical model. He writes that many classical jurists were themselves flexible in matters of several issues, changing them according to changing situations and conditions. Several jurists also differed with their teachers on certain matters on the grounds that the social conditions had changed. He even quotes the Prophet to legitimize his call for jurisprudential dynamism. He cites the example of the Prophet having initially advised his followers against visiting graveyards but later having permitted it. Likewise, the Prophet’s companions, and their successors, too, are said to have changed their opinions on a range of issues of legal import in the face of new conditions. Thus, for instance, while the Prophet provided new converts a share in the zakah collection, ‘Umar, the second caliph of the Sunnis, annulled this rule. ‘Umar is said to have forgone the shari‘ah penalty of amputating the hands of thieves during a drought. He is also said to have discouraged Muslim men from marrying Jewish and Christian women, although this was allowed for by the Qur’an. All this was probably done as a response to changing conditions, motivated by a desire to best approximate the ‘aims of the shari‘ah’ in the changed context, which might have necessitated new rules. Although al-Alwani does not spell this out explicitly, this discussion suggests that he quite possibly considers the fact of Muslims being in a minority in a particular country as requiring that the rules of fiqh be modified to suit their particular context, and to be different in certain key respects from laws that ought to be enforced in a Muslim majority state. 
(Continued in the next issue)

Part 2: Towards a Fiqh for Muslim minorities - i i

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