“Does Islam need reinterpreting, or re-evaluating for each region/country?”

Dr Taha Jabir al-Alwani, a leading advocate of this innovative methodology, terms Fiqh al-Aqaliyaat or Fiqh of Minorities as: “…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.” He continues to say that the: “…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.” He claims that the purpose of Fiqh al-Aqaliyaat was 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.”

http://www.isna.net/library/papers/fiqh/FiqhofMinorities1.asp (accessed 02/02/2004)

There are many claims that are made by those who advocate the philosophy of Minority Fiqh. Amongst the ideas used to justify the existence of minority fiqh are:

• The claim that the shariah has remained silent on new issues, and that the existing methodology of Islam is incapable of dealing with these issues
• The claim that the shariah rules change according to time and place, and citing Imam Shafi’i’s fiqh as a proof for this
• The claim that the questions we ask about the shariah rule need to be changed.

1. THE CLAIM THAT THE SHARIAH HAS STAYED SILENT ON NEW ISSUES

The protagonists of Minority Fiqh claim that the shariah has remained silent on new issues, and that the existing methodology of Islam is incapable of dealing with these issues. The proponents of this viewpoint cite the honourable hadith: On the authority of Jurthum bin Nashir the Messenger of Allah said: “Allah the Almighty has laid down religious duties, so do not neglect them. He has set boundaries, so do not over step them. He has prohibited some things so do not violate them. He was silent about some things out of compassion for you, not forgetfulness, so do not seek after them” [Darqutni, Tirmidhi, Ibn Majah, & Hakim]. Tariq Ramadan, who is trying to formulate a methodology for the Muslims in the West, speaks about the silence mentioned in this hadith in his book, “To be a European Muslim”, and says that it indicates a: “basic principle of permissibility…”

He further states that: “The silence, then, is in the sphere of which permits fiqh, within social affairs (muamalat) to be in constant development, evolution, and formation”.

This understanding holds that where there is no explicit text, then the concept of permissibility (ibaha) exists. This is the area that the scholar should study deeply and find opinions in the interest of the Muslims.

This opinion is weak, for a number of reasons. The shariah hasn’t left anything without a ruling from the Qur’an or the sunnah. The Islamic shariah encompasses all the actions of man, completely and comprehensively, at every time and place. Allah  states in an ayah, with definite meaning: “And We have sent down to you the Book (the Qur’an) as an exposition of everything, a guidance, a mercy, and glad tidings of those who have submitted for those who have submitted themselves to Allah” [TMQ Al-Nahl: 89].

Hence, no Muslim has the right to claim that there are situations devoid of a shariah rule, where the shariah has completely disregarded such a situation and has not established an evidence for it. To hold this view is to say that there was no evidence from the Book or the sunnah, or that the book and the sunnah have not given an indication through a legitimate illah (shariah reason)—which the text has mentioned either explicitly or by indication, or which is known through deduction or by analogy—to illustrate what the rule is, whether wajib (compulsory), mandub (recommended), haram (forbidden), makruh (offensive) or mubah (permitted). No Muslim should hold this view because he would be slandering the shariah by claiming that it is imperfect and he would be making it legitimate to refer judgements to other than the shariah, thereby contradicting Allah’s saying: “No by your God, they shall not become true believers until they make you judge in matters that are of dispute amongst them and find within themselves no dislike of that which you have decided, and submit with full submission” [TMQ Al-Nisaa: 65].

If the shariah did not come with a rule, and the Muslim adopted a rule that the shariah had not come with, he would have referred a judgement to other than the shariah—and this is forbidden. Because he would be claiming that the shariah has not come with the rules for all situations. So claiming that there is a permission to refer to other than Islam under the pretext that the shariah has not come with a particular rule would be a false and erroneous claim.

Therefore, it is inconceivable to state that whatever the shariah has kept silent over is mubah, since it would be a slander against the shariah to claim that it has kept silent over certain rules and has not established them. This is also contrary to reality, because the shariah has not in fact kept silent over anything at all. As for the Messenger of Allah’s  saying: “Truly Allah has decreed certain obligations, hence do not neglect them…”, this indicates the prohibition of asking about what hasn’t been mentioned by the shariah in the texts.

It is similar to his saying : “Truly the gravest sinners amongst the Muslims would be those who ask about something that has not been forbidden for them, then it became forbidden because of their asking about it.”

There are many ahadith to that effect. It has been reported that the Messenger of Allah  said: “Spare me the things I have not mentioned to you, for those before you perished because of their constant asking and their arguing with their prophets; so refrain from that which I forbid you and perform to your utmost ability that which I order you.” It has also been reported that he  once recited Allah’s  saying: “And Allah commanded people to perform hajj…” Upon this a man asked: “O Messenger of Allah! Is it every year?” He  did not reply. So the man asked again: “O Messenger of Allah! Is it every year?” Again he  did not reply. So the man asked him a third time: “O Messenger of Allah! Is it every year?” Upon this the Messenger of Allah  said: “By He Who owns my soul, if I said it, it will become obligatory, and if it did become obligatory you would not be able to perform it, and if you did not perform it you would be sinful. So spare me that which I have not ordered you”

Hence, the meaning of the Messenger of Allah  saying: “Allah has pardoned my ummah for the mistake, forgetfulness and what they were coerced to do…” and, “…and He kept silent over some things, not out of forgetfulness, rather as a mercy from your Lord, so accept them…” is that He  has lightened your obligation, so do not ask in case you overburden yourselves. For instance, the duty of hajj has been decreed in general terms, and someone asked whether it should be performed every year. Allah  has reduced this obligation and made it once in a lifetime in order to lighten your load and out of mercy upon the people, so He  has condoned and kept silent over this obligation being every year.

Thus one does not look into these things and does not ask about them. Evidence that this was the meaning is the saying of Allah’s Messenger : “…hence, do not look into them”, after he  had said, “…He has pardoned certain things…” So, the point at issue is prohibiting the Muslims from asking about things whose prohibition has not been revealed. The point at issue is not that He  has not stated some of the shariah rules, since the context of the hadith is indicating the mercy of Allah  and His pardon on certain matters. As for the other narration: “…and that which He kept silent over is a pardon for you…”; it also indicates that the issue is related to the prohibition of searching and asking about that which He  has lightened for you and has not forbidden for you. So when something is not prohibited it is a pardon from Allah  i.e. Allah’s  silence about its prohibition denotes a pardon from Allah , so do not ask about it.

This is reflected in Allah’s  saying: “O you who have believed do not ask about matters which, if made plain to you, may cause you trouble, but if you asked them when the Qur’an is being revealed, they will be made known to you. Allah pardons this, for Allah is forgiving clement” [TMQ Al-Ma’idah: 101]. The result of this type of opinion—coupled with a lethargic mentality that doesn’t scrutinise the text to deduce the Allah’s  solutions—has led some Muslims call for a “special” type of fiqh. They aptly name this the “Fiqh al-Aqaliyaat” or the “Fiqh of Minorities”.

2. THE CLAIM THAT ISLAM CHANGES FROM TIME-TO-TIME, AND PLACE-TO-PLACE

Some claim that there is a principle stating Islam changes: “…from time to time, and from place to place.”3 The proponents of this thought say that because we are now living in the modern age, and in the West, a new methodology of extracting ahkam (rules) needs to be derived. Some of the previous ulema did adopt this principle, especially those from the Hanafi madhab, but one needs to understand the concept behind their view; it is not at all similar to the view of those advocating the invention of a new methodology. According to the Hanafi jurist Ibn Abidin, the meaning of “laws changing” is not that the laws of shariah will change in accordance with the time and era. Rather, laws that are based on custom and habit (urf) or the rules of fiqh that are based on juristic opinion (ra’i) have often been formulated in the light of prevailing custom. It is therefore permissible to depart from them if the custom on which they were founded changes in the course of time. Rulings that are based upon texts of the Qur’an and sunnah can never change. The scholars of usul al-fiqh stipulate that a custom or a practice which is contrary to the text of the Qur’an and sunnah is an unacceptable custom (urf al-fasid).4

2.1 THE CHANGE OF SHAFI’I’S METHODOLOGY

The basis of this understanding is—amongst other justifications—that the great Imam Shafi’i (ra) changed his methodology as he went from Medina to Baghdad to Cairo.

Azizah Y. al-Hibri, states in one of his articles: “For example, Imam al-Shafi’i, a major scholar and founder of the school bearing his name, revised his jurisprudence when he moved from Iraq to Egypt. The explanation was simply that the new jurisprudence evolved in light of the new conditions. As a consequence of this example of jurisprudential revision, jurists generally recognise the principle that ‘laws change with the change in time and place.’” 5

The proponents of this principle have failed to bring any legitimate evidence to justify their position. For example, the justification that Imam Shafi’i changed his fiqh merely because he moved from Iraq to Egypt is a major simplification of what occurred; it is quite wrong to suggest this. The actual reason was that the noble Imam changed his methodology because he was exposed to the different mujtahideen from the different schools from Iraq and Egypt, and to their methodology of extraction and way of viewing texts. This led to the maturing and crystallisation of his thoughts when it came to the process of Ijtihad. Imam Ahmed ibn Hanbal was once asked by Mohammad bin Muslim ar-Razi to tell him which of Shafi’i’s books he should choose. Ahmad answered: “Choose the books which were written in Egypt. The books he wrote in Iraq are not well done. Then he went to Egypt where he wrote his books in a more profound way.”

3. REWORKING THE QUESTION

The advocates of Fiqh of Minorities state that the “traditional” answers need not to be given, and that although the realities are known in Islamic Jurisprudence, we need to rework the questions. An example is mentioned by Taha Jabir al-Alwani: “A questioner asks, ‘Is it forbidden (haram) for a Muslim woman to be married to a non Muslim, and what should one do?’” A Muslim woman’s marriage to a disbeliever is clearly unlawful as mentioned in the ayah of the Qur’an: “They are not lawful for the disbelievers, nor are the disbelievers lawful for them” [TMQ Al-Mumtahinah: 10].

This ayah holds one single meaning—that such a marriage is considered null and void and holds no value whatsoever. But according to the Fiqh of Minorities this answer needs to be reworked by reworking the question. So as Taha Jabir al-Alwani mentions 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 very supportive but is not at this time interested in converting. The woman was told immediately after converting that she had to 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? The answer is that leaving the religion is much worse, therefore, it is acceptable for her to continue with her marriage and she is responsible before Allah on Judgement Day.”7

This is a quite unthinkable verdict that comes from the Fiqh of Minorities perspective. This situation such as when a British woman accepts Islam while her husband remains a non-Muslim is not a new issue to Islamic jurisprudence.

This problem occurred at the time of The Prophet  when his daughter Zaynab  accepted Islam while her husband remained a non-Muslim. He  instructed her to leave and did not go against the definitive command of Allah , because going against the explicit command of Allah  is the greatest evil that can occur here; an evil that the Fiqh of Minorities seems to encourage and agree with.

Therefore, in order to solve this problem today we need to go back to the legal texts and study them in order to acquire the Islamic ruling. This applies to all other issues as well. Reworking the question is something that leads to munkar (evil). It makes the mind and the prevailing reality the source of legislation, rather than the subject of legislation that the shariah rules come to regulate. This is an action that Allah  condemned the people of the Book for in the past: “And do not say, concerning the falsehood which your tongues utter, ‘This is halal and that is haram,’ in order to fabricate a lie against Allah; assuredly those who fabricate a lie against Allah will not prosper” [TMQ Al-Nahl: 116].

The Prophet  said; “Do not do what the Jews did in order to (technically) legalize Allah’s prohibitions by flimsy excuses” [reported by ‘Abdullah bin Battah on good authority].8

Other points which are derived using this methodology are: the integration of the Muslims into the political system; the permissibility of riba; allowing Muslims to join the armies of the Kufaar, and fighting against the Muslims, amongst others.

This page has been extracted from the book: The fiqh of minorities