Asif Khan
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 Kosovo 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 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.
As a challenge, there are some individuals and groups, who with sponsorship, from the Western states, have embarked on devising a methodology, to address these issues. Some Muslims claim that since Muslims in the West are minorities, this constitutes grounds for establishing a “Minority Fiqh [Islamic jurisprudence]”. For instance, a preposterous claim is made that some of the rules of “traditional” Fiqh cannot be applied in a non-Islamic society, including the rules of divorce and riba.
Dr. Taha Jabir al-Alwani on the purpose of Fiqh Al-‘Aqalliyyat (Fiqh of Minorities), in a document entitled “Muqadimah fii Fiqh al Aqalliyyat”, states that the purpose 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”.
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 Qur’an and Sunnah.
For example, the issue of the marriage of Muslim women to a disbeliever. It is clear from the ayah of the Qur’an that it is not lawful for Muslim women to be married to disbelievers:
"O you who believe! When believing women come to you as fugitives, examine them. Allah is best aware of their faith. Then, if you know them for true believers, do not send them back to the disbelievers. 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 (Sallallahu Alaihi Wasallam) when his (Sallallahu Alaihi Wasallam) daughter Zaynab (ra) accepted Islam while her husband remained a non-Muslim. He (Sallallahu Alaihi Wasallam) instructed her to leave and did not go against the definitive command of Allah (Subhanahu Wa Ta’aala), because going against the explicit command of Allah (Subhanahu Wa Ta’aala) 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.
The Correct Approach
The correct approach to deal with issues of Muslims in the West and throughout the world needs to be firmly grounded in the rational creed of Islam. Any deviation from this is a fatal mistake. The Shari’ah from the Arabic language means the clear path or path leading to the source. The linguistic meaning of the word Shari’ah is a non-exhaustive source of water from which people satisfy their thirst. Thus, the linguistic significance of Shari’ah is that the Islamic laws are effectively a source of guidance. As water is the fundamental basis of life, the Islamic laws are an essential source for guiding human life.
Shari’ah is composed of all the laws derived from the legislative sources of Islam. These laws are not just limited to areas covering marriage or divorce – rather the Islamic law covers every action performed by an individual or a society.
Allah (Subhanahu Wa Ta’aala) describes this:
يَا أَيُّهَا الَّذِينَ آمَنُواْ اسْتَجِيبُواْ لِلّهِ وَلِلرَّسُولِ إِذَا دَعَاكُم لِمَا يُحْيِيكُمْ وَاعْلَمُواْ أَنَّ اللّهَ يَحُولُ بَيْنَ الْمَرْءِ وَقَلْبِهِ وَأَنَّهُ إِلَيْهِ تُحْشَرُونَ
"O you who believe! Answer Allah (by obeying Him) and (His) Messenger when he calls you to that which will give you life. And know that Allah comes in between a person and his heart. And verily to Him you shall (all) be gathered” [TMQ Al-Anfal: 24].
The Shari’ah is a Comprehensive and Perfect Source of Law
The Islamic Shari’ah contains rules of all past events, current problems and all possible incidents that may happen. Nothing has happened in the past or is happening at present or will happen in the future except that each and every one of those things has a ruling from the Islamic Shari’ah.
The Islamic Shari’ah encompasses all actions of man, completely and comprehensively, at every time and place. He (Subhanahu Wa Ta’aala) 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].
And He (Subhanahu Wa Ta’aala) said;
مَّا فَرَّطْنَا فِي الكِتَابِ مِن شَيْءٍ
“Nothing have we omitted from the book” [TMQ Al-An’am: 38].
And He (Subhanahu Wa Ta’aala) said:
الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي وَرَضِيتُ لَكُمُ الإِسْلاَمَ دِينًا
“This day, I have perfected your religion for you, completed my favour upon you, and chosen for you Islam as your way of life (Deen)” [TMQ Al-Ma’idah: 3].
Thus, the Islamic Shari’ah did not neglect a single thing from the actions of the servants of Allah (Subhanahu Wa Ta’aala) whatever they may be.
The Shari’ah either states an evidence for the action as a text in the Qur’an and the Hadith, or it places a sign in the Qur’an and the Sunnah to indicate the aim of an action, and the illah, reason of its legislation. So the Shari’ah rule applies to any and every action that includes that sign or that reason. It is not possible that a human action does not have an evidence or a sign that indicates its rule. This is due, to the general, and definite meaning of Allah (Subhanahu Wa Ta’aala) saying
تِبْيَانًا لِّكُلِّ شَيْءٍ
“exposition for everything” [TMQ An-Nahl: 89],
And due to the explicit text that Allah (Subhanahu Wa Ta’aala) has completed this Deen. To this effect, Imaam Sayf ud al Amidi (d.631 Hijri) writes, in his famous work on jurisprudence, al-Ihkam fi Usul al-Ahkam 1: 113
“You should know that there is no judge (or arbiter) except God, that there is no judgement but His. A necessary entailment of this (proposition) is that human reasoning cannot declare things to be good or bad and that it cannot necessitate gratitude towards the conferrer of bounties. There is indeed, no rule (or judgement) before the revelation of the Shari’ah.”
The Need for Ijtihad
The Islamic Shari'ah made Ijtihad, for the purpose of deriving the divine rules, an obligation upon Muslims. This methodology needs to be undertaken based upon the divine texts. The reality must not be the source of the Shari’ah rules, as is too common for those who advocate the re-invention of Islamic jurisprudence.
The perfect Shari’ah, which contains all the rules for all our problems, requires the Mujtahid to perform Ijtihad. The obligation of Ijtihad is established by several Ahadith. The Messenger of Allah (Sallallahu Alaihi Wasallam) said,
إذا اجتهد الحاكم أو المجتهد فأصاب فله أجران، وإذا اجتهد فأخطأ أجر واحد
“When the judge is about to judge and he performs Ijtihad and arrives at the right conclusion, he will receive two rewards, and if he judges and makes a mistake, he has one reward” [Sahih Bukhari & Muslim]. In addition, the Messenger (Sallallahu Alaihi Wasallam) said,
"And a man who judges among people with ignorance, he is in Hell" [Abu Dawud], emphasizing that the judges must be knowledgeable about what they judge by. It was narrated that the Messenger (Sallallahu Alaihi Wasallam) said to Ibn Mas'oud, "Judge by the Qur'an and the Sunnah, if you have them, but if you do not find the rule in them, then exert your utmost and give your opinion".
The word “opinion” mentioned above is that which is within the framework of the Shari’ah.
It was also narrated, when the Prophet (Sallallahu Alaihi Wasallam) sent Mu'adh and Abu Musa Al-Ashari to
Yemen, that he (Sallallahu Alaihi Wasallam) said,
“What are you going to rule by?” They said, “If we don't find the rule in the Qur'an and the Sunnah, we will compare a case to another and whatever is closer to the Haq, we will act upon it.” This analogy made by the Sahabah (ra) and approved by the Prophet (Sallallahu Alaihi Wasallam) described the process of Ijtihad in deriving rules. Also, it was narrated about him (Sallallahu Alaihi Wasallam) that, when he sent Mu'adh as a governor to Yemen, he (Sallallahu Alaihi Wasallam) said to him, “What are you going to rule by?” Mu’adh said, “By the Qur'an of Allah.” The Prophet (Sallallahu Alaihi Wasallam) then asked, “If you don't find (the rule)?” He said, “By the Sunnah of the Messenger of Allah (Sallallahu Alaihi Wasallam).” The Prophet (Sallallahu Alaihi Wasallam) said, “If you don't find (the rule)?” Mu'adh said, “I exert my utmost and give my opinion.” The Prophet (Sallallahu Alaihi Wasallam) said, “Alhamdu Lillah (Praise be to Allah) that He led the messenger of Allah to that which Allah and His Messenger like” [Al Baihaqi, Ahmad and Abu Dawood].
This Hadith clearly permits Mu'adh to perform Ijtihad. Moreover, knowing the Hukm Shari’ (divine rule) is inextricably linked with Ijtihad to the extent that it is not possible to know the Islamic rules without it. Consequently Ijtihad becomes an obligation because of the Shari’ah principle, ‘That which the obligation cannot be accomplished without becomes an obligation itself’ [Shaksiyah Islamia Volume 3 by Taqiuddin an-Nabhani].
Ijtihad is an obligation and only the Mujtahideen are authorized by the Shari'ah to extract rules. The scholars of 'Usul al Fiqh (foundations of jurisprudence) stated that Ijtihad is a collective duty (Fard Kifayah) and that the Mujtahideen should exist at all times. The Muslim Ummah would be in sin if it abandoned Ijtihad, as Ijtihad is the method of extracting Akham Shari'ah. If no Mujtahideen could be referred to for learning the rules of Islam during a given period of time, this would result in the non-implementation of the Shari'ah, which Islam prohibits. In addition, the texts of Shari'ah obliges Ijtihad upon Muslims because these Shari' texts (the Qur'an and Sunnah) encompass all issues of mankind at the time of Revelation and later generations. In addition, in most cases, the text provides guidelines from which rules can be derived for a specific incident. The text did not address each and every incident in a detailed manner. Understanding and deriving the rules of Allah (Subhanahu Wa Ta’aala) from the Qur'an and Sunnah requires exhaustive research in every incident. However, while Ijtihad is laborious, it is not an impossible task because it involves one's utmost exertion in extracting the "most likely" rule, which is within every Mujtahid's ability.
