NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #11
[This is the eleventh in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]
Moderator: Imad-ad-Dean Ahmad
IIIT Panel on the Jurisprudence of Minorities
Magfirah Dahlan Taylor’s summary of
“Deliberative Ijtihad in Minority Fiqh: Legal Theory and Practice”
by Professor Abdessamad Belhaj, Catholiv University, Louvain, Belgium
Deliberative ijtihad practiced by minority fiqh is a symbolic form of collective action. He first says that deliberation has a historical role in fiqh. He compares three modern views. For Taha Jabir Al-Alwani it is collective hermeneutics (epistemological complementarity). Yusuf Al-Qaradawi sees it as collective action and Abdullah Mahfudh ibn Bayyah uses the term deliberative fatwa (because ijtihad is by nature individual rather than deliberative). These views are complementary rather than competitive. Deliberative ijtihad is not a competitor to traditional fiqh but derives references from traditional fiqh, focusing on giving decision for Muslims in a minority situation. The goal is simplicity and proactiveness. Capacity of Western societies to accommodate Muslim practices requires Muslims to access the Western cultural code to negotiate their position. Any development of minority fiqh in the West must accept the Western public space and work within it. He illustrates this by the European Council for Fatwa and Research (ECFR)’s approach to the veil controversy in France. ECFR’s fatwa calls on Muslims to demand legitimate rights and oppose unjust law by using peaceful and legitimate means within the law, appeals to the government to stand by its own goals of national unity, social peace and solidarity, and on Muslims to engage in dialog with the appropriate government bodies. Belhaj says these points show the discussion of the veil is not reserved or Islamic jurists but must include many voices in the public space. Public deliberation includes voting, campaigning and letter-writing and must engage a variety of civil and political actors.
‘Dar al Islam Revisited: the Concepts of Territoriality in the Context of Fiqh al `Aqalliyyat”
Sarah Albrecht, Ph.D. candidate, Berlin School Muslim Cultures and Societies
I became interested in the topic of minority fiqh in working on my Ph.D. thesis. The various approaches to the concept of minority fiqh are based on different concepts on territoriality. I begin with concepts developed by and for European Muslims. Although some Muslims have lived as minorities under non-Muslim rule from the beginning, only recently has it become an issue, especially regarding Europe and America. Coined by Dr. Taha in the 1990s, the term fiqh al `aqalliyyat (jurisprudence for Muslim minorities) was picked up immediately by other scholars, including Abdullah bin Bayyah, a prominent member of the European Council for Fiqh and Research, popular in the US due to his links to Hamzah Yusef. Others have suggested alternative approaches. I shall deal only with a selection of these approaches.
Tareq Oubrou promotes the reconciliation of Islamic values with French values. He does not address the transnational ummah but focuses on French Muslims and the laicitist setting. He rejects any legalistic approach, but limits himself to a moral approach. He opines that God has disappeared into the beard and headscarf.
Perhaps the most prominent participant in this discourse, Tariq Ramadan is a committed advocate of a European Islam. He rejects labeling Muslims as a minority as it conveys the impression they are not full members of the society but permanent strangers.
Another project is the Moroccan Council of Ulama for Europe. Taha Tishqani presides over 18 scholars, 4 of whom are women, and it seeks to be a marja for Moroccan Muslims in Europe. It is too young to evaluate, but it is clearly different from the others, with a more limited agenda, with a target audience identified by citizenship, all Moroccans and all Maliki. The term used in Morocco is fiqh al mahjar rather than fiqh al `aqalliyyat. Unlike the other fiqh councils we have considered, it is not an independent union of scholars, but a state appointed agency.
Traditionalist contestations have come from Europe and the Muslim world. Bin Baz and al-`Uthaymin reject permanent residency in these countries and a separate fiqh for them. Asif Khan (Hizb at-Tahrir) rejects minority fiqh as an attempt to undermine Islam. In the U.S., Salah as-Sawi (president of the Assembly of Muslim Jurists of North America) has repeatedly uttered harsh criticism against the notion.
Taqsîm al ard or Taqsîm al ma’mûra divide the world into two camps. Has the minority fiqh challenged the Islamic notions of territoriality? Dar al Islam, Dar al Harb, Dar al Kufr are not founded in the Qur’an or sunnah. They are historical concepts that rooted in political circumstances of the futahât (Islamic conquests). Khaled Aboul Fadl distinguishes two eras in this regard. In the first five centuries cases were decided individually. Only in the 6th century did the systematic and controversial discourse arise. At one time Dar al Islam was those lands ruled by Muslims. Jasser Auda identifies five criteria: application of Islamic rules (ahkâm al-Islâm); Muslim rule or control; security (amn); protection of public acts of worship (sha’ar al Islâm) and justice (`adl). Apparently a Muslim majority was never a necesary condition in determining what is the Dar-al-Islam.
The territorial concepts in the discourse are of four types: perpetuation of antagonistic worldviews, rephrased dichotomies, imagined territories, and thinking in national boundaries. Antagonist worldviews are found only in the categorical opponents of the concept of minority fiqh. Bin Baz, al-Uthaymin and al-Buti advise against contact with non-Muslim worldviews and against living under non-Muslim rule. Qaradawi in contrast, as president of ECFR, divides Dar-al-Islam from Dar-Ghair-al-Islâm, using the criterion of Muslim rule and majority population, al–watan al-islâmî v. ightirâb. He thus avoids traditional categories like Dar-al-harb, but by contrasting the Islamic homeland to the realm of alienation he implies Muslims cannot be completely at home in non-Muslim countries.
Shaikh Taha Al-Alwani’s view of territoriality is different, for he denies that Islam has geographic boundaries. Referring to Abu Hassan al-Mawardi and Ala ad-Din al-Kazani’s views, he sees the entire world as Dar al Islam. Following Fakhradin ar-Razi, there is the land of compliance (dar al-ijâba) and the land of propagation, dar ad-da’wa.
For Tariq Ramadan there is dar ash-shahâda with the criteria of security and freedom of religion. He rejects dar as-sulh and dar al-ahd as solutions to today’s problem. He calls upon Muslims to call themselves as shahâdah `ala-nâs, or witnesses to the world.
Fiqh al-mahjar (Moroccan discourse) and Tareq Oubro’s chari`a de minorité accept the political boundaries of the nation state, the former putting emphasis on the polity of origin and the latter on the polity of residence.
In summary, Qaradawi’s rephrasing of territoriality retains the notion of a conflict of identity which Al-Alwani’s deterritorialization rejects.
Alexandre Caeiro Discussant
The two papers resonate with each other; they invite us to compare descriptive with normative understandings of fiqh al aqalliyyât. The latter is a very modern idea. Given that Muslims have been minorities since the beginning, we ask why the need for fiqh al aqalliyyât appears now. The international circulation of the discourse on the setting of national fiqh is an interesting paradox. How neatly do these ideas of territoriality correspond to the different ways in which different advocates of fiqh al aqalliyât approach these issues? Sometimes they are tied to their positions on particular questions like political participation and mortgages. If we accept the link to particular issues, then how meaningful is the territorial aspect? Perhaps questions of moral agency, integration, or struggles of authority are more pertinent. The contexts in which these authors coined these territorial concepts are worth pursuing. Qaradawi’s main consideration is the establishment of an Islamic state. Other Muslim organizations are moving away from the establishment of the Islamic state, especially in the wake of the Arab Spring.
Vinay Khetia Discussant
Muslims view of the Other can predicate how they look at or divide up the world. Under what conditions is hijrah acceptable? Sistani and all the Shia say you can only migrate if you can practice your faith (both ibâdat and mu`amallât); otherwise, you are living in a state of sin. Thus women must be able to observe the dress code and all should be able to obtain halal meat. When Jafar al-Sadiq was asked if someone can marry in non-Muslim lands, he distinguished between the monotheistic and other parts of the world. Now scholars speak of abode of peace and abode of the contract. One must follow the laws of the land as long as they do not violate the Shariah. For the Shia your homeland is wherever you have your property, but the state was always a problem and one may be freer in a non-Muslim country.
Albrecht: Others are doing studies comparing Sunni and Shia perspectives that will be interesting to see when they are complete. Sistani’s Fiqh al Mukhtarabîn is now being translated into European languages. Can we really separate the questions of Muslims minorities from those of Muslim majorities, for example on bank loans?
General discussion.
Ahmad: I think that one of the reasons this question has arisen now is that confessional distinctions were once a given, but in the era of the nation state are contested as a challenge to the notion of citizenship.
Sami Shamma: Fiqh al aqalliyât was just called fiqh at one time, for example in India. What is happening in France is undoing everything Tarek Ramadan has called for, the notion of global citizenship.
Sami Ayoub: Sunnah played a role in the development of these territorial concepts.
Albrecht: Zaynab Alwani has spoken of Sh. Taha’s view in the Indian context. The vast majority of Muslim minorities are in India, Russia, etc. not in Europe or America. Qaradawi has traveled a lot but he has not, as Al-Alwani has, lived for an extended period of a time in a majority non-Muslim land.
Mahmoud Ayoub: Can one live a really Islamic life in a non-Muslim country? How can you keep your culture in a non-Muslim majority country? Many of the issues are non-fiqh issues, but just daily life issues. The Hanafis said any place they can have a qadi (as the Jewish communities inn Europe were allowed their own judges) could be considered Dar al Islam. I don’t like to use the term diaspora for Muslim; it is a Jewish term meaning dispersion out of Palestine. Muslims believe the whole earth belongs to Allah, and there is no theology of the land.
Abubaker Al-Shingieti: The choice of territoriality is not only appropriate but significant because it is central to the nation-state notion and can also be related to culture, language, and many other things. I didn’t hear you address the role of European converts to Islam on this issue.
Anwar Haddam: The fatwa has always been defined by time and place. The real issue is people taking matters into their own hands, as well as how Muslims view the Other. I think we should ask how the West views the Muslims, for example in the context of EU membership for Turkey.
Adam Sheikh: Dr. Taha did not found the FCNA. It existed before he came to the U.S. Muhammad Sha`bani, a student of Abu Hanifa, identified the need of those in Spain for fatawa that would suit their condition. I think Muslims here and in Europe can benefit from the example of the Muslims in India.
Vinay Khetia: One of the sites of conflict is the tension of identity, negotiating the demands of society, school and work, and the demands of the fiqh. Jafari fiqh forbids shaking a woman’s hand. The creativity of new solutions of the Shia scholars in questions like inter-gender handshakes is a problem. The scholars produce the opinions, but they feel very bad about it. I think we should focus not on the scholars in Najaf, but the people on the front lines, the representatives of the marja in North America.
Hafas Furqani: I think regionality is more significant than territoriality. In the 1990s we had “Indonesian fiqh,†so it has nothing to do with minority status.
Kia: Are the opponents of fiqh al aqalliyât concerned about a brain drain? It would enhance your presentation if you talked about the relationship of traditional and modern ideas of jihad to Dar al Harb and territoriality, because I think jihad rather than territoriality drove the developments of these ideas. Jihâd kifa`iyyat survives and aggressive jihad is outmoded by the nation state system. These are descriptive ways by which scholars viewed the past, not prescriptive norms. If the presumption of war has been replaced by the presumption of peace, then everything changes.
Reed Taylor: I found your description of territoriality very similar to how Europe defined territoriality. Is it appropriate to impose a Eurocentric notion if territoriality on Muslim law?
Albrecht: I agree with Prof. Ayoub on diaspora and only used the term in the context of the Moroccan approach. I have not focused on the converts, who are a minority within the minority. There is a distinction between Western and Eastern Europeans; the latter might be considered traditional Muslim minorities not subject to fiqh al `aqalliyyât.
Caeiro: Qaradawi initially excluded the Eastern European Muslims but later included them. In France Imams can’t ratify a marriage.
Ahmad: A Moroccan woman, influenced by French law, came to me to do an Islamic marriage ceremony separate from her civil marriage, not aware that under American law a licensed Islamic marriage satisfies legal requirements.
Albrecht: I should have said Alwani was chairman, not founder of FCNA. As-Sawi rejected Alwani and Qaradawi’s role on the permissibility of American Muslims fighting in Afghanistan. It would be a good research project to see how imams put into practice these fatwas. If Alwani were to consider an American fiqh it would be outright rejected by the other scholars. The brain drain is mentioned but I don’t think it is a primary concern.
Al-Shingieti: The discourse on territoriality comes out of the Dar al Islam vs. Dar al Harb (or Dar al Kufr) terminology resurrected by the Orientalists. We don’t need to shy away from geopolitics because it was appropriated at a given time by the Orientalists.
Sami Ayoub: Dar al Harb means only the absence of a peace treaty and not necessarily an actual war. For the Hanafis it affects things like inheritance.
Moustafa Kassim: The allowance of mortgages is based on this Hanafi ruling.
Iqbal Unus: FCNA started in religious affairs committee of MSA. At that time it had no competition, and there were not many questions then. After ISNA it became Fiqh Committee of North America and later Fiqh Council. What significance does Muslim majority play in Dar al Islam unless it is a presumption of Islamic rule? But now we have Muslim majority countries with no influence by the majorities at all. At one time Alawis were not considered Muslims and when Asad came to power he removed the constitutional clause that Islam is the religion of the state.
Ezekial Babagario: In Nigeria the northern parties majority Muslim but the southern part is majority Christian so the northern Muslims consider themselves a minority. The Boko Haram consider all others non-Muslims. Are they minority Muslims?
Hisham Altalib: By Dr. Taha’s classifications of dar al ijâba and dar al da`wa: what of lands like the China where no one can practice religion?
Haddam: We should not take the Moroccan Council lightly. The ex-pats may be more amenable to the fatwas of their own from back home. We should ask how effective they are.
Sheikh: I haven’t been in Nigeria, but what we hear about Boko Haram is not the Islam we are advocating. I don’t consider them to be Muslims.
Albrecht: I agree with Sami on the importance of jihad, and I would also add hijrah. By my findings, there has never been in traditional approaches any majority Muslim population concept, and Jasser Auda’s research confirms this. It has never been the sole criterion and shouldn’t be. As to Nigeria, the whole notion of fiqh al aqalliyyât is already contested, by Tarek Ramadan among others, without forcing it into the Nigerian context. This question of land in which there is no freedom of religion is one of the problems I have with Alwani’s text. He defines Dar-al-Islam as an all-embracing concept but focuses only on those parts of the world in which he thinks there is freedom of religion.
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org
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