❞ كتاب Fiqh of Muslim Minorities ❝ ⏤ يوسف القرضاوي

One of the most important fruits of Islamic jurisprudence is affording legal solutions to the problems and mishaps of the times. In its turn, jurisprudence is invariably colored by the various conditions and circumstances of man in any given period.

Among the topics of discussion between jurists and contemporary researchers, is the issue of "the fiqh of minorities". "Minorities" refers to a group of Muslims living in a region whose inhabitants are predominantly non-Muslims.

"The fiqh of minorities" is a new term that was not investigated in the juristic heritage of Muslims but was coined in response to the changing reality of the times. This is confirmed by the fact that the fiqh related to these minority groups is qualitative in nature and takes into account the relation of legal rulings to the conditions of a specific group living in a specific place in light of their specific circumstances where what is suitable for them may not be suitable for others." So the spatial circumstances of these minority groups affords them, in many instances, exigent justifications compelling a mufti to issue a fatwa (legal verdict) that is contrary to the established opinion of his school of jurisprudence, contrary to the opinion he deems dominant due to its evidences, or contrary to the fatwas of other muftis in areas where Muslims are the majority. Consequently, it is possible to say that the subject matter of the fiqh of minorities is the juristic rulings in relation to a Muslim living in a non-Muslim land.

Though this fiqh is specific in terms of its topics and problems, it operates within the framework of Islamic jurisprudence; hence, its reference is the Qur`an and the sunna and the textual evidences derived through the processes of ijma' (scholarly consensus), qiyas (analogy), istihsan (equity), al-masaleh al-mursalah (consideration of public interest), sad al-dhara`i' (blocking the means to evil), 'urf (customs), istihsab (presumption of continuity) and the other evidences that serve as the premises for scholarly opinions. Many of the issues related to these minority groups are analogous to issues mentioned in our juristic inherited literature; contemporary novel issues are considered old in genus, new in class. This evidences the importance of collecting the fatwas and rulings related to Muslim minority groups. This specific type of fatwas catered to the issues and needs of Muslim minorities help Muslim minority groups live under the umbrella of Islamic law and adhere to the rulings of their religion. Simultaneously, they help them integrate in their community without any dissonance between the rulings of their faith and the exigencies of life and in a manner that precludes any distress, hardships or oppression all of which are rejected by the venerable shari'a. God the Almighty says, "Allah doth not wish to place you in a difficulty" [Qur`an 5: 6] and "He …. Imposed no difficulties on you in religion" [Qur`an 22: 78].

Numerous conferences, workshops and research circles have been held to discuss topics related to this type of fiqh. This issue has acquired even particular importance lately in Europe and North America as part of rediscovering Muslim identity amidst the multifaceted challenges which the second and third generation Muslims face.
We shall attempt to give a brief introduction to the fiqh of minorities. It comprises the following:

1- A definition of the fiqh of minorities.
2- The importance of studying the fiqh of minorities.
3- The pillars of the fiqh of minorities.

1-Definition of the Fiqh of Minorities

The linguistic meaning of the word 'minority' is the opposite of 'majority' and means rarity or decrement. This meaning is most prominent in the technical definition of the term; the definitions revolve around the meaning of minority as a group of people, inferior in number and different in certain characteristics, usually color, religion, or culture, from a larger group of which it is an integral part. Dr. Ali Montaser al-Kattani defines 'minority' as, "A group of people living among a numerical majority and sharing a characteristic differing from the larger group and, in consequence, are treated differently from the majority."

Some scholars have defined the term as "a sub-ordinate group whose members share characteristics differing from those of the surrounding society. This group considers itself a community under the domination another majority group that enjoys superior societal privileges and who aim to deprive it of fully participating in the social, economic or political life and limit their role in the majority society."

It is interesting to note that the technical definitions underscore the numerical aspect as the determining factor of minority or majority status. This means that any group that is numerically inferior to another is the minority even if they are the ruling or sovereign group. However, this is not how we gauge the issue of the fiqh of minorities especially since in some places such as certain South African states and Mauritius, Muslims are numerically dominant even though these countries are not identified as Muslim. Numbers as the determinant of the concept of minority status does not suit our intended definition of the fiqh of minorities. Rather, our intended meaning refers to the presence of Muslims in countries where Muslims are neither the majority nor rulers ie non-Muslim lands. In this sense, the term minority group refers to "any group living among another sovereign group and differ from it in a certain characteristic." Based on this, the fiqh of minorities may be defined as "the legal rulings relating to Muslims living among a non-Muslim sovereign group." The characteristic feature of this fiqh is its specificity with respect to its topics and distinctive problems, though it is not independent of the general legal framework of Islamic law. Moreover, its legislative bases are the same as those implemented by the various juristic schools. The fiqh of minorities relies on both agreed upon evidences and controversial evidences. Moreover, many of the issues pertaining to the fiqh of minorities are analogous to issues mentioned in our inherited juristic literature though with new and contemporary configurations. Specifying the legal issues related to Muslim minorities to a particular kind of fiqh is a practical application that is subject to either approval or rejection. This kind of fiqh based on ijtihad may be considered fatwa for a particular group and, in this case, is an unequivocal application of the concept of a fatwa changing according to place which is one of the four aspects factoring in the change of fatwa. In this manner, it is removed from the vulnerability of the term and its implications. In other words, it is a contemporary application of the principle that a fatwa changes with time place and prevailing conditions.

Apart from this, in its essence, the fiqh of minorities deals with issues related to minorities from a different perspective because it emanates from a different reality. It may be that the capaciousness of opinions on matters based on ijtihad and the existential reality surrounding Muslims living in non-Muslim countries dictates this approach towards tackling issues from a different view point. As previously mentioned, many researchers have asserted that the fiqh of minorities is a new concept, though some scholars maintain otherwise. The legal opinion of Hanafi scholars allowing Muslims to engage in invalid contracts in non-Muslim lands as well as other similar fatwas within their school contest this view and confirm that the change in legal rulings according to place is a fundamental provision in our juristic heritage.

2-The Importance of Studying the Fiqh of Minorities
There is a growing interest in exploring the conditions, problems and issues concerning Muslims living in non-Muslim lands. This interest correlates with the growth of a generation that not only comprises migrants to non-Muslim countries but also natural born citizens holding the same right to citizenship as others of a religion different to theirs. Migrants to these countries have emerged as a community; they established community centers that serve them as assembly zones and as their vehicles of expression. Some of these migrants attained senior positions and have a say in decision making, albeit in the shadow of the sovereignty of non-Muslims. This complex reality creates a state of re-interpretation of juristic issues in light of the circumstances surrounding Muslims living in non-Muslim countries. Consequently, the need for this re-evaluation increases, allowing Muslims in non-Muslim countries abide by the provisions of their religion and trust that they are living under the umbrella of Islamic law while simultaneously integrating in the society without alienating themselves. The aim is to avoid a dissonance between the rulings of the shar'ia and the requirements of non-Muslims, a situation which may result in difficulties, hardships or despair and which may also cause a Muslim to abandon his religion altogether.

Dismissing the importance of addressing the needs of this minority reflects the extent of ignorance of their problems. An example is the issue of usury. There is no contention on the prohibition of engaging in usury except for a dire necessity. Dar al-Ifta has issued several fatwas on this matter and not only chose, but favored, the opinion maintaining that some transactions between Muslims and non-Muslims in non-Muslim countries do not involve usury and may be modified to comply with Islamic law. This is one example of many fatwas which must take into account the conditions of the inquirer. Additionally, these matters are not hypothetical but frequently asked questions; they inform about real situations which a Muslim living in a non-Muslim country cannot avoid or adapt to. It is not acceptable to reject any juristic loophole by which a Muslim may continue to abide by the provisions of Islamic law and which helps him avoid any hardships or distress.

It cannot be suggested that the purpose of studying the fiqh of minorities is to track dispensations or weak or anomalous opinions. On the contrary, its purpose is to take into account the objectives of Islamic law, the fiqh of reality, the fiqh of balances, the fiqh of priorities and the fiqh of consequences. In no way does this mean forfeiting the fundamentals of Islam or infringing upon whatever represents the identity of Islam. We have mentioned earlier that the fiqh of minorities operates within the general framework of Islamic law and does not conflict with the fundamentals of Islam or with its identity.

3-The foundations of the Fiqh of Minorities
The pillars of the fiqh of minorities are the fundamentals and criteria upon which this fiqh is established. Many contemporary researchers of this branch of fiqh have called for the necessity of acknowledging fundamentals for this kind of fiqh to meet the circumstances of Muslim minorities in the countries of their residence.

For quite some time, contemporary Islamic fiqh has concerned itself with the position of Muslim minorities living in Europe and addressed it through a legal approach which has resulted in a fiqh comprising a corpus of fatwas and rulings that are increasing from one day to the next. However, this increasing interest in the Islamic presence in Europe, its fruits and resultant fiqh, remains deficient of an essential link of juristic appraisal concerned with directing ijtihad and guiding it towards tackling issues concerning Muslims living in non-Muslim countries, allowing them to follow the provisions of their religion. This missing link is the ta`sil fiqhi or juristic founding (the methodology of relating a certain law to an asl ie an original issue that usually exists in the Qur`an or sunna) represented in establishing fundamental juristic principles specific to the fiqh of minorities and which is based on the specificity of the various circumstances and conditions of Muslims living in European countries."

Though we acknowledge the necessity of the availability of principles and criteria that serve as the backdrop for the fiqh of minorities, we do not profess that these principles are separate from the traditional principles of usul al-fiqh or that they conflict with its issues and research topics. Rather, the fiqh of minorities is subsumed under the general structure of Islamic fiqh though its principles are distinguished with depth of study, its approach and the careful classification of juristic issues and authorship on the fiqh of minorities. As mentioned earlier, this branch of fiqh does not operate outside the general framework of Islamic law. Due to the brevity of this introduction, we would like to mention some of these principles and criteria which vary in number according to scholars based on the quality and accuracy of research.

 Book author : Sheikh Yusuf AIQaradawi