My first acquaintance with fiqh al-aqalliyyat or the jurisprudence of [Muslim] minorities was in a discussion last year with Dr. Taha Jabir al-Alwani at the International Institute of Islamic Thought in Herndon, Virginia. I understand from him that it is a new area of Islamic jurisprudence, or rather a new name for an old area of jurisprudence, that used to be called fiqh al-nawazil, or “jurisprudence of momentous events”. The Maliki madhhab (school of jurisprudence) has among the most well-known literature for this, perhaps because of the experience of the predominantly Maliki populace of the Muslim West in losing Andalus (Islamic Spain) to the Christians. There were works, for example, on Nawazil ahl al-Qurtuba, or the “momentous events of the people of Cordova”, the nawazil of Such-and-such a city, and so forth. Their scholars gave fatwa, the formal Islamic legal opinion of a mufti, about what Muslims could legally do in such circumstances, fatwas found in such works as the Maliki scholar Ahmad al-Wanshirisis twelve-volume al-Miyar al-mughrib an fatawa ulama Ifriqiya wa al-Andalus wa al-Maghrib [The standard, expressing the fatwas of the scholars of Tunisia, Andalus, and Morocco], and other works.
We find similar types of fatwas, in the Hanafi school, in works such as Ibn Abidin’s famous Hashiya [Commentary] on Haskafi’s al-Durr al-mukhtar [The choice pearls], or the al-Fatawa al-Hindiyya [Fatwas of India], under the juristic rubric of ma taummu bihi al-balwa, or that which is of widespread affliction, meaning circumstances that do not accord with the shari’a but necessarily affect so many people that allowance has to be made for them, for reasons to be mentioned below. The Hanafi school is particularly rich in such legal applications out of necessity, for it governed the majority of Muslims for the greater part of Islamic history, including the Abbasid and Ottoman periods, and its muftis dealt with many many situations in many different lands.
How is it possible that the ruling of Allah could vary from place to place? One scholarly answer is found in the Islamic legal concept of “darura” or “vital interest” that sometimes affects the shari’a rulings otherwise normally in force. Although the fundamental basis of Islamic law is that it is valid for all times and places, Allah Most High, in His divine wisdom, stipulates in surat al-Hajj that “He has not placed any hardship upon you in religion” (Qur’an 22:78).
Now, the beginning of this verse is an exhortation to fight as hard as one should in jihad, which will normally result in the death of some of the combatants, a considerable hardship, but necessary to protect the religion and interests of the community as a whole. So the verse does not mean there will be no hardship in the religion at all, but rather lifts the hardship of things which are beyond the Muslims strength, which, if they were continually to bear them, would result in harm to vital interests such as their religion, persons, or property.
This means that for Muslims living as minorities, as well as for others, exceptional shari’a rulings may sometimes be effected when not to effect such exceptions from the normal rulings would vitiate a darura or “vital interest”. Among the interests usually enumerated as vital in the science of usul al-fiqh or “bases of jurisprudence” are five: ones religion (din), person (nafs), having offspring (nasl), property (mal), or reason (aql). The effect of shari’a rulings upon these vital interests in particular circumstances could conceivably differ in lands of Muslim minorities from those of Muslim majorities.
What has been attempted in the modern jurisprudence of minorities, is to examine past fatwas given in such exceptional circumstances, identify the interests in which they were given, the methodological principles of Islamic jurisprudence (al-qawaid al-fiqhiyya) used, the Qur’an and hadith primary texts cited as evidence–and draw conclusions relevant today. In this particular, it is worth noting again that fatwas may vary with time, place, and those to whom they are given, in view of the human advantages and disadvantages that the shari’a must take into consideration because of being universally applicable to every place and time.
For example, in reference to whether Muslims can live in Western countries, I pointed out to Dr. Taha that al-Wanshirisi mentions in his Miyar al-mughrib a fatwa given by a Moroccan scholar after the fall of Andalus that it is not permissible for a Muslim to remain in a non- Muslim land where shari’a does not rule “for even a single hour of a single day”. Dr. Taha replied that such fatwas were given in view of the need of the Muslim polity to sever all ties and ways of compromise with the non-Muslim occupiers. This was also the main interest, he said, in fatwas given by Maliki scholars at the beginning of this century of the unlawfulness of North-African Muslims taking French citizenship, at a time when France wanted to buttress its hegemony over the area by offering citizenship and passports to Muslims; whereas today, North Africans living in France and elsewhere may very well have a valid need for taking such a foreign nationality.
We should remember, among the other points mentioned above, that issuing a fatwa on the exceptional rulings we have mentioned (or interpreting the present relevance of past fatwas given under such exceptional circumstances) requires a mufti qualified to do ijtihad–I have mentioned elsewhere the qualifications needed by such scholars, and in consequence, how rare they are–and is a path to hell for anyone else. Secondly, an exception made to protect a “vital interest” (darura) cannot exceed the minimum necessary to obviate harm to that interest.
(c) Nuh Ha Mim Keller 1995
© 2012 As-Sunnah Foundation of America