Asif Khan
A Refutation of Fiqh al Aqaliyaat (Fiqh of Minorities) – A Jurisprudence to Assimilation.
Life for the Islamic Ummah today is difficult and complex, no matter where they reside. The Islamic world today is riddled with economic, political and even security problems. It was such economic and political turmoil, drowning the Muslim world in the twentieth century that drove so many of the elder generation to the West in search of a better life. On their arrival they found many benefits but there were also new problems that they had to come to terms with.
At the forefront of the challenges facing the Muslims in the West are the continuous calls for complete integration, thereby abandoning any overt form of an Islamic identity or character. Debates in Governments and media on how to integrate the Muslims are frequent and indicative of the prevailing environment in the West. Even the reaction of Muslims to diverse controversial events, such as, the publication of “The Satanic Verses”, the war in Iraq and the discrimination of Muslims in society have been addressed in a way to provide further justification for integration.
Many Muslim groups and personalities have been incorporated into this campaign to integrate the Muslims living in Western society - when they have refused to support such a cause, others have been found by the Governments to replace them. Consequently, so-called representative Muslim organizations and individuals have ended up towing the government line, even going so far as supporting the killing of Muslims elsewhere as seen during the war against Afghanistan.
The origins of the “re-inventing” trend
There are those Muslims, who during the turn of the 19th century, saw, the domination of the Capitalist ideology, with its technological advancements, and functioning system on the one hand, and on the other the decline of the Uthmani Khilafah. Fundamentally Muslims had lost the understanding of the fiqra (thought) and the tariqa (method), and the inextricable intertwining of both. Some were sent to the West, and were smitten with it. Rifa`a Rafi` al-Tahtawi (Egypt, 1801-1873), on his return from Paris, wrote a biographical book called Takhlis al-ibriz ila talkhis Bariz (The Extraction of Gold, or an Overview of Paris, 1834), praising their cleanliness, love of work, and above all social morality. He declared that we must mimic what is being done in Paris, advocating changes to the Islamic society from liberalizing women, and to the systems of ruling. This trend of thought led to an attempt to “re-invent” Islam, or Tajeed al Islam, such that it is brought into the modern world. The advocates of such thoughts were the like of Muhammad Abduh, who was placed as Sheikh al Azhar, by the British colonialists, but alas my discussion today is not on the origins of this thought process, but on one of it’s products.
Today’s short presentation will focus, on an attempt by some to reinvent Islam, for the minorities, in order for its specific problems to be resolved, called “the Jurisprudence for Minorities” (Fiqh al Aqaliyaat). I will highlight the foundations of this thought, some key results that emerge from its application, and to answer the point whether there is a need for such jurisprudence.
Difficult problems for the Muslims
The issues that Muslims face in the West are major problems that need to be addressed. Indeed, this is not unique to Muslims in the West but is also a problem for Muslims across the world.
There have been attempts to address the situation of the Muslims in the West. But ominously these attempts have been pushed by the Governments of these lands, like the British, or the American. Their agenda has been solely to assimilate, us into the so called “melting pot” which means that we forgo, and compromise our Aqeedah and adopt the ideology of Capitalism.
There have been some Muslims, who, sincerely looking to resolve the problems of the Muslims in the West. They have attempted have based their methodology on assumptions which do not stand up to reality, and nature of Islam, and as a consequence, they have too become pragmatic in the approach to resolve these problems.
They claim that the Shari'ah 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 that the Messenger of Allah (Peace be upon him) 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; about some things He was silent-out of compassion for you, not forgetfulness, so seek not after them." (Darqutni, Tirmidhi, Ibn Majah, & Hakim)
Tariq Ramadan, who is trying to formulate a methodology of the Muslims in the West, states in his book, “To be a European Muslim” regarding this silence as; “basic principle of permissibility…” [p75], 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 states, that in areas where there is no explicit text, then the concept of permissibility (ibaha) exists. This area is where the scholar, will look into deeply, and find opinions in the interest of the Muslims.
This opinion is weak, from a number of reasons. For the Shari'ah has left no matter, without a ruling from the Qur'an or the Sunnah. Allah (swt) states in an ayah, with definite meaning;
The Islamic Shari'ah encompasses all actions of man, completely and comprehensively, at every time and place. He (swt) said:
وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَانًا لِّكُلِّ شَيْءٍ وَهُدًى وَرَحْمَةً وَبُشْرَى لِلْمُسْلِمِينَ
“
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 An-Nahl: 89].
So the above hadith needs to be reconciled with the fact that Allah (swt) has given a verdict and explanation for all things. It is reconciled by the fact, that the Shari'ah, disapproves of the excessive questioning of matters, when Allah (swt) has given a verdict, so as to change it. These hadith do not mean that there are things not indicated by the Deen, but rather indicate that there might be things that Allah did not forbid for people's convenience and he did not mention them. The topic of these hadith is not the silence over legislation of judgments but of the reticence about their forbiddance. Silence over their prohibition does not mean they are permissible, but rather that such silence of the legislator over such matters which are not mentioned would make permissible but does not mean that everything not mentioned is permissible.
The result of this type of opinion, coupled with a mentality which has lost the vigour to scrutinize the text to deduce the solutions Allah (swt) has given us. It has led some Muslims call for a “special” type of fiqh. This they aptly name the Fiqh al Aqiliyaat or the fiqh of minorities.
1.2 Introduction to the Fiqh of Minorities
Dr. Taha Jabir al-Alwani, a leading advocate of this innovative methodology, terms Fiqh Al-‘aqalliyyat 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-‘ aqalliyyat 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.”
Other proponents are the European Fiqh council, made of people such as Sh. Abdullah Bayya, the teacher of Hamzah Yusuf, and Sheikh Yusuf Qaradawi.
This approach makes the particular reality faced, or the environment, the source of legislation. As a consequence certain rules will be neglected and this approach has led to the contradiction of established rules from the Quran and Sunnah.
A. Examining the assumptions for the Need of the Fiqh of Minorities
i) The claim that Islam changes from Time To Time, And Place To Place.
They claim, that the principle, states that Islam changes “from time to time, and from place to place.” The proponents of this thought state, because we are now living in the modern age, and we are living in the West, thus a new methodology of extracting ahkam (rules) needs to be derived. Some of the previous Ulema did adopt this principle, especially amongst the Ahnaaf ( Hanafi Madhab), but one needs to understand the conception behind this principle. It is not how, those who advocate the invention of a new methodology state it should be used. According, to the Hanafi jurist, ibn Abidin, the meaning of “laws changing” is not that the laws of Shari’ah will change in accordance with the time and era, rather, laws that are based on custom and habit (urf ) or the rules of Fiqh which are based on juristic opinion (ra’i) or Ijtihad 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 clear texts of the Quran 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 Quran and Sunnah is an unacceptable custom (urf al-Fasid). (See: Ibn Abidin, Nashr al-Urf fi bina ba’d al-ahkam ala al-urf, P. 115).
ii) The ‘change’ of Imam Shafi’s Methodology
The basis, of this understanding, is amongst, other justifications, is that the great Imam Shafi (ra) changed his methodology, as he went from Medina, to Baghdad to Cairo.
Azizah Y. al-Hibri, states in an article “Islamic and American Constitutional Law: Borrowing Possibilities Or a History of Borrowing?
“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 recognize the principle that "laws change with the change in time and place.”
The proponents, of this principle, have failed to bring, a legitimate evidence. For example the justification, that Imam Shafi, changed his fiqh, merely because he moved from Iraq, to Egypt, is a major simplification of the reality of what occurred. It is quite wrong to suggest this, the reason was that the noble Imam, changed his methodology, because he was exposed to the different Mujtahideen, of the different schools from Iraq, and Egypt, and there methodology of extraction, and viewing texts. This led to a process of maturing his thoughts when it came to the process of Ijtihad. As Imam Ahmed ibn Hanbal Imam was once asked by Mohammad Bin Muslim ar-Razi to tell him which books of Shafi he should choose. Ahmad answered: "Choose books which were written in Egypt. the books he wrote in Iraq were not well done. Then he went to Egypt where he wrote his books in more profound way.”
B. 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?"
For example, the issue of the marriage of Muslim women to a disbeliever. It is clear from the ayah of the Quran that it is not lawful for Muslim women to be married to disbelievers:
لاَ هُنَّ حِلٌّ لَهُمْ وَلاَ هُمْ يَحِلُّونَ لَهُنَّ
“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 marriage is considered null and void and holds no value whatsoever.
But according to “Minority Fiqh” this answer, needs to be “reworked” by another “reworked” question. So as Taha Jabir al-Alwani mentions:
“However according to the “Fiqh of Minorities,” 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 Judgment Day” [document entitled “Muqadimah fii Fiqh al ‘Aqalliyyat” by Dr Taha Jabir Al-Alwani]
A quite unthinkable verdict based on what is called the “Fiqh of Minorities”. The issue, such as a British woman accepting 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 (Peace be upon him) when his (Peace be upon him) daughter Zaynab (ra) accepted Islam while her husband remained a non-Muslim. He (Peace be upon him) instructed her to leave and did not go against the definitive command of Allah (Swt), because going against the explicit command of Allah (Swt) is the greatest evil which can occur here, an evil which “Minority Fiqh” seems to 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 which leads to a Munkar (evil), and makes the mind, and prevailing reality the source for legislation, instead of being the subject of legislation which the Shari’ah rules come to regulate. It is a characteristic which Allah (swt) condemned the people of the Book in the past for concerning the falsehood which your tongues utter.
َلاَ تَقُولُوا لِمَا تَصِفُ أَلْسِنَتُكُمُ الْكَذِبَ هَذَا حَلاَلٌ وَهَذَا حَرَامٌ لِتَفْتَرُوا عَلَى اللَّهِ الْكَذِبَ إِنَّ الَّذِينَ يَفْتَرُونَ عَلَى اللَّهِ الْكَذِبَ لاَ يُفْلِحُونَ (النحل:
And do not say '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: 16:116)
The Prophet (Peace be upon him) said;
"Do not do what the Jews did in order to (technically) legalize Allah's prohibitions by flimsy excuses.'' (Ighathat al-Lahfan by Ibn al-Qayyim, vol. 1, p. 308. Reported by 'Abdullah bin Battah on good authority, and al-Tirmidhi classifies a similar hadith as sahih.")
Other points which are derived using this “methodology”, is the integration of the Muslims into the political system, the permissibility of riba, allowing Muslims to join the armies of the Kufaar, and fight against the Muslims, amongst others.
Other Pillars of Minority Fiqh
With respect to participation and integration of the Muslims, they use a number of points interlinked to their methodology, in fact they are its cornerstones.
a) Rational justifications, such as:
i. The idea of citizenship.
ii. The unity of the world of communications in which we live today, where cultures intermingle and different peoples live in one place.
b) Shari'ah justifications, such as:
i. Story of Yusuf (as) and the claim that he participated in ruling in Egypt, which I will not discuss in my presentation today.
ii. The benefit (maslahah) of the Muslims and Islam:
As Alwani states “it is permissible and an obligation on the part of the Muslim community to get involved as long as they are not forced to sacrifice their integrity. For the community it would be considered a type of jihad. If a particular member of the community feels him/her self to be too weak in religion then there is no harm if that person does not directly participate, but supports financially or in other ways instead. So any post or ruling position gained by Muslims themselves or if they are able to influence those in such posts, all of this is a gain for them; because they can improve their situation, alter the systems and laws which effect their presence or they are not in harmony with the moral philosophy of Islam. It is also in terms of having an effect on political decisions related to the Muslim peoples. Anything of the legal means that helps in realizing these noble aims will take the same hukm. This includes the Muslim presenting himself for certain political posts and choosing a non-Muslim candidate, if he is more beneficial for the Muslims or less harmful, and supporting him with money. Allah (swt) has permitted us to treat them with honour and maintain good links with them without getting something in return; so what about when supporting such a person brings us clear returns and benefits.”
iii. “Adherence to the Qur’anic concept of geography:
The earth belongs to Allah and Islam is His Deen…and Dar al-Islam is any land in which the Muslim is secure in his Deen even if lives among a non-Muslim majority. And Dar al-Kufr is any land where the Muslim is not secure in his Deen even if the majority of its inhabitants profess the Islamic ‘Aqeedah and culture.” Al-Alwani states that “Some modern scholars, and certain groups of people have thrown a significant monkey wrench in the Muslims' ability to live and interact with western countries ... They pose the argument that we should all move back to Darul-Islam (land of Islam), and if we are forced to live in Daru-Kufur (land of infidels) we should consider it a temporary stay and should either not participate or fight the “Kufur” government.
“Daru-Kufr and Daru-Islam are not concepts that existed at the time of the prophet. They were introduced later to describe the war torn oppressive world outside the borders of the Islamic state, and the peace and justice that existed within. We should drop concepts like Darul-Islam and Darul-Kufr and consider all land to be for Allah”
This argument is so preposterous; indeed those who call for participation in the political life of the West deliberately try to give the impression that the definition of Dar is a personal opinion of some of the Ulema. Such statements are dangerous because they assume that the great and distinguished ‘classical’ scholars like Abu Haneefah, ash-Shafi’i, Abu Yusuf, Ibn al-Qasim, al-Muzani and others had invented the definition without a precedent. They hide the fact that Shari’ah definitions, such as hiring (ijaarah), booty (ghaneemah) etc, are Shari’ah rules, because they are deduced from the Shari’ah daleel.
The definition of the Dar (homeland) is taken from a number of Shari’ah texts; for example, it is taken from the saying of the Messenger (Peace be upon him): “Then ask them to move from their land to the land of the Muhajireen, and inform them that if they did so they would enjoy the same rights as the Muhajireen and would be subject to the same duties.” - [Reported by Muslim on the authority of Buraydah] Thus, the discussion of the definition is a discussion of the evidences that have indicated it. To bring a definition that goes against the first definition can be done by bringing evidences that are contrary to it. This is what those who reject the definition of the Dar failed to do.
1.4 The assumption that the Purpose (Maqaasid) of the Shari’ah is the Benefit
What is meant by benefit by those who advocate its use is: ‘something the Legislator has not given a hukm to realize, or shar’ee evidence to acknowledge it or reject it.’ Some of them defined it as: ‘a description of an action through which one attains good i.e. a benefit, which is either permanent or general, for the masses or individuals.’
The advocates of participation in the political life of the West say that their deduction (istidlal) is based on benefit for the Muslims and on: ‘outweighing the best of two good actions, acquiring the greatest of the two interests by rejecting the least important of the two, and repulsing the worst of the two evils by accepting the least of the two evils.’ The fallacy of this view is clear due to the following points:
Defining the benefit or evil is the right of Allah the Lord of the Worlds. Whatever the Shari’ah has requested is a benefit and interest. And whatever the Shari’ah has forbidden is an evil (mafsadah). This is what is meant by the saying of Allah (swt):
كُتِبَ عَلَيْكُمْ الْقِتَالُ وَهُوَ كُرْهٌ لَكُمْ وَعَسى أَنْ تَكْرَهُوا شَيْئًا وَهُوَ خَيْرٌ لَكُمْ وَعَسَى أَنْ تُحِبُّوا شَيْئًا وَهُوَ شَرٌّ لَكُمْ وَاللَّهُ يَعْلَمُ وَأَنْتُمْ لاَ تَعْلَمُونَ (البقرة:
“Fighting (Jihad) is ordained for you (Muslims) though you dislike it, and it may be that you dislike a thing, which is good for you. And it may be you like something, which is bad for you. Allah knows but you do not know.” [TMQ 2:216]
If it is left to the mind to decide then the people will find it difficult to determine the true benefit because the mind is limited. The mind is not able to encompass the essence of man and his reality. It is not able to decide what is beneficial for him because it does cannot grasp its reality such that it can know that this thing is a benefit or harm. Nothing comprehends the reality of man except his creator. Nothing can decide its man’s benefit in a precise manner except his creator who is Allah (swt). Yes, it is possible for man to think a thing s beneficial or harmful but he cannot be definite. That is why leaving the mind to decide what is beneficial based on assumption will lead to danger and peril. For it may think something is harmful and then it appears to him that it is of benefit. Then he has removed the good from himself.
Allah forbids, that we should claim there is a benefit in that which has been forbidden to us.
Moreover, who is going to define the interest, which some people claim? While the disputes between Muslims are open for all to see. One look at the reality shows us the struggle over running the Masajid and the desire to have control over them and their finances. This is something very few Masajid in the West are free of, and everyone is aware of this fact. So after that, how can we speak of benefit, and who defines the benefit? For example, has there been any election in which the Muslims did not disagree, such as the recent local elections in the UK, where some Muslims joining/voting for the Liberal Democrats, the party which was in power when the Khilafah was destroyed. Some advocated the joining of the Conservative party, and some even were proud to display the fact that they were members of the Labour party.
2. The condition of benefit for those who advocate this is that the benefit must be real and not based on whim. The benefits, which those Muslims claim and wish to realise through participation in kufr rule are mostly fantasy and not real. Rather there is no real benefit except that which is achieved by the West. They claim that without participation, things such as Masajids, schools, and other rights will not be achieved. But the fact is that for the past thirty years Muslims have been living in the West without “political participation” and have built Masajid, and schools from amongst themselves.
We have a lesson to learn from the example of George W Bush who won the American presidential elections with the votes of Muslims. A large number of Muslims thought that this man would achieve an Islamic interest by allowing them to build institutions and help them improve their image, and win support for many issues such as Palestine. No sooner was he elected and assumed the power, he began to light the fire of a new crusader war and began to kill, banish and expel the Muslims of the world under the pretext of terrorism. The same can be said about the current Labour Party, where many Muslims voted for this party, expecting the lives of Muslims to be easier, but instead it has been full of misery.
Thus, the tangible and perceptible reality shows us that the benefit of participating in the political life of the west is imaginary and not real. Rather they use our votes for their own benefit. They do not change their benefit driven policies and nor do they abandon their vital interests because we have participated with them in kufr rule or that we have elected them.
3. They say ‘the benefit which they discuss and adduce as proof is something which the Legislator has not given a Hukm for its realization and nor has the Shari'ah evidence indicated its acknowledgement or rejection’ Participation in kufr rule is from the benefits which the definite evidences have testified to their rejection and invalidation.
4. The principle of: ‘outweighing the best of two good actions, and rejecting the lesser of the two evils”, for the one who adopts this principle, applies to the Muslim who has no other option. An example for that is when one had to save a woman from death while her ‘awrah had become exposed. If a man who finds her in this situation and he is compelled to help her, then he should do so even if he has to look at her ‘awrah. As for that which can be avoided, it is not allowed to use such principles. Sh. Abdullah Bayya, stated, “I feel it is important that people are concerned with political candidates in this country. If we support the candidates who are known to have positive attitudes towards the Muslims and who are supportive of Muslim causes and even those who are just better people than the opposing candidates, in the usooli knowledge, this would be considered taking the lesser of two evils.”
Participating in kufr systems is something, which can be avoided. As for the one who defines the best of two good actions and two evil, it is the Shari’ah and not the mind. Since the Muslims gave their human minds the right to define and outweigh, which they are not able to do, due to the disparity in minds and views, they elected Tony Blair and rejected the Conservatives on the basis of this principle. What was the result? Did they prevent the worst of the two evils or did they bring it about?
The notion of Citizenship, and joining the institutions of the indigenous nation.
First: The notion of citizenship
The advocates of the methodology claim “The concept of citizen, duties of a citizen, international law, and diplomatic relations didn’t exist in the form that they are today. In ancient times, the language of military power was supreme. A country's borders were only established because the military found it difficult to move forwards. Globalization didn’t exist. People in ancient times lived on a planet of islands.
Therefore we should not fight each other over the literal rulings of the past. Rather we should study the methodology, wisdom, and intent of the prior rulings to best understand how they should apply to the modern world.”
They say: “the idea of citizenship as we understand it today did not exist in the world in which our classical jurists (Fuqahaa’) lived. Rather what existed was a type of cultural affiliation to a certain civilization or political affiliation to a certain empire, which relies on a creedal measure. Such type of affiliation deals with those having different belief with caution beside variation in the level of tolerance: from the Spanish inquisition to the Islamic rule of Zimmis.”
“Staying in a country outside the country of origin based on fixed measures such as being born in the host country, length of stay or marriage did not give the resident, in the past, the right of citizenship. Rather, the one who arrived to stay used to, automatically, become a citizen when he participated in the beliefs and culture of the people in that country. Otherwise he would remain a stranger – no matter how long he was a resident in the country – if he was different to the people in these things.”
”The old world did not know what is now known as international law or diplomatic relations, which oblige every state to protect the citizens of other states residing in its lands and to treat them the same as their own citizens are treated, except in certain rights which are afforded only to their own citizens.”
So under the guise of being a citizen, we hear that certain individuals claim that we are citizens in the UK, and that the British Queen is our Sovereign and our leader is Tony Blair, and the British Troops are “our boys”. We heard statements that the Muslims can fight with the British army. So as an example, when Mr. Muhammad Abdur-Rashid, the most senior Muslim chaplain in the American Armed forces asked a question to certain scholars, who follow this specific methodology, regarding the issue, of Muslims within the American army to fight against the Muslims in Afghanistan, the answer was given as such;
“To sum up, it's acceptable - God willing- for the Muslim American military personnel to partake in the fighting in the upcoming battles, against whomever, their country decides, has perpetrated terrorism against them. Keeping in mind to have the proper intention as explained earlier, so no doubts would be cast about their loyalty to their country, or to prevent harm to befall them as might be expected.”
Later seeing the stark contradiction, with the divine text, some of the authors of the fatwa, retracted this fatwa. The point, I am raising here, is not one of gloating, but to highlight the corrupted thinking process employed by this methodology. The reality is that this is wrong from a number of angles:
1. Citizenship is an expression similar in meaning to what we call tabi’iyyah. Anyone who carries the tabi’yyah of the Islamic state and chooses to live in Dar al-Islam will enjoy the right to have his affairs looked after regardless of his gender, colour or religion. Islam has made Muslims and non-Muslims equal in ruling, looking after of their affairs, application of rules and rights and duties except in those instances which are religious and cultural specific. The following was mentioned in the constitution of Madinah: “And that whoever, of the Jews, followed us has the right of help and the good example (of treatment)…And the Jews of Banu ‘Awf are a community with the believers; the Jews have their own Deen and the Muslims have their own Deen, their followers (mawaalee) and themselves…” [Ibn Hisham]
Therefore, one cannot say the idea of citizenship is a new concept, which did not exist before, in its current meaning. This is not correct.
2. The fact that the West considers the criteria of birth and marriage for granting citizenship does not change the reality of citizenship, because it is a result of residing in the country or a Dar (land). It is acquired by the way mentioned and by other means. But residence is the basis of citizenship. That is why such criteria have no consideration or effect on the reality of citizenship, and nor they have an effect on the ahkaam that result from citizenship.
3. Their saying: “The old world did not kno
w something called international law or diplomatic relations, which oblige every state to protect the citizens of other states residing in its lands and treating them the same was as the original citizens are treated” is a statement that contradicts with the facts and history of Islam. This is because - the principle of: ‘compliance with the covenant and observance of (good) neighbourhood’ dominated the ‘old world’, as they call it. This principle was known and used by the Arabs in Jahiliyyah and others like the Abyssinians. The best illustration of this is the example of interaction of the Najashi with the Muhajireen.
As for Islam, it has legislated the principle of al-‘ahd wal-jiwaar. It has explained this principle in a manner that befits its position and legislated rules for citizenship and tabi’iyyah. It has laid down its details and rules. The proof for this is many of texts in the Quran and the Sunnah and the practical examples of its implementation in the Islamic society throughout history. It was narrated from the Messenger of Allah (Peace be upon him) that he said: “The one who oppresses a person under (our) covenant or degrades him, gives him work beyond his ability or takes something from him without right, I shall be a complainant against him on the Day of Judgement.” [Reported by Abu Dawud and al-Bayhaqi] And the following was mentioned in the constitution of Madinah: “Anyone from the Jews who comes under our authority he shall have our support and good example (of treatment)....And the Jews of Bani ‘Awf are a community with the believers.” Ibn Janjawayh reported in Kitab al-Amwal that “Umar saw an old man begging from the people of Zimmah so he said: what is the matter? The man said: I have no money and the Jizya is taken from me. Umar replied: we have not treated you fairly. We have eaten your shaybah (old age) and then we take Jizya from you. Umar then wrote to his Amileen (governors) instructing them not to take Jizya from the elderly.”
4. The view regarding the right of citizenship cannot serve as a justification for participation in the political life or for anything else. This is because citizenship is, in reality, an attribute of the one who shares a place of residence with others. Even though it requires that the Muslim naturally submits to the rules and laws of that place, it can not, however, judge over the Shari’ah or restrict its absolute (mutlaq) text, specify its general (‘amm) text, or clarify its ambivalent (mujmal) text etc. If participation in kufr is allowed, for example, because of the right of citizenship, then it would be allowed to fight the Muslim based on the same right, which is false.
Making citizenship a justification means making citizenship a source of legislation, which permits the Haraam and forbids the halal. This contradicts Islam completely.
Conclusion:
It is clear to see from this brief discussion of the Minority Fiqh, it is a symptom, of a corrupted thought process which looks to the dominant West for its solution. It is a thought process which has been infatuated with Capitalism, and cannot think beyond, the limits, which the decadent ideology has set.
The aim of participating in the political life of the West is to achieve a set of benefits and demands. Such as supporting Muslims and their issues and providing the best opportunities for Da’wah to Islam, enabling Muslim migrants to adhere to the Shari’ah rules without difficulty or hindrance, such as in the rules of marriage, halal food, shar’i dress code for women and other such legitimate demands. These things can be achieved by following the Shari'ah path permitted by Islam without the need to commit Haraam or make recourse to the rule of necessity (daruraat) and attaining the benefits (masalih) and repelling the evils (mafaasid), which permit the Haraam. Allah (swt) has provided us of his halal that which suffices us from falling into His haram; and he allowed us alternatives and styles that suffice us to realise (our) demands.
