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Ijtihad, Rethinking Islam ( 19 Dec 2012, NewAgeIslam.Com)

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Understanding Fiqh of Muslim Minorities


By Sheikh Abdullah ibn Bayyah

10 December, 2012

Fiqh of Muslim minorities is denied by some people while others take it beyond its limits. Thus, this is a field in which to seek moderation as it needs to establish its foundations. The foundations of the fiqh of Muslim minorities can be divided into objectives and rules.

The objectives are:

First, a general objective, which is to preserve the religious life of the Muslim minority on both individual and community levels.

Second, spreading Islam among the majority of the population.

Third, establishing the basis of the relation with the other amid the cultural and international status quo in order to find a state of mutual trust and acceptance, a matter which may not be confined to the case of Muslim minorities due to the international situation.

Fourth, establishing the communal fiqh in the life of Muslim minorities; that is, moving from individuality to collectivity.

As for the rules:

First, it is not meant to reinvent new jurisprudential or juristic rules. This means rather to focus while searching on the rules existing in our jurisprudential and juristic heritage which are closer to the status quo of the minorities so as to re-examine it and to discover the possibilities of dealing with the situations of the minorities.

Like other branches of fiqh, the fiqh of Muslim minorities refers to the two sources of shari`ah; namely, the Qur'an and the Sunnah. But with regard to the details, it refers to the universals of the shari`ah that requires removing hardship, applying the rulings of necessity, taking into consideration the widespread cases in both acts of worship and transactions, considering the change of place equal to the change of time, warding off evils, inclining to the lesser of two evils – which some people call the fiqh of balancing – and the consideration of the considerable public interests not the inconsiderable one.

“The shari`ah is based on wisdom and on achieving people’s interests in this world and in the hereafter”, as ibn al-Qayyim said in I`lam al-Muwaqqi`een.

The shari`ah has attested to the genus of these universal principles in innumerable texts.

Second, the fiqh of Muslim minorities refers to particular texts that apply to issues found in the countries of minorities and shared by the Muslim majorities.

Third, the fiqh of Muslim minorities refers to a particular principle adopted by some scholars who consider the situation of Muslims who live in non-Muslim lands as a reason to drop some of the shari`ah rulings. This is known as the issue of “the abode”, which we call “the ruling of the place”. This position is reported on the authority Amr ibn al-`Ass, a Companion of the Prophet (peace and blessings be upon him), and on the authority of some scholars such as al-Nakh`iy, al-Thawry, Abu Hanifah, Muhammad, Ahmad, according to one narration, and `Abd al-Malik ibn Habeeb, a Malikite scholar.

This is based on some hadiths such as the prohibition of executing penalties on non-Muslim lands. Abu Dawoud, At-Tirmidhi, and Ahmad reported with a strong chain of narrators “Hands shall not be cut off while being in a state of travelling.”

Based on these principles, on universal and particular evidences, and on the opinions of the people of knowledge, ijtihad seeks to give preponderance either on selective or innovative basis. Personally I prefer the first kind and dare not adopt the second except on the basis of ramifying from a previous scholarly opinion; because in the first kind one chooses from among the opinions of the scholars to achieve an interest that requires this choice or to keep away an evil that may result from the application of the other abandoned opinion.

To be more precise, ijtihad here has three kinds:

1. New ijtihad in order to bring about new opinion concerning new issues by using the process of analogy with the rulings stated in the Qur'an and the Sunnah.

2. There is also ijtihad that is concerned with the proper application of ruling to the case. This kind of ijtihad never ceases, as Ash-Shatibi said, because it is concerned with the application of an agreed upon rule to a new status quo. This kind is not like the first one which only the mujtahidun (practitioners of ijtihad) can assume. Rather, both the mujtahid and the muqalled (imitator) are equal in this regard.

3. As for the third kind, it is ijtihad to give preponderance to one juristic position. This position could be non-preponderant at some time due to the weakness, not the nonexistence, of its bases. Thus, scholars choose it for an interest that requires this choice. This is what is called by the Malikites as “the running practice”.

Thus, handling these three kinds of ijtihad should be in the light of the three aspects that govern the process of fatwa; namely, the status quo of the Muslim minorities, the universal evidence, and the particular evidence.

Muslim minorities face stubborn challenges on the level of the individual who lives in an environment which has its material philosophy.

From all this, the fatwa comes up amid dialectic, interrelations, integration, and interaction that result in balancing between the evidence and the status quo that enables the jurist to regulate the fatwa and see the ruling through the rank of need, the rank of evidence, and the rank of issuing the ruling and also through balancing between the universal and the particular. This is a subtle sort of treatment where neither of them could be neglected. Rather, each of them should be duly considered when forming the ruling. Therefore, the Malikites have set what they called “the intermediary rule” according to which when there is one issue that has two aspects, two different rulings should be given due to the presence of two pieces of evidence.

You will see these kinds of ijtihad through observing the situation of Muslim minorities with regard to their marriages, financial transactions, food and clothes habits, dealing with people, offering congratulations in times of joy and condolences in times sadness, participating in political parties, nominations, elections, etc.

Muslim minorities face stubborn challenges on the level of the individual who lives in an environment which has its material philosophy where there is no room for religious motives and on the level of the family that attempts to keep together in a society where familial ties have broken and the relation between the two spouses and between the parents and their children has no longer become founded on positive guardianship. As for the level of the minor Muslim community that dwells among these societies, they are scattered, unregulated, and uncollected. The challenges face also the creed in the sense of being a Muslim who believes in Allah, His Angels, His Books, and His Messengers, whether according to the methodology of the Ash`arites, the Salafites, the Mu`tazilites or the like methods of interpretations that confuse laypeople.

Perhaps the article of faith written by Muhammad ibn Abu Zayd al-Qayrawaniy in the introduction of his treatise, which has reference in the texts of the Qur'an and the Sunnah that are beyond controversy, is the best thing Muslims should learn in the lands to which they migrated owing to its simplicity and its being free from argumentation and confusion.

This also applies to acts of worship that require the formation of Muslim groups and Islamic institutions such as mosques, schools, and centers. This also applies to the relation with the other and how to find means of coexistence that keep the Muslim away from melting away in the other culture and at the same time safeguard him against isolation and seclusion to be an active member in the society following the suit of Joseph the Prophet (peace and blessings be upon him) when he said to Egypt’s king{Appoint me over the treasures of the land. I am a good keeper and knowledgeable.} (Yusuf  12:55)

All this needs a juristic aptitude to balance between the evidence and the status quo with piety that is free from hesitation and brevity that is free from boldness.

Sheikh Abdullah ibn Bayyah is Deputy President of the International Union of Muslim Scholars.