Legal reasoning of Muslim minority: Medina or Mecca?

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article8Questions of political and legal practice of the Musli’s living in quality of minority in the non-Muslim countries, any more the first year excite Muslim thinkers. The problem goes from that situation that not only religious, but also social, economic and political life of Muslims regardless of the country of accommodation is accurately regulated by the Islamic right.

The question in how to carry it out in the non-Muslim countries.

Legal reasoning of Medina.

These claims of the Islamic right for regulation of Muslim’s life in parallel with the non-Muslim law go not from initial hostility of Muslims to all non-Muslim societies and political and legal systems as it is represented by some, but from an inclusiveness of Islamic ideology and the practice, applying for regulation of all life’s aspects of the believer.

Very often it is possible to hear from Muslims the statements that the Muslims, who lives in the non-Muslim countries must be ruled according to the Islamic right, instead of the law of the country of accommodation. However similar statements rather simplified also do not comprise understanding of depth and complexity of a question.

The similar position is guided by the false prerequisite mentioned above about initial and immemorial hostility of Muslim legal system to all non-Muslim systems. Also who assumes only rigid and irreconcilable confrontation according to the scheme "whom". However interaction Muslim and non-Muslim legal systems proceeds absolutely on others, more flexible, mutually adaptive, to schemes.

In our integrated world these schemes become relevance. Despite this fact, some Muslim jurists continue to consider Muslim minority today as them considered in the Middle Ages. This point of view considers them, as the Muslims, for one reason or another not managed to leave the lands after their gain incorrect and remained under their power.

This understanding goes from that position which developed in centuries of victorious procession of Islam on the world and establishments on subject lands of own laws. Speaking simply and clearly, it goes from logic of outlook of Medina’s period and the subsequent periods when Muslims lived in the state and were absolute masters of an initiative in a legal sphere.

The main characteristic of this period was fundamental focus of a Muslim community on creation of Islamic political and legal system, establishment in practice of laws of Sharia, submission of all aspects of life by it and strict control of their strict observance. From here also went the impossibility for a Muslim community of that generation to imagine the Muslims living under the power of not Muslims, or kuffar.

This approach comes from the fact that such stay of Muslims in the non-Muslim countries is compelled, temporary and shouldn’t turn into the constant. It assumes that as a result Muslims surely have to leave the countries incorrect and move to the Muslim country. While they did not move and continue to live in the non-Muslim country, they have to protect the religious and cultural originality in every possible way from outside influence, having isolated from surrounding society.

It is indicative that the reasoning of the Medina’s period concerning Muslim minority is reproduced by those authors who lives in traditionally Muslim countries. More often those who lives in the state not just occupied by Muslims, but Islamic and sharia in essence.

Position of the Saudi muftis.

Great example of such perception is work "Muslim minority. Fatwa, concerning the Muslims living in quality of minority" of two influential Saudi muftis – the sheikh Ibn Baz and the sheikh Usaymin.

This book begins with that preservation of belief and strict submission to laws of Islam are the main duty of all Muslims, including those who lives in quality of minority. Then authors state the concern in difficulties of life of Muslims in non-Muslim societies and advise them to be patient.

Developing the subjects, authors go to a practical advice and recommendations to the Muslims living in non-Muslim societies. They in particular, do not recommend strongly to Muslims to marry not Moslems, to congratulate Christians, to appeal to non-Muslim courts even on civil cases if only courts do not carry out procedure according to the Islamic right.

In certain cases, when some legal eases are offered, is emphasized that they are only temporary. It is especially emphasized that "if it is impossible to receive means of livelihood except as that Allah forbade, namely by mixture of men and women, it is necessary to refuse this life".

Authors admit that often it’s hard for Muslims to keep belief and identity in a non-Muslim environment unaided from Muslims of traditionally Islamic countries. They repeatedly ask Islamic scientists and preachers to visit communities of Muslim minority in the West though, on it is in parallel reported that "visit of the countries of disbelief is forbidden". Ibn Baz advises Muslim governors and well-to-do persons "to do everything that they can to rescue the Muslim minority by property and the word". "It is their duty", - he claims.

Obviously both muftis are guided by methodology and the vision of the world which has been deeply implanted in medieval legal concepts. And both authors use the term "hostile" for accommodation of Muslims of the country, being guided by concepts "Dar ul-Islam" (Islam territory) and "Dar ul-Harb" (territories of war). Certainly, Ibn Baz, does not use this term in literal sense. But borrows it from medieval texts and applies in relation to a modern international situation.

Return to legal reasoning of Mecca

However the other views of this problem actively develop at a today's level of the Islamic world. Conditionally it is possible to call them resulting from Mecca’s outlook. That is relating to the Mecca’s period, which can be described by fundamental focus of Muslims on preservation and strengthening of own belief and identity in the face of pagan society, on unity and increase in ranks of believers, and also at distribution of an Islamic appeal among a faithless environment.

Looking it another way, if the Medina’s period reflects logic of the Muslim community which has established own state, the Mecca’s period reflects logic of the Muslim community which was active religious minority in a non-Muslim environment. For this reason, orientation to logic of Mecca’s period is common to Muslim scientists of the non-Muslim countries. First of all, Western Europe, North America and, of course, Russia.

These scientists claim that, despite of consecutive evolution of the Muslim legal theory and practice from Mecca’s till the Medina’s period, it does not mean that now the fikh of Medina’s and the subsequent periods of Muslim domination has to be applied at all times without any caution on a situation and in all regions. As, in opinion of medieval scientists, ayats and legal statuses of the Medina’s period did not cancel Mecca’s completely. But Mecca’sprovisions come into force under conditions corresponding for them.

It should be noted that now already more than 1/3 of the Muslim population of the whole world, lives in quality of minority in the non-Muslim countries. This fact generates and puts before Muslims a number of questions and the problems demanding the answer proved from the legal point of view. As, the fikh of all Madh'hab and great Muslim jurists was developed for application by the Muslims living in the Muslim state, in the conditions of supremacy of Sharia.

From here also the key dilemma – on what the fikh what мазхаба, what scientist to be guided to Muslims who, living in the non-Muslim state follows, have no opportunities to practice the legal statuses which have been historically developed for citizens of the Muslim state. Perhaps, on legal practice of the Prophet Mahomed (the world to it and blessing) the mekkansky period of his life?

But after all during this period legal questions were not so carefully worked as it was made in medinskiya and the subsequent periods. From here at Muslim scientists the understanding of also was born that the Muslims living in quality of minority in the non-Muslim world, need development of the separate direction of the fikh. The directions which would consider all specifics of their existence in the non-Muslim state, in an environment of non-Muslim society and under non-Muslim laws.

Such school received the name "fiqh of al-ak'aliyyat" or "fiqh of Muslim minority". Initiators and active followers of this initiative from among Muslim scientists actively were accepted to new legal judgment of all circle of problems which Muslims face in the life – from questions of food, clothes, marriage, divorce, coeducation to the relations with not Muslims and political affairs.

And legal processing concerned not only edition of fatwas, considering living conditions in the non-Muslim countries, removal of new legal statuses, but also search of new legal sources, the principles and the bases approved by Sharia, but thus allowing to approach to realities of life of Muslim minority more flexibly and in a complex.

During the formulation of the fikh of minority, thus, such principles of the Islamic right as the obligatory accounting of the general advantage (the maslyakh of al '-amma), is more whole than Sharia (mak’asidu sh-Sharia), spirit of Sharia (to Rukh sh-Sharia), national customs not contradicting Islam, local traditions, regional the common the practician (urf), conveniences, need, prevention of damage and others are actively used.

Still efforts on development of the new legal direction were limited by single fatwas, declarations, comments and articles and did not make part of the systematized Muslim legal case. Serious and detailed scientific works about this subjects began to appear quite recently.

Birth of fikh’s minority

It is very remarkable that the birth of the new legal concept occurred in the USA – the country which is most open for Muslim Hegira and with the political and legal system, that is the most opened for religious activity. Despite growing together with number of Muslim scientists and Hegira in the western countries, Muslim minority of the West, especially in the United States, sharply felt a lack of the legal statuses focused on the solution of their specific problems.

In 1994 in North American council of fiqh declared the start of the project aiming "development of the fikh for the Muslims living in non-Muslim societies". Yusuf Talal de Lorenzo, the secretary of Council explained that the Muslim right of minority needs the approach differing from the traditional.

Taha Jabeer al-Alvani, the chairman of the board at that time, was, perhaps, the first who used the term "fikh of al-ak'aliyyat" in 1994 in the fatwa about a permissibility of participation of Muslims in the American political life. History of emergence of this fatwa is the following: many Muslims of the USA suffered a question of a permissibility of similar participation as it would mean the political union with not Muslims, recognition of legitimacy of not Islamic secular political system and could provoke division of a Muslim community. Some of them addressed in Council and asked for fatwa on this problem.

Al-Alvani declared that as these living conditions are different from each other, they and involve various obligations. With his words while Muslims in the Muslim countries are obliged to observe the Muslim right of the country of accommodation, from Muslim minority in the United States it is not required neither by the Islamic right, nor for reasons of rationality to adhere in the secular state of all obligations imposed on Muslims by the Islamic right except that it is allowed in this state.

This fatwa was taken very ambiguously by Muslim scientists and excited between them heated disputes. For example, the Syrian scientist Said Ramadan al-Buti rejected an appeal al-Alvani to development of the fikh of minority, as "the plot for the purpose of Islam split".

He declared: "We were so glad to growth of number of Muslims in the West and hoped that their commitment to Islam and their obedience to its instructions will kindle the cold resistance to Islam of a stray western civilization. But the today's appeal to the fiqh of minority foretells the accident, threatening to bury our hopes. We are afraid of that the such fiqh will lead to dissolution of Islamic essence in a stray western civilization.

Answering this critic, Taha Jabeer al-Alvani tried to explain that the fiqh of minority represents the autonomous right based on the principle of compliance of norms of Sharia to living conditions and welfare circumstances, characteristic for each concrete community. This branch of the fiqh, according to his words, considers features of local culture, specifics of the public relations, relying thus, besides Sharia, on achievements of sociology, political science, economy, the international relations and other sciences.

On al-Alvani, the fiqh of minority is not part of the existing fiqh which was developed as judicial legislation. Fiqh of minority is not also the right which to please expediency looks for and makes concessions. Al-Alvani claims that the categories Dar ul-Islam and Dar ul-Harb are not actual today. Muslim presence is necessary to consider constant and developing, no matter in what country or the part of the world.

Despite the critic, the term "fiqh of al-ak'aliyyat" gained popularity and circulation in the Muslim countries. Khalid Abd ul-Qadeer was, perhaps, the first who started collecting the special precepts of law applicable to life of Muslims as minority in the book "Fi Fiqh of Al-ak'aliyyat of Al-muslima". Yusuf al-Karadavi, who researched this subject in details a bit later, also chose this name for the work: "Fiqh al-ak'aliyyat of al-muslimin... ".

Questions for the new fiqh

Obviously, that at all supporters of the fiqh of minority has to answer some very difficult questions. First, the term "minority" is very problematic. Its semantic uncertainty associates with the concept of subethnoses (ethnic minority) in borders of the national state. Religious minorities on the unity are even weaker, than ethnic, because they are the formations of more difficult order and unite diverse elements – the different people, languages and cultures.

The special attention should be paid to that fact that while the fiqh of minority is developed for the solution of problems of the Muslims living in the West, the term “West” become ephemeral and difficult defined. According to the Pakistan scientist Mahomed Khalid Masoud, the West is not the territorial concept anymore, it is a global and cultural phenomenon, ideology, a conduct of life which already enough densely is present in non-Western world.

And at last, the provision of Muslim minority in the western countries are different from the provision of Muslim minority in non-western countries, for example, pagan, from the Islamic point of view, India or China. It seems that this minority in the specific social and political conditions have to develop a bit different right. And in that case, the fiqh of minority as the uniform legal concept loses the meaning.

Ruslan Kurbanov