Fiqh Today: Muslims as Minorities

Dr. Anas Al-Shaikh-Ali, Chair of the AMSS (UK) Executive Committee set out the vision of the conference in his opening remarks, suggesting that a genuine fiqh for minority Muslims requires a collective engagement between social scientists and Shari`ah scholars “in the wider public arena”, moving the debate and discussion out of closed doors. He challenged participants—who came from Europe, North America, the Middle East and Southeast Asia—to work towards the development of a “comprehensive methodology of minority fiqh” drawing on the past, but not being afraid to be innovative.

It was appropriate then that the keynote address to the conference was presented by Reis-ul-Ulema, the Grand Mufti of Bosnia-Herzegovina, Dr. Mustafa Ceric. Having been a towering figure of strength for the Bosnian people during the Balkan war, Dr. Ceric is considered a significant authority on the issue the experience of Western Muslims within the larger framework of belonging to a universal Ummah. While Dr. Ceric maintained that he did not believe in a minority fiqh per se, he readily accepts the position of Muslims as a political minority often better able to fulfill their religious obligations than Muslims elsewhere. He convincingly posited a vision of Muslims in Europe that recognizes their unique historic position and contribution to Europe , and saw Europe as a place of 'interaction' rather than 'confrontation'. He discussed the interdependence of cultures and the need for balance and tolerance. By diagnosing of the contemporary intellectual malaise of Muslim and European societies, he concluded his discussion by challenging Muslims in the periphery to see themselves as driving the civilizational wheel of Islam. He called on Europe to institutionalize Islam, and Muslims in Europe to come together within a universal worldview.

The AMSS (UK) awarded its 2003 Lifetime Achievement Award posthumously to Edward Said, in recognition of his outstanding scholarship and intellectual engagement. The award was presented by Dr. Al-Shaikh-Ali on behalf of the Executive Committee to Michel Abdul Messih, Q.C. and eminent lawyer and Palestinian activist who was a close friend of Edward Said. Dr. Zaki Badawi spoke of Professor Said's important contributions, highlighting both Covering Islam and especially Orientalism, as works that changed the landscape of academia and prevailing colonial discourses on Islam, Muslims and the Middle East . The 2003 Building Bridges Award was presented by the AMSS Chair to Karen Armstrong for her contribution in promoting inter-faith dialogue and understanding. Fareena Alam, Managing Editor of Q-News Magazine, went on to highlight the importance of her work and her objective portrayal of Islam in books and articles as well as TV and radio programs, especially after 11^th September. In accepting the award Ms Armstrong called on participants to challenge intolerance by launching a rapprochement initiative to fight misunderstanding in a creative way. Her presence and comments were warmly received by participants.

The conference opened with presentations from Dr. Louay Safi, Visiting Professor at George Washington University, Washington DC and President of AMSS (USA) and Dr. Mohamed Mestiri, a graduate of the Sorbonne and Professor of Usul el-Fiqh (principals of Islamic Jurisprudence) and Contemporary Islamic Thought at the Institut des Sciences Islamiques, Paris . Dr. Safi's paper entitled “The Creative Mission of Muslim Minorities in the West: Synthesizing the Ethos of Islam and Modernity", explored the ideas that minority fiqh can play a creative role in helping Muslims deal with the differing ethos of the West, by applying the Shari`ah in the present social milieu. Applying the maqasid (intended purposes)of the Shari `ah develops a normative order capable of enhancing human life and advancing the human condition. Legislation was not an instrument of the state, but a function of civil society that maintained its independence from state intervention guaranteeing the absolute legal rights of multiple confessional groups (in contrast to present hyper secularization which forces the minority to adopt the position of the dominant values). He affirmed the mediating power of culture and rejected the moral universalism of secularism. Dr. Mestiri drew on the experience of Muslims in France to present “From the Fiqh of Minorities to the Fiqh of Citizenship”. Classical fiqh saw minorities as fully associated members of a citizenship-charter. Within modern-day democracies, 'majority' and 'minority' have been flexible concepts. We must move from an immigrant understanding of our place in the West to embracing citizenship. Minority fiqh needs to be seen in light of these new civic realities and that promoting Islam in the existing plural space connects the spiritual teaching to its essential universalism and humanism. In response to a question of acceptable secularism, Dr. Mestiri accepted the organizing social principle of it and sees richness in the secular space that was impacted by globalization. Dr. Safi added that the roots of modernity, according to G.W. Hegel, were in the oriental revolution (Islam), which was the foundation of modernity, and thus all the resulting politics must be based on moral principles.

Dr. Zaki Badawi followed with a spirited discussion on “General Principle of Fiqh”( qawaid al-fiqhhiyya ), which he termed 'the maxims guiding the law', a separate discipline which was a science in need of revival. He criticized collective, or committee, ijtihad because the collective becomes concerned with its own authority and proclaims its correctness over others. Individual scholars contributing work which is argued and debated is closer to the spirit of fiqh which sees the process of deriving laws as predicated upon debate, acceptance, and synthesis. Muslim minority communities can become the site for these dynamic scholarly interactions. The adaptation of secular modes of organization which allow for pluralism and debate is needed because they are more important than the fiqh rulings themselves, as they are the moral maxims which govern them. Although Dr. Taha Jabir al-Alwani, President of the Graduate School of Islamic and Social Sciences, and current President of the Fiqh Council of North America, could not attend in person he sent a videotaped presentation of his paper “Minority Fiqh: Between Macro and Micro Fiqh” in which he called for the new realities of minority Muslim communities--not to be compared with the past; hence, the necessity of developing a minority fiqh that governs Muslim minorities, protects their identity, and allows da'wah in that it highlights the possibilities offered by the Shari`ah to enhance the quality of life and human values.

Addressing the “Islamic Juristic Views on the Political and Legal Status of Muslims in non-Muslim Countries”, Dr. Bustami Khir, Birmingham University, explored the notion of wilayat al-ulama —found in the Hanafi, Shafi'i and Maliki schools of Sunni law—as a way of providing leadership, and legal and spiritual guidance to Muslim minority communities. In a historical context, this principle was used to negotiate varying degrees of Islamic governance and institutionalizat ion within non-Muslim contexts that would simply not be possible today. However, the vivid picture of Muslim minority communities given by historians like al-Mas'udi does provide inspiration that could be actualized through arbitration councils or negotiated, eventually, with political authorities in Europe and elsewhere. Dr. Tahir Mahdi of the Université de Valenciennes , turned his attention like other scholars, to “Minorities and Maqasid al-Shari`ah”. Muslims should not be afraid to use ijtihad to enact new fatwas to meet our present circumstances. Furthermore, we must cease to see ourselves as a disadvantaged group or allow ourselves to be minoritized and instead must accept that we are European citizens of Muslim faith. Classical Islamic jurisprudence is a source of inspiration, not always of application. This means we need to avoid fanaticism. Revisiting the exclusionary processes at work within both law and community, pertaining namely to women, was a critical first step to recapturing legal creativity.

While the first day provided theoretical perspective, day two of the proceedings drew on the realities of Muslim minority experience to demonstrate the challenges and opportunities of minority fiqh. Dr. Soumaya Pernilla Ouis, member of the Swedish Islamic Academy in her paper, entitled “Marriage Strategies Among Young Muslims in Europe ”, conducts extensive fieldwork to demonstrate the problematic nature of gender-relations-fiqh as applied within a European context. Young Muslims have increasingly complex conceptions of marriage that require new strategies which focus on individual choice, placing less emphasis on having children and extended families. The marriage of Muslim women to non-Muslim men and the practice of gender segregation ought to be among the first issues to be addressed by the principles of minority fiqh. Political theorist Dr. Ahmad Al-Katib addressed the “Problem of Sexual Relations among Muslim Youth” by examining the marriage options available in the fiqh literature and assessing their relative advantages. Of importance among these are early marriage, marriage with intention to divorce, and temporary marriage. Given the dire situation regarding illicit sexual activity among Muslim youth, the minority fiqh discourse can justify a re-evaluation of historically accepted rulings in order to have the legal flexibility to provide “halal” options for young people, without negating the authentic rules of Islam on that issue. Participants debated the merits of the approaches presented, their serious negative social and psychological consequences, and called for alternatives to be grounded deeply in the spirit of the Islam and that of Islamic law.

Charles Le Gai Eaton, well-known author, broadcaster and the sage voice of British Islam, spoke about minority fiqh in the context of 'shifting and contested identities'. He called for action in developing a relevant framework for Islamic expression that is consistent with the ethos of Islamic civilization and the protective framework of fiqh. We can no longer afford to be quarrelsome and must be dialogic, he stated. Flexibility prevents rebellion and the best examples are grounded in the praxis of faith and a normative, lived reality of Islam, day to day. During the discussion, Mr Eaton noted that expression must be a reflection of context without rejection of a system that sustained, preserved and developed the sacred law over the history of Islam. He warned of the dangers of relativism and that the secularists have woken up to the values of Islam and see them as a threat.

Asmat Ali, PhD Candidate at Birkbek College, University of London, who is specialized in Qur'anic ethics and legal theory delivered a paper on “Pluralism: Islamic and Non-Islamic Laws – A Problem of Definitions” which explores the term “Islamic law” within the broader message of pluralism in Qur'an, seeing it as an extension of the same universal theology not superseding other previously revealed laws. The Qur'anic message primarily addresses legal theory and not positive law which is time-space bound. Dilwar Hussein, Research Fellow at the Islamic Foundation in Leicester , examined the process normalization of Islam in Europe and distinguishing it from secularization of Muslims. The writing of a European Muslim narrative entails asking serious questions about what factors are impacting our condition. The impact of globalization and the question of how distinct one geographic frame is, is a question which needs to be answered—if the minority fiqh project is to remain legitimate. The use of critical social theory to deconstruct these dilemmas helps us to build a narrative based on a true theoretical and pragmatic understanding of the intellectual conditions of European Muslims.

In the final session, the attention of participants turned to examine models of Islamic law, which can be made directly relevant to Muslim minority communities. Ahmad Thomson, a member of Gray's Inn and Barrister, who is deputy-chairman of the Association of Muslim Lawyers. He drew on his extensive background in dealing with Islamic law within the court system to present “Incorporating Muslim Personal Law into UK Domestic Law”. Muslim personal law is one the surviving and most vibrant aspects of the Shari `ah. Given that Muslim minorities are increasingly seeking recourse to family and civil dispute resolution that is grounded in this trusted discipline, the potential for the inclusion of Islamic personal law into English common law is considered. Mr Thomson sees the growth of such a system as organic and based on precedent utilizing the legally binding mechanisms of arbitration. These already existent legal avenues could eventually create a system of adjudicators ( qathis ) who would be properly qualified and trusted by those who are availed of their service freely. Similarly, Dr. Ihsan Yilmaz, presented concerns with the growth of “Micro- Mujtahids and the Fiqh al-Aqalliyat ” and the subsequent fragmentation of Muslim legal discourse as individuals undertake takhayyur (or choosing/combining between schools of thought and rulings). Understanding that laws, their derivation and interpretation, belong in the civic realm, in turn means that the potential legal chaos must too be managed in that realm. Dr. Yilmaz sees faith-based movements and their leaders lending legitimacy to praxis through ijtihad committees mainstreaming new legal conceptions, thereby making ijtihad viable.

In his closing remarks, Dr. Anas Al-Shaikh-Ali thanked the speakers and participants, and went on to stress that the objective of the AMSS (UK) is to combine theory with practical application. He mentioned that as a practical outcome of the 4^th Annual Conference on Muslim Education in Europe, the AMSS has produced a position paper entitled Muslims on Education. The paper discusses a wide variety of issues in the field of education in the UK , in the hope that it may initiate a basis for dialogue between the Department for Education and Skills in the UKand with representatives from the Muslim Community. The paper will be published at the end of March 2004. He also added that following the AMSS EC will, at its next meeting, look into the possibility of commissioning research papers from many social scientists. These will focus not only on current issues facing the Muslim community in Europe, but also other possible issues and challenges that may arise in the future. It is hoped that such studies will then be put to fiqh councils as well as individual faqihs for their urgent consideration.

Given the dizzying scope of the conference, the AMSS (UK) must be congratulated for creating an academic environment for the exchange of ideas, networking and hopefully laying the groundwork for a future synthesis of minority fiqh for minority Muslim communities in the West. Fiqh is, after all, a process, not a goal. By maintaining a lively and relevant approach to jurisprudence, the European Muslim discourse can impact on the centre as well, leading the way in innovative approaches to sacred law that seek to build on its capacity to be relevant in post-modernity.

Adul-Rehman Malikis a Masters Student, London School of Economics Contributing Editor, Q-News.