Sharī’a and Muslim Minorities: The wasaṭī and salafī approaches to fiqh al-aqalliyyāt al-Muslima

SHARIA AND MUSLIM MINORITIES PDF
  • Book Title:
 Sharia And Muslim Minorities
  • Book Author:
Uriya Shavit
  • Total Pages
313
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SHARIA AND MUSLIM MINORITIES – Book sample

Introduction to Sharia and Muslim Minorities

The introduction presents the main theses of the book, its structure, and the corpus studied. It also includes a critical review of the existing academic literature in the field.

The hijra, or migration, constitutes the defining moment in Muslim history. It marks the beginning of the Muslim calendar and the crossroads between persecution and ascendance. The Prophet Muḥammad was forced to leave his hometown of Mecca in AD 622 with a group of several dozen supporters and settle in a new territory, Yathrib, which he renamed al-Madīna and from where he continued to spread Allah’s final message.

Throughout Muslim history, both before and after the hijra, there have been numerous instances of Muslims residing under non-Islamic rule: the migration of some one hundred Muslims to Ethiopia in 615–16, where they found shelter under a Christian king; the continued presence of some Muslims in Mecca after the Prophet established a new community in al-Madīna; and periods where millions of Muslims resided in lands that were occupied as a result of Christian military campaigns, from the Reconquista to modern imperialism.

While migration constitutes the formative myth of Islam, and while the condition of Muslims living as a minority is not a novelty in Islamic history, the movement of millions of Muslims to Western lands since the end of the Second World War presented jurists with a new conceptual challenge. The Muslims who migrated to Ethiopia did so when no Muslim state existed and with the blessing of the Prophet. The hijra led by the Prophet transferred believers from one infidel society to another, where their prospects were better.

The Muslims who remained in Mecca after the hijra were natives of the town and had the Prophet’s consent. Muslims who continued to live under Christian occupiers clung to ancestral lands and some had no alternative but to stay put. Post-Second World War migration to the West was the first time in history in which masses of (p.2) Muslims voluntarily and individually left Muslim lands and settled in non-Muslim lands, in most cases for the purpose of improving their economic situation.

Thus, their choice created an unprecedented theological- juristic challenge of legitimacy.

Adding to this fundamental difficulty were those migrants’ encounters with numerous modern and post-modern norms that appeared to conflict with Islamic norms. These ranged from the permissibility of naturalization in secular Western states to that of celebrating Valentine’s Day, to that of eschewing fasting during Ramaḍān to pursue careers as professional athletes.

 Some religio-juristic difficulties resulted from attacks on multiculturalism and from anti-Muslim sentiments that proliferated in the West, particularly during the 2000s. Some resulted from cultural divides between integrated second-generation Muslim migrants and the first generation.

Still other challenges resulted from financial hardships encountered by Muslims in the West, many of who came from modest backgrounds. Westerners who converted, or considered converting to Islam, also generated new and complicated opportunities and hurdles.

The field of jurisprudence that examines the legitimacy of voluntary, modern migration to and residence in non-Muslim societies and addresses specific, everyday challenges that Muslim minorities confront is called fiqh al-aqalliyyāt al- Muslima. This field draws from the religio-juristic heritage that developed in relation to previous minority conditions while struggling to resolve dilemmas that have not been treated by jurists of the past.

Based on a comparative analysis of several thousand religio- juristic treatises and fatwās, this book examines the origins, evolution, ideologies, methodologies, and fatwās of two preeminent and contesting contemporary approaches to fiqh al-aqalliyyāt al-Muslima—the wasaī, associated with al-Azhar graduates, led by the Egyptian Qatar-based Yūsuf al-Qaraḍāwī and institutionalized through the Dublin-based European Council for Fatwa and Research, and the salafī, associated with Saudi Arabiaʼs religious establishment, led by the late ‘Abd al-‘Azīz b. ‘Abdallāh b. Bāz and the late Muḥammad b. Ṣāliḥ al-‘Uthaymīn, and promoted in the West through dozens of loosely connected and at times rival associations, publishers, and mosques.

The main thesis of the book is that the wasaī and salafī approaches to the religious law of Muslim minorities constitute extensions of the competing ideologies and methodologies that wasaīs and salafīs promote in contemporary majority Muslim societies and reflect, in a dialectic manner in some cases, the general disagreements and disputes between these approaches.

Because some challenges Muslim minorities encounter are uniquely complicated and unprecedented, the treatment of these challenges by wasaī and salafī jurists is instructive in measuring the extent of the flexibility and creativity allowed by the two approaches and how they balance between conflicting objectives and ambitions.

Both wasaīs and salafīs primarily legitimize Muslim residence in non-Muslim societies by considering Muslim residence as a means to proselytize  and bring about the eventual Islamization of the West. Yet, wasaīs accept other justifications and suggest that Muslims are not only allowed but should be encouraged to create a permanent presence in Western lands, while salafī legitimizations are more reluctant and narrow. Wasaī fiqh al- aqalliyyāt al-Muslima connects two ideological objectives that are central also to the general wasaī approach: al-taysīr fī al- fatwā wal-tabshīr fī al-da‘wa, or facilitation in issuing religious laws and proselytizing by gentle means and in a gradualist manner.

To promote these objectives wasaīs broadly apply malaa (safeguarding primary objectives of the sharī‘a) and cross-searching within and beyond the four schools of law. The most significant innovation of wasaī fiqh al-aqalliyyāt al- Muslima is its regard of da‘wa as a malaa that justifies radical accommodations of religious laws. In contrast, salafīs argue that neither the unique difficulties that individual Muslims encounter in non-Muslim societies nor the prospect of converting non-Muslims to Islam justifies adjustments of religious laws.

 Drawing from their general approach, salafīs stress the necessity of strict, steadfast adherence to Allahʼs laws, as they interpret them, regardless of geographic location or any individual hardships experienced. Salafī opinions rely heavily on their conceptualization of al-walā’ wal-barā’

(loyalty and disavowal), which prohibits extending loyalty or friendship to infidels as well as imitating them. However, coinciding with their general approach, salafīs demonstrate a measure of flexibility when treating the relationship of Muslim minorities with state institutions.

 The competing agendas promulgated by wasaīs and salafīs resulted in the evolution of two corpuses of fatwās for Muslim minorities that sharply differ on several vital issues. Salafīs vehemently reject wasaī conditional legitimizations of mortgages, continuation of marriages between female converts and non-Muslim husbands, receiving the inheritance of non-Muslim parents, greeting Christians on their holidays, breaking the Ramaḍān fast to pursue a career, serving in military forces that fight against Muslims, and taking off the ijāb when required by law. On other issues, including naturalization and electoral participation, wasaīs and some salafīs have found more common ground between their respective approaches.

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The majority of Muslim minorities live in non-Western lands. In India alone, the number of Muslims is larger than the total number of Muslims in Western countries. Wasaīs and salafīs have not directed their views of fiqh al-aqalliyyāt al-Muslima exclusively to Muslims living in the West. Nevertheless, the focus of their theorizing on the general permissibility of living in a non-Muslim country, as demonstrated by a majority of their fatwās, is the Muslims of the West. Several reasons explain this focus.

 First, wasaīs and salafīs are preoccupied with the West. Indeed, they consider it to be the greatest threat to the future of Islam; an economically, scientifically, and technologically advanced civilization that presently leads the world and cannot be ignored, and a sum of negative moral values that is decaying and will eventually collapse and embrace Islam.

Thus, the future of Muslims in Western Europe and North America is of the greatest interest to them. Second, voluntary migration (rather than residence under non-Muslim occupiers) and the doubts regarding its permissibility led to the formulation of wasaī and salafī conceptualizations of fiqh al-aqalliyyāt al-Muslima. At present, the majority of voluntary Muslim migrants live in the West. Third, while the wasaī and salafī corpuses on fiqh al-aqalliyyāt al-Muslima were not composed exclusively by Arabs, a majority of the jurists who were involved in their composition were Arab jurists based in the Arab world or in Western countries, who focused on the concerns of Muslims originating from Arab countries and residing in the West.

While the corpuses studied in this book are profoundly important to a minority of Muslims in the West, they should in no way be confused as  affecting the majority. As noted by March, “the downside of focusing on this discourse [fiqh al- aqalliyyāt al-Muslima] is that it runs the risk of privileging and overemphasizing the contributions of scholars in the Arab world at the expense of the quotidian practices and attitudes of Muslims actually living under Western secularism.”1

Sharī‘a, to quote Mathias Rohe, does not affect the lives of a majority of Muslims living in the West, who “simply accept the prevailing secular legal and social frameworks without reflection.”2 Tariq Ramadan, a Swiss-based Muslim political philosopher and a prolific theorist and commentator on Islam in the West, estimated that most Muslim Westerners—some 75 to 80 percent—“do not practice their religion regularly and experience no specific ‘religiousʼ problems in their daily lives.”3

 Patterns of behavior that are at times spontaneously identified by observers as being based on the systematic internalization by individuals of a set, or sets, of shar‘ī norms—for example, certain dress-codes—often reflect a more general and sporadic desire to incorporate traditions without considering religious law a binding or exclusive framework.

Furthermore, Muslims who do strive to regulate their lives based on Islamic law as an exclusive framework do not necessarily abide by wasaī or salafī

interpretations; they may not even be aware of the existence of these distinct corpuses. And, as will be demonstrated in this book, even in the cases of those who do demonstrate a preference for one of the two approaches, fatwās are not distributed through hierarchical processes; rather, they are subject to debates and negotiations, which are sometimes ongoing. Thus, while jurists from the two approaches speak in the name of Islam, their efforts should not be confused as representing Muslims in the West.

While it is a relatively new field, various aspects of fiqh al- aqalliyyāt al-Muslima, primarily its wasaī articulations, have been analyzed by a number of scholars. These include Wasif Shadid and Sjoerd van Koningsveld, who were among the first to survey contemporary conceptualizations  of the legitimacy of Muslim presence in the West by Muslim jurists, as well as a range of fatwās predominantly pertaining to the relations between Muslim minorities and their state institutions;4 Alexandre Caeiro, who offered the most detailed studies on the ideology, methodology, mechanisms of operation, and demographic composition of the European Council for Fatwa and Research, as well as analyzed in depth a number of the Councilʼs decisions;5 Andrew March, who analyzed juristic deliberations, primarily wasaī, on the legitimacy of Muslim residence in non-Muslim lands, and the relations between Muslim minorities and non-Muslim societies and state institutions, and reflected on their ethical implications;6 Shammai Fishman, who analyzed fiqh al- aqalliyyāt al-Muslima as a combined effort of Ṭaha Jābir

al-‘Alwānī and Yūsuf al-Qaraḍāwī;7 Tauseef Ahmad Parray, who highlighted the criticism of al-‘Alwānī’s and al-Qaraḍāwī’s concept of taysīr;8 Ralph Ghadban, who offered a succinct examination of their conceptualization of fiqh al-aqalliyyāt al- Muslima and  gave attention to their understanding of da‘wa;9 Mathias Rohe, who analyzed several of the early decisions issued by the European Council for Fatwa and Research;10 Yusuf Talal DeLorenzo, who analyzed the operation and a number of decisions issued by the Fiqh

Council of North America;11 and Alan Verskin, who offered a survey (and translations) of religious decisions dealing with the permissibility of residence in non-Muslim lands from the Reconquista to contemporary times.12 A number of studies pointed to the links between the past and the present. Khaled

Abou El Fadl13 and Sami A. Aldeeb Abu-Sahlieh14 identified such links between classic and contemporary decisions on Muslim minorities, while Umar Ryad described those between early modernist and contemporary rulings.15

Studies on fiqh al-aqalliyyāt al-Muslima have either ignored or treated anecdotally salafī fatwās on Muslim minorities, and neglected the dialetics between the wasaī and salafī approaches in this field; neither did they systematically trace the links between developments in the general ideologies and methodologies of wasaiyya and salafiyya and the evolution of their respective approaches to fiqh al-aqalliyyāt al-Muslima.

This bookʼs comparative methodology, drawing on the largest (to date) database of wasaī and salafī fatwās and treatises on theological, social, financial, political, and cultural issues, uncovers a broader spectrum of opinions than previous studies have done, and introduces a number of (p.8) new points to the study of fiqh al-aqalliyyāt al-Muslima, and to the wider study of wasaī and salafī jurisprudence.

The book highlights the potential of determining malaa to accommodate religious laws, and the crucial role competing interpretations and applications of malaa had on the development of distinct approaches to Muslim minoritiesʼ jurisprudence. It demonstrates that the pragmatic and audacious body of fatwās that wasaī jurists issued since the late 1990s on situations pertaining to Muslim minorities was largely enabled by developments that occurred in the general wasaī theory of malaa during the mid-1990s, which were later incorporated in the wasaī doctrine of fiqh al-aqalliyyāt al-Muslima. These developments, staunchly rejected by salafī jurists, include the depiction of facilitation as the essence of Islam, which encouraged wasaīs to search for lenient decisions that accommodate the challenges Muslim minorities face, as well as the elevation of individual needs to the rank of

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necessities and the broadening of the list of primary objectives of the sharī‘a, which made it possible for wasaīs to formulate lenient decisions within a shar‘ī framework. The broadening of the Lawgiver’s objectives led to the most intriguing move on the part of the wasaīs, as its jurists transformed an idea strongly rooted in Muslim jurisprudence—that Muslim presence in the West is permissible if it can promote da‘wa—to a principal objective that legitimizes the suspension of prohibitions.

The vehement salafī opposition to this interpretation of malaa reveals how similar guiding ideological objectives can lead to radically different religio- juristic results. While both approaches legitimize Muslim residence in the West by considering migrants as missionaries, one type of triumphalism legitimizes lenient adjustments of religious laws to the unique challenges Muslim minorities confront while the other, invoking a far narrower approach to malaa, insists on the importance of the universal application of the laws as a way to promote proselytizing.

The sensitivity of the issue is obvious, and, as will be demonstrated in this book, jurists are very conscious of it: any type of justification based on a plan to Islamize the West can be utilized by those who claim that the acceptance of liberal political and judicial systems by devout Muslims is merely tactical, masking their true intentions. March suggested that the (p.9) Islamizing of the West is not “required or necessarily implied by the interest in da‘wa.”16 From a wasaī or salafī point of view (and Marchʼs discussion is broader) this argument is hardly convincing in terms of the ultimate goal envisioned, considering that wasaīs and salafīs are equally confident that Islam is the alternative system that can save the West from its moral decline.

But this book identifies an ironic twist advanced through the wasaī focus on da‘wa, which was largely neglected in previous studies, and equally defends the claim that there is more to proselytizing than an openly declared desire to Islamize the West. Systematically, and on a number of important issues, the elevation of da‘wa to a malaa served (albeit never exclusively) wasaī

jurisprudence as a means to legitimize facilitations and make the lives of Muslim minorities easier. This is not to suggest that proselytizing is merely a pretext invoked by wasaīs. Nor is it to imply that the concept of Muslims as proselytizers is devoid of challenging normative aspects. Nevertheless, fatwā

-analyses in this book demonstrate that in the wasaī case, theological rhetoric and jurisprudence should be evaluated separately, because the triumphant promise of Islamic ascendance introduced in the former has become inseparable from an effort to promote coexistence and integration facilitated by the latter.

Another concept debated within the discourse on fiqh al- aqalliyyāt al-Muslima that is highlighted in this book is al-walā’ wal-barā’. Academic literature on “loyalty and disavowal” focuses on the evolution of this term in Saudi Arabian political and social discourse and on its contemporary usages by jihādi- salafī groups that seek to undermine the House of Sa‘ūd.17

This study suggests that the centrality of al-walā’ wal-barā’ in the salafī mainstream discourse, and its implications for Muslim minorities, encouraged wasaīs to formulate narrower counter-conceptualizations of this concept that legitimize integration, goodwill, and constructive participation in non-Muslim societies. Those counter-conceptualizations encouraged salafīs, in turn, to reassert and publicize their positions. On several

specific issues, ranging from Christmas celebrations to inheritance, the debate on what “loyalty and disavowal” means largely affected the formulation of contradictory religio-juristic decisions.

Though a signature of the discourse of fiqh al-aqalliyyāt al-Muslima, wasaī, and salafī opinions on al-walā’ wal-barā’ are rooted, respectively, in their conflicting approaches to the relation between the Quran and the Prophetic traditions and to the discretion jurists have in reading the latter in light of the former.

The book critically approaches the academic discourse on justifications offered by jurists for the participation of Muslim minorities in non-Muslim state institutions. Wasaīs, and to a lesser extent salafīs, argued that while such participation is impermissible in itself, it can be legitimized based on determinations that overlaps exist between the norms non- Muslim institutions apply and Islamic norms, or, at the very least, based on determinations that participation in non- Muslim state institutions is crucial for the promotion of Islamic norms and interests (i.e., safeguards malaas).

 Some of the academic literature on fiqh al-aqalliyyāt al-Muslima, particularly the works of Andrew March and his interpretation of John Rawls’s political philosophy, examines the compatibility of these types of justifications with liberal political theories.

There is a certain caveat to this approach, as it contextualizes religio-juristic texts with texts that draw, at least in part, on very different methods of reasoning; this approach also runs the risk of reducing analyses of fiqh al- aqalliyyāt al-Muslima to the question of whether Islamic norms and liberalism can live side by side, a theme which often reveals more about the orientation of those engaging with it than about what theologians and jurists actually say.

 Notwithstanding these reservations, this study argues that from a theoretical point of view, any religio-juristic legitimization of cooperation with state institutions, regardless of its content, potentially challenges liberal systems and is conditional and temporary rather than substantive, because the reasoning and mechanisms it applies prioritize the authority of religious jurists over elected parliaments and civil judiciaries.

This type of challenge is not unique, of course, to Islam; there comes to mind theexample of ultra and national Orthodox Jews in Israel, who abide by religious law and state law, with the former theoretically superseding the latter.

In the context of the religious law of Muslim minorities, obviously, a decision that legitimizes participation as a means to promote certain Islamic interests can be revoked by a jurist at any given time, if it is determined that circumstances have changed; yet even legitimizations based on abstract conceptions of “overlaps” between Islamic and liberal norms are susceptible to change in cases where the jurist decides that a certain “man-made” liberal system denies the virtuous, Islamic values it previously supported.

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The book analyzes how in one case—wasaī decisions on military service in the United States—fatwās shifted from accommodating the demands of the state to challenging those demands based on the jurists’ evaluation that the “overlaps” and malaas that once existed no longer do. But it also highlights that direct challenges of this kind have been the exception.

The depiction by some European Muslims, including Tariq Ramadan, of fiqh al-aqalliyyāt al-Muslima as an essentially imported concept, and thus one that should only be considered a temporary phase, is also challenged. The book demonstrates that, particularly in the wasaī case but to a certain extent in the salafī as well, the religious law of Muslim minorities is the cumulative result of transnational contacts, in which individuals and communities living in the West have been active and influential participants. Muslims in the West contributed as mustaftīs who present queries, call attention to their unique situations, and hint to possible solutions; as activists, who determine whether decisions are disseminated or rejected, accepted or adjusted; and as jurists, who take part in decision-making.

Finally, the comparison between two conflicting corpuses of religious law dispels some illusions as to the path Muslim jurisprudence in the West is currently on. Calls for unity and cohesion have been a common theme in Islamic writing on the future of Muslim minorities, and echoed beyond them. In 2002, John Walbridge, a scholar of Islamic studies, predicted “Muslims living in the West are likely to play a key role in the renewal of the Islamic consensus,” suggesting that, “as a minority of very diverse origins, they do not have the luxury of preserving the divisions of the societies they came from.”18

 The sharp debates presented in this book prove this prediction wrong even in the case of the minority of Western Muslims who aim to live their lives in accordance with religious law. Islamic jurisprudence in the West is a highly polarized field, and grows increasingly so.

However, disagreements between jurists tell more than of diasporas inheriting conflicts from their homelands, imagined or real, and exacerbating them: they reveal contemporary Islamic law as a vibrant, evolving, and contested field. Sharī‘a, as explored in this book, is neither a coherent nor a dogmatic body, as some in the West believe it to be; it provides for a breadth of juristic discretion and accommodation, making differences an unavoidable constant.

 The evolution of fiqh al- aqalliyyāt al-Muslima demonstrates that Islamic law has the potential for accommodation and adjustment as much as civil law has. Shifting from the comparison between the approaches to Islamic law to debates within wasaiyya and salafiyya, respectively, the limitations of each’s self-declared claims of applying juristic formalism19 are exposed.

Both wasaīs and salafīs struggle to present their rulings as the inevitable result of horizontal categorizations and vertical ground rules that express the intent of the Lawgiver rather than the whimsical, albeit ethically based, discretion of an individual jurist. Yet, as the fatwās analyzed will demonstrate, in addressing the concerns of Muslim minorities, wasaīs abandoned prohibitions in favor of legitimizations even when the realities faced by Muslim minorities did not change; what did change was jurists’ understanding of those realities and, more importantly, the jurists’ theory on the breadth of discretion they are allowed to exercise.

Similarly, the salafī conviction that the literalism and limited discretion allowed by their methodology guarantees uniformity in the understanding of the Quran and the traditions is (p.13) undermined by significant differences among salafīs on a number of important issues, naturalization being the primary example.

The fatwās and juristic studies examined in this book were collected between 2005 and 2014 from three main platforms:

Libraries and archives, including the library of the European Council for Fatwa and Research at the Dublin Mosque and Islamic Centre, the library of the Edinburgh Central Mosque, and Abdul Hameed Shoman Foundationʼs library in Amman.

Online databases. On the wasaī spectrum, these included systematic searches of the websites of the European Council for Fatwa and Research, al- Qaraḍāwīʼs personal website, and the most visited wasaī portals, supervised by al-Qaraḍāwī, islamonline.net and its successor after al-Qaraḍāwīʼs dismissal from its board, onislam.net. On the salafī spectrum, the website of the Saudi Permanent Committee for Scientific Research and the Issuance of Fatwas, the personal websites of ‘Abd al-‘Azīz b. ‘Abdallāh b. Bāz, Muḥammad b. Ṣāliḥ al-‘Uthaymīn and ‘Abdallāh b. Ṣāliḥ al-Fawzān, and three popular salafī portals, Islamway.com, Islamweb.net, and Islam Question and Answer.

Dozens of bookshelves in mosques, as well as bookstores attached to mosques, and Islamic-interest bookstores, in Austria, Belgium, Egypt, England, France, Germany, Iceland, Jordan, Norway, Qatar, Scotland, and the United States. Among these the following were of the greatest utility: The Salafi Bookstore, Bradford and The Salafi Bookstore, Birmingham; IPCI—Islamic Vision, Birmingham; the bookstore of the Ibnu Taymeeyah Brixton Mosque, London; the bookstore of the London Central Mosque and Islamic Cultural Centre; the bookstore of the Islamic Cultural Center of New York; the bookstore of al-Nūr mosque, Berlin; the bookstore of al-Ṣaḥāba mosque, Berlin; the bookstore of al-Raḥman mosque, Leipzig; the bookstore of al-Muḥsinīn mosque, Bonn; the bookstore of the Islamische Informations und Serviceleistungen (IIS), Frankfurt am Main; the bookstore of the Ṭāriq Ibn Ziyād Mosque, Frankfurt am Main; the bookstore Orient et Vous, Brussels; and the

Interviews and conversations with several dozen imāms and attendees of mosques, as well as an extended visit to the offices of the European Council for Fatwa and Research, provided an opportunity to observe the processes through which fatwās are circulated, disseminated, accepted, rejected, or negotiated. While this study does not aim for a quantitative evaluation of these issues, it provides some reflections on the impact both wasaī and salafī corpuses have had, and on how these corpuses are perceived by influential individuals involved in producing and disseminating them.

The book is divided into four chapters. Chapter 1 analyzes the general ideologies and methodologies of wasaiyya and salafiyya, explores the historical legacies from which they draw, and comparatively analyzes their main points of consent and conflict. Chapter 2 examines the evolution of distinct…

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