Exploring Flexibility in Islamic Law: A Look at Minority Fiqh

Islam as a true religion, bequeathed to us by prophet Muhammed as last messenger is a set of principles, rules and regulations enacted by Allah, which are befitting of all humans regardless of their time and space.

For it is supposed to be a divine message to lead a better life up to the last day of this mortal world, it encompasses every sphere of life including individual, social, national and international relationships. Hence, Islam is distinguished by its comprehensiveness, equilibration and perfectness.

Allah affirms in the Qur’an: ‘We have neglected nothing in the Book’ [1], by which there shouldn’t be any challenges that Islam is incapable of solving it. Also, Allah sent Prophet Muhammed for all as Allah says, We have sent you only as a deliverer of good news and a Warner to all of humanity [2]. So, Islam is profoundly accessible to everyone at all times.

Sources of Islamic Law

Considering Qur’an and Sunna, both are revealed, as prime sources of law system in Islam, there are still a lot of issues in which no explicit text is to be seen. Means, Allah had left some texts not fully clear or ambiguous, aiming it to be an arena of research for scholars who have deep knowledge in extracting rulings liable to reliable ways of isthinbāth prescribed by usūli scholars.

Scholarly consensus and analogies, which are, in fact, rooted back into Qur’an and Sunna, come after the first two prime sources and then all become the four major agreed upon sources among all fiqh schools.

Along with that, to represent the richness and breadth of Islamic jurisprudence, the list of evidence adopted by the imams in their many and varied sayings and opinions, some of which are considered independent or dependent dhalīl either conditionally or unconditionally includes isthihsān, maswālih mursala, sadh al-zarāih, urf and isthihswāb [3].

Dr Muhammed Ahmed Burkāb says: “Allah made the texts of Islamic law general and specific. As for the specific ones, he made them words of the highest levels of concealment and clarity, so that they would be areas of ijtihad among scholars, thus widening the circle to address the greatest number of issues and incidents of all time and place. As for the general rules, they are qawāid kulliya taken by  isthiqrāh (extrapolation) from the set of texts, as they deal with the remaining new issues and developments” [4].

Exploring the prime objectives behind the corpus of sharīa laws, scholars could deduce that it is bringing out benefits and warding off harms of the individual and the community and so, its laws are designed so as to protect these benefits and to facilitate the improvement and perfection of the life conditions of the human beings.

Izz ibn Abdusalām affirmingly says: “Whoever follows the purpose of the Sharīa to bring benefit and ward off harm, he will come to believe that this benefit is not permissible to be neglected, and harm is not to be approached, even if there is no explicit text or consensus in it, because tracing the Sharia results in understanding that” [5].

Imam Gazzāli further clarifies the notion saying that the sharīa mainly aims –Maqāsid Al-Sharīa as denoted by usūli scholars- to preserve religion, self, mind, lineage and wealth of creatures. So, everything that includes preserving these five principles is considered a maslaha (benefit). And everything that result in failure of these principles is a mafsada (harm) that should be fought and tuned to an interest [6].

Abu Ishāq ash-Shātibī (died 790) is a prominent Muslim figure in the categorisation of these universal higher objectives of the sharīa in his book “Al-Muwāfaqāt fi Usūl al-Ahkām in the science of Usūl al-Fiqh. 

Thus, identifying higher objectives of sharīa, it helped to constitute a general philosophy of Islamic law which can be considered in issuing Islamic rulings and fatwas. Hence, new issues in which no religious text or explicit legal provision is not produced, could be integrated into the higher objectives of sharīa, and thereby resolving it, for new issues are endless while usūls are limited.

Imam Shafī, pinpointing this method, says that there must be another way to prove partial rulings, which is to adhere to interests based on the conditions and objectives of Sharia law in a comprehensive manner [7]. 

To sum up, Islamic law system is well established in a comprehensive manner, sufficient enough to face any possible challenge and questions, of which its legal rulings and solutions a can be produced. 

Islamic Law Stands for Flexibility

Islamic legislative sources enjoy a distinctive ground of rigidity and flexibility in issuing of rulings, that help its principles and doctrines being safely preserved from getting completely neglected or mislead. Islam always seeks easiness for human beings and relieves them of their burden and the shackles which were upon them [8].

The Qur’anic verse “and he has not laid upon you in religion any hardship” [9] undoubtedly affirms the foundation of Islam that it stands for clemency and easiness. Also, Prophet Muhammed clearly mentions the feature of Islam which he advocated for, that he was commissioned with the easy Hanif religion [10]. 

The legality of concessions, which is necessarily known from the religion, such as concessions for travellers shortening and combining prayers (Al jamh val qasr), breaking the fast, and eating forbidden things, when necessary meets, is an evident fact that Islam stands for the absolute removal of hardship and difficulty [11].

So, Sharīah laws are based on clemency and temperance rather than oppression and severity. Thus, Muslims fully realise that the fulfilment of religious obligations is concomitant upon human ability. They also know that the Sharīah permits all that is clean and wholesome and forbids what is harmful, with the aim of making life easier and more convenient [12].

Dr Muhammad Ahmad Burkāb lists some of the factors of flexibility in Islamic jurisprudence, saying that there is a wide space left by the legal texts for the ijtihad of diligent scholars to fill it with what is best for the people and appropriate for their time and place. He then classified the muāmalat of people into two categories: first one seeks constancy and stability, such as matters of belief, worship, and second one seeks change with change in time and place, in which texts regarding them are generally flexible, so that Allah does not wish his servants to be in hardship and distress [13]. 

Concept of Minority Fiqh

Jurisprudence of Minorities (fiqh al-Aqalliyāt) is the jurisprudential rulings related to minority Muslims who live outside the lands of Islam [14].

One of the main proponents of this fiqh, Taha Jabir Alawani says that “Fiqh for minorities” is a specific discipline which takes into account the relationship between the religious ruling and the conditions of the community and the location where it exists. It is a fiqh that applies to a specific group of people living under particular conditions with special needs that may not be appropriate for other communities [15]. “This doctrine asserts that Muslim minorities, especially those residing in the West, deserve a special new legal discipline to address their unique religious needs, which differ from those of Muslims residing in Islamic countries” [16].

Another prime advocate of minority fiqh, Dr Yūsuf al- Qardhāvi classifies Muslim minority residing outside of Islamic nation as the original people of the country and new immigrants from Islamic countries [17].

So, a vast number of Muslim communities are now residing in non-Islamic countries where they face radical challenges and unprecedented situations that could not be expected in Islamic nations.

Shammai Fishman in his work titled as ‘Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities’ reports the estimation of Ahmad Rawi, chairman of the Union of Islamic Organizations in Europe (UIOE), that approximately 15.84 million Muslims live in Western Europe and comprise 4.43 per cent of its total population. In France alone, there are 5.5 million Muslims in a population of almost 56.6 million; in Germany, 3.2 million out of 79.1 million [18]. So, they’re needed to a reshaped Islamic concept within the framework of Islamic jurisprudence that can enable them to adopt to their necessities and thus preserve their faith and identity.

Islam Deals with Minority Issues

Muslims in non-Islamic countries are really facing varied challenges and issues, ranging from social, cultural, political, religious and economical, which are not being experienced by their co-religionists in Islamic countries.

Starting from the very residency in non-Islamic countries despite the hadīth is there denying it, to registering citizenship, which may be succeeded by military conscription that might lead to fight against Islamic countries, legality of food, drinks that might be made from pork fat or wine, legitimacy of marriage or divorce if it is done by official authorities, dealing with usurious banks, burying Muslims in other’s cemeteries, partaking in political affairs, wishing for holy festivals of Jews and Christians and so on. How should a Muslim in non-Muslim country approach to these issues from which he has no escape or is compelled to. 

As Islamic law system is well established, definitely there should be a solution and it is. Thus, minority fiqh, as Shammai Fishman estimates, is based on two premises: the territorial principle of universality of Islam and juristic principle of maqāsid al-sharīa. 

The first legitimises the existence of Muslims in non-Islamic countries as Islam is a global message that must encompass all around the world, as it is divided into Dar al-Islam and Dar al-da’wa in which Muslims are supposed to be responsible for inviting people to Islam. Besides that, Qardhāwi observes that if we prevented Muslims from residing in non-Muslim countries, we would close the door to the call to Islam and limit the spread of Islam [19].

The latter deals with all other issues of Muslim minorities in the light of maslaha (public benefit) and darūra (necessity). As we said earlier, extrapolating the prime objectives of Sharīa, Maslaha which is to bring out benefits and ward off harms, is a legal tool to rule over new issues especially when necessity calls. Thus, diligent scholars scrutinise the new problems in the lens of maslaha and try to make an appropriate fatwas.

Therefore, minority fiqh, as al-Awani says is not to recreate Islam nor meant to give minorities privileges or concessions not available to Muslim majorities. 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 [20].

Here are few examples that will clearly demonstrate how scholars dealt with minority issues and gave them answers to their questions. 

A research scholar from Germany, who had friends and a supervisor of his research thesis from Christianity, had asked Qardhāwi on conveying wishes for Christmas. And Qardhāwi replied to him with detailed instructions that Islam encourages its followers to be nice, just and make peace with all people who are not oppressive to you [21]. Also, Muslims are verily obliged to well react to greetings from others much better than others do [22].

Along with that, Qardhāwi gave him dharūra-based fatwa legitimising conveying wishes for Christmas unless there is infringement on Islamic principles. Then he saw that even if Sheikh Ibn Thaimiyya, despite his vehement opposition in this regard, would agree on this fatwa if he lived in these times where people are living so close to each-others [23]. 

Abdulla ibn Bayya discussed on burying Muslims in the cemetery of others. He concluded that Muslims must try their best to have a cemetery of their own in which all religious regulations including facing deceased to Qibla, are considered. If there is no way then, they should strive to get a special burial ground for Muslims in any corner of cemetery of others. If above mentioned ways are impractical, only afterwards, considering the necessity, Muslims can bury their brothers in other’s cemetery. For a place itself doesn’t glorify a man but only his efforts do [24].

Al Shinquiti responded to a couple who asked him about the legality of adopting a child. Because in the place of their residence, adopting child should be registered, as law enforces, with the name of adopting parents which was, in fact, abolished in Quranic verse 33:5. Despite that, Al Shinquiti gave them a dharūra-based fatwa as follows; As for giving the adopted child your last name, it is not allowed in principle, for the Qur’an says: “Call them after their fathers” [25]. However, it is considered sometimes as case of dharūra (necessity), especially in non-Muslim countries, to give the adopted child your last name in order to avoid many legal complications. Therefore, some contemporary Muslim scholars have permitted giving the adopted child your last name in case of necessity [26].

Pillars of Minority Jurisprudence

Yusuf al-Qaradawi and Abdullah Ibn Bayyah had counted in their books some pillars which are ought to be considered in minority fiqh. This will clearly show how far the scholars had gone, considering necessity, to find appropriate fatwas utilising the flexibility in Islam. 

‘There is no jurisprudence without sound and contemporary Ijthihad’. The Ijthihad here is meant of preference that chooses from the rich heritage of sayings and opinions, what is most preferable and important in achieving the maslaha of creation. Because this is necessary to confront new developments in modern life.

‘Consideration of al-Qawāid al-Kulliya (general jurisprudential rules)’ which includes ‘hardship brings ease’, ‘committing the lesser of evils’, ‘warding off evil is more important than bringing about benefit’, ‘what is not permissible basically may be permissible followingly’, ‘rights of Allah are based on forgiveness’, ‘rights of the nation take precedence over the rights of individuals’ and so on.

‘Adopting the ease approach’. Means, as Islam always seeks easiness and prophet Muhammad warned of extremism in religion, scholars must adopt convenient ways of making people close to Islam.  

‘The fatwa should be changed as its requirements change’. Islam gives more attention to those who need as it gives concessions for traveller, who are weak in the eyes of Sharīa, to shorten his prayer (Qasr). Thus, minority Muslims are very weak in non-Muslim countries, and which is why they needed much easiness utilising the opinion that fatwa can be changed according to time and space. Like Umar bin Abdul Azeez, judged when he was in Madīna only with one witness and an oath while he compelled two witnesses once he went Shām. It’s because he saw some changes in nature of people there. 

‘Freedom from captivity of jurisprudence school’ in which he advocates that a muftī, one who gives fatwas, shouldn’t try to issue rulings from only single madhab as he is not accepting the view of another school. It may lead to the hardship upon Muslims. In the time of necessary, he should not be hesitant to follow convenient opinion viewed by another scholar outside of that school.

Criticism on Minority Fiqh

Minority fiqh has been receiving criticisms as it’s a new term proposed by only three decades ago. One of main criticisms so far is that fiqh al-Aqalliyat is an innovation that manipulates Allah’s religion. It permits what sharīa is against it by deviant usage of rule of dharūra (necessity) and bringing out maslaha (benefit).

But Qardhāwi had brought this point explaining that fiqh al-Aqalliyat is not a new invented, though this term is new one like fiqh al-Thibb and fiqh al-Iqthisādi, rather it’s a part of general jurisprudence which has strong backings from usūl [27]. 

Asif K Khan, in his work titled “The Fiqh of Minorities; The New Fiqh to Subvert Islam”, says that minority fiqh is a symptom of corrupted thought process. He further argues that Muslims all over the world face many challenges and problems and Sharīa had encompassed everything completely and comprehensively, by which there is no need to legitimise harām by deviant using of legal tools. His strong remark on Maqāsid observes that it’s not a legal illah (reason) to make a ruling on it, rather it’s only aims of Sharīa as whole not the aims of individual ahkam [28]. Shuhaibul Haithami, an Indian scholar from Kerala, says that fiqh al-Aqalliyat is an innovation to compromise with modernity, not to overcome the challenges dragged by it [29]. And there are some scholars opposing minority fiqh lest to b.e a tool exploiting Islamic rules and relieving of self-responsibility.

Conclusion

To conclude, Islam enjoys a well-established law system which enables its followers to overcome any challenges and cope up with any situation. Islamic view of laws lies in the very benefits and interests of people and repelling harms and evils.

The prime objectives behind the corpus of sharīa laws is bringing out benefits and warding off harms of the individual and the community. And it is very clear in considering necessities and new challenges faced by minority Muslims. Richness and breadth of Islamic jurisprudence are sufficient enough to cover up their problems.

As Muslims are obliged to carry out and disseminate the sublime message of Islam wherever they go, especially in western and European countries where a slight impact of Muslim influence will resound in the furthest corners of the world. So, along with social being nature of human being, they have to partake in political activities and engage with people from different backgrounds which may be succeeded by myriad religious legal issues that are ought to be addressed. There comes the importance of minority fiqh.

Minority fiqh is not a new legal system nor an innovative to manipulate Islam. Also, it is not to give minorities privileges for they are minorities. Rather it is, considering the new problems they face and then using legal tools which have backing up from usūls, special rulings given by diligent scholars. Thus, minority fiqh, a small part of Islamic general jurisprudence, is a clear evidence that Islamic law is verily comprehensive and flexible.

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References

[1] Surah al-An ‘am:38

[2] Sura al-Saba:28

[3] AL-Sheikh Abdulla bin Bayya, sināthul fatwa va fiqhul Aqalliyāt, page 253, third edition, Masar for print and publication, Dubai.

[4] Dr Muhammed Ahmed Burkab, Al Maswālih Al-Mursala Va Atharuha fil murūnathil fiqh Al-islamiyya, page 10, first edition, Darul Buhoos for Islamic studies, Dubai.

[5] Izz ibn Abdusalām, Qavāidul Ahkām fī Masālihul Anām, page 640, volume 1, Darul Marifa, Beirut.

[6] Imam Gazzali, Al Musthasfā min Ilmil Usūl , volume. page 1,286, Darul Ihyau Thuras al-Arabi, Beirut.

[7] Dr Muhammed Ahmed Burkab, Al Maswālih Al-Mursala Va Atharuha fil murūnathil fiqh Al-islamiyya, page 12.

[8] Surah al-A’raf:157

[9] Surah al- hajj: 78

[10] Mishkat al-Masabih; Hadith no 3849.

[11] AL-Sheikh Abdulla bin Bayya, sināthul fatwa va fiqhul Aqalliyāt, page:266

[12] Dr Taha Jabir Alawani, Towards a fiqh for minorities; some basic reflections, page 15, The IIIT, London.

[13] Al Maswālih Al-Mursala Va Atharuha fil murūnathil fiqh Al-islamiyya, page 227.

[14] AL-Sheikh Abdulla bin Bayya, sināthul fatwa va fiqhul Aqalliyāt, page:27

[15] Dr Taha Jabir Alawani, Towards a fiqh for minorities; some basic reflections, page 3.

[16] Shammai Fishman, Fiqh al-Aqalliyat; A Legal Theory for Muslim Minorities,page 5, Hundon Institute.

[17] Dr Yūsuf al- Qardhāv, fi fiqh al-Aqalliyāt al-Muslima, page:21, Darul Shurooq, Cairo.

[18] Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities, page:5.

[19] Dr Yūsuf al- Qardhāv, fi fiqh al-Aqalliyāt al-Muslima, page:33.

[20] Dr Taha Jabir Alawani, Towards a fiqh for minorities; some basic reflections, page 3.

[21] Surah al-Mumthahina:8

[22] Surah Al-Nisa: 86

[23] Dr Yūsuf al- Qardhāv, fi fiqh al-Aqalliyāt al-Muslima, page :152.

[24] AL-Sheikh Abdulla bin Bayya, sināthul fatwa va fiqhul Aqalliyāt, page:463.

[25] Surah Al-Ahzab:5.

[26] Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities, page:9.

[27] Dr Yūsuf al- Qardhāv, fi fiqh al-Aqalliyāt al-Muslima, page :32

[28] Asif K Khan, The Fiqh of Minorities; The New Fiqh to Subvert Islam, page; 39, Khalifa pubications, London.

[29] Malayalam article ‘minority fiqh; Aadhunikathayodulla mapapekha‘ on Suprabhatham daily, 22 December,2023.