Fiqh al-aqalliyat, translated as “jurisprudence of minorities”, is a fast growing new subject that will impact quite significantly the future of Muslims living in the West. Presently, more than one third of the Muslim population of the world is living as minorities in non-Muslim countries. The situation has posed challenges not only for the host countries but also for Muslims. Most Muslims perceive Muslim minorities as integral part of the larger Muslim community, Umma. They insist that Muslims must be governed by Islamic law, often that of the country of origin. Consequently, Muslim countries are expected to help these minorities with human, political and financial resources in order that they can live Islamically. This perception is quite problematic. On the one hand, while the Muslims have been living in these countries for three generations, this view still perceives their presence transitory. It cannot conceive Muslims living permanently under non-Muslim rule. On the other hand, this perception tends to imagine Muslim minorities as colonies of the Muslim world. Beside the question whether Muslim countries are in a position to play that role, this perception raises serious questions for the future of the Muslim minorities.
Notwithstanding the ambiguity of this position, some Muslim jurists in the Muslim world continue extending to Muslim minorities the old laws applied to those left behind after the non-Muslim occupation of Muslim lands. They presume that eventually these Muslims would have to re-migrate to Muslim countries. In the meanwhile, they must protect their religious and cultural identity by isolating themselves from the host communities.
An example of this perception is Muslim Minorities, Fatawa regarding Muslims living as Minorities (London: Message of Islam, 1998) by the late Shaykh Ibn Baz and Shaykh Uthaymeen, the two very influential Saudi muftis. The book explains that preservation of faith and strict obedience to the laws of Islam is the foremost duty of all Muslims, including those living as minorities. The fatawa show awareness of the difficulties and hardship of Muslim minorities and advises them to be patient but “if it is not possible to gain a livelihood except by what Allah has forbidden, namely through the mixing of men and women, then this livelihood must be abandoned”… (p.75). It discourages Muslims marrying non-Muslim women (pp.29 f.), forbids them to wish Christians at Christmas or other religious festivals (p.83) and allows them going to non-Muslim courts (for registration of divorce) only if it is done according to Islamic law (p.74). These fatawa usually do not allow a departure from the old laws. In some circumstances, where some concessions are suggested, they are only transitory and subject to general provisions of Islamic law; for example, transmission of pictures and service in non-Muslim armies.
Obedience to Islamic law in this sense necessarily requires community organization in a particular manner and the services of legal experts for that purpose. This is often not possible without the help of the majority Muslim countries. The booklet, therefore, repeatedly appeals to scholars and preachers to visit Muslim minorities, even though, in the words of one inquirer, “Visiting countries of disbelief is prohibited”. Shaykh Ibn Baz advises the Muslim rulers, and the wealthy “to do what they can to save the Muslim minorities with both money and words. This is their duty”. This duty also means that scholars and Muslim rulers “should use every possible means with those countries where there is a Muslim minority to take care of them, to remove oppression from them, to enable them to practice their religion and to carry out Allah’s command and to enable them to earn a lawful living in the place where they live” (p.19).
These jurists are quite obviously restrained by the methodology as well as the worldview of the old laws; to the extent that they still use the term “enemy countries” (e.g. p. 39) for the abode of Muslim minorities. Certainly, the Mufti is not using the term in the literal sense. It is the compulsion of analogical reasoning, to measure modern situation in terms of old categories of ‘House of Islam’ and ‘House of War’ (enemy country).
Islamic jurisprudence, generally speaking, restricted the sources of Islamic law to the Qur’an, Sunna (practice of the Prophet), Qiyas (analogical reasoning) and Ijma’ (consensus of the Muslim jurists), the first two material, and the last two as formal sources. In most of the problems faced by Muslim minorities, these sources proved insufficient. Modern Muslim jurists disregard this methodological compulsion and treat the situation of Muslim minorities as exceptional cases that require special considerations. They approach the whole range of questions relating to laws about food, dress, marriage, divorce, co-education, and relations with non-Muslims etc., in terms of expediency. Consequently, a whole set of new interpretations, often divergent, appeared. Some other jurists stressed the need for new, especially formal, sources. Various rules of Islamic jurisprudence, e.g. common good, objectives or spirit of law, convenience, common practice, necessity, and prevention of harm, which were invoked sparingly, gained significance as basic principles of Islamic legal theory. Qaradawi proposed to call these principles ‘ jurisprudence of preferences’, in order to stress that it was a complete break away from the Usul.
Generally, these writings were published in the form of Fatawa, they did not constitute part of regular Islamic law texts. It is only recently that independent books have begun to appear on the subject. Khalid Abd al-Qadir’s Fi Fiqh al-aqalliyat al-Muslimah (Tarabulus, Lubnan : Dar al-Iman, 1998) was probably the first in this regard. Yusuf al-Qaradawi, who has written extensively on the subject, chose this title for his works much later: Fiqh al-aqalliyat al-Muslimin, hayat al-muslimin wast al-mujtama’at al-ukhra ( Cairo: dar al-shuruq, 2001), and Fiqh of Muslim Minorities (two volumes, 2002). The new book, which is still to appear has been announced as “ the first book of its kind”. Earlier, he preferred to call it Fiqh al-awliyat but that was not limited to minorities. His latest book is also announced as a “progressive Fiqh”, probably with reference to the current debates on the subject and the growing anxiety of Muslims about their minority status in Islamic law.