The Princeton Encyclopedia of Islamic Political Thought

minorities, jurisprudence of

The jurisprudence of Muslim minorities (fiqh al-aqalliyyāt) has emerged as a distinct field of Islamic legal research in the wake of the establishment of sizable Muslim populations in Western Europe and North America since World War II. Although Muslims have lived as minorities throughout history, premodern Muslim jurists devoted little systematic reflection to the minority condition as potentially experienced by Muslims, although they addressed in a sustained manner the minority condition of Jews and Christians living under Muslim rule. Historically, one might contend that instances of fiqh al-aqalliyyāt have occurred whenever Muslim minorities have sought guidance under the shari‘a. The problems they have faced and the juristic opinions these problems have elicited constitute fiqh al-aqalliyyāt in a descriptive sense. This entry is concerned with the normative usages of fiqh al-aqalliyyāt related to the calls voiced by a range of Muslims for construction of a new system of Islamic normativity (fiqh) that addresses the specific concerns of Muslim minorities. These calls represent a thoroughly modern phenomenon, engaging a number of contemporary Muslim scholars and intellectuals.

The debate on a new Islamic law for minorities, and even whether the project is a legitimate one, is transnational. It takes place in print, via satellite television, in Internet forums, as well as in mosques and Islamic centers of the Islamic diaspora in the West, and the proliferation of mass media has been crucial in facilitating it. Contemporary minority fiqh advocates are based in France, Britain, and the United States as well as in Egypt, Morocco, and Saudi Arabia. Like minority fiqh critics, proponents of fiqh al-aqalliyyāt operate in a global space of normative fiqh debate. Unlike their critical interlocutors, however, they have to work through the disjuncture arising out of their far-flung geographical locations on the one hand and their commitment to setting symbolic boundaries on the other. Minority fiqh advocates based in Muslim majority countries face an even more specific predicament: if their call for the creation of a new law for Muslim minorities by integrating knowledge of the reality of Muslim communities in the West works to disqualify competing voices in the Muslim world, it also undermines their own authority to speak on these issues, not least in the eyes of Muslims in the West, the audience they hope to reach.

The first attempts to theorize a fiqh for Muslim minorities appeared in the 1990s in Arabic theses submitted to the shari‘a faculties of universities in Morocco, Saudi Arabia, Lebanon, and elsewhere by students who had come from, or had a special interest in, Europe. In addition to works in European languages, they drew on the research on Muslim minorities undertaken in Arab universities since the late 1970s—notably at the Institute for Muslim Minority Affairs at King ‘Abd al-‘Aziz University in Jeddah—and on a steady flow of accounts published by Muslim scholars and diplomats who had studied or worked in the West. Interest in the questions of Muslims in the West increased significantly in the post–cold war period, when “Islam” and the “West” became related and opposed with a new intensity. This wave of interest in law for Muslim minorities illustrates the effects of geopolitics on the production of knowledge in contemporary Islam. Although the discussion is framed in the language and categories of traditional Islamic law, the debate has attracted a wide range of participants, including Muslim social scientists. The journal Islamiyyat al-Ma‘rifa (The Islamization of knowledge), edited by the International Institute of Islamic Thought in the United States, published the first major piece on fiqh al-aqalliyyāt in the late 1990s. In the following decade, and following the shock of the attacks in New York and Washington, many other texts followed.

Yusuf al-Qaradawi’s 2001 book Fi Fiqh al-Aqalliyyat al-Muslima: Hayat al-Muslimin fi al-Mujtama‘at al-Ukhra (On the law of Muslim minorities: The lives of Muslims in other societies) is perhaps the most widely read and taught treatise on the subject. By the turn of the millennium, Qaradawi had a long-standing audience in the West. His books were read in Arabic and translated into the major European languages, and his program on Aljazeera titled Al-Shari‘a wa-l-Hayat (Islamic law and life), aired since 1997 and regularly devoted to Muslim minority issues, had become a favorite of Arabic-speaking Muslims. Qaradawi was also a regular visitor to the United States until 1999 and to Europe until 2004. Since then, his traditionalist positions on gender and sexuality and his support for Hamas in Palestine have reduced his prominence, but he continues to be viewed as a high religious authority and still chairs the Dublin-based European Council for Fatwa and Research, which he helped found in 1997. His book carefully places fiqh al-aqalliyyāt within the discursive tradition of the shari‘a, in keeping with his calls for ijtihād in the Muslim world. Taha Jabir al-‘Alwani’s (b. 1935) treatise on minority fiqh, first published in 1999, circulates widely in Arabic and English versions. This Iraqi scholar, who lived in the United States for two decades, links his understanding of minority fiqh to a larger project of reform not limited to Muslim minorities. In the English version of the text, he relates the need to construct Islamic law for Muslim minorities to the post-9/11 struggle against terrorism. His approach draws on the Islamiyyat al-Ma‘rifa project and is grounded in an attempt to develop a new discourse of Islamic ethics drawing primarily on the Qur’an. Alwani’s exclusion of the prophetic sunna—embodied in the canonical collections of hadith reports—from serving as a basis for the law is underscored by his understanding that the sunna is intolerant, a view that many of his peers have hotly contested. In 2007 ‘Abdallah bin Bayyah, a Mauritanian expert in Maliki law who now teaches in Saudi Arabia, wrote Sina‘at al-Fatwa wa-Fiqh al-Aqalliyyat (The derivation of legal opinions and the Islamic law of minorities). He perceives in liberalism’s claims to fairness and neutrality a real challenge to the Islamic legal tradition’s understanding of justice. After elaborating his own method for issuing fatwas, he dedicates a large part of the text to a discussion of the opinions issued by the European Council for Fatwa and Research (of which he is also a member). His commitment to the traditional madhhab or juridical school gives Bin Bayyah’s text a specific orientation. While Qaradawi and ‘Alwani seem to start from general principles and draw rulings from these, Bin Bayyah proceeds by seeking to recapture the rich detail of traditional fiqh. These three texts highlight minority fiqh advocates’ diverse views and raise the question of how to characterize minority fiqh as a project. Advocates of minority fiqh share a commitment to the Islamic legal tradition, the terrain where solutions to Muslims’ problems continue to be sought, and a perception that the minority status poses a problem for that tradition. These two general ideas differentiate scholars calling for a new fiqh for Muslims in the West from many of their interlocutors. The level of commitment to the Islamic tradition and understanding of the kinds of problems posed by life in the West vary significantly from one theorist to another, and the minority fiqh project shares a certain indeterminacy with current calls for ijtihād (independent reasoning), tajdīd (renewal, reform), and the elaboration of Islamic law according to maqāṣid al-sharī‘a (the fundamental goals of the law).

Islamic law for Muslim minorities is also embodied in a number of institutions, including the European Council for Fatwa and Research (ECFR) and the Fiqh Council of North America (FCNA), as well as the efforts of websites such as Islam Online (islamonline.net) and On Islam (onislam.net) to adapt religious rulings for Muslims living in the West. In general the fatwas of minority fiqh institutions seek to reconcile the impetus of the Islamic Revival with the problematics of integration. They oscillate between emphasizing the perceived powerlessness of Western Muslims and stressing their individual moral responsibility. The former founds a regime of exceptions that suspend traditional Islamic norms through legal dispensations such as “dire need” (ḍarūra) and stresses the need to abide by European laws. The latter purposefully ignores the context in order to consolidate a shared Muslim identity rendered fragile—in the eyes of the muftis—by strong pressures toward assimilation.

Criticisms of fiqh al-aqalliyyāt have been wide-ranging. Like its advocates, critics of minority fiqh cannot be easily categorized. They include ‘ulama’, public intellectuals, and secular Muslims with different intellectual commitments and disparate political agendas. Some of the critiques they have voiced include condemnations of minority fiqh as an attempt to secularize Islam, divide and weaken Muslims, and sell out to the West. Others have argued that the emphasis on the “minority” condition is a syndrome that prevents Muslims from realizing their rights and duties as citizens of liberal democracies. In a 2005 statement, the International Islamic Fiqh Council rejected the idea of a minority fiqh because it is based on an assumed minority–majority antagonism, deemed incompatible with an Islamic vision of pluralism and coexistence, and because it seems to deny Muslim agency.

The debate on whether minority fiqh is legitimate is partly a debate about how to understand the viability of the Islamic legal tradition (What continuities and changes are necessary for it to remain a living and coherent tradition in a diasporic context?) and how to conceptualize the political space that constitutes the West (What kinds of constraints are placed upon Muslims in European secular regimes, and what freedoms do they have?). Very often, however, the texts arguing for or against minority fiqh are more situated engagements with particular legal positions adopted by the scholars and institutions associated with the minority fiqh project. Critics of minority fiqh have targeted in particular the fatwas allowing Muslims to participate in elections in non-Muslim countries, allowing married women who convert to Islam to remain with their non-Muslim husband, and allowing Muslims to have recourse to interest-bearing mortgages to buy a house.

Since the aim of fiqh al-aqalliyyāt is to provide an authoritative reading of the Islamic tradition in a context of migration and social change, its success depends perhaps first and foremost on the recognition of Muslim audiences. This recognition has been ambivalent. The success of minority fiqh should also be related to the way the project resonates, or fails to do so, with wider public debates about the integration of Islam in the West. State policies and debates in the public sphere may contribute to authorize or undermine the idea of a fiqh for Muslim minorities. Both focus on the notion of “integration”—although what they mean by that often varies significantly. Minority fiqh advocates appear to assume that Muslims must “adapt” to Western societies. The muftis thus seem to share with many European and North American policy makers and public intellectuals a common diagnosis of the current situation as a failure on the part of Muslims to integrate properly, an understanding that Muslims are morally responsible for this failure as a consequence of “extremist” interpretations of Islam, and a vision of the conditions under which community cohesion becomes possible and social conflict is eliminated, envisioning Islam as a “civil” religion contributing to the common good.