The Concept of Coexistence in Islamic Primary Sources : An Analytical Examination [1 ed.] 9781443875875, 9781443872256

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The Concept of Coexistence in Islamic Primary Sources

The Concept of Coexistence in Islamic Primary Sources An Analytical Examination By

Ali Shehata Abdou Selim

The Concept of Coexistence in Islamic Primary Sources: An Analytical Examination By Ali Shehata Abdou Selim This book first published 2015 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2015 by Ali Shehata Abdou Selim All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-7225-3 ISBN (13): 978-1-4438-7225-6

TABLE OF CONTENTS

Preface ........................................................................................................ ix Acknowledgements .................................................................................... xi Chapter One ................................................................................................. 1 Introduction 1.1 Methodology Chapter Two .............................................................................................. 19 The Concept of Citizenship 2.1 Introduction 2.2 Citizenship: Definitions and Perceptions 2.3 Muslim Citizenship 2.4 A New Dimension of Muwatanah is Love 2.5 The First Watan in Islam 2.6 An Islamic Comprehensive Perception of Watan 2.7 The Significance of Watan in Islam 2.8 The Legitimacy of Changing Watan 2.9 Conclusion Chapter Three ............................................................................................ 41 Illegality and Legality of Acquiring and Holding Non-Muslim Citizenship and Living in Non-Muslim Countries 3.1 Introduction 3.2 The Prohibition on Acquiring and Holding Citizenship in Non-Muslim Countries and Living There 3.3 Scriptural Proofs 3.4 Deliberations and Preponderance 3.5 Citizenship and Living in Non-Muslim Countries 3.6 Conclusion

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Chapter Four .............................................................................................. 77 Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ (Sincerity and Disassociation) 4.1 Introduction 4.2 Definitions of Wala’ and Bara’ 4.3 Shahadah ΓΩΎϬη (Declaration of Muslim Faith) 4.4 Wala’ and Bara’ and Shahadah 4.5 The Party of Allah and the Party of Satan 4.6 Examples of Wala’ and Bara’ in the Qur’an 4.7 Manifestations of the Forbidden Wala’ 4.8 The Paramount Importance of Wala’ and Bara’ 4.9 Deliberation 4.10 Categories of Wala’ and Bara’ 4.11 Different Layers of Wala’ 4.12 Loving Non-Muslims 4.13 Muslims’ Support to Non-Muslims as a Manifestation of Wala’ 4.14 Paradox or Harmony 4.15 Bara’ of People or Bara’ of Deeds 4.16 The Islamic Rule Regarding Committing the Forbidden Wala’ 4.17 Deliberation 4.18 Conclusion Chapter Five ............................................................................................ 125 The Islamic Doctrines of Civic Loyalty 5.1 Concept of Loyalty 5.2 A Contested Duty 5.3 Conclusion Chapter Six .............................................................................................. 135 Taqseem al-Dar έ΍Ϊϟ΍ ϢϴδϘΗ (Classification of the World) 6.1 Introduction 6.2 The Significance of the Term Darέ΍Ω 6.3 Taqseem Al-Dar Has Been Stated in Many Ahadith 6.4 Definitions: Dar Al-Islam ϡϼγϹ΍ έ΍Ω (the Land of Islam) and Dar Al-Harb ΏήΤϟ΍ έ΍Ω (the Land of War) 6.5 Dar Murakkabah ΔΒϛήϣ έ΍Ω (The Compound Land) 6.6 Dar Al-‘Ahd ΪϬόϟ΍ έ΍Ω (The Land of Treaty) 6.7 The Impact of the Classifications of the World on Islamic Law 6.8 Deliberation 6.9 Conclusion

The Concept of Coexistence in Islamic Primary Sources

vii

Chapter Seven.......................................................................................... 159 Fiqh Al-Aqalliyat ΕΎϴϠϗϷ΍ ϪϘϓ (Fiqh of Minorities) 7.1 Introduction 7.2 Significance of the Term Aqalliya ΔϴϠϗ΃ (Minority) 7.3 Characteristics of Fiqh Al-Aqalliyat 7.3.1 Achieving Muslims’ Interest Legally 7.3.2 Preserving the Muslim Identity 7.3.3 Taking into Account the Respective Distinctiveness of Muslim Minorities 7.3.4 Fatwa Changes Because Time Changes 7.3.5 Fatwa Changes Because Place Changes 7.3.6 Fatwa Changes Because Circumstances Change 7.3.7 Fatwa Changes Because Information Changes 7.3.8 Fatwa Changes Because People’s Needs Change 7.3.9 Fatwa Changes Because People’s Capabilities Change 7.3.10 Fatwa Changes Because Non-Islamic Practices are Widely Spread Among Muslims 7.3.11 Fatwa Changes Because Muslim Social, Political and Economic Affairs Change 7.3.12 Fatwa Changes Because ‘Urf ϑήόϟ΍ (Customs and Norms) Changes 7.3.13 Da’wah ΓϮϋΩ 7.4 The Foundations of Fiqh Al-Aqalliyat 7.4.1 Ijtihad ΩΎϬΘΟ΍ 7.4.2 Adopting a Moderate Approach is the Second Foundation of Fiqh Al-Aqalliyat Chapter Eight ........................................................................................... 229 Islamic Responsible Coexistence 8.1 Introduction 8.2 Commonalities and Perception of Others According to Islam 8.3 We and Others, Sameness or Otherness 8.4 Muslimínon-Muslim Relations Are Based on Justice and Kindness 8.5 Subtle Morals Set Up by Islam for Dealing with Others 8.6 An Islamic Perception of the Relations Between Muslim Minorities and the Non-Muslim Countries Where They Live 8.7 Islamic Practical Examples of Positive Coexistence 8.8 Conclusion

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Chapter Nine............................................................................................ 253 Conclusions and Implications Appendix 1 .............................................................................................. 267 Appendix 2 .............................................................................................. 275 Appendix 3 .............................................................................................. 277 Appendix 4 .............................................................................................. 295 Bibliography ............................................................................................ 301

PREFACE

Muslims’ coexistence in non-Muslim lands remains an urgent issue of theological research, to which Islamic conferences and councils in recent years, particularly the European Council for Fatwa and Research, have contributed important Islamic teachings. These have made it, to an extent, better understood. This epistemological research is specifically centred on Muslims’ coexistence in Ireland. This research fundamentally embraces the study of Islamic theology and Muslims’ discourse, which gives rise to a number of research questions. The main question addressed is that of whether Muslims should live in non-Muslim lands. This prompts the philosophical question of a Muslim’s right to the acquisition of local citizenship. There is a wide range of jurists’ opinions on the latter, which indicates the paramount importance of considering the context in which each of these opinions originated. The definition of the term citizenship and the rights and responsibilities that emanate from it have led to important discourses among Muslim and non-Muslim scholars. The teaching of the Qur’an and other Islamic texts, such as the rights to world lands by Adam and Eve, are discussed in this regard, along with the concept of Muwatanah signifying the action of belonging to Watan (home land) and confirming the reciprocal rights and responsibilities between human beings and the Watan wherein they reside. Scholars of the concept of the legality and illegality of holding citizenship of a non-Muslim land are reviewed and the consequences of their writings are explored for an interpretation of civic duties and responsibilities. The theological concepts of Wala’ and Bara’, which are of paramount importance in the philosophical development of the arguments of Muslims’ coexistence in non-Muslim lands, are explored, inclusive of the well-being of the Muslim community’s coexistence in Ireland and their practical interpretation of these concepts. This leads to a discussion of the concept of civic loyalty and the associated Islamic doctrine related to it as documented by Islamic scholars such as Ibn Taymiyya, Abdelqader, Maulawi and Al-Qaradawi. Another aspect of civic loyalty with profound

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Preface

repercussions is the concept of Taqseem Al-Dar. A wide range of issues, which require particular Fiqh resolutions such as personal problems, economic, family and social issues, are explored. The research explores the limited literature on the concept of Fiqh of minorities – not a contemporary Islamic innovation – which originates from a realistic Islamic and religious comprehension of problems confronting Muslim minorities. Fiqh of Minorities is researched as a typical example of changes of Fatwa related to our changing notions of the time and place in which people find themselves. Muslim scholars have elucidated a number of foundational issues, which are discussed in this thesis, so that such Fiqh remains Islamic. The basis of successful peaceful coexistence is researched, particularly in the case of Muslims living in Ireland. I demonstrate that commonalities and Islamic perception of others are both a fundamental basis for successful coexistence and, above all, an important argument that in order to maintain and further successful coexistence, Muslims should hold fast to Islamic values. The thesis promotes both the prophet Joseph as an example of a successful sojourner in a non-Muslim land and, likewise, Muslim immigrants to Abyssinia.

ACKNOWLEDGEMENTS

Praise be to Allah and may Allah’s peace, blessings and mercy be upon all His prophets commencing with the Prophet Adam and ending with the Prophet Muhammad. I would like to thank my father, who encouraged me to do this PhD, and my wife, who supported me throughout all the time I spent on this thesis. I would like to express my gratitude to the European Council for Fatwa and Research, and especially the secretary general Sheikh Hussein Halawa. I would like to express my gratitude to Dr Nooh Al-Kaddo, CEO of the Islamic Cultural Centre of Ireland, for his continuous support. I would like to extend my thanks to Professor Anne Fitzpatrick-McKinley for supervising and Dr Roja Fazaeli for cosupervising this thesis and providing me with inspirational input at various stages of this work. I would like to thank Dr David Paris and Dr Gabriel Byrne for their academically valuable advice and great support.

CHAPTER ONE INTRODUCTION

In spite of the fact that it is one of the most commonly applied terms in today’s world, Muslims’ coexistence in non-Muslim lands remains in urgent need of theological reflection. The contemporary discussions of integration in today’s Europe are mainly focused on Muslim integration and Muslim identity. When the question of Muslim integration is raised the issue of coexistence becomes contentious as most Muslims perceive Islam as a way of life.1 Shari’ahh is deemed to be the ultimate authority for the Muslim majority. Although interpreted differently, according to different schools of thought, Shari’ahh regulates a Muslim’s relationship with Allah, MuslimíMuslim relationships and Muslimínon-Muslim relationships. In other words, relationships between a Muslim and the entire universe around him/her are regulated by Shari’ahh. For instance, regarding financial affairs the following is stated in the Qur’an: O ye who believe! When ye contract a debt for a fixed term, record it in writing. Let a scribe record it in writing between you in (terms of) equity. No scribe should refuse to write as Allah hath taught him, so let him write, and let him who incurreth the debt dictate, and let him observe his duty to Allah his Lord, and diminish naught thereof. But if he who oweth the debt is of low understanding, or weak, or unable himself to dictate, then let the guardian of his interests dictate in (terms of) equity. And call to witness, from among your men, two witnesses. And if two men be not (at hand) then a man and two women, of such as ye approve as witnesses, so that if the one erreth (through forgetfulness) the other will remember. And the witnesses must not refuse when they are summoned. Be not averse to writing down (the contract) whether it be small or great, with (record of) the term thereof. That is more equitable in the sight of Allah and more sure for testimony, and the best way of avoiding doubt between you; save only in the case when it is actual merchandise which ye transfer among yourselves from hand to hand. In that case it is no sin for you if ye write it not. And have witnesses when ye sell one to another, and let no harm be done to scribe or witness. If ye do (harm to them) lo! It is a sin in you. Observe your duty to Allah. Allah is teaching you. And Allah is knower of all things. (Trans. 2:282, Pickthall)

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Chapter One

In the above verse Muslims have clear financial instructions, in minute details, with regard to regulating certain types of financial affairs. Other verses of the Qur’an regulate financial transactions even further; for example, according to verse 2:275: “Allah permits trading and forbids usury.” The Qur’an also organises relations among people in a broader sense; for example, the verse below is a regulation on criminal behaviour: O ye who believe! Retaliation is prescribed for you in the matter of the murdered; the freeman for the freeman, and the slave for the slave, and the female for the female. And for him who is forgiven somewhat by his (injured) brother, prosecution according to usage and payment unto him in kindness. This is an alleviation and a mercy from your Lord. He who transgresseth after this will have a painful doom. (Trans. 2:178)

In this verse the Qur’an explains the Islamic regulations that should be applied in the case of criminal behaviour. In another example it is stated: “When ye are greeted with a greeting, greet ye with a better than it or return it. Lo! Allah taketh count of all things.” (Trans. 4:86, Pickthall) Given the sheer number of textual regulations pertaining to the daily lives of most Muslims, it is essential that one conducts a Muslim theological study on the issue of coexistence. Furthermore, this type of faith-based study has thus far not yet been presented. Scholars such as Bérengère Massignon argue that researchers have tackled the issue of the Europeanisation of Islam at the grass-roots level, i.e. recomposition of Islamic beliefs, interethnic and mixed marriages, internet-based Muslim networks, European large gatherings and the rule of religious leaders.2 Bérengère Massignon himself also deals with the issue of Europeanisation of Islam at an institutional level, focusing on transnational Muslim organisations in relation to European institutions.3 His study is a sociological one, and not theological, as is the case in this book. The part played by Muslims in the social texture of their respective locations is elaborated on in the book The Infidel Within by Humayum Ansari, and likewise by Ala Al-Hamarneh and Joern Thielmann in their book Islam and Muslims in Germany. Again, however, these scholars do not address the theological debates. Until now the issue of Muslim positive coexistence, especially in Ireland, has been elucidated from historical and sociological points of view. In 2004, Kieran Flynn submitted his MPhil book on the Muslim

Introduction

3

community in Ireland. He highlights briefly the history of Muslims in Europe, explaining some pertinent Islamic terms such as Dar-al-Harb (the land of war). In 2007, The Irish Hospice Foundation Programme in partnership with the Health Service Executive published a booklet entitled Caring for a Muslim Patient. In this booklet they elaborate on health issues and Muslim practices. When it comes to studying a person’s identity, the factor of being a Muslim has been considered unworthy of a detailed analysis, Jocelyne Cesari argues, by European sociologists who specialise in immigration.4 Cesari adds that scholars of Islam and certain sociologists and anthropologists of the Muslim world stress the significance of Islam as a system of norms and values. Nevertheless, Cesari states that due to the increased visibility of Muslim action and activities, the study of religious factors occupy a prominent position in integration. This study became more relevant in the post-9/11 context.5 Cesari elaborates on Muslim identity in Europe as influenced by a number of factors, for example, meta-narratives about Islam and ethnicity versus Islam, but not Islamic theology, which profoundly affects Muslims’ coexistence in Europe. In his book, To be a European Muslim, Tariq Ramadan6 elaborates on Islamic teachings such as Tawheed (oneness and unity of God), shedding light on the typology of the Islamic sciences such as the sciences of the Qur’an. In this book Ramadan makes a very significant statement: As it is the last Revelation, the Qur’an represents the last guidance, the last frame of reference whose teachings are suitable, henceforth, for all places and times to come until the end of human history. Thus the Qur’an, the very Word of God, conveyed by the Angel Gabriel, is the first and essential source for Muslims in both religious and juridical fields. Nine-tenths of it deal with spirituality in the widest sense of the term: the presence of God, creation, faith, worship, morality, the Hereafter, etc. We also find general rulings concerning social affairs: in its last Revelation, God fixed a global frame within which believers have to exert themselves in order to find the most appropriate law which is both faithful to the Qur’an and which also fits their context.7

This statement confirms the relevance of the study of theology for the question of coexistence. Ramadan explains a number of Arabic terms such as Al-Maslahah ΔΤϠμϤϟ΍ (consideration of public interest). Nevertheless, the theological aspects of coexistence have not been fully explored yet.

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Chapter One

Other studies, such as those conducted by Tarek Mitri, elaborate on the issue of Muslim and Christian relations. Mitri argues that integration and uniformity are encouraged by economic, technological and ecological factors. Nevertheless, he perceives that MuslimíChristian relations are caught between advocates of homogenisation and supporters of selfaffirmation, where the former favours relativism but the latter encourages fanaticism.8 He states that tension between Muslims and Christians is due to a complex history of rivalry and wars. In addition, he states that it is also due to the perception of the other and the depiction of today’s conflicts as religious wars and manifestations of ancestral hatred.9 Although Mitre states in his study, “it is often admitted that changes in one’s theology and perceptions of the other, on the whole, linger behind the dynamics of life”,10 he does not present a theological discourse. Given the clear paucity in the literature in regards to a faith-based study of Muslim coexistence, this book proposes to elaborate on the theological aspect of Muslim coexistence in non-Muslim lands and presents a number of theological questions, arguments and counterarguments pertinent to this issue. Is it permissible for Muslims to live in a non-Muslim country? Is it permissible for Muslims to acquire non-Muslim citizenship? What are the obstacles? How do Muslims perceive civic duties in non-Muslim countries? Are Muslims obliged to fulfil them? Some Muslim scholars such as Salah Sultan11 argue that to be a citizen or to live in a non-Muslim country is a contentious issue that is urgently in need of critical study by Muslim scholars and researchers in order to provide a Fiqh (Islamic jurisprudence) that is neither justificatory nor phobic but rather is a Fiqh distinguished in its reformative and initiative approach.12 Faysal Maulawi13 states that the fact that Muslims living in non-Muslim countries are estimated to be approximately fifty million,14 enjoying more rights than the diminishing rights of Muslims living in Muslim countries – such as freedom of expression – makes the issue more urgent and more complicated. For instance, as stated in interviews I conducted with some Libyans residing in Ireland, under Muammar Gaddafi’s regime commencing on 1 September 1969, Muslims who had beards and established their five daily prayers in the mosque were under surveillance in Libya, where the level of religious freedom and human rights was undermined. Libya’s violation of human rights affected Libyans as well as non-Libyans residing in the country. Even refugees and asylum seekers were not free from persecution:

Introduction

5

There are indefinite detentions and abuses of migrants, refugees and asylum seekers as well as the legacy of unresolved cases of enforced disappearances of dissidents. Meanwhile, the security forces remain immune from the consequences of their actions.15

The dilemma is that violations of human rights in Libya were perpetrated by state agencies under Gaddafi’s regime. In other words, to live in Libya meant that one had to accept either to be a victim of the regime or face intolerable difficulties. Hassiba Hadj Sahraoui, Deputy Director at Amnesty International’s Middle East and North Africa programme, said: Violations continue to be committed by the security forces, particularly the Internal Security Agency (ISA), who appear to have unchecked powers to arrest, detain and interrogate individuals suspected of dissent or of terrorism-related activities. Individuals can be held incommunicado for long periods, tortured and denied access to lawyers. If Libya is to have any international credibility, the authorities must ensure that no one is above the law and that everyone, including the most vulnerable and marginalized, is protected by the law. The repression of dissent must end.16

This was the situtation in Libya during Gaddafi’s rule, when it was classified as one of the twenty-six countries in which there were some of the most serious wide-ranging human rights concerns.17 Libya’s poor human rights record went against the fact that it had ratified most of the major human rights treaties.18 In addition to the UN Conventions, on 30 May 1985, Libya signed the African Charter on Human and People’s Rights and ratified it on 19 July 1986, which binds it by some international and regional human rights standards.19 In light of the current revolution human rights continue to stall on reform in Libya. Assessment of the current human rights situation in Libya is outside the scope of this chapter. Nonetheless, human rights organisations such as Human Rights Watch have already stated their concerns in regards to some human rights abuses such as arbitrary detentions by militia groups, which the National Transitional Council should work to stop.20

Tunisia, another country in transition, has also ratified most core UN human rights treaties as well as the above-mentioned African Charter on 16 March 1983.21 Despite its international and regional obligations to human rights, and in this particular example, the right to religious expression and freedom under Ben Ali’s regime, the hijab, an Islamic code

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Chapter One

of modest dressing was banned. According to a report by Amnesty International: The Tunisian authorities also undermine freedom of expression of religious belief. Harassment of women wearing the hijab (Islamic headscarf) and men wearing beards and the qamis (knee-length shirts) is on the increase following the authorities’ calls for a strict implementation of a 1980s ministerial decree banning women from wearing the hijab at educational institutions and when working in government. Women often suffer disproportionately in this regard. Some women have been taken to police stations and forced to sign statements to say they will stop wearing the hijab. Others have reportedly had their hijab stripped off them in the street by police officers in plain clothes. Some women have been ordered to remove their hijab before being allowed into schools, universities, or workplaces and others forced to remove them in the street.22

In this example of a Muslim majority country, as certain Muslims believe, Muslims were denied their basic rights to certain religious practices in governmental and educational institutions. To wear the hijab or the qamis was against the law. By law, people’s religious rights were restricted. As well as religious freedom, in Tunisia, freedom of expression under Ben Ali’s regime was undermined, as believed by a number of Muslims. The situation has not improved yet. In Tunisia, it is almost impossible to register an independent non-governmental organisation (NGO) and, if it succeeds in being registered, it will not function, since for every public meeting an official authorisation is needed. In addition, human rights activists are usually subjected to harassment. Human rights organisations continue to experience increasingly repressive actions. The government routinely blocks the legal registration of new independent NGOs by preventing them from submitting their applications to register or by refusing to provide them with receipts to prove that they have submitted an application.23 Turkey is another example. It is a secular state, yet Muslims constitute the majority there. Nonetheless, they do not enjoy full religious freedom, as believed by a number of Muslims. On 29 June 2004, Leyla ùahin submitted an application to the European Court of Human Rights. When she was a student in a medical school in Istanbul, she was denied access to a written examination and lectures, and she was not allowed to enrol in a scientific department of the school as she wore a hijab, which she believed to be an Islamic obligation. Her claim was based on a violation of religious freedom. The then state party contested this claim, arguing that secularism

Introduction

7

was a crucial matter for Turkey’s practice of democracy. The European Court of Human Rights issued a sentence supporting the state’s decision.24 This is the situation in Turkey, despite the fact that on 15 August 2000,25 it signed the International Covenant on Economic, Social and Cultural Rights.26 In Turkey a secular atmosphere has been achieved at a great cost to individual freedoms. As believed by a number of Muslims, Islamic practices have been restricted, paving the way for secularists to occupy state positions. In such an atmosphere, how can Muslims be called to live in Turkey, while in the countries where they currently live they are able enjoy their human rights? This deterioration of human rights could be one of the repercussions of political corruption. In an interview with Abdullahi An-Na’im27 conducted by Lisa Hajjar28 on 7 January 2000, An-Na’im stated that when the Arab world achieved liberation after many decades of colonisation, oppressive civil and political conditions were created by the leadership there during the 1950s and 1960s. Hence, human rights activism, deemed to be the current manifestation of an historic struggle for human rights, emerged in the 1970s.29 The tsunami of revolutions striking Tunisia, Egypt and Libya was, to a large extent, motivated by a deterioration of human rights in these countries. Opposers to the Tunisian and Egyptian government demand an immediate review of their constitutions, which they perceive to be the foundation of legalised violations of civil and political rights. AnNa’im argues that if the Egyptians and Syrians enjoy a certain level of human rights, it is due to the pressure applied by the West. He calls it human rights dependency. He adds that Egypt listens to the West because of aid but had Egypt been independent it would not have responded to this pressure. Nevertheless, An-Na’im perceives this pressure as a fundamental violation of human rights as it exploits the dependency of others.30 Ann Elizabeth Mayer31 argues that debates around the relationship between legal Islamic traditions and human rights became significant in the wake of the Islamic resurgence that began after the ArabíIsraeli war in 1967. Prior to this, the movement towards secularisation had been very consistent, leaving very little room for Islamic substantive rules.32 The discourse of human rights and Islam in Muslim countries has been ongoing for some time. Mashood A. Baderin33 argues that in the states where Islam is deemed to be the state religion or where Islamic law or Islamic principles are applied, Islam could be a significant factor in improving poor human rights. Baderin states:

8

Chapter One Pragmatically therefore, efforts for the promotion and protection of human rights in the Muslim world must necessarily take the impact and role of Islam into account, be it positively or negatively. Islam generally, and Islamic law specifically, cannot simply be disregarded as irrelevant in any of such endeavours.34

Muslims, constituting 20 per cent of the world’s population, have lived and thrived in greatly diverse Islamic societies, both historically and contemporarily.35 An-Na’im argues that human rights can have an impact on the law through social commitments influenced by Shari’ahh, as well as many other factors. He adds that Islamic societies, or the societies where Muslims constitute the majority, should not be perceived as coincidental with a fidelity to Shari’ahh.36 So, on the one hand, we have the state dynamic and, on the other, we have the social dimension. In between we have human rights, which are supposed to be negotiated through notions of morality. Hence, human rights are shaped by a number of factors in Islamic society. So, whose morality is it that is used as a foundation for this negotiation? How is this to be articulated? This is subject to political, economic and social factors.37 The issue of human rights in Muslim countries is a book topic in its own right. Nevertheless, no further elaboration on this point is provided as it is not a central concern of this book.38 However, the fundamental importance of human rights and the serious concerns in Muslim lands highlighted above make it an immediate and incumbent duty on Muslim scholars to facilitate an Islamic understanding of Muslim coexistence in non-Muslim lands based on ‘Ijtihad39 (reasoning), taking into consideration the difficulties confronting Muslims in Muslim countries and the Islamic rule of “Dar’ Al-Mafasid Wa Jalab Ul-Manafi’” ϊϓΎϨϤϟ΍ ΐϠΟϭ ΪγΎϔϤϟ΍ ˯έΩ (facilitating interests and warding off evils). According to Yusuf Al-Qaradawi,40 Muslims living in non-Muslim countries should lead a stable life that enables the viability of the seven phases: preserving their Muslim identity; raising their awareness; unity; embarking on activities; contribution; citizenship; and integration. This stable life should allow Muslims to fulfil their five fundamental duties: protecting and promoting themselves; shielding their families against assimilation; uniting with their Muslim brethren in the West; reflecting the true Islamic image; and being concerned with and supporting Muslim issues worldwide.41

Introduction

9

Various Muslim scholars argue for and against maintaining the purity of Muslims living in non-Muslim countries. These arguments raise questions pertinent to the concept of Muslims and citizenship of nonMuslim countries. How important is the question of citizenship to the issue of coexistence? What restrictions in the way of coexistence are there? What support is lent by scholarly arguments around the concept of legal citizenship in the case of Muslims living in non-Muslim countries? Considering the reality of Muslims living in non-Muslim societies, one can easily perceive excess and remiss. In other words, some who have been assimilated indulge in whatever is of worldly interest to them, regardless of its motivation and heedless of their religion. They do not differentiate between what is Halal (religiously permissible) and what is Haram (religiously forbidden). The second category is rare and not wellconnected in the Muslim community. They sever all types of relations with their society and they always feel alienated at home and among their countrymen. There is also a third category, one that presents a different argument. This is where Muslims perceive themselves as citizens in non-Muslim countries. In fact, millions of Muslims migrated from their homes and resided in non-Muslim countries as a result of pressures felt due to repression, backwardness and poverty in their respective homes. Hence, they raise the following questions: Is it permissible to live in non-Muslim countries? In fact, there is not a single Islamic country that meets all the conditions stipulated to be classified as an Islamic society, as will be explained in the coming chapters. Had there been an Islamic country,42 would it have been able to accommodate all these millions of Muslims? Had it accommodated all these millions, would the Muslim nation have been the best nation as described in the Qur’an43 or would it have been an isolated nation? Should the Fiqh of authority44 that the Muslim nation enjoyed for many centuries remain unalterable even though the current context is utterly different? Currently, the Muslim nation is weak and divided into many countries, and, is subjected politically, socially and intellectually to external and internal factors. Most of the Muslim countries are not Shari’ahh (Islamic law) compliant countries. Many nonreligious ideologies are in effect there. Non-Islamic norms penetrated Islamic societies through satellite television and the internet and, prior to the digital age, through colonisation and trade. In light of this situation should Muslim scholars turn a blind eye and apply the inherited Fiqh,45 overlooking the objectives of Islamic Shari’ahh,46 or should Muslim

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Chapter One

scholars turn a deaf ear to the inherited Fiqh and take into consideration the objectives of Islamic Shari’ahh and the contemporary Muslim context? There is an argument and a counter-argument regarding the permissibility of Muslims’ coexistence in non-Muslim lands presented by a number of contemporary scholars such as Hasan Al-Bana, Al-Qaradawi and Al-Buti, 47 as well as scholars of earlier times such as Al-Sarkhasi48 and Ibn Al-Qayyim.49 In this book, illustrations of both arguments supported by citations will be elucidated providing answers to the questions above. In the second chapter, both Muslim and non-Muslim perceptions of citizenship is elaborated upon. Light is shed on similarities as well as differences. In this chapter it is made clear how the perceptions of citizenship of some non-Muslims present a challenge for Muslims. On the other hand, this chapter highlights new dimensions of citizenship added by Muslim scholars. It also shows the value of land from an Islamic point of view. In the third chapter the argument of Muslim scholars, who perceive living in a non-Muslim country and acquiring non-Muslim citizenship as being prohibited by Islam, is presented along with the Islamic scriptural quotations they cite in support of their arguments. Afterwards, a deliberation on their views and a different understanding of the Islamic scriptural quotations they cite in support of their arguments is explored in detail. This is vitally important, as it explains the opinions of these scholars and why and on what basis they formed them. An elaboration on their context is also presented since, when explaining Fiqh Al-Aqaliyyat (Fiqh of minorities) ΕΎϴϠϗϷ΍ ϪϘϓ, it has a profound impact on the Islamic law. Moreover, this gives one a better understanding of these opinions. In the fourth chapter, the arguments of Muslim scholars, who perceive living in a non-Muslim country and acquiring non-Muslim citizenship as islamically permissible, are presented, along with the Islamic scriptural quotations they cite in support of their arguments. This is vitally important as it explains the opinions of these scholars and why and on what basis they formed them. An elaboration on their context is also presented since, when talking about Fiqh Al-Aqaliyyat (Fiqh of minorities)ΕΎϴϠϗϷ΍ ϪϘϓ, it has a profound impact on Islamic law. Moreover, this gives a better understanding of these opinions.

Introduction

11

As I conclude this chapter by stressing the Islamic permissibility of living in non-Muslim countries and acquiring non-Muslim citizenships, in the fifth chapter, light is shed on one of the frequently mentioned terms in the old Islamic books: Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ (sincerity and disassociation). The focus is on this concept and its serious implications on Muslimínon-Muslim relations. As the concept of Wala’ and Bara’ is based on love and hatred expressed in sincerity, friendship, disassociation and hostility, not only does it seriously impact on Muslimínon-Muslim relations, it also has a great influence on the attitudes of Muslims towards non-Muslim countries and states. Muslim scholars present a wide range of interpretations in this regard. A detailed elaboration on the opinions perceiving it as a divisive term and, the opinions perceiving it as a uniting term, is presented in this chapter. As I conclude stating that the terms Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ (sincerity and disassociation) cannot be perceived as an obstacle in the way of coexistence, in the sixth chapter, I elaborate on the issue of civic duties. Is it islamically permissible for Muslims to fulfil civic duties when living in non-Muslim countries? What should Muslims do if there is a contradiction between their Islamic duties and civic duties? In the sixth chapter these questions are tackled from an Islamic point of view. As I conclude stating that Muslims should fulfil their civic duty, in the seventh chapter another Islamic term, Taqseem Al-Dar έ΍Ϊϟ΍ ϢϴδϘΗ (classification of the world), is explained. This term has a profound impact on the perception of land. Hence, it affects the fulfilment of civic duties and also the issue of coexistence. In this chapter an explanation of all types of lands is presented. This includes the impact of the current circumstances on the typology of the lands. Upon reaching this point and out of the paramount importance of the issue of Fiqh, a detailed study is presented on Fiqh Al-Aqalliyat ΕΎϴϠϗϷ΍ ϪϘϓ (Fiqh of minorities). In this chapter a number of points including the impact of circumstances, place and time on Fatwa are raised. Also an elaboration on Da’wah as one of the characteristics of Fiqh Al-Aqalliyat ϪϘϓ ΕΎϴϠϗϷ΍ (Fiqh of minorities) is presented. A comparison of Da’wah in a Muslim country and a non-Muslim country is presented, stressing that even Da’wah varies from one place to another. In the eleventh chapter a detailed explanation on the foundation of Fiqh Al-Aqalliyat is presented. According to the foundation, one discerns that it is not a fabricated Fiqh and that it is not open to individuals’ desires.

12

Chapter One

As it is permissible for Muslims to live in a non-Muslim country and acquire non-Muslim citizenship, and, there is a Fiqh on the basis of which their affairs can be organised, in the twelfth chapter an elaboration on responsible Islamic coexistence is presented. In support of this argument examples of coexistence in the Qur’an and Sunnah are cited.

1.1 Methodology This study presents an Islamic theological legal discourse on the issue of living in non-Muslim countries and acquiring non-Muslim citizenship. Outlined in this study are opinions expressed by a wide range of Muslim jurists, who lived in different historical eras and belonged to various geographical locations. In other words, they were related to different contexts. In this study, their arguments are quoted with the logical and scriptural proofs supporting them. This is followed by a deliberation, highlighting critical points in arguments presented by each group of Muslim jurists. Part of the scriptural proofs is represented by a citation of a number of Qur’anic verses. To translate these verses I depended largely, with minor and sometimes major amendments, on the translations provided by Abdullah Yusouf Ali, Ahmad Ali and Pickthall. This book aims to achieve three main contributions. First, it aims to present certain Islamic concepts in English, which are available only in Arabic. It also aims to collect and elaborate on the main opinions and issues pertaining to the coexistence of Muslims in non-Muslim countries and, to present these in one book. Finally, it presents the rich literature of the European Council for Fatwa and Research (ECFR) pertaining to the issue of MuslimínonMuslim relations. This literature is available in Arabic only. Hence, this is the first time to present it in English. Moreover, the atmosphere of the discussions held in the ECFR’s sessions could be discerned in this study, since the author of this book has attended most of these sessions and translated most of their final statements. This book aims to present a Muslim inward vision of the status of the coexistence of Muslims in nonMuslim countries. In order to develop the book, it is proposed to anchor it in a number of Research Questions, which, in turn, will set specific Research Objectives and suggest a research process to explore the present pertinent concepts related to the coexistence of Muslims in non-Muslim countries, the associated concept of Muslims acquiring non-Muslim citizenship in these countries, and the emergent theological and sociological consequences related thereto. The following Research Questions are proposed:

Introduction

13

1- What is the present status of Muslim theology on the concept of coexistence of Muslims in non-Muslim countries? 2- What is the present status of Muslim theology on the concept of Muslims acquiring non-Muslim citizenship in non-Muslim countries, where there is a peaceful coexistence? 3- How can the theological consequences relating to the coexistence of Muslims in non-Muslim countries be contextualised at the present time? 4- How can the sociological consequences relating to the coexistence of Muslims in non-Muslim countries be contextualised at the present time? 5- What is the ideal theological teaching on coexistence of Muslims in non-Muslim countries in the twenty-first century? 6- What is the ideal theological teaching on Muslims acquiring nonMuslim citizenship in non-Muslim countries, where there is peaceful coexistence? These Research Questions set the Research Objectives of the book which are as follows:1- To explore the present status of Muslim theology on the concept of coexistence of Muslims in non-Muslim countries. 2- To explore the present status of Muslim theology on the concept of Muslims acquiring non-Muslim citizenship in non-Muslim countries, where there is peaceful coexistence. 3- To put into context the present-day theological consequences relating to the coexistence of Muslims in non-Muslim countries. 4- To put into context the present-day sociological consequences relating to the coexistence of Muslims in non-Muslim countries. 5- To suggest the ideal theological teaching on coexistence of Muslims in non-Muslim countries in the twenty-first century.

14

Chapter One

6- To suggest the ideal theological teaching on Muslims acquiring non-Muslim citizenship in non-Muslim countries, where there is peaceful coexistence. The book develops an academic exposé of the questions indicated and utilises the continuous forum meetings of European Imams as a major source of information and knowledge.

Notes 1

Muslims tend to have consensus on certain issues but also many Islamic issues are subject to various interpretations. 2 Bérengère Massignon “Islam in the European Commission’s System of Regulation of Religion”, Islam in Europe Diversity, Identity, and Influence, Aziz Al-Azmeh and Effie Fokas, eds (Cambridge: Cambridge University Press, 2007), p. 125. 3 Ibid. 4 Jocelyne Cesari, “Muslim Identities in Europe: the Snare of Exceptionalism”, Islam in Europe Diversity, Identity, and Influence, Aziz Al-Azmeh and Effie Fokas, eds (Cambridge: Cambridge University Press, 2007), pp. 50í1. 5 Ibid. 6 Tariq Ramadan, born in 1962, is an Egyptian Swiss national who was born in Geneva. He is a Muslim intellectual, philosopher and a poet. He is also a Professor of Contemporary Islamic Studies in the Faculty of Oriental Studies at Oxford University. He has a number of publications including Western Muslims and The Future of Islam (Oxford: Oxford University Press, 2003). 7 Tariq Ramadan, To Be a European Muslim (Markfield: Islamic Foundation, 1999), pp. 58í9. 8 Tarek Mitri “Christians and Muslims: Memory, Amity and Enmities”, Islam in Europe Diversity, Identity, and Influence, Aziz Al-Azmeh and Effie Fokas, eds (Cambridge: Cambridge University Press, 2007), pp. 16í17. 9 Ibid., pp. 18í26. 10 Ibid., pp.17í18. 11 Salah Sultan is the founder of the American Centre for Islamic Research based in Columbus and also the founder of Sultan Publishing Company based also in Columbus. He was a president of the American Islamic University based in Michigan. He has published a number of Islamic books such as Al-Muwatanah Bain At-Ta’seel Al-Shar’I wa Ta’dud Al-Wala’at Ad-Diniyah Wat-Ta’ifiyah Wal‘Irqiyah, Al-Wasiyah Al-Wajibah Fe Al-Qawaneen Al-‘Arabiya and Ahal Al-Kahf. 12 Salah Sultan, Al-Muwatana Fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 135. 13 Sheikh Faysal Maulawi is a Lebanese judge and the deputy chairman of the European Council for Fatwa and Research. He was born in Lebanon in 1941. Maulawi is a famous Muslim Lebanese thinker. He lived in France in the period from 1980 till 1985. Since 1986 he has been the spiritual leader for the union of

Introduction

15

Islamic organizations in Europe. He was the founding dean of the the European Institute for Human Sciences in France. He has written a number of books such as Al-Mar’a Fi Al-Islam, Al-Salam Ala Ahl Al-Kitab, Al-‘Usus Al-Shar’iyah Lil’alaqat Bin Al-Muslimeen Wa Ghair Al-Muslimeen, etc. 14 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), p. 3. 15 “Human rights suffer as Libya stalls on reform”, 23 June 2010, published on http://www.amnesty.org/en/for-media/Press-releases/human-rights-suffer-libyastalls-reform. 16 Ibid. 17 “Human rights and democracy”, the 2010 Foreign and Commonwealth Office report published on 23 September 2011 on http://fcohrdreport.readandcomment.com/human-rights-in-countries-of-concern /libya/. 18 “International treaties adherence”, 23 September 2011, published on http://www.adh-geneva.ch/RULAC/international_treaties.php?id_state=128. 19 See appendix 1. 20 http://www.hrw.org/news-filter/232. 21 “African (Banjul) Charter on Human and People’s Rights”, published on 23 September 2011 on www.africa-nnion.org/roots/au/Documents/Treaties/Lists/African%20Charter %on%Human%20and%20Peoples%20Rights.pdf. 22 “Tunisia: human rights briefing for 20th anniversary of President Ben Ali’s rule” http://www.amnesty.org/en/library/asset/MDE30/010/2007/en/0adc748d-d35a11dd-a329-2f46302a8cc6/mde300102007en.pdf. 23 Ibid. 24 http://www.article19.org/handbook/jurisprudence/echr-leyla-sahin-v-turkey.html 05/07/2011. 25 University of Minnesota published “Ratification of International Human Rights Treaties – Turkey”, on http://www1.umn.edu/humanrts/research/ratificationturkey.html 25/09/2011. 26 See Appendix 2. 27 He is a Sudanese lawyer and an activist of human rights. He is also a professor of law at Emory University, Atlanta, Georgia. 28 Lisa Hajjar teaches sociology at Morehouse College. 29 “Problems of dependency, human rights organisations in the Arab world, an interview with Abdullahi An-Na’im”, www.jstor.org/stable/1520190, 23 September 2011, p. 20. 30 Ibid., p. 22. 31 Ann Elizabeth Mayer is Associate Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. She holds a PhD in Middle Eastern History from the University of Michigan, a JD from the University of Pennsylvania Law School, and a Certificate in Islamic and Comparative Law from the School of Oriental and African Studies in London.

16

32

Chapter One

Ann Elizabeth Mayer, Islam and Human Rights, Traditions and Politics, fourth edition (Colorado: Westview Press, 2007), p. 2. 33 Baderin is a professor of law at the School of Law, SOAS, University of London. 34 Mashood A. Baderin, “Islam and the Realization of Human Rights in the Muslim World: A Reflection on Two Essential Approaches and Two Divergent Perspectives”, Muslim World Journal of Human Rights, Vol. 4, Issue. 1, Art. 5, (California: The Berkeley Electronic Press, 2007), p. 5. 35 Abdullahi An-Na’im, From Silver to Gold: The Next 25 Years of Law and Religion, the Future of Law, Religion, and Human Rights “The Law and Morality of Human Rights in Islamic Societies”, 26 October 2007, p. 1, http://ebookbrowse.com/ law-liberty-morality-pdf-d58838588. 36 Ibid., p. 4. 37 Ibid. 38 For more reading on this point, please see Fred Halliday, “Relativism and Universalism in Human Rights: the Case of the Islamic Middle East”, Political Studies (Political Studies Association, n. p.), v. 43, 1995; also Mashood Baderin, International Human Rights and Islamic Law (Oxford: University of London, 2005); and Mahmoud Monshipouri, Islamism, Secularism, and Human Rights in the Middle East (Colorado: L. Rienner, 1998). 39 Muhammad Al-Ghazali states that a person who has a good understanding of Islam, reads and ponders over the Qur’an, while being aware of its context and significance in light of the Sunnah of the Prophet Muhammad, peace be upon him, and while abiding by it, can mould his life according to Islam and reach the right Islamic law for new events provided he/she has a righteous heart. Describing it as one of the Islamic legislative sources, which the Muslim nation should abide by regarding new issues, Al-Ghazali called this analogical reasoning. This is how Muslims apply rules of old events to new events. Al-Ghazali, Hatha Dinuna (Cairo: Dar Al-Shuruq, 2006), p. 214. 40 Yusuf Al-Qaradawi is the Chairman of the European Council for Fatwa and Research and also chairman of the International Union for Muslim Scholars. He is an Egyptian-born (1926) theologian best known for his programme Al-Shari’ahh Walhayah broadcast by Al-Jazera, which has an estimated audience of 40 million worldwide. He has published more than one hundred and seventy five books such as Al-Halal Walharam. He also received eight international prirzes for his Islamic contribution. 41 Yusuf Al-Qaradawi, Al-Watan wa Al-Muwatana (Beirut: Beirut Press, 2008), p. 66. 42 This term will be explained in details in the fifth chapter. 43 In the Qur’an it is stated: “Ye are the best of peoples, evolved for mankind, enjoining good, forbidding evil, and believing in Allah” (Trans. 3:110). 44 Rules of Islamic jurisprudence applied when Muslims have power. 45 Fiqh theories belonging to very old eras. 46 Shari’ahh is the Islamic law and its objectives are the spirit of the Islamic law.

Introduction

47

17

Muhammad Sa’eed Al-Buti was born in the village of Jilka in 1929. He migrated to Damascus with his father, Mulla Ramadan, when he was four years old. He acquired his Alamiya degree in Al-Azhar University. He also acquired an educational diploma in the faculty of Arabic, Al-Azhar University. In 1960 he was appointed as dean in the faculty of religion at Damascus University and in 1965 as instructor in the college of law of Damascus University and the dean. At present, he is a member in the Royal Society of the Islamic Civilization Researches in Amman, Jordan. He is also member in the High Council of Oxford Academy in England. Al-Buti wrote about forty books on the sciences of religion, literature, philosophy and sociology, the problems of civilization and others. Among his books are Manhaj Al-Hadarah Al-Islamiya Fi Al-Qura’n and Huriyat Al-Insan Fi Dhil ‘Ubudiyathu Lilah. 48 Muhammad Ibn Ahmad Ibn Ibn Abu Salih Ibn Abu Bakr Al-Sarakhsi was a famous Hanafi jurist who died around 1096. He had a remarkable memory. AlSarakhsi’s opinions on law have been widely cited and he has been thought of as a distinctive writer. He spent around fifteen years in prison, during which he wrote his famous book Al-Mabsut and some other books. His books include Usul alFiqh, the Kitab al-Mabsut, and the Sharh al-Siyar al-Kabir. 49 Shams Al-Din Muhammad Ibn Abi Bakr, Ibn Al-Qayyim al-Jawziyya was born in a small farming village near Damascus, Syria in 1292. He was educated by his father and renowned scholars. He also was taught by Ibn Taimiyyah who kept him in his company as his closest student and disciple; later, he became his successor. Because of his opinions, he was imprisoned. Ibn Jawziyya taught Islamic Jurisprudence at al-Sadriyya school in Damascus, before he held the position of the Imam of the Jawziyya School for a long period. Most of his writings were compilations. But he also authored several books and manuscripts preserved today in the central Library of Damascus. His books include Tahthib Sunan Abi Dawoud, Al-Kalam al-Tayyib wa-al-‘Amal al-Salih, Zad al-Ma‘ad etc. Ibn Al-Qayyim died in Damascus in 1350 at the age of sixty.

CHAPTER TWO THE CONCEPT OF CITIZENSHIP

2.1 Introduction Muslim and non-Muslim thinkers such as Al-Qaradawi, Ben Bayiah,1 John J Patrick,2 Joseph Carens3 and Derek Heater4 exerted great efforts to reach a recognised definition of citizenship. Nevertheless, none of these definitions appear to be universally applicable. However, the fact that in various historical periods a great number of scholars deliberated on the issue of citizenship indicates clearly the paramount importance of this matter. The notion of citizenship is pertinent to the question of Muslimnon-Muslim coexistence that is addressed in this book. It is therefore important to elaborate on various definitions and perceptions of citizenship, especially as some relate to reciprocal rights and responsibilities, which bring forth a number of questions. An elaboration on these questions will be presented in the fourth chapter. In this chapter, answers to the following questions will be investigated: What is the significance of citizenship? What rights and responsibilities does citizenship entail? Does citizenship show a level of flexibility that allows a broader concept of social identity? How do Muslim thinkers understand this term? What are the significant contributions by Muslim thinkers to the perception of citizenship? Does the land have Islamic significance?

2.2 Citizenship: Definitions and Perceptions Birte Siim5 and Judith Squires6 argue that citizenship is a contested concept, which is at the centre of policy debate. Citizenship has different meanings, institutional designs and patterns, cross-nationally. The definition includes three different dimensions: individual rights and obligations; political participation including the right to vote; and belonging to nation states.7 This definition seems to be inclusive, yet it is general in a sense that it states rights and obligations in broad terms. It leaves room for a wide

20

Chapter Two

range of interpretation. For instance, today’s issue of freedom of expression represented by the Danish cartoon controversies caused tension and counter-tensions worldwide. Some described the publishing of the Danish cartoons by Jyllands-Posten as an exercise of freedom of expression, while others perceived it as an insult. The publication of these cartoons was sanctioned by Carsten Juste, the paper’s editor, as no one agreed to publish a book about Muhammad. Juste refused to apologise and argued that this publication was to test whether Islamic terrorist threats could limit freedom of expression or not. This publication caused outrage among Muslims.8 If these rights and obligations are limited to legal rights and obligations, it will ease such a conflict. For instance, if it was banned by law to jest at religious values, such a conflict would not exist. According to Humphrey Marshall,9 citizenship refers to a status bestowed on those who are full members of a community.10 This is a very brief description, when compared to the description given by others such as Will Kymlicka,11 who defines citizenship as a matter of treating people with equal rights under the law.12 C. Lynn Smith13 states that in Winner v. S.M.T. (Eastern) Ltd case,14 the Supreme Court decided that citizenship is defined as membership in a state where citizens are entitled to rights and responsibilities relevant to allegiance and protection.15 Again, allegiance and protection are flexible terms. Is this allegiance the be-all and end-all allegiance to the state or does it allow other aspects of social identity? If it is the former, then it creates a level of difficulty for multicultural and multifaith societies as well. What are the limits of protection that the state provides? Is it the protection Paul claimed in the time of the Roman Empire, which stated that citizens were protected against scourging as punishment for crimes? If the answer is yes, then it contradicts democracy based on equality perceived as the cornerstone of citizenship by other scholars, such as Derek Heater. The concept of citizenship comprises three main dimensions. The first dimension is that citizenship is a legal status, which is defined by civil, political and social rights. The citizen is the legal person, free to act according to the law and, is entitled to claim the law’s protection. It does not mean that the citizen will necessarily take part in the law’s formulation, nor does it require that rights be uniform for all the citizens. The second dimension is that citizens are perceived as political agents, actively participating in political institutions. The third dimension is that

The Concept of Citizenship

21

citizenship is described as having a membership in a political community that furnishes a distinct source of identity.16 Joseph H. Carens also argues that citizenship has three dimensions, namely the legal, the psychological and the political.17 He adds that these dimensions interact with each other in a complicated way. The legal dimension of citizenship refers to the formal rights and duties, which a citizen, as a member of a political community, possesses. The psychological dimension of citizenship refers to a citizen’s sense of identification with the political community to which he/she belongs. The political dimension refers to a citizen’s sense of representational legitimacy of those who have the authority to act on behalf of the political community. Dominique Leydet defines a citizen as a member of a political community who enjoys the rights and assumes the duties of membership.18 Leydet elaborates that, for Aristotle, the citizen is the one capable of ruling and being ruled in turn. Citizens are, first and foremost, “those who share in the holding of office”.19 John Patrick agrees with Aristotle’s perception of citizenship but, he is more specific and he also provides a new dimension.20 Patrick argues that citizenship is the legal link between individuals and their political community. He states that citizens are entitled to certain rights and responsibilities that, if not fulfilled, can be detrimental to the cause of democracy. Patrick mentions that citizenship entails certain duties such as paying taxes, serving in the country’s armed forces when called upon, abiding by laws, demonstrating commitment and loyalty to the democratic political community and state, constructively criticising the conditions of political and civic life, and participating to improve the quality of political and civic life. In spite of the fact that John Patrick perceives that citizenship and democracy are intertwined and interrelated, he believes that the fulfilment of certain duties, such as military service, is essential for the establishment of citizenship. For one reason or another, a citizen might choose not to take part in a military action. According to John Patrick, this curtails his/her right of citizenship. But in a democratic society, alternatives should be provided and values chosen by citizens should be taken into positive consideration. Andrew F. March21 states that the attributes of citizenship include affirmation of the legitimacy of the political community, and constitute

22

Chapter Two

one’s contribution to its welfare and to that of fellow citizens, resulting from social co-operation and willingness of political participation.22 According to Virginia Leary,23 the concept of citizenship has defined rights and obligations in the Western world since the time of the Greek and Roman civilizations. Leary argues that, in addition to certain rights in the state, Roman citizens were protected against scourging as punishment for crimes. Leary adds that the concept of citizenship acquired a bundle of rights such as the rights of political participation. Leary states that during the French Revolution, the concept of citizenship implied the rejection of certain privileges claimed by the nobility and the belief that all men were equal.24 Derek Heater argues that citizenship is a form of socio-political identity, which sometimes lives in harmony with other forms, competes with them, becomes dominant, is submerged or subdued by others, and sometimes it is a distinct form from others.25 Heater argues that initially citizenship evolved as the relationship of the individual to the state, which, if weakened, also weakened citizenship.26 Heater mentions that three ways forward should be identified: first, institutions should encourage citizens to take part in their society; second, an acceptance that citizenship is not the be-all and end-all of one’s social identity; and third, citizens should be taught about their multiple identities. Although Heater states that citizenship, in its basic sense, means living and being committed to a nation-state that involves entitlement to certain rights and fulfilment of given duties, he believes that all should be tolerant of the different religions, social habits and political beliefs, i.e. a recognition of horizontal citizenship.27 Such flexible understanding of citizenship accommodates and recognises people’s right to different forms of social identity that can coexist harmoniously. This perception is vitally important since the issue of coexistence and integration currently occupies a major part of the public concern in every country. Liberal citizenship gives a different dimension to the concept of citizenship. According to Walzer,28 the liberal model of citizenship can be traced back to the Roman Empire. The Empire’s expansion led to the expansion of citizenship rights. Hence, citizenship meant being protected by the law rather than participating in its formulation or execution. It became an important but occasional identity, a legal status, rather than a fact of everyday life.29 The Roman experience shows that the legal

The Concept of Citizenship

23

dimension of citizenship is potentially inclusive and indefinitely extensible. According to the liberal tradition, which developed from the seventh century onwards, citizenship is a legal status. Political liberty is essential as a means of protecting individual freedoms against interference by other individuals or the authorities. But citizens exercise these freedoms in private associations and attachments, rather than in the political domain.30 In light of the above-mentioned arguments, there are two different models: the liberal approach presents citizenship as eligibility for political office and the traditional approach presents citizenship as a legal status.

2.3 Muslim Citizenship Muslim scholars also present a wide range of rich Islamic literature on citizenship. Sultan argues that in many countries there is no difference between citizenship and nationality. Nevertheless, each country has different sets of regulations organising rights and responsibilities that vary from one country to another.31 All citizens should have equal rights and duties. The equivalent Arabic term to citizenship is Muwatanah ΔϨρ΍Ϯϣ. It has the following derivatives: Ϧρϭ Watan: home Ϧρϭ΃ϭ ϪΑ Ϧρϭ Watana Bih and ‘Utana: to reside ϦρϮΘγ΍ Istautana: to make a place or a country home. Ϧρ΍Ϯϣ Muwatin: citizen It is very significant here to state that the term Ϧρ΍ϭWatana, meaning to coexist, is not included as one of the derivatives of Muwatanah. Nevertheless, it is mentioned in the Al-Mu’jam Al-Waseet dictionary as follows: Ϧρ΍ϭ Watana: to coexist with others in one country (new derivative).32 Bin Baiyah argues that the concept of citizenship has recently been changed. According to Bin Baiyah, it is now defined as reciprocal relations among a number of individuals living on a piece of land not

24

Chapter Two

necessarily descending from the same lineage or sharing the same historical memories or religion, but rather being subjected to the same constitution that specifies all rights and responsibilities.33 Bin Bayiah perceives citizenship as an institution that people optionally choose to join. Once they join, they enjoy the same rights that all members enjoy. The values of such a group, unlike the situations in the past, are not based on a common religion, race or history, but rather on the presumption that diversity itself is a great value that gives room for the accomplishment of harmony through integrating various distinctive elements to attain public interests in a way that does not recognise superiority of some strata nor impose inferiority on others.34 In his perception of citizenship, Bin Bayiah describes citizenship as a vehicle for integration and bridging gaps among members of one and the same society, bringing about a homogeneous society that recognises differences. This perception is practical as we are living in an era of globalisation where people of different races share one and the same society. Nevertheless, it raises a number of theological questions for Muslims: Can a Muslim acquire non-Muslim citizenship? Can a Muslim have loyalty to the non-Muslim land, the citizenship of which he/she holds? What does Islam say about coexistence? An elaboration on these questions will be provided in the fourth chapter. The issue of non-Muslim minorities in Muslim lands is significant, yet it is not an issue planned to be covered in this book. Hence, no elaboration on it will be provided. Nevertheless, as an example, the Egyptian situation is briefly discussed. The second article in the Egyptian constitution stated: “Islam is the religion of the state, and the Arabic language is its official language. The principles of Islamic law are the chief source of legislation”. The Egyptian understanding of the principles of Islamic law has not deprived the Egyptian Christian minority from occupying towing positions in the state. For instance, Mr Boutros-Ghali, a Christian Egyptian, served as a Minister of State for Foreign Affairs from October 1977 until 1991. In May 1991 he was promoted to deputy prime minister for international affairs by President Hosni Mubarak. Yusuf Wahbah, a Christian Egyptian, born in Cairo in 1852, worked as a judge in the appeal court in 1914 and as Minister for Finance and, in 1999, as the Prime Minister. Muhammad Imarah argues that Islam is one of the main sources of legislation in Egypt, where non-Muslim minorities live and flourish under the Islamic principle: “They enjoy equal rights to the rights we enjoy and have equal responsibilities to the responsibilities we have”. It is

The Concept of Citizenship

25

clear that the Egyptian constitution has been formed in light of the Charter of Medina (for more details see Appendix 4). In fact the rights of the Egyptian Christians are secured by Shari’ah. The High Egyptian Administrative Court issued a sentence on the basis of which Pope Shenouda III, who was the 117th Pope of Alexandria and the Patriarch of All Africa on the Holy Apostolic Seat of Saint Mark the Evangelist of the Coptic Orthodox Church of Alexandria, was supposed to permit divorced Christians to marry. Pope Shenouda appealed the sentence arguing that since the principles of Islamic law are the chief source of legislation for the Egyptian constitution, the Church has the right to run the Christian family issues according to their belief as in the Qur’an it is stated: “Let the People of the Gospel judge by that which Allah hath revealed therein. Whoso judgeth not by that which Allah hath revealed: such are evil-livers” (Trans. 116:47). On 7 July 2010, the High Egyptian Administrative Court issued a sentence giving the Church the right of settling Christian family issues according to their faith. Nevertheless, in various historical eras, non-Muslim minorities suffered discrimination due to religious misinterpretation. For instance, as stated by Mr A. (anonymous for the purposes of privacy) in an interview I had with him, in Libya currently there is a Coptic community that the government refuses to recognise and denies its existence.

2.4 A New Dimension of Muwatanah is Love According to Faysal Maulawi, Muwatanah signifies the action of belonging to Watan. It is an interaction between people and place resulting in love for the Watan and leading to reciprocal rights and responsibilities between human beings and the Watan wherein they reside. This description is similar to some of the above-mentioned descriptions. Nonetheless, it adds a new dimension. It states that the relationship between people and the place they reside is based on love. This is a new dimension added to the concept of citizenship.35 Maulawi adds that according to Ibn Khaldun, people commonly residing in a place naturally have multiple links. They essentially set up authorities to run their affairs and lead them against others. People usually submit themselves to these authorities.36 According to the definition given by Faysal Maulawi, another dimension is added to the concept of citizenship. Muwatanah is no longer

26

Chapter Two

a mere belonging to a place. It also involves belonging to the people sharing the place and the regime ruling their relations and affairs. Maulawi adds that Muwatanah also constitutes, in effect, a certain type of support for authority. It actually organises a set of integrated rights and responsibilities between citizens and their Watan. When responsibilities are not duly fulfilled, then citizens will not be fully entitled to their rights and vice versa.37 Maulawi establishes a reciprocal link between rights and responsibilities, which is originally an Islamic concept. This is manifested in Islamic legislation organising relations among people, for example, that children owe their mother more than their father, since she accepts more responsibilities towards them than their father. It seems that Maulawi’s view is a manifestation of his Islamic education. When a human being migrates he/she misses his/her relatives and friends and the land where he/she forms these relations. This is a normal feeling. Animals, birds and fish cover long distances in their journeys of migration and then they return to their homes to which they have a strong feeling of belonging. The Prophet Muhammad, peace be upon him, when leaving Mecca, said: “O Mecca! What a good town you are! What a dear town you are! Had not your people led me to leave I would have never lived elsewhere.”38

2.5 The First Watan in Islam The first Islamic Watan was established in Medina as declared by the Prophet Muhammad, peace be upon him, when he announced in 627 the Constitution of Medina (ΔϨϳΪϤϟ΍ ΔϔϴΤλ), also known as the Charter of Medina, constituting the first Islamic multicultural and multi-religious society in history made up of Muslims, Jews and Christians.39 The document was drawn up with the objective of bringing to an end the bitter intertribal fighting between the clans of the Aws and the Khazrah í two Arab tribes dwelling in Medina. It also included non-Muslims living in Medina, forming a cohesive society. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish and pagan communities of Medina, bringing them within the fold of one community. The Constitution established security for the entire community. It also guaranteed religious freedom to all individuals living in Medina. It enabled all tribes to enjoy stable tribal relations within

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Medina. It imposed a tax system for supporting the community in times of conflict, establishing parameters for exogenous political alliances.40 This means that the Prophet Muhammad, peace be upon him, understood citizenship in terms of a set of reciprocal rights to which citizens were equally entitled to, and responsibilities that citizens should have fulfilled. The Prophet Muhammad, peace be upon him, also perceived citizenship as allegiance and protection. By virtue of citizenship, citizens in the Medinite society, on the one hand, had to have allegiance to the state of Medina and protect Medina and were, on the other hand, entitled to protection against all types of aggression. All citizens enjoyed equality and freedom of belief and religious practices.41

2.6 An Islamic Comprehensive Perception of Watan John Patrick argues that in some countries citizenship is based on the place where one is born, whereas in other countries it is based on parents’ citizenship, and other countries use both bases for granting citizenship.42 He adds that in most democratic countries there are procedures of naturalisation. There is an Islamic theory of Watan, which is more comprehensive than Patrick’s argument and states that the issue of Watan dates back to the time of Adam and Eve. The creation of Adam and Eve, in Islam as in other monotheistic religions, marked the beginning of all human beings. The story of the original parents is the origin of a huge number of generations over many millennia. It is stated clearly in the Qur’an that Adam and Eve were the first human beings to appear on earth. It stated: “And when thy Lord said to the angels: Verily, I am placing a viceregent on earth” (Trans. 2:30). Then the verses portray the story of sending Adam and Eve to earth. The Prophet Muhammad, peace be upon him, said: “You all come from Adam and Adam was created from dust. There is no superiority of an Arab over a non-Arab, nor is there a superiority of a white over a black except for piety.”43 Hence, according to Islam, Adam is the father and origin of all mankind and Eve was created from Adam. The earth is the origin of all human beings and it is the place where they reside. Muhammad Kamali44 states that some Muslim scholars argue that both Adam and Eve are the origin of all human beings. In the Qur’an it is stated: “O! Mankind observe your duty towards Allah who created you from a single soul and created its mate of the same kind and created from them countless of men and women” (Trans. 4:1). The phrase Khalaqakum

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Min Nafsin Wahidatin ΓΪΣ΍ϭ βϔϧ Ϧϣ ϢϜϘϠΧ , “He created you from a single soul”, indicates that Eve was not created from Adam’s rib but rather in the same way Adam was created í God breathed into both of them their souls.45 According to Sayyid Qutb,46 the phrase “and created its mate of the same kind” reveals a fact that had people comprehended it, it would have saved them serious errors such as the perception that woman is the source of impurity, adversity and evil. Eve was created from Adam. Hence, they had the same nature and disposition.47

2.6.1 The Phases of Adam and Eve’s Creation Dust:48 When Allah willed to create Adam, He commanded the angels to bring dust of different colours from all over the earth. This dust was the origin of Adam. Mud:49 Water was poured over the dust, converting it into sticking mud. In this stage Adam remained for forty years. That period was so long that the mud became hard to the extent that if one had knocked at it, it would have produced a sound like clay. In the Qur’an it is stated: “He created man (Adam) from sounding clay like the clay of pottery” (Trans. 55:14). Fashion:50 Allah fashioned Adam in the form of a human being and bestowed upon him many faculties such as hearing and sight. Adam remained in this phase for forty years, and then the soul was breathed into him. For a certain time Adam lived in paradise on his own. While he was sleeping, Allah created Eve from Adam’s rib without any pain. When Adam woke up he saw a woman next to his head. It was Eve. Both of them lived in paradise and Allah permitted them to eat from all the trees therein, except for one tree, and warned them against Satan. He, Satan, insinuated, tempted and deceived them. He swore to them that if they ate from the forbidden tree they would be imperishable. In the Qur’an it is stated: Then We said: O Adam! Verily, this is an enemy to you and to your wife. So let him not get you both out of paradise, so that you will be distressed. Verily, you have (a promise from Us) that you will never be hungry therein or naked. And you will suffer not from thirst therein nor from the sun’s heat. Then Satan whispered to him, saying: “Shall I lead you to the tree of

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eternity and to a kingdom that will never waste away?” Consequently, they did eat from it and as a result the divine command, to go down to the earth to be tested, was issued. Allah promised to send revelation and whoever abides thereby will go to paradise. This sketch is portrayed in various verses in the Qur’an. In the Qur’an it is stated: “And we said: O Adam! Dwell you and your wife in the paradise and eat both of you freely with pleasure and delight, of things therein as wherever you will, but come not near this tree or you both will be the wrong-doers. Then Satan made them slip therefrom (paradise), and got them out from that in which they were. We said: Get you down, all, with enmity between yourselves. On earth will be a dwelling place for you and an enjoyment for a time. Then Adam received from his lord Words. And his Lord pardoned him. Verily, He is the One who forgives, the Most Merciful. We said: Get down all of you from this place (paradise), then whenever there comes to you Guidance from Me, whoever follows My Guidance, there shall be no fear on them, nor shall they grieve. (Trans. 2:35-38)

2.6.2 The Earth is Watan for Adam’s Children On the basis of the above-mentioned story of the creation of Adam and Eve and their descent to earth, it is self-evident that Allah gave the whole of the earth to Adam and Eve as a home. Nobody disputed with them regarding any part of it. All human beings are the children of Adam and Eve. Hence, they, and all of them, are the heirs of the inheritance of Adam and Eve, i.e. the entire earth. Consequently, to purportedly state that this land belongs to a certain race is not a valid claim, since Adam and Eve did not write a will. The common parents left behind a common property. Moreover, certain areas have natural resources. By virtue of the abovementioned argument, all human beings hold a share in the earth. This concept of commonality and shareholding, if established, will lead to a revolution in the concept of coexistence. It will establish justice and equality. It will make all human beings share and care as they all will feel that the earth is theirs. Al-Qaradawi highlights that when the children of Adam increased in huge numbers, they spread all over the world and, by virtue of man’s social inclinations, they gathered together in certain locations forming cities, towns and villages. The inhabitants of these cities, towns and villages formed links with each other by means of marriages, colleagueship, friendship, kinship, etc. As a result of the increasing numbers of cities, towns and villages, the concept of Watan, i.e. citizenship has been formed.51

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According to Al-Qaradawi’s perception as outlined above, Watan is formed of a number of regions in which people are united by religious, social or political factors. The concept of Watan, i.e. citizenship, is based on a human being’s need for a place in which citizens belong. In addition, Al-Qaradawi’s perception is pluralistic, yet limited to religious, social and political factors. He also agreed with Maulawi’s foundation of citizenship, which is love for the place and people. In his explanation of the link between Islam and the concept of citizenship, ‘Imarah52 states that the viability of establishing a religion is entirely dependent on finding a geographical location, reality and citizenship. Hence, belonging to a country is deemed an essential component in establishing a religion.53

2.7 The Significance of Watan in Islam Al-Qaradawi stresses that, in spite of the fact that some might argue to the contrary, under the pretext that it is a material issue and Islam focuses on spiritualities, land is of paramount insignificance in Islam. The perception is that Islam is concerned solely with human beings who walk on the land. According to Al-Qardawi this is a fatal error.54 Al-Qaradawi adds that Islam perceives human beings as an amalgamation of both material and spiritual aspects. They are made of dust and the soul that Allah breathed in them. In the Qur’an it is stated: “Behold! Thy Lord said to the angels: ‘I am about to create man, from sounding clay, from mud moulded into shape; when I have fashioned him and breathed into him of My spirit, fall ye down in obeisance unto him’” (Trans. 15:38-39). Then Allah commanded Adam and Eve to descend to the earth that Allah had prepared for their life. In the Qur’an it is stated: “It is He Who hath created for you all things that are on earth” (Trans. 15:39). Among the fundamental missions that Allah assigned to humans on earth is being Allah’s viceregents and accomplishing prosperity. In the Qur’an it is stated: “Behold, thy Lord said to the angels: ‘I will create a viceregent on earth’” (Trans. 2:30). And in another place He said: “To the Thamud People (We sent) Salih, one of their own brethren. He said: ‘O my People! Worship Allah: ye have no other god but Him. It is He Who hath produced you from the earth and settled you therein: then ask forgiveness of Him, and turn to Him (in repentance): for my Lord is (always) near, ready to answer’” (Trans. 11:61). Human beings have been assigned certain responsibilities towards the whole earth in general. These

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responsibilities become more definite when it comes to the land where they have been born or taught or brought up. The concept of viceregency has comprehensive implications. It provides a number of values for shaping social life and clarifies the status of human beings and their position and responsibilities towards the rest of the creatures. Allah is the real owner of the earth. Human beings are not the owner of the earth but rather trustees and stewards.55 This Islamic concept can be compared to the Christian concept of dominion: “And God said, ‘Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the Cattle, and over all the earth, and over every creeping thing that creepeth upon the earth’” (Gen 1:26). The biblical term “dominion”, which derived from the Hebrew verb radah, grants humans the right to rule over all the other creatures. It positions the human race above the rest of the world’s components. Such a conclusion is confirmed by the use of radah elsewhere in the Hebrew Bible, where it refers to the rule of the head of the house over household servants (Lev 25:43) and of Solomon’s officers over his conscripted labour force (1 Kgs 5:16 [Heb; 1 Kgs 5:30]). Radah signifies the power, control and authority of one individual or race over another. The concept of dominion agrees with the Islamic concept of viceregency in terms of the belief that God created human beings and created the entire universe for their interest. Nevertheless, Islam intertwines this honour with the responsibility of caring for this universe. In the Qur’an it is stated: “He created you from the earth and Ista’marakum ϢϛήϤόΘγ΍ hath made you husband it” (Trans. 11:60). When referring to Watan, “home”, the Qur’an applies a very significant term, i.e. Diyar “homes”. The Qur’an recognises the emotional relationship between the people and their Watan. Moreover, it ranks the displacing of people as a major sin and mentions it in the same context of committing suicide. In the Qur’an it is stated: “If We had ordered them to sacrifice their lives or to leave their homes, very few of them would have done it” (Trans. 4:66). In the context of the stories of the previous nations, the Qur’an highlights the vital importance of Diyar, by stating that it is a duty incumbent upon people to defend their Watan (land) even if it involves

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fighting. In the Qur’an it is stated: “Hast thou not turned thy vision to the Chiefs of the Children of Israel after (the time of) Musa? They said to a Prophet (that was) among them: ‘Appoint for us a king that we may fight in the cause of Allah.’ He said: ‘Is it not possible, if ye were commanded to fight, that ye will not fight?’ They said: ‘How could we refuse to fight in the cause of Allah, seeing that we were turned out of our homes and our families?’” (Trans. 2:246) The fact that the terms Watan, Dar and Diyar have been mentioned many times in the Qur’an reflects its paramount importance in Islam: it is mentioned that “Allah hath given you victory on many fields (Autan)” (Trans. 9:25). Again, it is stated: “Bethink thee of those of old, who went forth from their Diyar in their thousands, fearing death”, and in the Qur’an it is stated unto them: “Die; and then He brought them back to life. Lo! Allah is a Lord of Kindness to mankind, but most of mankind gives not thanks” (Trans. 2:23). In this verse the Qur’an applies the same term, i.e. Diyar referring to habitations. The only reason for people being driven out of their Diyar is fear of death. In other words, love for Diyar comes after love for life. The Qur’an stresses: “And when We made with you a covenant: Shed not the blood of your people nor turn (a group of) your people out of your Diyar. Then ye ratified (Our covenant) and ye were witnesses (thereto). Yet ye it is who slay each other and drive out a party of your people from their homes” (Trans. 2:84-85). In this verse the term Diyar is applied to refer to dwellings. Displacing people is listed as one of the prohibitions along with shedding blood. To be mentioned in such a context reflects how evil it is in Islam to displace people. In an indirect way this is recognition of the deep emotional relationship between people and their Diyar. In the Qur’an it is stated: “And their Lord hath heard them: Lo! I cause not the work of any worker, male or female, to be lost. You precede one from another. So those who fled and were driven forth from their Diyar and suffered for My cause, and fought and were slain, verily I shall remit their evil deeds for them and verily I shall bring them into Gardens underneath which rivers flow í A reward from Allah. And with Allah is the fairest of rewards” (Trans. 3:195). Here the term Diyar is applied to people’s homes. Another indication of its importance is that Allah promised paradise for those who suffer displacement for His sake.

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The Qur’an clarifies: “So when the time for the first of the two came, We roused against you slaves of Ours of great might who ravaged (your) Diyar, and it was a threat performed” (Trans. 17:05). In this verse the Qur’an applies the term Diyar to countries. Allah describes ravaging Diyar as a punishment. In the Qur’an it is stated: “And He caused you to inherit their land and their Diyar and their wealth, and land ye have not trodden. Allah is ever able to do all things” (Trans. 33:27). In this verse the Qur’an again applies the term Diyar in reference to homes. Giving Diyar to the believers is mentioned as a reward and this shows the value of Diyar in Islam. The Qur’an explains: “And (it is) for the poor fugitives who have been driven out from their Diyar, who seek bounty from Allah and help Allah and His messenger. They are the loyal” (Trans. 59:08). Here the Qur’an applies the term Diyar to homes. Allah states that leaving the Diyar for the sake of Allah is evidence of loyalty and this is an indication of the paramount importance of Diyar. In the Qur’an it is stated: “Allah forbiddeth you not regarding those who warred not against you on account of religion and drove you not out from your Diyar that ye should show them kindness and deal justly with them. Lo! Allah loveth the just dealers. Allah forbiddeth you only those who warred against you on account of religion and have driven you out from your homes and helped to drive you out, that ye make friends of them. Whosoever maketh friends of them í (All) such are wrong-doers” (Trans. 60:08-09). This verse applies the term Diyar to homes. Another indication of the paramount importance of Diyar is that according to Islam, Muslims are permitted to be on good terms with non-Muslims provided they do not fight against Muslims on account of their religion, nor drive them out of their homes. The Qur’an also states: “But they denied him, and the dreadful earthquake took them, and morning found them prostrate in their Diyar” (Trans. 29:37). In this the Qur’an applies the term Diyar to dwellings. It states that punishment was afflicted on them in the dearest place to them, i.e. their Diyar, and this is another indication of the importance of Diyar in Islam.56 Based on the above-mentioned verses it can be easily discerned that Watan, “home, land, country, citizenship”, is not limited to one’s place of birth, but rather it includes the place where one lives and the place that one

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has taken as a home. The above-mentioned verses clearly describe a congregational ownership of the watan and not an individual ownership.

2.8 The Legitimacy of Changing Watan Al-Qaradawi states that human beings do not choose their homes. It is part of their destiny, just as one’s parents are his/her destiny. Whoever is born in Egypt is destined to be Egyptian and whoever is born in Ireland is destined to be Irish. Nevertheless, many people, whether willingly or unwillingly, have changed their homes. They have migrated to another place and made it their home, wherein they are settled.57 Al-Qaradawi himself, for instance, is an Egyptian citizen, but he migrated and settled in Qatar and acquired Qatari citizenship.

2.9 Conclusion By and large the aforementioned arguments and counter-arguments present citizenship as eligibility for political office and legal status. Citizenship is a contested concept. Nevertheless, there is a kind of consensus with regard to establishing the concept of citizenship on reciprocal rights and responsibilities. This is clearly expressed by Muslim and non-Muslim thinkers. We can also see this clearly in the Code of Medina accepted by the Prophet Muhammad, peace be upon him, and the non-Muslim communities residing in Medina. In my opinion this reciprocity is a system adapted to organise congregational and individual affairs. Nonetheless, some thinkers expressed these rights and responsibilities in an inclusive way. For instance, John Patrick, whose perception is that citizenship and democracy are intertwined and interrelated, believes that a fulfilment of certain duties, such as military service, is essential for the establishment of citizenship. However, other thinkers present citizenship in more accommodating terms. For instance, Derek Heater argues that citizenship is not the totality of one’s social identity and that citizens should be taught about their multiple identities. Although Heater states that citizenship, in its basic sense, means living and being committed to a nation-state that involves entitlement to certain rights and fulfilment of given duties, he believes that all should be tolerant of different religions, social habits and political beliefs. Muslim thinkers add a new dimension to the concept of citizenship. For instance, Maulawi perceives love as one of the main foundations of citizenship. Moreover, they have a universal concept of citizenship that describes all the children of Adam as brothers and sisters and the entire earth as a Watan for all of

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them. These arguments indicate clearly the paramount importance of citizenship throughout various historical periods. In light of this understanding of citizenship, is it islamically legitimate for Muslims to live in a non-Muslim Watan? Is it islamically legitimate for Muslims to acquire or hold non-Muslim citizenship? How important is the question of legitimacy of citizenship in the development of the concept of coexistence of Muslims living in non-Muslim countries? These questions bring us to the next stage of our research: the issue of the legality or illegality of citizenship in non-Muslim countries as evidenced in the literature.

Notes 1

Abdullah Ben Bayiah is a contemporary Muslim scholar and a member of the European Council for Fatwa and Research. Shaikh Abdallah bin bin Bayiah (born 1935) is a Mauritanian-born Maliki jurist. Currently he teaches at King Abdul Aziz University in Saudi Arabia. He was a Minister of Education and later Minister of Justice in Mauritania. He was also appointed vice president to the first president of Mauritania. Shaikh Bin Bayyah is presently involved in The Islamic Fiqh based in a Saudi Institute. He was ranked amongst the fifty most influential Muslims in 2009. He has written a number of books such as Sina’at Al-Fatwa wa Fiqh AlAqaliyat and Fatwa Fikriyah. 2 John J. Patrick is a retired Professor of Education in the School of Education at Indiana University. He was also a director of the Social Studies Development Center and a director of the ERIC Clearinghouse for Social Studies/Social Science Education at Indiana University. Professor Patrick is the author or co-author of many publications on civic education, history education and political ideas. 3 Joseph H. Carens is professor of political science at the University of Toronto. He is the author of Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (Oxford: Oxford University Press, 2000), which won the 2002 C. B. Macpherson Prize of the Canadian Political Science Association. He is also the author or editor of three other books, and has published more than sixty papers in journals and edited volumes. 4 Derek Heater was the Dean of the Faculty of Social and Cultural studies at the then Brighton Polytechnic, and was co-founder of the Politics Association. He is the author of a number of books such as Citizenship: The Civic Ideal in World History, Politics and Education and The United Nations: How it Works and What it Does. 5 Birte Siim is Associate Professor at the Institute for History, International and Social Studies, University of Aalborg, Denmark. Birte Siim is a key member of FREIA, the Feminist Research Centre located in Aalborg, Denmark. 6 Judith Squires is Professor of Political Theory and Dean of the Faculty Social Sciences and Law, Universty of Bristol. She was appointed as an Academician of Academy of Social Sciences in 2009 and is currently serving as a member of the ESRC Training and Skills Committee and ESRC Impact Network. With Johanna

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Kantola, she co-edits the Palgrave Gender and Politics book series and is Reviews Editor for the journal Government and Opposition. She is board member of the European Consortium of Political Research (ECPR) Press. Her works include The New Politics of Equality in C. Hay, ed., New Directions in Political Science: Responding to the Challenges of an Interdependent World (London: Palgrave Macmillan, 2010), pp. 89í108, “Britain's Equality Review”, International Feminist Journal of Politics, 11 (4), 2009, pp. 496í512. 7 Birte Siim and Judith Squires, Contesting Citizenship (London: Routledge Press, 2008), p. 2. 8 Paul Belien, “Jihad against Danish Paper”, http://www.brusselsjournal.com/node/ 382 (22 October 2005). 9 Thomas Humphrey Marshall was born in 1893 and died in 1981. He was a British sociologist known for his essays. He studied at Trinity College, Cambridge University. He was a civilian prisoner in Germany during World War I. In the period 1914í18 he was a Fellow of Trinity College, Cambridge. In the period 1914í25 he was a lecturer at the London School of Economics (LSE). In the period 1939í44 he was the Head of the Social Science Department, LSE. His distinctive contribution to the concept of citizenship is represented by introducing social rights granted on the basis of the status of being a citizen. 10 T. H. Marshall, Citizenship and Social Class (Cambridge: Cambridge University Press, 1950), pp. 28í9. 11 Will Kymlicka was born in Canada. He was educated at Queen's and Oxford University. Since 1998 he has been lecturing in the philosophy department at Queen’s University. His research interests focus on issues of democracy and diversity, and in particular on models of citizenship and social justice within multicultural societies. He has published eight books and over two hundred articles, which have been translated into thirty-two languages, and has received several awards, most recently the 2009 Premier’s Discovery Award in the Social Sciences. His books include Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford: Oxford University Press, 2007), translated into Greek, Spanish and Serbian, and Contemporary Political Philosophy: An Introduction (Oxford: Oxford University Press, 2002), translated into Arabic, Chinese, Serbian, Portuguese, Korean, Russian, Ukrainian, Greek, Slovenian, Turkish, Polish, Spanish and German. 12 Will Kymlicka, Muticultural Citizenship (Oxford: Oxford University Press, 1995), p. 174. 13 Justice Smith earned an Honours BA in Philosophy from the University of Calgary in 1967, and an LLB from the University of British Columbia in 1973. After clerking for the Chief Justice of British Columbia, she practiced law in Vancouver from 1974 to 1981 with the firm of Shrum, Liddle & Hebenton (now McCarthy Tétrault) first as an associate and then as a partner. On 23 June 1998 she was appointed a Justice of the Supreme Court of British Columbia. In the time since her appointment to the bench, Justice Smith has been actively engaged in continuing education for judges. She was a member of the Board of Governors of the National Judicial Institute from 1996í2001 and worked in the development of

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a number of its programmes. She has also acted more recently as the Executive Director of that organisation. C. Lynn Smith was Dean at the Faculty of Law, University of British Columbia. Included among her works, as co-author, are “The Equality of Rights”, The Candian Charter of Rights and Freedoms, G.A. Beaudoin and E. Mendes, eds, third edition (Toronto: Carswell, 1996); and “Have the Equality Rights Made Any Difference?”, Protecting Rights and Freedoms: Essays on the Charter’s Place in Canada’s Political, Legal and Intellectual Life, Philip Bryden, Steven Davis and John Russell, eds (Toronto: University of Toronto Press, 1994). 14 See Appendix 3. 15 Alan C. Cairns, John C. Courtney, Peter Michelmann, David E. Smith, Citizenship, Diversity and Pluralism: Canadian and Comparative Perspectives (Montreal: McGillíQueen’s Press, 1999), p. 140. 16 Dominique, Leydet, “Citizenship”, The Stanford Encyclopedia of Philosophy (fall 2011 edition), Edward N. Zalta, ed., http://plato.slato.stanford.edu/archives /fall2011/entries/citizenship/. 17 Joseph H. Carens, Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (Oxford: Oxford University Press, 2000), p. 162. 18 Leydet, “Citizenship”. 19 Ibid. 20 John Patrick, “The Concept of Citizenship in Education for Democracy. ERIC Digest”, published on http://www.ericdigests.org/2000-1/democracy.html on 8 August 2011. 21 Andrew F. March, Associate Professor of Political Science, DPhil in Politics, University of Oxford, 2006. His research interest focuses on political theory, contemporary philosophical liberalism, Islamic political thought, Islamic law, religion and political theory and comparative political theory. He received the Award for Excellence in the Study of Religion, American Academy of Religion. His journal articles include “Theocrats Living Under Secular Law: An External Engagement with Islamic Legal Theory”, Journal of Political Philosophy, vol. 19, No. 1, 2011, pp. 28í51; and “Is There a Right to Polygamy? Marriage, Equality and Subsidizing Families in Liberal Public Justification”, Journal of Moral Philosophy, vol. 8, no. 2, 2011, pp. 244í70. 22 Andrew F. March, Islam and Liberal Citizenship (Oxford: Oxford University Press, 2009), p. 136. 23 Virginia A. Leary, born in 1926, obtained her BA in 1947 from the University of Utah. In 1950 she graduated from the University of Chicago Law School. In 1971 she received the diploma of the Hague Academy of International Law. In 1980 she obtained her doctoral degree in the University of Geneva’s Graduate Institute of International Studies. Leary held membership on the board of directors of Human Rights Watch Asia and is a founding member of the International Council for Human Rights Policy. She also worked with Amnesty International, the Office of the United Nations High Commissioner for Human Rights, the World Health Organization, and the International Commission of Jurists. After her retirement

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from UB in 1995, she served as a Professor of International and Comparative Law at University of California, Hastings College of the Law in San Francisco for six years. Leary’s many publications include Ethnic Conflict and Violence in Sri Lanka, 1981, International Labour Conventions and International Law, 1982, and Challenging Power in Civil Society at the Doors of the WTO, 1999. 24 Alan C. Cairns, John C. Courtney, Peter Michelmann, David E. Smith, Citizenship, Diversity and Pluralism: Canadian and Comparative Perspectives (McGillíQueen’s Press, Montreal, 1999), p. 247. 25 Derek Heater, A Brief History of Citizenship (Edinburgh: Edinburgh University Press, 2004), p. 1. 26 Ibid., p. 144. 27 Ibid. 28 Michael Walzer, born in 1935, was a prominent American political philosopher and a professor at the Institute for Advanced Study in Princeton, New Jersey. He was co-editor of Dissent, an intellectual magazine. He wrote a number of books and essays on a wide range of topics such as just and unjust wars, nationalism, ethnicity, economic justice, social criticism, radicalism, tolerance and political obligation. He wrote twenty-seven books and published over three hundred articles, essays and book reviews in Dissent, The New Republic, The New York Review of Books, The New Yorker, The New York Times, Harpers, and many philosophical and political science journals. His books include The Revolution of the Saints: A Study in the Origins of Radical Politics (Massachusetts: Harvard University Press, 1965) and Thinking Politically (Connectitut: Yale University Press, 2007). 29 Walzer, “Citizenship”, Political Innovation and Conceptual Change, T. Ball, J. Farr, R. L. Hanson, eds. (Cambridge: Cambridge University Press, 1989), pp. 211– 20. 30 http://plato.stanford.edu/entries/citizenship/#3.1. 31 Salah Sultan, Al-Muwatana Fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 135. 32 Al-Zaiyat, Al-Mu’jam Al-Waseet (Cairo: Arabic Language Academy, 2001), p. 1054. 33 Abdullah Ibn Baiyah, Al-Wala Bainn Al-Din Wal-Muwatana (Beirut: Beirut Press, 2008), p. 107. 34 Ibid. 35 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), pp. 34í5. 36 Ibid. 37 Ibid. 38 Al-Bukhar, Sahih Al-Bukhari, The Book of Marda, chapter of supplication of terminating epidemics. 39 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), p. 36. 40 Muhammad Hameedallah, Al-Watha’iq Al-Siyasiyah Lil’ahd An-Nabawa (Beirut: Dar Al-Irshad, n. d.), p. 39.

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39

See appendix 4. http://www.ericdigests.org/2000-1/democracy.html (7 April 2011). 43 S. Mahmassani, Arkan Huquq Al-Islam Fil-Islam (Beirut: Dar-ul-‘Ilm LilMalayin, 1997), p. 266. 44 Muhammad Kamali is Professor of Law at the International Islamic University Malaysia where he has been teaching Islamic law and jurisprudence since 1985. His publications include Islamic Commercial Law, Freedom of Expression in Islam, The Dignity of Man: An Islamic Perspective, and Freedom, Equality and Justice in Islam. He is also the author of the well-known book Principles of Islamic Jurisprudence. 45 Muhammad Kamali, The Dignity of Man: An Islamic Perspective (Cambridge: Islamic Text Society, 2002), p. 5. 46 Sayyid Qutb, born in 1906 and died in 1966, was an Egyptian Islamic author, educator, poet and a leading Islamic theologian of the Egyptian Muslim brotherhood in the 1950s and 1960s. He was a Shafi’i jurist. He wrote twenty-four books, the most famous of which is Fe Thilal Al-Qur’an (Cairo: Dar Ash-shu-Ruq, 2005). He had his political envolvement that resulted in his martyrdom. 47 Sayyid Qutb, Fe Thilal Al-Qur’an (Cairo: Dar Ash-shu-Ruq, 2005), v. 1, p. 574. 48 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), p. 10. 49 Ibid. 50 Ibid. 51 Yusuf Al-Qaradawi, Al-Watan and Al-Muwatana (Beirut: Beirut Press, 2008), p. 25. 52 Muhammad Imarah is a contemporary Muslim scholar. He has a great number of publications such as Al-Arab Waltahadi, Al-Ata’ Al-Hadari Al-Islami, Al-Daula Al-Islamiyah Bin Al-‘Ilmaniyah Wal-Sultah Al-Diniyah. 53 Muhammad Imarah, Ma’rakat Al-Mustalahat Bain Al-Gharb Walislam (Cairo: Dar Al-Shuruq, 1988), p. 149. 54 Yusuf Al-Qaradawi, Al-Watan and Al-Muwatana (Beirut: Beirut Press, 2008), p. 32. 55 Zahid Parvez, Building a New Society An Islamic Approach to Social Change (Markfield: Revival Publications, 2000), pp. 34í6. 56 The term Diyar has been mentioned in other verses. For instance: “We certify that the above is a true translation from the original. The Islamic Cultural Centre does not bear any responsibility for the authenticity of the original document”, chapter Al-Anfal 8, verse 47 (translation). “And the (awful) Cry overtook those who did wrong, so that morning found them prostrate in their Diyar (dwellings)”, chapter Hud, verse 67 (translation). “Those who have been driven from their Diyar (homes) unjustly only because they said: Our Lord is Allah í For had it not been for Allah’s repelling some men by means of others, cloisters and churches and oratories and mosques, wherein the name of Allah is oft mentioned, would assuredly have been pulled down. Verily Allah helpeth one who helpeth Him. Lo! Allah is Strong, Almighty”, chapter Al-Hajj 22, verse 40 (translation). “Those who 42

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entered Dar (the city) and the faith before them love those who flee unto them for refuge”, chapter Al-Hashr 59, verse 9 (translation). 57 Yusuf Al-Qaradawi, Al-Watan and Al-Muwatana, Beirut: Beirut Press, 2008, p. 30.

CHAPTER THREE ILLEGALITY AND LEGALITY OF ACQUIRING AND HOLDING NON-MUSLIM CITIZENSHIP AND LIVING IN NON-MUSLIM COUNTRIES

As discussed in the previous chapter, the question of legitimacy and illegitimacy of citizenship is a vital question relating to the concept of coexistence of Muslims living in non-Muslim countries. It is important, therefore, to examine the literature relating to both legitimate and illegitimate citizenship. This chapter will examine the literature of illegitimate citizenship.

3.1 Introduction Historically, people have migrated for different reasons. Some preserve their original citizenship, while also acquiring another citizenship. This is dependent on the constitutions in both countries í the old home and the new home. Some countries do not allow their citizens to hold more than one place of citizenship. In a paper submitted by the Transatlantic Council on Migration in its inaugural meeting entitled “Identity and Citizenship in the Twenty-First Century”, it is stated that in the recent past policymakers perceived dual citizenship as problematic and described it as an abhorrence of the natural order.1 The same paper also states that only a few decades ago, it was mandated by citizenship laws and bilateral and international conventions that dual citizenship should be avoided as much as possible.2 But recent changes in the laws of citizenship in European countries made them less conditional regarding previous citizenship.3 Only six EU countries í Spain, Netherlands, Germany, Austria, Denmark and Luxembourg í still require renunciation of previous citizenship. Nevertheless, they allow dual citizenship when it is impossible or extremely difficult to relinquish previous citizenship. It is worth mentioning here that the ten countries that joined the EU in 2004 are less tolerant towards dual citizenship.4

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Khaled Abou El Fadl argues that in the early Hijra centuries, the Muslim juridical discourse pertinent to the issue of legality and illegality of Muslims residing in non-Muslim lands was cryptic and ambiguous, and was a response to historical challenges. Islamic systematic juridical views emerged in a dynamic process of legal development after the six/eleventh century.5 Muslim scholars have drawn a distinction between acquiring citizenship in a Muslim country and acquiring citizenship in a non-Muslim country. Nevertheless, they have expressed different views distinguishing the acquiring of citizenship in non-Muslim countries and living in nonMuslim countries. These views have given rise to Islamic doctrinal challenges at various levels. Nonetheless, the size and vibrancy of Muslim communities in non-Muslim countries make this question part of an archaic and Orientalist fixation. Andrew March argues that classically minded contemporary scholars regard this issue as an active juridical question.6 Tariq Ramadan also elaborates on this point. He states: One of the most frequent questions among Muslims living in the West is to know whether they are allowed to live in Europe or the United States or not, for these areas are part of Dar-al-Harb (land of war) or at least of Dar-alKufr (land of disbelief).7

In the following pages, judicial arguments will be presented by Muslim scholars in cases where residence in non-Muslim countries, as well as the acquisition of citizenship in these countries, is forbidden. These arguments are based on contextual circumstances. The judicial arguments of Muslim scholars who permit residence and the acquisition of citizenship in nonMuslim countries will also be explained, focusing on the contextual circumstances and the reasons for each argument. It is important to show which argument is applicable, or more so applicable to Muslims, in light of the varying contemporary contexts.

3.2 The Prohibition on Acquiring and Holding Citizenship in Non-Muslim Countries and Living There From the perspective of most traditionalist Islamic legal, political and ethical doctrines, the concept of Muslim citizenship in non-Muslim countries constitutes a problematic situation. Some of the classical and modern discourses, which are touched upon in this chapter, prohibit Muslims from submitting themselves to the authority of non-Muslim states, serving in non-Muslim armies, contributing to the strength and

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welfare of non-Muslim countries, and participating in their political systems and residing in them. According to Sheikh Yusuf Ad-Dajwi,8 who writes from within the FrenchíAlgerian context, acquiring French citizenship, abiding by French law, fighting against Muslims and joining the ranks of their enemy mean renouncing Islamic law. According to Ad-Dajwi, the method is judged according to the objectives.9 In other words, he elaborates, a sinful objective means actions conducted to achieve what is forbidden. For instance, stealing is a sin, so likewise, in planning to steal, every step taken in this regard is forbidden. According to Sheikh Muhammad Ibn Abdullah Ibn Sabil,10 Muslims who acquire citizenship in a non-Muslim country are classified into the following categories: x x

x

Muslims who prefer to live in a non-Muslim country and prefer to belong with non-Muslims and are satisfied with their rule, have, without a doubt, committed apostasy. Muslims acquiring citizenship in non-Muslim countries and residing in non-Muslim countries for the sake of worldly benefits, yet fulfilling their Islamic obligations, practicing their religion freely and rejecting any rule against it, are committing serious sins and are jeopardising their Muslim identity. Muslims whose lands have been occupied by non-Muslims compelling them to acquire non-Muslim citizenship, while abiding by their religion and practicing it freely, declaring enmity against the occupiers and describing them as disbelievers, or otherwise, to leave their land and families, if they stay in their land, are committing sins and are jeopardising their Muslim identity.11

The above mentioned Fatwa (Islamic verdict) to a modernist may seem no more than an exaggeration, as Sheikh Muhammad Ibn Abdullah Ibn Sabil suggests that even those who do not have the choice do not escape the same grip of this list of strict rules.12 The contemporary scholar, Sheikh Muhammad Sa’eed Al-Buti of Syria, who shares similar views to Ad-Djawi, explains that residing and moving from one country to another is initially permissible. Nevertheless, on the basis of the Islamic rule Dar’ Al-mafasid Wa Sadulthara’i Muqadamun Ala Jalbi Al-Masalih ΢ϟΎμϤϟ΍ ΐϠΟ ϰϠϋ ϡΪϘϣ ϊ΋΍έάϟ΍ Ϊγϭ ΪγΎϔϤϟ΍ ˯έΩ

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“Warding off evils and blocking all ways leading thereto are given priority over accomplishing interests”, it can be Haram ϡ΍ήΣ (prohibited), Makrouh ϩϭήϜϣ (disliked) or WajibΐΟ΍ϭ (obligatory). Sheikh Al-Buti perceives that residing in a non-Muslim country leads to committing creedal prohibitions and forbidden actions, if not by the first then by the second generation of Muslim immigrants. Hence, the original permissibility turns into prohibition. Moreover, acquiring non-Muslim citizenship and living in a non-Muslim country are deemed to be a vivid manifestation of the prohibited type of Wala’ (fidelity). Hence, according to Al-Buti, by virtue of clear scriptural evidence, there is no doubt that acquiring citizenship in non-Muslim countries and living in non-Muslim countries are forbidden.13 Al-Buti states that all the rights naturalised citizens enjoy are dependent on their disbelief. He states: “A clear apostasy is an essential requirement in most cases to gain certain benefits.”14 Sheikh Al-Buti adds that acts necessary for acquiring non-Muslim citizenship and living in a non-Muslim country are basically Haram ϡ΍ήΣ (forbidden) in the same way that pork is forbidden. Living in a non-Muslim country without acquiring its citizenship is forbidden as it leads to prohibited issues. Hence, the first issue is forbidden and the prohibition of the latter is based on what it leads to. Holding or acquiring American, British or French passports is particularly forbidden.15 Al-Buti gave no explanation for this particular prohibition. Nonetheless, it could be based on his perception of their foreign policies towards Muslims and Muslim issues. Another contemporary scholar, Sheikh Muhammad Abu Faris,16 states that living in a non-Muslim country is forbidden since Muslims living there lead a non-Muslim lifestyle and submit themselves to non-Islamic laws. If there are no Islamic countries, Muslims should work in groups to establish a Muslim country in one of the so-called Muslim countries (countries which are called Islamic but are not truly Islamic) and they should not go to America to establish it there.17 A number of Maliki jurists, including ‘Abd-us-Salam Ibn Sahnun, state that legally Muslims should not live in non-Muslim countries since they will be subject to non-Islamic laws and authorities, i.e. Tajri ‘Alaihim Ahkam-ul-KufrήϔϜϟ΍ ϡΎϜΣ΃ ϢϬϴϠϋ ϱήΠΗ .18 Abi Abdulmu’iz Muhammad Ibn Ali,19 states that due to its serious repercussions, it is illegal for Muslims to acquire citizenship in nonMuslim countries even if he/she is allowed to keep his Muslim citizenship.20 He adds that acquiring non-Muslim citizenship constitutes an

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implicit acceptance of non-Islamic laws. His view is founded on his understanding of the concept of Wala’ and also on his belief that travelling to a non-Muslim country is permissible, provided that Muslims can practice their religion publicly.21 Almost the same argument has been echoed in a contemporary Fatwa issued by the Saudi Committee for Scientific Research and Religious Guidance. Their argument is based on the predominance of non-Muslims over Muslims. They state that the prohibition of accepting non-Muslim citizenship is partially due to what it involves í submission to unbelievers and their laws.22 This scholarly argument should answer a number of questions: Is submission to any non-Islamic law forbidden? Does it mean that if Muslims abide by the traffic regulations they are violating their Islamic teachings? Do non-Islamic laws intrinsically compel Muslims to break their Islamic teachings? According to Ibn Taymiyyah,23 Muslims should not live in a nonMuslim country if there is no alternative to being involved in musa’datuhum Li ‘Adu Al-Muslimeen Bin-Nafsi Wa-Al-Amwal ϭΪόϟ ϢϬΗΪϋΎδϣ ϝ΍ϮϣϷ΍ϭ βϔϨϟΎΑ ϦϴϤϠδϤϟ΍ (assistance of their enemy by their persons and property), since it is forbidden.24 Ibn Taymiyyah portrays a stricter stance than what is expressed by his teacher, Ibn Qudamah.25 He states that one of the factors, for which migrating from non-Muslim countries to Muslim countries is still Mandub ΏϭΪϨϣ (recommended), is to avoid Taktheer Sawad Al-Kuffar έΎϔϜϟ΍ Ω΍Ϯγ ήϴΜϜΗ (increasing the number of non-Muslims).26 This view has been expressed by a number of Shafi’i and Hanafi jurists such as Al-Shirazi,27 a Maliki jurist who died in 1083 and Al-Buhuti,28 a Hanafi jurist who died in 1641. Sayyd Qutb expresses an even stricter stance. He states that residence in a non-Muslim country constitutes assistance of the enemy of Islam and may affect one’s status as a Muslim.29 A number of Muslim jurists, such as Al-Wansharisi30 and Al-Shithri,31 forbid Muslims to reside in non-Muslim countries on the basis of the prohibition of forming bonds of friendship with non-Muslims. They include this prohibition in the scope of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ (loyalty and affiliation with Muslims and disassociation with non-Muslims and sinners). A related argument to this forbids Muslims to reside in nonMuslim countries as it is believed that permissiveness prevails there. The recognised liberal lifestyles, widely spread all over non-Muslim societies, make Muslims’ residence in these non-Muslim societies forbidden.32

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Muslim societies could have a level of permissiveness, yet it will not be legally protected. For instance, the drinking of alcohol is forbidden by Islamic law, so if a Muslim drinks alcohol in a non-Muslim country, he is not breaking the local law. A Muslim’s duty to disassociate himself/herself from sin is intertwined with his/her duty to promote virtues and morality. Such an issue is important since it is usually related to the sustainable Muslims’ concern for the religious future of their children. Al-Sarakhsi stated that the primary reason for the prohibition of Muslim residence in non-Muslim countries is that Muslim children might acquire non-Muslim morals.33 Al-Nadwi34 adopts a more moderate view in this regard, since he states that it is not recommended for Muslims to reside in a land where the religion of their children is at risk.35 The argument of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ becomes more contested when it raises the issue of warfare, deemed as an essential requirement of citizenship, which may involve fighting against Muslims. How can this happen in light of the concept of the Muslim ‘Umma ΔϴϣϼγϹ΍ ΔϣϷ΍ (nation). Ibn Taymiya states that even if Muslims are prisoners subjected to torture they should not raise a sword against Muslims on behalf of non-Muslims.36 This issue of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ will be tackled in detail in the fourth chapter. Al-Sarakhsi,37 a leading Hanafi jurist, states that it is forbidden for Muslims to settle in a non-Muslim country or even practise any activity that involves residence there.38 Likewise, Sulaiman Tubleiak39 highlights that acquiring non-Muslim citizenship is deemed to be a vivid manifestation of the prohibited type of Wala’, which is considered apostasy.40 Here he agrees with a number of jurists such as Al-Wansharisi and Al-Shithri. Hassan Al-Banna41 illustrates that acquiring non-Muslim citizenship is a major sin that incurs Allah’s wrath and punishment. The Prophet Muhammad, peace be upon him, said: “Whoever is called after any other than his father or belonged to any other than his lineage incurs Allah’s continuous curse until the Day of Resurrection” (Trans. 3:28). This meaning is clearly manifested in the following verse of the Qur’an where it is stated: “Let not the Believers take for friends or helpers Unbelievers rather than Believers” (Trans. 3:28). In support of his argument, Al-Banna raises the following question: What about the responsibilities based on

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holding such a citizenship that nullifies the MuslimíMuslim fidelity, severs their relations and leads to situations where Muslims stand in line with disbelievers against Muslims?42 There are a number of other scholars such as Sheikh Edris Al-Sharef, Mufti in Beirut and Sheikh Muhammad Shaker,43 who issued Fatawa in line with the above-mentioned ones. They present a similar argument. When Muslims live in a non-Muslim country they have to submit themselves to non-Islamic laws and they cannot practice their religion freely especially in relation to civil laws including family law and inheritance law.44 Moreover, acquiring citizenship in non-Muslim countries and living there will increase the number of disbelievers and it is a significant component of their existence and power, which are included in the scope of the forbidden Wala’ to non-Muslim countries.45 Raheel states that it is mandatory for Muslims holding citizenship of a nonMuslim country to fulfil military service. In case of a war waged against Muslims, they will be fighting against Muslims and this incurs committing serious sins.46 The issue becomes more serious, as Muslims holding citizenship of a non-Muslim country and living in non-Muslim countries are educated in educational systems based on disbelief.47 In other words, acquiring citizenship in non-Muslim countries allows different trends to cause profound repercussions, affecting either the present or the future of Muslim children. The residence of Muslim scholars in non-Muslim countries causes Muslim countries to suffer from intellectual poverty. It strengthens the non-Muslim countries and weakens the Muslim countries.

3.2.1 In Brief By and large the rational arguments presented by these Muslim jurists, who forbid Muslims to reside in non-Muslim countries and acquire nonMuslim citizenship, revolve around subjection to non-Islamic laws, predominance of non-Muslims over Muslims, assisting non-Muslims, increasing the strength and numbers of non-Muslims, legal permissiveness prevailing in non-Muslim societies, sustainable concern for the religiosity of Muslim children and residence in a non-Muslim environment.

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3.3 Scriptural Proofs The foregoing arguments are based on a number of Ahadith (Prophet Muhammad’s tradition) and Qur’anic quotations mentioned below: The Prophet Muhammad, peace be upon him, is reported to have stated the following Ahadith: 48

I disassociate myself from every Muslim coexisting with the polytheists. 49

Whoever coexists with the polytheists is like them.

Reciprocal curse of Muslims is lewdness and fighting against Muslims is 50 disbelief. If two Muslims meet with their swords, the killer and the killed person are in hell as he was eager to kill his brother.51

The following Qur’anic verses, much like the above-mentioned Ahadith, are often used in support of the opinions against Muslims acquiring citizenship or living in non-Muslim countries: O ye who believe! Take not My enemies and yours as Auliya’ (or protectors), offering them (your) love, even though they have rejected the Truth that has come to you, and have (on the contrary) driven out the Messenger and yourselves (from your homes), (simply) because ye believe in Allah your Lord! If ye have come out to strive in My Way and to Seek My Good Pleasure (take them not as Auliya’), holding secret converse of love with them: for I know full well all that ye conceal and all that ye reveal. And any of you that do this has strayed from the Straight Path. (Trans. 60:01) O ye who believe! Take not the Jews and the Christians for Auliya’ (protectors); they are but Auliya’ to each other. And he amongst you that Yatawallahum (turns to them for protection) is of them. Verily Allah guideth not a people unjust. (Trans. 5:51) Let not the believers take disbelievers for Auliya’ (protectors) in preference to believers. (Trans. 03:28) When angels take the souls of those who die in sin against their souls, they say: ‘In what (plight) were ye?’ They reply: ‘Weak and oppressed were we in the earth.’ They say: ‘Was not the earth of Allah spacious enough for you

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to move yourselves away (from evil)?’ Such men will find their abode in Hell, what an evil refuge! Except those who are (really) weak and oppressed, men, women and children who have no means in their power, or (a guide-post) to direct their way. (Trans. 4:97-98) And there may spring from you a nation who invite to goodness, and enjoin right conduct and forbid indecency. Such are they who are successful. (Trans. 3:104)

3.4 Deliberations and Preponderance It is self-evident that all the scholars, who prohibit acquiring nonMuslim citizenship and living in non-Muslim countries, have applied the same terms such as ‘disbelieving country’, ‘disbelieving countries’, etc. As a matter of fact, these terms should be reviewed since they are harsh and they do not differentiate between the oppressing non-Muslim governments, the just non-Muslim governments and the peoples that Muslims should address in a way that reflects the beautiful image of Islam.52 This harsh manner is not harmonious with the Prophet Muhammad’s, peace be upon him, gentle way, which he applied in the Al-Hudaibiyah treaty53 and when dealing with Negus, a Christian king of Abyssinia. It does not conform to ‘Umar’s54 gentle approach, manifested in his changing of a firmly rooted Islamic term because non-Muslims were offended by it. Banu Taghlab, a non-Muslim Arab tribe, asked ‘Umar to change the term Jeziah into tax because they were offended by the term Jeziah, and ‘Umar did so.55 This gives a clear indication that the Prophet Muhammad, peace be upon him, and his Companions were eager to keep a friendly ground between them and others. The fact that this was the Prophet’s practice, attests to the concept that Muslims should consider their terms and exhaust every possible means to create and maintain a friendly atmosphere between them and others. These practices of the Prophet Muhammad, peace be upon him, and his Companions indicate that this is the foundation of Muslimínon-Muslim relations. The scholars, whom we have mentioned and who forbid Muslims to reside in non-Muslim countries, frequently apply formulas of certainty in an area of Ijtihad:56 “The scholar should do his best to induct a hypothetical Islamic rule.” Sheikh Buti states that acquiring non-Muslim citizenship is deemed to be a vivid manifestation of the prohibited type of fidelity, so undoubtedly it is forbidden. This sentence represents a breach in the rules of Ijtihad,57 as Al-Budti expresses his opinion based on Ijtihad applying terms of certainity.

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The scholars, who forbid Muslim residence in non-Muslim countries, under the guise of their subjection to non-Islamic laws, neglect various circumstances in which Muslim minorities live. Some non-Muslim countries, such as the UK, grant Muslims living in them a form of communal autonomy. There is a Shari’ahh Council that looks into matters pertaining to family matters and issues legal decrees in this regard. These jurists mentioned above, such as Al-Wansharisi, are dismissive of the idea that Muslims may be given the freedom to practice their religion by nonMuslim rulers. They even go further by discrediting the ‘Adala Δϟ΍Ϊϋ (credibility) of Muslim judges living in non-Muslim countries. In addition, positive laws prevail all over Muslim countries. It is thought that submission to non-Islamic laws and the predominance of non-Muslims over Muslims occurred when Muslims migrated to Abyssinia during the lifetime of the Prophet Muhammad, peace be upon him. Abyssinia was a Christian land ruled by a Christian king, Negus. The Muslim migrants to Abyssinia remained there even after the establishment of the Islamic state in Medina. The details of this event will be discussed at a later stage in this book. All the mentioned scholars who have issued Fatawa forbidding Muslims to acquire non-Muslim citizenship and to live in non-Muslim countries have been very selective regarding their scriptural proofs. They ignore a number of Qur’anic verses that are fundamentally important when deliberating on this matter. For example verse 60:08 of the Qur’an states: “Allah forbids you not, with regard to those who fight you not for (your) Faith nor drive you out of your homes, from dealing kindly and justly with them: for Allah loveth those who are just.” (Trans. 60:08) The first verse 60:01 quoted by the above-mentioned scholars to support their arguments regarding forbidding Muslim residence in nonMuslim countries can be better understood in light of its context, which is as follows: Firstly, the reason of revelation is investigated. The story is told of a man called Hatib Ibn Balta’ah, one of the early Muslim Muhajirun ϥϭήΟΎϬϣ (emigrants)58 and a participant in the battle of Badr,59 who had children and wealth in Mecca. He was not from the Quraish,60 but rather, he was an ally of ‘Uthman. When the Prophet Muhammad, peace be upon him, decided to conquer Mecca as a result of the fact that the Meccans broke the treaty they had entered into with Muslims, Hatib Ibn Balta’ah wrote a letter to the Meccans informing them of the Muslims’ military movement

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towards Mecca. He sent the letter to Mecca with a woman from the Quraish. He wanted the tribe of the Quraish to be indebted to him and in return, his family in Mecca would be granted safety by the Quraish. Allah conveyed this matter to the Prophet Muhammad, peace be upon him, who in turn sent someone after the woman and retrieved the letter. When the Prophet Muhammad, peace be upon him, saw the letter he asked Hatib: “What is this?” Hatib replied: “O Allah’s Messenger! Do not make a hasty decision about me. Originally I am not a member of the Quraish, but I am an ally to them. All the Muhajirun ϥϭήΟΎϬϣ (emigrants), who are with you, have kinsfolk in Mecca who can protect their families. I have no blood relations with them, so I wanted to do them a favour so that they might protect my relatives. I did not do it out of disbelief or to renegade from my religion, nor did I do it to choose disbelief after Islam.” The Prophet said: “He has told you the truth.” The Prophet forgave him.61 This verse refers to the idolaters and the disbelievers who are combatants against Allah, His Messenger and the believers. Allah forbids Muslims to take them as friends and supporters. Moreover, this verse was revealed in relation to Muslims living in Medina, which was a Muslim state. Then, one may ask, how can it be used as proof to prevent Muslims from living in a non-Muslim country? The second verse 5:51 can also be used as evidence to prevent Muslims from living in a non-Muslim country, yet it too was revealed in relation to the Medinan community.Moreover, it was revealed in relation to ‘Ubai, who committed apostasy and preferred to keep a defence treaty with Banu Quraizah.62 On the basis of another narration, the verse was revealed when some Muslims, after the battle of ‘Uhud63 which was neither won by Muslims nor the infidels of Mecca, sought protection with non-Muslims. Therefore it was revealed in an entirely different context.64 On the same note in regard to the Ahadith, the Prophet Muhammad, peace be upon him, states: “I disassociate myself from every Muslim coexisting with the polytheists.” This hadith is classified as weak and none of the Muslim scholars raised it to the position of being authentic. Moreover, it should be interpreted in light of its context, which is as follows. Some members from the clan of Khath’am suffered severe persecution as a result of their embracing of Islam. They filed a complaint to the Prophet Muhammad, peace be upon him. In response, the Prophet Muhammad, peace be upon him, commanded the Muslims of Khath’am to

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migrate to Medina. At that time migration was an Islamic obligation. Nevertheless, the Muslim members of the clan of Khath’am did not migrate. A Muslim armed group was commissioned to respond to the persecution practised by the disbelievers from the clan of Khath’am. This Muslim group was unable to distinguish between the persecuted Muslims and the oppressors of Khath’am, so they hurt Muslims by mistake.65 Moreover, in the time of this hadith, the term Al-Mushrikeen applied to the polytheists who waged wars against Muslims and Islam, declaring enmity against Allah and the Prophet Muhammad, peace be upon him, persecuting Muslims and displacing them to compel them to disbelieve in Islam.66 In addition, the Prophet Muhammad, peace be upon him, states: “Migration is no longer an obligation after the conquest of Mecca.”67 During the early period of Islam, the Prophet Muhammad, peace be upon him, and his Companions migrated from Mecca to Medina as a result of the severe persecution they suffered. At that time migration was a duty incumbent on Muslims. Ten years later, Muslims conquered Mecca. That conquest marked the end of the obligation of migration. Some of the above-mentioned Fatawa have been put forward while overlooking their context. For instance, the French occupied Algeria, Morocco and Tunisia for many decades and endeavoured to make these colonised territories like France and to assimilate their inhabitants. In such a charged atmosphere teeming with deep apprehension, Muslim scholars had no other alternative but to issue a Fatwa forbidding the acquirment of French citizenship. This Fatwa is perceived by some scholars to be correct, but in its context as it was issued with full conformity to the Islamic rule Al-Halalu Itha Sara Thari’atan Lilharam Hurima Qiyasan Ύ˱γΎϴϗ ϡήΣ ϡ΍ήΤϠϟ ΔόϳέΫ έΎλ ΍Ϋ· ϝϼΤϟ΍ “if a permissible matter leads to an impermissible issue, the permissible matter becomes impermissible, such as selling grapes to someone who will make intoxicants from them, selling weapons in time of disorder, etc”. By virtue of the universality of Islam, Muslims should be allowed to acquire citizenship and live in non-Muslim countries.68 In the Qur’an, Allah addresses man in more than seventy verses and addresses people in more than two hundred verses, confirming the universality of Muhammad’s message. Hence, Islam should reach all people. This cannot be achieved except through the coexistence of Muslims and non-Muslims based on respect where Muslims convey the Islamic message by word and action.69

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If the context in which a text has been revealed or stated varies, then the rule established on the basis of such a text is not applicable.70 This matter will be explained in detail in the second last chapter. To accuse Muslims, acquiring non-Muslim citizenship or living in nonMuslim countries, of committing the prohibited Wala’ is not accurate since such Wala’ can only be classified as forbidden if it involves loving disbelievers and hating Muslims, obeying non-Muslims in such a way that involves violating Islamic law, and supporting non-Muslims against Muslims.71 This matter will be elucidated in the next chapter. The above three conditions are stated in the Qur’an. Verse 59:11 of the Qur’an declares: “Have you not observed the hypocrites who say to their brethren among the people of the Scripture who disbelieve: ‘If you are expelled, we indeed will go out with you, and we shall never obey any one against you; and if you are attacked, we shall indeed help you.’ But Allah is Witness that they verily are liars.” (Trans. 59:11) If any of the above-mentioned conditions are not fulfilled then such Wala’ cannot be classified as prohibited. If a Muslim man is married to a woman from the people of the Book, he is supposed to love her and like his in-laws, provided they are not fighting against Muslims for their religion or displacing them. If a Muslim obeys a non-Muslim, violating Islamic law while believing in the authenticity of his/her religion and sometimes blaming himself/herself, he/she remains a Muslim. He/she is just like a Muslim who does not pray, yet he/she believes it is a duty incumbent on him/her. A Muslim who supports non-Muslims against Muslims due to weakness or fear is not deemed to be a non-Muslim as long as he/she believes in Islam and is supporting it.72 To add to the debate on citizenship, another question, pertaining to military service, is raised here. To carry out military service is an essential requirement of citizenship in some countries. Every citizen should defend his/her country against any transgression, even if this incurs fighting against a Muslim country. In the Qur’an it is stated: “If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other, then fight ye against the one that transgresses until it complies with the Command of Allah; but if it complies, then make peace between them with justice, and be fair: for Allah loves those who are fair.” (Trans. 49:09) Hence, the Islamic rule regarding being involved in a military action is determined on the basis of the cause of such military action and not the parties taking part therein.

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In other words, according to Salah Sultan, if a Muslim is a citizen residing in a non-Muslim country on which another country, whether Muslim or non-Muslim, transgresses, it becomes a duty incumbent upon this Muslim to defend his/her country. But if his/her country oppresses another country, whether Muslim or non-Muslim, it becomes a duty incumbent upon him/her to renounce this oppression. Any type of participation therein is forbidden.73 In this case, Muslims should avail of the law that exempts citizens from taking part in military service on the basis of conscientious objection, as it was done by Muhammad Ali Clay74 in the Vietnam War. Al-Qaradawi stresses that there is no harm in doing military service if stipulated by a Western citizenship. It is possible that a Muslim country would have to fight against another Muslim country, which, for instance, occurred during the first Gulf War in 1991 when Iraq and Kuwait fought against one another. In other words, the possibility of a non-Muslim country fighting against a Muslim country does not forbid Muslims from holding the citizenship of any of the non-Muslim countries and should not be used as an argument to prevent Muslims from holding non-Muslim citizenship.75 Preventing Muslims from holding non-Muslim citizenships and living in non-Muslim countries on the pretext that assimilation occurs in nonIslamic educational systems is a fallacy, as one could argue that nonIslamic educational systems are available in most Muslim societies and they have attracted many Muslim children. Moreover, many Muslim schools have been established in Europe and the US. For instance, in Dublin there are three Muslim national schools: the Muslim National School in Clonskeagh, that on the Navan Road and that on the Ratoath Road. They have been founded in order to cater for the educational needs of the Muslim community in Ireland. In spite of the fact that they are in need of urgent improvement, the Muslim schools in the West perform a role of paramount importance for Muslim minorities. Alternatively, studying through correspondence is currently available in many institutions.76 Parents have a fundamental role in the whole process of education. Children receive education at home first. The home environment cannot be overlooked when forming children’s characters. If parents fail in their mission, their children will be vulnerable to all trends. But if parents fulfil their responsibilities, their children will be assets to the society in which

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they live. Though they will be open to integration, assimilation will not be possible for them. Preventing Muslims from acquiring non-Muslim citizenship on the pretext that this increases the number of non-Muslims is not only inaccurate but also an exaggeration. Muslim minorities constitute a very small percentage of the Western population. Regardless of where they live, Muslims, like everyone else, have their shortcomings, the limits of which are not dependent on the place they live but rather on the environment and the society in which they have been brought up. The fastest growing increase in Islamic minorities in the West is represented by children and youths socialising in a home environment dominated by their parents’ culture, which is reinforced by institutions set up by immigrant communities.77 In the meantime they are educated in a European system of education. Due to the existence of Muslim schools, a unique equilibrium has been created.78 Such equilibrium should relieve Muslims’ worries. To prevent Muslims from acquiring non-Muslim citizenship under the guise that this increases the number of non-Muslims, and that it is a significant component of their existence and power, represents a very exclusive approach. A fact that should be taken into consideration is that there are millions of non-Muslims holding Muslim citizenships. They have respective religious belongings as well as one common belonging to the state whose citizenship they hold. Al-Qaradawi commented on the opinion expressed by Hassan AlBanna, saying that Muslims have to perceive Al-Banna’s Fatwa and the other Fatawa in light of their context.79 By virtue of global political development, countries shift their perceptions of one another. The colonised and the colonisers can become allies. Al-Banna is strict about certain points, where Al-Qaradawi shows flexibility.

3.4.1 In Brief A great number of Muslim scholars classify living in a non-Muslim country and acquiring non-Muslim citizenship as a prohibition, yet they disagree regarding the level of this prohibition and the reasoning behind it. As explained above, some classify it as renouncing Islam and others described it as a major sin. The Muslim scholars who perceive acquiring non-Muslim citizenship and living in a non-Muslim country as a prohibition disagree, since some classify them as prohibitions, whereas others forbid them for reasons pertaining to the acquisition of citizenship

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of non-Muslim countries and living in non-Muslim countries. This prohibition is established on the basis of subjection to non-Islamic laws, predominance of non-Muslims over Muslims, assisting non-Muslims, increasing the strength and numbers of non-Muslims, legal permissiveness prevailing in non-Muslim societies, sustainable concern for the religiosity of Muslim children and residence in a non-Muslim environment.

3.5 Citizenship and Living in Non-Muslim Countries As discussed previously, and due to the fact that large numbers of Muslims live in non-Muslim countries and many of them hold citizenship in non-Muslim countries, the issue of acquiring and holding citizenship in non-Muslim countries and living in non-Muslim countries has been the concern of a number of Muslim jurists. As mentioned above, an illustration of the Fatawa issued by Muslim jurists, who classify acquiring citizenship in non-Muslim countries and living in non-Muslim countries as a prohibition, was given. Their Fatawa were followed by a citation of their reasoning and the scriptural proofs on the basis of which they issued their Fatawa. On the other side of the spectrum, there are a great number of recognised Muslim scholars who perceive acquiring citizenship in nonMuslim countries and living in non-Muslim countries as permissible, and they present a measured argument. In the following pages an elaboration on their Fatawa, scriptural proofs and their reasoning will be presented.

3.5.1 Legality of Acquiring and Holding Citizenship A number of Muslim scholars, such as His Eminence Sheikh Mustafa Al-Zarqa, Dr Sheikh Abdul-Fattah Abu Ghidah and Sheikh Manna’ AlQattan, amongst others, who attended the Islamic seminar held at the European Islamic Institute for Humanities in Paris, issued a Fatwa stressing the permissibility of acquiring citizenship in non-Muslim countries by Muslims. According to Al-Qaradawi, the Islamic rule regarding residence of Muslims in a non-Muslim country is dependent on the attitude that this non-Muslim country assumes towards Muslims and Islam.80 Al-Qaradawi adds that, for instance, in countries under a socialist regime such as the former Soviet Union, founded on the philosophy of denying the existence of God and condemning all religions in general and Islam in particular because of the Islamic concept of jihad, and because Islam perceives socialism as a type of imperial colonialism, Muslim indigenous citizens

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should, while preserving their Muslim identity, portray patience and perseverance. In relation to what is beyond their reach, they should apply the Muslim rule Al-Darurat Tubieh Al-Mahdhurat Ε΍έϮψΤϤϟ΍ ΢ϴΒΗ Ε΍έϭήπϟ΍ (necessity justifies prohibitions). There are also a number of Qur’anic verses that support the abovementioned argument. They include: Anyone who, after accepting Faith in Allah, utters Unbelief, except under compulsion, his heart remaining firm in Faith í but such as open their heart to Unbelief, on them is Wrath from Allah, and theirs will be a dreadful Penalty. (Trans. 16:106) He hath only forbidden you dead meat, and blood, and the flesh of swine and that on which any other name hath been invoked besides that of Allah. But if one is forced by necessity, without wilful disobedience, or transgressing due limits, and then he is guiltless. For Allah is Oft-Forgiving, Most Merciful. (Trans. 2:173)

Al-Qaradawi highlights that Muslims living in Muslim countries, where they are able to fulfil their Islamic obligations, are not allowed to migrate to countries where they are not allowed to practise their religion. The Prophet Muhammad, peace be upon him, states in this regard: “Let no Muslim disgrace himself as in a situation where Allah makes it an incumbent duty on him to say something but he does not. When he encounters Allah it will be said to him: ‘Why did you not say such and such?’ He will say: ‘I was afraid of people.’ It will be said to him: ‘You should have feared Allah’s punishment.’”81 On the contrary, there are other countries where freedom prevails, including freedom of religion, intellectual freedom and political freedom. Such are the democratic countries even though they work under the slogan of secularism. Secularism neither condemns religion nor promotes it. It deems religion a personal matter. Such an atmosphere gave a platform to the existence of millions of Muslims in Europe and America. In light of such an atmosphere, according to the above-mentioned scholars, it is permissible for Muslims to migrate to such places provided they migrate for legal reasons, such as work, security, study, etc., and that they, their families and offspring can preserve their Muslim identity. If Muslim immigrants have doubts about their ability to preserve their Muslim identity and the Muslim identity of their families and offspring, then they should return home immediately.82 In the Qur’an it is stated: “Say: ‘If it be

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that your fathers, your sons, your brothers, your spouses, or your kindred; the wealth that ye have gained; the commerce in which ye fear a decline; or the dwellings in which ye delight í are dearer to you than Allah, Or His Messenger, or the striving in His cause í then wait until Allah brings about His decision: and Allah guides not the rebellious’” (Trans. 9:24). In this verse Allah warns Muslims against giving preference to worldly benefits over obedience to Allah and His messenger. Abdul Kareem Zidan83 highlights that living in and acquiring citizenship of a non-Muslim country are subject to a number of rules, depending on the land of residence. Residing in Dar Al-Harb (land of war) is forbidden unless it is for trading, as merchants that belonged to Dar AlHarb traded in the Muslim land and vice versa. The Prophet Muhammad, peace be upon him, travelled to At-Ta’if to make Da’wah, seeking knowledge. This is permissible, provided it is beneficial to individual Muslims and Muslim congregations, and it is not available in a Muslim country or if it is for medical treatment.84 The term Hijra, signifying abandon, which, along with its derivatives, have been mentioned in the Qur’an twenty-seven times, designates fleeing from a country governed by infidels in order to join Muslims residing in a country ruled by Muslims.85 A number of non-Maliki jurists, such as Al-Shaybani and At-Tabari, argue that migration from a non-Muslim polity is not a permanent duty for Muslims.86 This view was adopted by Jad-ul-Haq Ali Jad-ul-Haq87 (1917í69), a previous Grand Sheikh of Al-Azhar.88 The same view was expressed by Muhammad Rashid Rida (1865í1935), a modern Muslim jurist. He states that migration from countries where Muslims cannot practise their religion or where they are persecuted beyond what is tolerable, is a duty incumbent on Muslims. As for Muslims living in nonMuslim countries where they practise their religion without being oppressed, migration is not an obligation.89 A contemporary Maliki jurist, Ibn Bayya (b. 1935), expresses the same view.90 Ibn Bayya further states that a Muslim, if worried about his/her life, religion or wealth, may migrate from one country to another, regardless of whether the country he/she is leaving for is a Muslim or a non-Muslim country. Sheikh Al-Maraghi91 explains that migration is not incumbent upon Muslims living in non-Muslim countries who are allowed to practise their religion without enduring any harm, as it is the case of Muslims living in Britain. Furthermore, Al-Maraghi argues that the residence of Muslims in

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non-Muslim countries could be one of the ways to show the beautiful image of Islam, which could attract people to Islam.92 This image can be reflected when Muslims abide by Islamic morality such as honesty and truthfulness. Ibn Hajar,93 a Shafi’i jurist who died in 1566, and Ar-Ramli,94 a Shafi’i jurist who died in 1595, state that residence in a non-Muslim land is obligatory if it may lead to the spread of Islam. According to Ash-Shafi’i,95 the residence of Muslims in a non-Muslim land is permissible provided that they are protected from Fitnat-ud-deen ϦϳΪϟ΍ ΔϨΘϓ (enticement away from Islam).96 A number of Muslim jurists, such as Al-Zamakhshari,97 Ibn Qudama,98 Ibn Al-Humam99 and Al-Buhuti,100 explain that residence in a non-Muslim land is permitted provided that Muslims living therein are safe and ’Iqamat-ud-Deen ϦϳΪϟ΍ ΔϣΎϗ· (practising Islam) is possible. Nevertheless, to avoid repercussions such as Takhtheer Sawad Al-Kuffar έΎϔϜϟ΍ Ω΍Ϯγ ήϴΜϜΗ (increasing the number of non-believers) they recommend that Muslims live in Muslim lands. A number of Muslim jurists such as Ibn ‘Abdeen101 and Al-Kasani102 underline that residence in a non-Muslim land is permissible for Muslims provided that they enjoy security and freedom in their new place of residence. Sheikh Jad-ul-Haq illustrates that it is permissible for Muslims to live in non-Muslim countries provided that they can preserve their Muslim identity and can practise their religion.103 Imam Qurtubi states that Allah paid tribute to the Muslim nation provided that they enjoin good and forbid evil and believe in Allah. If they do not enjoin good and get involved in forbidding evil they will lose this honour and they will be destroyed.104 Enjoining good and forbidding evil can be observed in Muslim and non-Muslim lands. In other words, Muslims can achieve this honour if they live in a Muslim land and they can equally achieve it if they live in a non-Muslim land. Sheikh Sadi105 also stresses that Allah prefers the Muslim nation to other nations because they give the best advice and they love good and enjoin it and forbid evil.106 A nation with such characteristics cannot be limited to one area. By virtue of this characteristic, Muslims should coexist and coexistence is not limited to Muslim lands. A number of well-known contemporary Muslim jurists, such as AlQaradawi,107 Ibn Bayyiah108 and Salih Ibn Fawzan,109 reject the Fatwa that prohibits residence in non-Muslim lands on the basis of the universality of Islam and the belief that the entire earth belongs to Allah. Furthermore, it is an obligation incumbent on Muslims to convey the Islamic message.

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A number of Muslim thinkers and jurists, such as Ibn ‘Uthaymeen,110 argue that in an era where there is no caliphate or an Islamic state that can accommodate all Muslims living as minorities, the duty of migration cannot be considered as a practical option. They state that if it is declared that residence of Muslims in a non-Muslim country is forbidden, Muslim minorities will find nowhere to go to since there exists no Muslim country that would accept them.111 Sheikh Taha Jaber Al-‘Ulwani112 elucidates that the concept of citizenship and coexistence that we understand today is different to that construed by early Muslim scholars. In the past, immigrants were not entitled to citizenship upon fulfilling certain criteria such as birth in the host country, marrying an indigenous spouse, living there for a number of years, etc. Al-‘Ulwani adds that Muslims should abide by the Qur’anic geographical concept that the whole earth belongs to Allah and Islam is the divine religion. The Qur’an declares, “To Allah belongs the dominion of the heavens and the earth” (Trans. 5:18). The same meaning has been reiterated in a number of other verses such as 5:17, 24:42, 45:27 and 48:14. Hence, according to Al-‘Ulwani, every country is either an actual Muslim country or a country that will turn into a Muslim country in the future by force. According to Al-Qaradawi, all human beings are members of the Muslim nation as they can be either the nation of confession, which already believes in Islam, or the nation of Da’wah, to which Muslims have to explain Islam.113 Faysal Maulawi illustrates that from the time of Adam’s descent to the earth Allah gave Adam the task of making the earth prosperous. Allah has assigned this mission to humans regardless of their faith. Mankind is distinguished since it is the only race blessed with a conscious mind. The whole universe is subjected to mankind. Applying their mental faculties, human beings managed to discover the secrets of the universe and to avail of them. These discoveries are shared by various societies. Hence, human beings have been accumulating knowledge, manifesting in a civilization today that no one could ever have dreamed of. The prosperity of the earth is a reciprocal mission that should be shouldered by all people, Muslims and non-Muslims. Since they live in one and the same world, enjoying the same facilities, their coexistence and mutual relations have been made their destiny, so that they can fulfil their mission.114 The concept of viceregency has comprehensive implications. It provides a number of values for shaping social life and clarifies the status of human beings and their position and responsibilities towards the rest of the

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creatures. Allah is the real owner of the earth. Human beings are not the owner of the earth but rather trustees and stewards.115

This concept should mould our concept of territory, ownership and care for the earth. Faysal Maulawi highlights,116 that as a result of the severe persecution they suffered in Mecca, early Muslim Companions migrated to Abyssinia. Afterwards, the Islamic state was established in Medina. Hence, the Muslim migrants to Abyssinia could have migrated to Medina to live with their Muslim brethren, but they did not. They preferred to coexist with non-Muslims in Abyssinia where they lived for seven years after the establishment of the Muslim state in Medina. They only migrated to Medina at the time of Khaibar.117 The Prophet Muhammad, peace be upon him, said: “I do not know which I should rejoice; the conquest of Khaibar or the coming of Ja’far.”118 None of the biographies of the Prophet, peace be upon him, state that the Prophet, peace be upon him, under the guise of illegitimacy of coexistence with non-Muslims or Taktheer Sawad AlMuslimeen ϦϴϤϠδϤϟ΍ Ω΍Ϯγ ήϴΜϜΗ (increasing the numbers of Muslims), commanded them to migrate to Medina. Had that been the case, then it should have occurred when the Prophet Muhammad, peace be upon him, arrived in Medina. Only after the Al-Hudaibiya treaty did the Prophet Muhammad, peace be upon him, commission ‘Amr Ibn ‘Umayya AdDumairi119 to Negus.120 On the basis of permission granted by Negus, ‘Amr Ibn ‘Umayya Ad-Dumairi, accompanied Muslims from Abyssinia to Medina on two ships. This confirms the legitimacy of Muslim coexistence with non-Muslims in a non-Muslim land.121 Muslim coexistence with non-Muslims in a non-Muslim land is equal in excellence to living in a Muslim land. When visiting her, ‘Umar Ibn AlKhattab asked his daughter Hafsa, the Prophet’s wife: “Who is this lady?” Hafsa replied: “Asma’ Bint ‘Umais.” ‘Umar said: “Is she the Abyssinian? Is she the one who came on the boat?” Asma’ said: “Yes.” ‘Umar said: “We migrated before you, so we are more akin to the Messenger than you.” Asma’ was upset and said: “Nay, by Allah. You were with the Messenger of Allah and he fed the hungry ones among you and educated the unlearnt ones from you. As for us, we were in the land of the distant and the unwanted! That was for the sake of Allah and His Messenger. By Allah I will refrain from food and water until I mention what you said to Allah’s Messenger. We were hurt and scared.” Asma’ reported the event to the Prophet, peace be upon him, and the Prophet said: “He is not more akin to me than you for he and his Companions migrated once. As for you,

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the people of the ship, you have migrated twice.”122 Had living in a Muslim land been better than living in a non-Muslim land, the Prophet Muhammad, peace be upon him, would have stated it in this event. Furthermore, he focuses on efforts exerted to preserve an Islamic identity, regardless of the place where one resides. Muslim jurists express a wide range of Fatawa regarding migration from non-Muslim to Muslim lands. Some describe it as an obligation, others say it is recommended and others state that it is forbidden. These different Fatawa are due to the fact that each of these scholars issued his Fatwa on the basis of the context of his own day. Today we are considering the current situation where a Muslim can live in any land while being able to practise his/her religion. Hence, Faysal Maulawi initially does not classify Hijra as an obligation but rather a permissible action that can turn into a recommended, obligatory, disliked or forbidden one in full conformity with the respective circumstances of every Muslim.123 Khaled Abou El Fadl argues that due to a traditional dichotomy between the land of Islam and the land of war, the theory of a Muslim residing in a non-Muslim land is a contested issue based on the historical reality; it is challenged by the continuous Muslim existence in nonMuslim lands. Khalied Abou El Fadl concludes that the issue of residence of Muslims in non-Muslim lands is not a dogmatic matter, nor does it lend itself to essential positions.124 In her PhD book, Dr Sharifah Al Sa’eed dedicates an entire chapter to elaborating on the issue of the Islamic rule regarding living in non-Muslim countries and acquiring non-Muslim citizenship by Muslims. Initially she classifies the whole world into three categories; Muslim land, land of war and land of treaty. She comes to the conclusion that most of today’s countries are classified as land of treaty and Da’wah. She states that if Muslims living in non-Muslim countries are persecuted and converted by force, migration becomes an Islamic obligation for those who can do it. As for Muslims who can practise their religion and preserve their Muslim identity and enjoy safety with regard to their religion and themselves, living in a non-Muslim country and acquiring non-Muslim citizenship are permissible. This permissibility might become obligatory, provided living in a non-Muslim country and acquiring non-Muslim citizenship does not drive Muslims to lose their Muslim identity or the Muslim identity of their children; it requires that Muslims reflect the true image of Islam, and that

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Muslims should constantly renew their intention to co-operate with truthful people to establish Islam in their societies.125 In his master’s book, Munthir states that the oath and the contract (citizenship and resident visa) entered into by Muslims living in America benefits those Muslims both in America and worldwide, since America’s power in the world extends itself on the basis of a system of politically influential groups and reciprocal interests. Muslims living in America should defend the interests of their original home. In addition, their behaviour reflects the beautiful image of Islam.126 In his master’s book, Tubuleiak elaborates on the issue of Muslims living in non-Muslim countries. In his conclusion, he states that there is no doubt that most of the non-Islamic countries have changed; human rights are protected by law; Muslims are allowed to practise their religion publicly. On this basis, Muslims are allowed to live in non-Muslim countries, especially when the Muslim country that welcomes Muslim immigrants does not exist. Moreover, the greatest percentage of human rights violations occurs in Muslim countries. These Muslim countries implement the lowest level of democracy worldwide. The European Council for Fatwa and Research (ECFR)127 has gone a step further in this regard. Not only has it deliberated on the permissibility and the impermissibility of residence of Muslims in non-Muslim countries, but it has also considered the rules that organise the affairs of Muslims residing in non-Muslim countries. In its eighteenth session, held in Paris, France, from 1í5 July 2008, the ECFR recommended that Muslims in Europe abide by the laws pertaining to the rights and responsibilities of citizenship; abide by all laws and regulations set by official authorities; and improve the image of Islam and Muslims through abiding by the great principles and values of Islam and embarking on Islamic awareness programmes. The ECFR also recommended that Muslims living in Europe transcend the inherited habits and traditions that distort the image of Islam, embark on courses and programmes that help to accomplish positive integration, qualify Imams and those who work in Muslim affairs so that they might become exemplary in accomplishing positive integration, and prepare a chosen number of Muslims who can communicate well with the West so that they can talk about Islam and present its wonderful image. It also recommended that they establish integrated Islamic centres that, in addition to mosques, encompass libraries, cultural, social and sporting

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clubs, restaurants, etc. While focusing on activities of integration such as scouts and Islamic awareness weeks, Muslims should organise a wide range of religious, cultural, social and sporting activities. The ECFR also recommended that Muslims living in Europe contribute positively to civil societies, environmental and social activities in neighbourhoods, and civil activities organised at a state level; implement institutional work and shun the formation of racial, dogmatic, party or sectarian ghettoes; and form legal committees to defend the rights of minorities and combat racism. It also recommended that they endeavour to attain recognition of Islam as a religion and of Muslims as a minority group, like other minorities, in respect of their rights guaranteed by legislations, constitutions and conventions. The ECFR, on the basis of its previously issued resolutions, confirmed the importance of Muslim political contribution. The ECFR recommended that civil societies and decision makers in Europe endeavour to terminate all forms of racism that Muslims sometimes suffer both day-to-day and in European administrations. They should also create channels to communicate with Muslims at all levels, and facilitate employment and educational opportunities for Muslims and treat them in the same way that other minorities are treated.128 As the historical material indicates that Muslim juridical opinions on issues pertaining to Muslims living in non-Muslim countries are very diverse, individual jurists, while working within different schools of Islamic jurisprudence, have felt free to craft opinions designed to fit specific situations.129 Scholarly arguments, as elucidated above, cover a wide spectrum of dogmatic verdicts with regard to the concept of coexistence. It is of interest to ask why, in the third millennium, the question of coexistence has not been more universally accepted by Muslim scholars.

3.5.2 Scriptural Proofs A number of Ahadith, as cited below, contribute to textual proofs used in support of coexistence and Muslims living in non-Muslim lands: A man came to the Prophet Muhammad, peace be upon him, and said: “I would like to give my allegiance by performing Hijra (migration).” The Prophet Muhammad, peace be upon him, said: “The Hijra has ended with

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those who performed it before the conquest of Mecca, but you can give allegiance by submitting yourself to Allah, performing jihad and doing good deeds.”130 In other words, Hijra is no longer an Islamic obligation. Abiding by Islam is the Islamic incumbent duty on Muslims, regardless of where they live. ‘Aisha is reported as having said: “There is no Hijra today. In the past a believer had to flee with his/her religion to the messenger of Allah, fearing seduction and persecution away from his/her religion. But now Allah has made Islam manifest and a believer may worship his/her Lord wherever he/she might be.”131 In his explanation of this hadith, Ibn Hajar highlights that ‘Aisha refers to the legitimacy of Hijra and that it is due to Fitnat-ud-Deen ϦϳΪϟ΍ ΔϨΘϓ (being unable to practise Islam). The rule is utterly dependent on its cause. In other words, there is a consensus that Hijra is not an obligation for whoever can practise his religion.132 When Dimad Al-‘Usdi came to Mecca and listened to the Prophet Muhammad, peace be upon him, he gave him the pledge. Dimad embraced Islam. Afterwards he returned to his people and lived with them until the Prophet Muhammad, peace be upon him, migrated to Medina. The Prophet, peace be upon him, sent an expedition and they passed by his people. The leader of the detachment said to his troops: “Have you found anything with these people?” One of them said: “I found a utensil for water.” The commander said: “Return it for they are the people of Dimad.”133 When ‘Amr Ibn Absa As-Sulami embraced Islam in Mecca, he said to the Prophet Muhammad, peace be upon him: “I will follow you.” The Prophet Muhammad, peace be upon him, said: “Nowadays you cannot do it. Do not you see the people’s situation and mine? Go back to your people. When you hear of my victory, then come to me.”134

At-Tufail Ibn ‘Amr Ad-Dausi embraced Islam in Mecca. He returned to his people and invited them to Islam. Only a few of them embraced Islam, so he filed a complaint to the Prophet Muhammad, peace be upon him, and asked him to make prayers for his people. The Prophet, peace be upon him, said: “O Allah! Guide Daus and let them come to me.”135 AlTufail returned to his people and invited them to Islam. He remained with them. During that time, the Prophet, peace be upon him, migrated and had a number of battles, namely the battle of Badr on 17 Ramadan 2 HJ (Islamic chronology) corresponding to 13 March AD 624, ‘Uhud on 3 Shauwal 3 HJ corresponding to 19 March AD 625 and the Trench in Shauwal 5 HJ corresponding to 31 March AD 627. Afterwards, Al-Tufail left in the company of seventy or eighty families including Abu Huraira for the Prophet, peace be upon him, at the time of Khaibar.136

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Chapter Three It is narrated by Ibn ‘Abbas, may Allah be pleased with them, that the Prophet, peace be upon him, said: “There is no Hijra after the conquest of Mecca but Jihad and good intention. If you are called (by the Muslim ruler) for fighting, then go immediately.”137

The Prophet Muhammad, peace be upon him, said: “All the lands are Allah’s and the peoples are Allah’s creatures. Reside wherever there is good.”138 In the Qur’an it is stated: And verily We have raised in every nation a messenger, (proclaiming): Serve Allah and shun false gods. Then some of them (there were) whom Allah guided, and some of them (there were) upon whom error had just hold. Do but travel in the land and see the nature of the consequence for the deniers! (Trans. 16:36)

Such an imperative formula calling people to travel in the land has been repeated in the Qur’an thirteen times. In full conformity with the Islamic rule, “permissibility is the original rule unless otherwise is specified”, these verses state clearly that travelling and living in any part of the world is originally permissible. In the Qur’an it is stated: Lo! As for those whom the angels take (in death) while they wrong themselves, (the angels) will ask: In what were ye engaged? They will say: We were oppressed in the land. (The angels) will say: Was not Allah’s earth spacious that ye could have migrated therein? As for such, their habitation will be hell, an evil journey’s end; except the feeble among men, and the women, and the children, who are unable to devise a plan and are not shown a way. As for such, it may be that Allah will pardon them. Allah is ever Clement, Forgiving. (Trans. 4:97-99)

Many scholars use the above-mentioned verses to forbid living in a non-Muslim country. Nevertheless, these verses manifest living in a nonMuslim country as either permissible or recommended and sometimes an obligatory action for Muslims. In many Muslim countries, Muslim scholars are exposed to severe persecution to the extent that some of them are fired and others are expelled from their colleges. In addition, the media presents them in such a negative light that matters are even worsened. Hence, they have no other alternative but to migrate to non-Muslim countries where they enjoy the freedom they miss in their homes.139 This Islamic rule has been stressed in many verses in the Qur’an: Ye are the best community that hath been raised up for mankind. Ye enjoin right and conduct and forbid indecency; and ye believe in Allah. (Trans. 3:110)

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And unto (the tribe of) Thamud (We sent) their brother Salish. He said: O my people! Serve Allah, Ye have no other God save Him. He brought you forth from the earth and hath made you husband of it. So ask forgiveness of Him and turn unto Him repentant. Lo! My Lord is Nigh, Responsive. (Trans. 11:61) And We have not sent thee (O Muhammad) save as a bringer of good tidings and a Warner unto all mankind; but most of mankind know not. (Trans. 34:28) Say: This is my Way: I call on Allah with sure knowledge. I and whosoever followeth me í Glory be to Allah! í and I am not of the idolaters. (Trans. 12:118) He knoweth that there are sick folk among you, while others travel in the land in search of Allah’s bounty. (Trans. 73:10)

By virtue of this verse, it is permissible for Muslims to travel and trade in Muslim and non-Muslim countries.

3.6 Conclusion The Muslim jurists who forbid Muslim residence in non-Muslim countries and the acquiring of non-Muslim citizenship have founded their arguments on a number of generalisations. First, Muslims living in nonMuslim countries are subjected to non-Islamic laws. Second, they live in a place where non-Muslims are predominant, so Muslims are in a weak position, where they may accept solutions not compliant with Islam. Third, when Muslims live in non-Muslim lands they assist non-Muslims, increasing the strength and numbers of non-Muslims. Fourth, in nonMuslim countries permissiveness is legal and traditionally recognised. Fifth, Muslims living in non-Muslim societies have sustainable concern for the religiosity of Muslim children residing in a non-Muslim environment. These are genuine concerns motivated by sincere worries about Muslims and their future as individuals and as a nation. In support of their arguments, Muslim jurists, who forbid Muslim residence in non-Muslim countries and the acquiring of non-Muslim citizenship by Muslims, quote a large number of Islamic scriptural proofs. Nevertheless, in light of the above-mentioned deliberations, one can discern that their Fatawa may

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have been correct apart from their contexts, which are different from the current context of Muslims. It becomes, therefore, self-evident that the real dilemma can be obliterated by judging the above-mentioned Fatawa according to the Islamic rule: Tataghair Al-Fatwa Betaghaiur Al-Makan Waz-Zaman ήϴϐΘΗ ϥΎϣΰϟ΍ϭ ϥΎϜϤϟ΍ ήϴϐΘΑ ϯϮΘϔϟ΍ (the Fatwa can be changed if the time or place changes). A detailed elaboration on this rule will be provided later in this book. Muslim jurists supporting the legitimacy of residing in non-Muslim lands have founded their Fatawa on a number of arguments. Scriptural proofs submitted by Muslim jurists to authenticate banning residence in non-Muslim lands do not dictate the ban since they have been taken out of context or because the specifications in the scriptural texts were not fulfilled. Moreover, the Muslim jurists who proclaim the legitimacy of residing in non-Muslim lands have founded their Fatawa on a number of scriptural proofs deemed to be more authoritative than the texts cited by their opponents. Muslims are not worried about Fitnat-ud-deen and can practise their religion in many non-Muslim lands. In some non-Muslim lands, Muslims enjoy many rights they are not entitled to in many Muslim lands. Had we taken the illegitimacy of residing in non-Muslim lands for granted, it would not be feasible for all Muslim minorities to leave the respective non-Muslim lands where they resided. If it did happen, in the absence of the Muslim caliphate, there would be no place to go to. The universality of Islam and the duty of conveying the message of Islam give no other alternative but to accept the legitimacy of residence in a nonMuslim land. Conveying the Islamic message does not mean imposing Islam on non-Muslims but rather raising the awareness of Islam. When people live together and deal with each other they become windows through which their values and faiths can be seen clearly. By virtue of Qur’anic verses, accomplishing prosperity on earth is part of the mission that should be shouldered by both Muslims and non-Muslims. How can this be achieved if Muslims can only live in Muslim lands? By and large, on the one hand, three Fiqh Schools í namely, Shafi’i, Hanbali and Hanafi í classify residing in non-Muslim land as permissible. On the other hand, the Maliki School and the Dhahiriah describe residing in non-Muslim land as a prohibition. As mentioned above, the Ahadith and Qur’anic verses, on the basis of which the Maliki School and the Dhahiriah founded their arguments, are

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subject to a number of interpretations and are limited to certain contexts. This scenario gives rise to a number of questions. How does Islam organise Muslimínon-Muslim relations? If scriptural authorities are weighed in favour of Muslim coexistence in non-Muslim countries then why is it that the question of coexistence remains unresolved?

Notes 1

Thomas Faist and Juergen Gerdes, “Dual Citizenship in an Age of Mobility”, http://www.migrationpolicy.org/transatlantic/docs/Faist-FINAL.pdf (Bielefeld University, 2008), p. 3. 2 Ibid., p. 5. 3 Ibid. 4 Ibid., p. 6 5 Khaled Abou El Fadl, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries” (Leiden: E. J. Brill, 1994), p. 141. 6 Andrew F. March, Islam and Liberal Citizenship (Oxford: Oxford University Press, 2009), p. 104. 7 Tariq Ramadan, To Be a European Muslim (Markfield: Islamic Foundation), p. 165. 8 A Muslim scholar and a graduate of Al-Azah University. 9 Raheel Muhammad Raheel, Al-Jinsiya Fe Ash-Shari’ah Al-Islamiya, master’s degree submitted at the Faculty of Shari’ahh, University of Jordan, 1976, p. 155. 10 He was born in Al-Qaseem, Saudi Arabia, in 1924. He came from a family that showed great interest in Islamic knowledge. His father was Sheikh Al-Kirdies and his brother was Sheikh Abdurrahman. He occupied a number of positions; in 1373 HJ he was appointed as a supervisor in the Scientific Institute in Buraidah, an Imam of the Holy Mosque in Mecca in 1385 HJ and a member of the Council of Senior Scholars in Mecca in 1415 HJ. One of his students was Saleh Al-Fauzan. His works include Risalah Fe Baian Haq Al-Ra’i War-Ra’iah and Risalah Fe Hukm Al-Isti’anah Bi Ghair Al-Muslimeen Fe Al-Jihad. 11 Three Fiqh Papers – First: The Islamic law regarding acquiring citizenship of non-Muslim countries, pp. 111í12. 12 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Muslimeen (Beirut: Beirut Press, 2008), p. 142. 13 Muhammad Sa’eed Al-Buti, Fatawa Fiqhia Mu’asira (Syria: Al-Dar AlShamiya, 2001), p. 195. 14 Ibid., p. 202. 15 Muhammad Sa’eed Al-Buti, Fatawa Fiqhia Mu’asira (Syria: Al-Dar AlShamiya, 2001), p. 204. 16 A contemporary Muslim scholar born in Mislata, Libya on 13 January 1946. 17 www.islamonline (13 August 2000).

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‘Abd Al-Salam Ibn Sahnun, Al-Mudawwana (Cairo: Al-Kubra, Dar Al-, n. d.), v. 3, p. 278. 19 He was born in Algeria on 25 November 1954. He is a graduate of Al-Jami’a AlIslamiya in Medina, Islamic Sciences Institute. He received the first PhD degree on Islam in Algeria. He wrote a large number of books on Islam. 20 http://www.ferkous.com/rep/Ba34.php (16 April 2011). 21 Ibid. 22 Salih Ibn Muhammad Al-Shithri, Hukm Al-Luju’ Wa-l-‘Iqamah fe Bilad Al-Kufr (Riyad: Dar-Ul-Habib, n. d.), p. 13. 23 A Hanbali jurist who passed away in 1283. 24 Ibn Taymiyyah, Majmu’ Fatawa Sheikh Al-Islam Ahmad Ibn Taymiyyah (Rabat: Maktabat AL-Ma’arif, 1980), v. 28, p. 240. 25 A Hanbali jurist who died in 1223. 26 Muwafaq Al-Din Ibn Qudamah, Al-Mughni (Cairo: Hajar, 1990), v. 13, p. 151. 27 Abu Ishaq Al-Shirazi, Al-Muhadh-dhib fe Fiqh Al-Imam Ash-Shafi’I (Beirut: Dar Al-Fikr, n. d.), v. 2, p. 227. 28 Al-Buhuti, Kashshaf Al-Qina’ (Riyadh: Maktabat An-Nas Al-Haditha, 1986), v. 5, p. 44. 29 Sayyid Qutb, Fi Thilal Al-Qur’an (Cairo: Dar Al-Shuruq, 2005), v. 2, pp. 732í3. 30 Al-Wansharisi, Al-Mi’yar Al-Mu’rib (Rabat: Ministry of Endowments Religious Affairs, 1981), pp. 123í4. 31 Salih Ibn Muhammad Al-Shithri, Hukm Al-Luju’ Wa-l-‘Iqamah fe Bilad Al-Kufr (Riyad: Dar-Ul-Habib, n. d.), pp. 28í30. 32 Sulayman Muhammad Tubulyak, Al-Hikam Al-Siyasiya Lil-‘A-Qalliyat AlMuslima Fi Al-Fiqh Al-Islami (Beirut: Dar Al-Nafa’is, 1997), p. 49. 33 Muhammad Ibn Ahmad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Kitab Al‘Ilmiyya, 2001), v. 10, p. 84. 34 Sayyid Abu Al-Hasan Ali Nadwi was a great Muslim thinker. He published a number of books such as Fasting: A Pillar in Islam, Message for Muslims in the West, etc. 35 Sayyid Abu Al-Hasan Ali Nadwi, Muslims in the West: The Message and Mission (UK: Islamic Foundation, n. d.), pp. 113í14. 36 Ibn Taymiyya, Majmu’ Al-Fatawa (Rabat: Maktabat Al-Ma’arif, 1980), v. 28, p. 539. 37 A prominent jurist of the Hanafi School who died in 1090 AD. 38 Al-Sarakhsi, Kitab Al-Mabsut (Beirut: Dar Al-Kutub Al-‘Ilmiya, 2001), v. 10, p. 84. 39 Muhammad Sulayman Tubleiak is a contemporary Muslim scholar. His publications include Hukm Al-Tajanus Bijinsiyah Daulah Ghair Islamiyyah and Al-Maqsud Bilaqalliyat Al-Muslimah. 40 Sulayman Muhammad Tubulyak, Al-Hikam Al-Siyasiya Lil-‘A-Qalliyat AlMuslima Fil-Fiqh Al-Islami (Beirut: Dar Al-Nafa’is, 1997), p. 81. 41 One of the influential Muslim thinkers and the founder of Al-Ikhwan AlMuslimeen. 42 Al- Ikhwan Al-Muslimeen magazine, fourth issue (Cairo: Ikhwan, 1936), p. 11.

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An Egyptian scholar born in Jirja in 1909. Imam Al-Wansheris, Al-Bayan, v. 4, p. 171. 45 Raheel Muhammad Raheel, Al-Jinsiya Fe Ash-Shari’ah Al-Islamiya, p. 141. 46 Ibid., p. 150. 47 Ibid. 48 Abu Dawood, Sunan Abu Dawood (Kitab Al-Jihad: Al-Turath, 2010). 49 Imam At-Tirmizi, Sunan At-Tirmizi (Egypt: Mustafa Halabi, 1975), v. 4, p. 156. 50 Al-Bukhari, Sahih Al-Bukhari (Dar Tuq Al-Najah, n. p., 1422 HJ), v. 1, p. 19. 51 Muslim, Sahih Muslim (Beirut: Ihia’ Al-Turath, n. d.), v. 4, p. 2213. 52 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 149. 53 A treaty, which the Prophet Muhammad entered into with the idol worshippers of Mecca in AD 628. 54 ‘Umar Ibn Al-Khattab embraced Islam during the Meccan period. He migrated from Mecca to Medina and was one of the Prophet’s advisors. After the Prophet’s death he was elected to be the second Muslim rightly guided Caliph. 55 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 149. 56 Reasoning. 57 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 150. 58 Emigrants refer to a member of the first generation who believed in the Prophet Muhammad, peace be upon him, and migrated from Mecca to Medina. The Qur’an pays great tribute to this group. In the Qur’an it is stated: “Those who believe, and suffer exile and strive with might and main, in Allah's cause, with their goods and their persons, have the highest rank in the sight of Allah: they are the people who will be successful” (Trans. 9:20). 59 It was the first battle fought by Muslims, who were weak, and few fought against the infidels of Mecca, who were many and powerful. Being a participant in the battle of Badr is deemed to be one of the greatest titles in Islam. 60 The leading tribe in Mecca at that time. 61 Ibn Kathir, Al-Tafsir Al-Kabeer (Beirut: Dar Al-Kutub Al-Ilmiya, 2000), v. 29í30, pp. 257í9. 62 A Jewish tribe residing in Medina at the time of the Prophet Muhammad, peace be upon him. 63 The battle of ‘Uhud was the second battle Muslims fought against the infidels of Mecca. 64 Tafsir Ibn Khathir. 65 Yusuf Al-Qaradawi, Muwatanat Al-Muslim Fe Ghair AL-Mujtama’ Al-Muslim (Beirut: Beirut Press, 2008), p. 50. 66 Ibid., p. 83. 67 Sahih Al-Bukhari, Al-Bukhari (Dar Tuq Al-Najah, n. p., 1422 HJ), v. 4, p. 57. 68 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 150. 44

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Fysal Maulawi, Al-Muslim Muwatinan Fe ‘Uropa (Beirut: Beirut Press, 2008), p. 18. 70 Yuosuf Al-Qaradawi, Dirasah fe Maqasid Al-Shari’ahh (Cairo: Dar Al-Shuruq, n. d.), pp. 168í170. 71 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 151. 72 Ibid., p. 152. 73 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 154. 74 Muhammad Ali Clay, born 17 January 1942, is an American former professional boxer and social activist. Prior to embracing Islam, which occurred in 1964, he was known as Cassius Clay. In 1964 he won the world heavyweight championship. 75 www.islamonline.com (5 October 2010). 76 www.islamireland.ie (5 October 2010). 77 Ibid. 78 Ibid. 79 Yusuf Al-Qaradawi, Al-Muwatana fe Maqasid Al-Shari’ahh (Beirut: Beirut Press, 2007), p. 17. 80 Yusuf Al-Qaradawi, Muwatanat Al-Muslim fe Ghair Al-Mujtama’ Al-Islami (Beirut: Beirut Press, 2008), pp. 71í3. 81 Imam Ahmad, Musnad Ahmad (Dar Bilnisiyah, n. p., 2002), v. 2, p. 114. 82 Yusuf Al-Qaradawi, Al-Muwatana fe Maqasid Al-Shari’ahh (Beirut: Beirut Press, 2007), pp. 71í3. 83 Doctor Abdul Kareem Zidan is a professor of Shari’ahh at Al-Azhar University. He lectured at Yemen and Baghdad University. 84 Abdul Kareem Zidan, Democracy and Muslims’ Participation in Election, pp. 30í1, a paper submitted in a conference organised by the International Muslim League held in Mecca. 85 Sami A. Aldeeb Abu-Sahlieh, “The Islamic Concept of Migration”, International Migration Review, vol. 30, no. 1, Special Issue: Ethics, Migration, and Global Stewardship (New York: The Centre for Migration Studies of New York, Inc., spring 1996), p. 37. 86 Andrew F. March, Islam and Liberal Citizenship (Oxford: Oxford University Press, 2009), p. 166. 87 A former grand Sheikh of Al-Azhar. 88 Jad-ul-Haq Ali Jad-ul-Haq, Fatawa Fe Ba’d Al-Ahkam Tata’allaq Bel Aqalliyat Al-Muslimah Fe Ghair Diyar Al-Muslimeen (Cairo: Majalat-ul-Azhar, n. d.), v. 63, no. 6, 1991, p. 618. 89 Khalid Abdul-Qader, Fiqh al-aqalliyuat al Muslima (Tripoli: Dar Al-Iman, 1998), p. 134. 90 Ibn Baiyya, Sina’at-ul-Fatwa Fiqh Al-Aqalliyat (Beirut: Dar Al-Minhaj, 2007), pp. 280í85. 91 Mustafa al-Maraghi (d. 1945) was an Egyptian reformer and rector of Al-Azhar. He was active in encouraging reforms within legal and social contexts, as well as within education where he notably campaigned for the introduction of modern

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sciences to the curriculum. He was a proponent of Ijtihad and the integration of the separate schools of Fiqh. He was active on an international level with regard to religious conferences. 92 Al-Maraghi, Tafseer Al-Maraghi, v. 2, p. 133. 93 Ahmad Ibn Muhammad Ibn Hajar Al-Haithami, Al-Fatawa Al-Kubra Al-Fiqhiya (Beirut: Dar-ul-Kutub Al-‘Ilmyia, 1997), v. 4, pp. 52í3. 94 Ar-Ramli, Nihayat-ul-Muhtaj (Beirut: Dar Al-Kitab, 1993), v. 8, p. 82. 95 Abu Abdullah Muhammad Ibn Idris Ash-Shafi’i, born in Gaza, Palestine, 767 and died in 820, was a Sunni Muslim jurist. He is the founder of the Shafi’i School. He studied Islam in Mecca and then he moved to Medina where he was taught Islam by Imam Malik. 96 Muhammad Ibn Idris Ash-Shafi’i, Al-Umm Fe Furu’ Al-Fiqh, Dar-ul-Ma’arif, Beirut, 1968, v. 4, p. 161; Tubulyak, Al-Ahkam-us-Syyasiya Lil Aqalliyat AlMuslimah Fe Al-Fiqh Al-Islami (Beirut: Dar-un-Nafa’is, 1970), pp. 50í1. 97 Al-Zamakhshari, Al-Kashshaf (Beirut: Dar al-Kitab al-Arabin, n. d.), v. 1, p. 555. 98 Ibn Qudama, Al-Mughni (Cairo: Dar-ul-Hadith, 1995), v. 13, p. 151. 99 Ibn Al-Humam, Sharh Fath Al-Qadir (Beirut: Dar-ul-Fikr, n. d.) v. 5, p. 445. 100 Mansur Ibn Yunus Al-Buhuti, Kashshf Al-Qina’ (Ryiadh: Maktabat An-Nasr Al-Haditha, 1968), v. 5, p. 44. 101 Muhammad Ibn ‘Umar Ibn ‘Abdeen, Radd-ul-Muhtar (Beirut: Dar-ul-Kutub Al-'Ilmiya, 1994), v. 3, pp. 252í3. 102 Al-Kasani, Al-Fatawa Al-Hindiyya (Beirut: Dar Ihya'-ut-Trath Al-Arabi, n. d.) v. 2, p. 232. 103 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 157. 104 Al-Qurtubi, Al-Jami’ Liahkam Al-Qur’an (Beirut: Dar-ul-Kutub Al-'Ilmyia, 1996), p. 42. 105 Abdur-Rahman Al-Sa’di was born in 1307 HJ and died in 1376. He is one of the famous interpreters of the Qur’an. 106 Abdul-Rahman Al-Sa’di, Tayseer Alkareem Ar-Rahman fi Tafseer Kalam AlMannan (Beirut: Muassasat Al-Risalah, 2000), pp. 112í13. 107 Yusuf Al-Qaradawi, Fiqh Al-Aqalliyat Al-Muslimah (Cairo: Dar-ul-Shiruq, 2001), pp. 33í4. 108 Ibn Bayya, Sina’at-ul-Fatwa Wa Fiqhul-Aqalyyat (Beirut: Dar al-Minhaj, 2007), p. 285. 109 Salih Ibn Fauzan, Muhadarat Fel-Aqallyyat Wad-Da’wa (Riyadh: Dar Al‘Asima, 1992), p. 236. 110 Muhammad ibn Saalih al-Uthaymeen al-Wahaibi al-Tamimi was one of the most prominent Muslim jurists of the latter half of the twentieth century. He was born in Saudi Arabia. He memorised the Qur’an at an early age. He is world renowned for his superior knowledge in Fiqh. He is the author of more than fifty books on the subject.

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Muhammad Khalid Masoud, “Being a Muslim in a Non-Muslim Polity: Three Alternative Models”, Journal of the Institute of Muslim Minorities Affairs, January 1989, v. 10. 112 Former Chairman of the Fiqh Council of North America. 113 Yusuf Al-Qaradawi, Fiqh Al-Aqaliyat Al-Muslima (Cairo: Dar Al-Shuruq, 2001), pp. 16í17. 114 Fysal Maulawi, Al-Muslim Muwatinan Fe ‘Uropa (Beirut: Beirut Press, 2008), p. 12. 115 Zahid Parvez, Building a New Society: An Islamic Approach to Social Change (Markfield: Revival Publications, 2000), pp. 34í6. 116 Fysal Maulawi, Al-Muslim Muwatinan Fe ‘Uropa (Beirut: Beirut Press, 2008), pp. 15í16. 117 A battle that occurred between Muslims and Jews in 629. 118 Al-Hakim, Musnad, v. 3, p. 211. Al-Hakim classified this hadith as authentic. At-Tabarani, Al-Mu’jam Al-Kabeer, v. 2, p. 107. Abu Dauud, Sunan Abu Dauud, v. 5, p. 392. Ath-Thahabi classified this hadith as Mursal but Al-Albani classified it as Hassan (Al-Ghazali, Takhri’j Ahadeeth Fiqh As-Sira). 119 One of the Prophet Muhammad’s, peace be upon him, Companions. 120 The emperor who ruled Ethiopia during the Prophet Muhammad’s, peace be upon him, time. 121 Fysal Maulawi, Al-Muslim Muwatinan Fe ‘Uropa, Beirut: Beirut Press, 2008, pp. 15í16. 122 Al-Bukhari, Sahih Al-Bukhari, Dar Tuq Al-Najah, n.p., 1422HJ, v. 5, p. 137. 123 Fysal Maulawi, Al-Muslim Muwatinan Fe ‘Uropa, Beirut: Beirut Press, 2008, pp. 1í17. 124 Khaled Abou El Fadl, Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries, Leiden: E. J. Brill, 1994, p. 141. 125 PhD book entitled “Sharifa Aal Sa’eed, Fiqh of Muslim communities regarding financial transactions and social traditions” (Jordan University), pp. 44í86. 126 Ammar Munthir, master’s book, “The Islamic law regarding social traditions of Muslim communities”, pp. 65í6. 127 The European Council for Fatwa and Research is a Dublin-based Islamic theological body. It is a private foundation founded in London on 29 March 1997 on the intiative of the Federation of the Islamic Organisations in Europe. The ECFR is largely a self-selected body composed of Islamic clerics and scholars presided over by Yusuf Al-Qaradawi. 128 ECFR, the final statement of the eighteenth session, Paris, 1í5 July 2008. 129 Khaled Abou El Fadl, “Legal Debates on Muslim Minorities: Between Rejection and Accommodation”, The Journal of Religious Ethics, vol. 22, no. 1, spring, 1994, p. 127. 130 Muslim, Sahih Muslim, Kitab Al-Imara, Bab Al-Mubaia’a Ba’da Fathi Mahhah (Beirut: Ihya’ At-Turath Al-‘Arabi, n. d.), v. 3, p. 1487. 131 Al-Bukhari, Sahih Al-Bukhari (Dar Tuq Al-Najah: n. p., 1422 HJ), v. 5, p. 57.

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Ibn Hajar, Fath Al-Bari Sharh Sahih Al-Bukhari (Beirut: Dar Al-Kutub Al‘Ilmiyya, 1989), v. 7, p. 229. 133 Ahmad Ibn Hanbal, Musnad Ahmad (Beirut: Mu’asasat Al-Risalah, 2001), v. 4, p. 477. 134 Muslim, Sahih Muslim (Beirut: Ihya’ Al-Turath, n. d.), v. 1, p. 569. 135 Al-Bukhari, Sahih Al-Bukhari (Dar Tuq Al-Najah, n. p., 1422 HJ), v. 4, p. 44. 136 Al-Halabi, As-Sira Al-Halabiya (Beirut: Dar Al-Kutub Al-‘Ilmiya, n. d.), v. 1, p. 513. 137 Al-Bukhari, Sahih Al-Bukhari (Dar Tuq Al-Najah: n. p., 1422 HJ), v. 3, p. 14. 138 Imam Ahmad, Musnad Ahmad, Hadith No. 1420. 139 Salah Sultan, Iqamat-ul-Muslimeen Fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 157.

CHAPTER FOUR WALA’ AND BARA’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ (SINCERITY AND DISASSOCIATION)

The weight of scriptural evidence is important in the description of the quality of coexistence of Muslims residing in non-Muslim countries; this has been demonstrated in the previous chapter.

4.1 Introduction In this chapter, two terms impacting on being a Muslim are examined in depth. They are also important in later discussions.

4.1.1 Wala’ and Bara’ in Islamic thinking The study of the Islamic conceptual understanding of Wala’ and Bara’ based on love and hatred, and deemed to be the main foundations of the acceptance and rejection of others, is of paramount importance and utmost interest. This is because a number of Muslim scholars such as Ibn Taymiyya (b. 661 HJ) and Al-Qahtani (b. 1376 HJ) perceive the two terms as prerequisites of the Islamic Shahadah ΓΩΎϬη (declaration of faith). In other words, these two terms profoundly impact on classifying one as a Muslim. In addition, nowadays they are two of the most frequently applied terms. Coexistence is based on acceptance of others. This acceptance can hardly be accomplished unless an authentication of the concepts of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ is illustrated in an academic, inclusive and wellbalanced manner. In this chapter, a case will be made for the understanding and acceptance of the concepts of Wala’ and Bara’ as fundamental to an understanding of coexistence by Muslims in nonMuslim countries. In the last two chapters the issue of the permissibility and impermissibility of Muslim residence in non-Muslim lands, and acquiring citizenship in non-Muslim countries by Muslims was explored. In this chapter the concepts of Wala’ and Bara’˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ , which are deemed to be of crucial issue for Muslims living in non-Muslim countries

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since it has a profound impact on Muslimínon-Muslim relations, will be explored. Integration, which is an essential requirement of coexistence, is to a large extent dependent on understanding this term. Initially, two definitions of this term will be presented í one is old and the other is contemporary. Definitions will be tackled from linguistic and theological understandings. Some Muslim scholars, such as Ibn AlQaiyym and Qahtani perceive it as a part of the Islamic creed, while others such as Maulawi deny it. Those who do not see it as part of the creed state that Muslims should understand it in light of the articles of the Muslim faith. As for those who see Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ as part of the Islamic creed, the terms are described as an essential requirement of being a Muslim i.e. they attach them to the Muslim Shahadah ΓΩΎϬη (the declaration of Muslim faith), as did Ibn Taymiyya and Al-Qahtani. They perceive Wala’ and Bara’ as interrelated and interdependent. On the other hand, other scholars, such as Imam Ahmad (b. 780 HJ) and Ben Baiya (b. 1935), deny the terms and classify them as non-Islamic. However, both groups of Muslim scholars agree on the basis of Wala’ and Bara’, i.e. love and hatred, and that should be interpreted into practice between Muslims on the one hand and non-Muslims on the other hand. On this basis, some scholars such as Qahtani, state that Muslimínon-Muslim relations should be based on hatred and war. They state that enmity between Muslims and non-Muslims is based on the enmity between man and Satan. They quote Islamic scriptural texts in support of their argument. This opinion will be classified as exclusive and as presenting challenges to Muslims in general, and particularly Muslims living in nonMuslim countries. An argument against this opinion will be put forward, along with an elaboration on types of relations such as marriage organised by Islam between Muslims and non-Muslims on the basis of love. Moreover, some historical events in support of this argument will be quoted. The foundation of the enmity between man and Satan will be analysed. Then another opinion, which divides Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ into various types, classifying some into permissible and others into impermissible, will be highlighted. Again, light will be shed on the argument that Bara’ ˯΍ήΑ (disassociation) should be seen as Bara’ of deeds and not of people. This point is significant as Bara’ of deeds does not lead to conflict but, instead, to disagreement.

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4.2 Definitions of Wala’ and Bara’ It has already been hinted above that much depends on how Wala’ and Bara’ are defined. The first set of meanings derives from linguistic analysis and the second from theology.

4.2.1 Linguistic Meanings Walii ϲϟϭ, one of Allah’s fair names, means the supporter. It also means the one in charge of all the affairs of the universe and the creatures. Tha’lab said: “Whoever worships anything besides Allah, he/she has taken it as Walii.”1 In other words, he/she should not seek Allah’s support but his/her god’s. It also refers to the guardian. It is also applied to refer to kinsfolk. The Prophet Muhammad, peace be upon him, when he was asked about a Muslim guiding a non-Muslim to Islam, stated: “He is his Walii (the most akin to him) in his life and his death.” Waali ϲϟ΍ϭ is the owner and disposer of everything. Walaiah Δϳϻϭmeans support2. The Qur’an applies this term in this meaning, as it is stated: “You have no Walaiah with them” (Trans. 8:72). Walii also refers to a friend and a supporter.3 When this term is applied the meaning will be determined according to the context. Wala’ or Muwalah Γϻ΍Ϯϣ – ˯ϻϮϟ΍ means alliance and friendship. It refers to the attitude of support assumed by a party, made up of an individual or a group, when finding two parties, made up of groups or individuals, engaging in a dispute against one another. Wala’ means to intervene in order to reach a settlement between them while harbouring preference for one party over the other. Wala’ occurs when one associates himself/herself with one party, taking their side. He/she is then their friend and confidant. Wala’ also means to segregate.4 But the concept of Maula ϰϟϮϣ 5 refers to a wide range of meanings at various levels. It means the Lord, the master, the benefactor, the emancipator, the helper, the friend, the follower, the neighbour, the cousin, the ally, the brother-in-law, the slave, or the freed slave. Nevertheless, it is always based upon assistance and affection. In the Qur’an it is stated: Allah forbids you not, with regard to those who fight you not for (your) Faith nor drive you out of your homes, from dealing kindly and justly with them: for Allah loveth those who are just. It is only as regards those who fought against you on account of your religion and have driven you out of

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Al-Muwaalaah refers to support in Islam, as Imam Shafi’i7 explained it, quoting the hadith of the Prophet Muhammad, peace be upon him: “Whomsoever I am his Maula (supporter), Ali is also his Maula.”8 The Prophet Muhammad, peace be upon him, said this hadith when 'Usamah said to Ali: “You are not my Maula but the Prophet, peace be upon him, is.”9 Ibn 'Abbas said: “This hadith means whoever loves me and follows me, let him/her love and follow Ali.”10 To be Maula (an ally) of someone is to draw near him, but to be in (Muwaalaah) alliance or clientage is to follow.11 Wali signifies nearness.12 The Prophet Muhammad, peace be upon him, said: “eat of what is Yalik ϚϴϠϳ (near) you.”13 Aulah ϩϻϭ΃ means to commission him, Waliya Δϳϻϭ means rulership, walla ϰϟϭ means to appoint in charge and Tawalla ϰϟϮΗ means to become in charge14. Wali is the opposite of enemy. Whoever is in charge of someone is his/her Wali.15 Muwalah is the opposite of enmity.16 By and large Muwalah and all its derivatives refer to love, affection, relationships and support. Al-Bari’, one of Allah’s names, means the Originator, who created all creatures out of nothing. Such a word is distinctively used to refer to the Creator of all the creatures.17 In the Qur’an it is stated: And (remember) when Moses said to his people: “O my people! Verily, you have wronged yourselves by worshipping the calf. So turn in repentance to your Bari’ (Creator). (Trans. 2:54)

Bara’a Allah means that Allah created. Bara’a, in the context of sickness, means to recover. Abra’a Allah means Allah blessed with recovery.18 Bri’tu and Bara’tu mean that I have been cured from sickness. Bari’ from people means to have no links with them and Bari’ from an

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action means having nothing to do with it.19 Bari’a means to sever relations and disassociate oneself from people or an action.20 The night of Bara’ (disassociation) is the night when the moon is free of sunlight; it marks the first night of each lunar month.21 According to AlQutaibi, the night of Bara’ is the last night in the lunar month since in it the moon is free from sunlight.22 Al-Bara’ refers to the happy day when people celebrate every event occurring in it.23 Ibn Al-Bara’ is a name given to the child born on this night.24 Al-Bara’ means disassociation. Disassociation is to walk away from something or to distance oneself from it.25 The word Barii’ means to heed a warning and therefore to excuse oneself from something; to be free of something. In the Qur’an it is stated: “Bara’a (freedom from obligation) (is proclaimed) from Allah and His messenger toward those of the idolaters with whom ye made a treaty” (Trans. 9:1). ‘Umar Ibn Al-Khattab, one of the early Companions of the Prophet Muhammad, peace be upon him, and who became the second Muslim Caliph, asked Abu Hurayra, one of the early Companions of the Prophet Muhammad, peace be upon him, to do something but he refused, so ‘Umar Ibn Al-Khattab criticised him by saying “Yusuf used to chase after work”. Abu Hurayrah replied, “I am Barii’ (free) of Yusuf and Yusuf is free of me.”26 This does not mean that Abu Hurayrah made a comparison between Yusuf and himself, but only an analogy. Since affection and alliance with Yusuf is a part of faith, he did not say that he was free from all association with him, nor free of affection for him in the sense of denial.27

4.1.2 Theological Meanings Islam is based on six articles of faith: belief in Allah, belief in all prophets, belief in all revealed books, belief in angels, belief in the Last Day and belief in destiny.28 Neither the Qur’an nor the Sunnah has included Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ as one of the articles of faith.29 Nevertheless, some Muslim scholars, when elucidating this term, always attach it to either the creed or the deeds. Consequently, a creedal understanding of this term should be in conformity with the Islamic articles of faith. To understand the articles of Muslim faith on the basis of the terms of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ is a serious mistake.30

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Wala’ theologically means to help, to love, to honour, to respect someone, and to stand next to him/her both outwardly and inwardly.31 In the Qur’an it is stated: “Allah is the Walii (Protecting Guardian) of those who believe. He bringeth them out of darkness into light. As for those who disbelieve, their Waliis (patrons) are false deities. They bring them out of light into darkness. Such are rightful owners of the Fire. They will abide therein” (Trans. 2:257). Al-Bara’ theologically means to disassociate oneself from something or somebody and to avoid it or him/her, totally, showing enmity towards it or him/her after explaining and warning.32 Hence, the Walii (ally) of Allah is the one who approves of and follows Him in what He likes and in what pleases Him, who avoids what He dislikes and what angers Him, and who fulfils his obligations and shuns what has been forbidden.

4.2.3 Bara’ in Islamic Texts According to Faysal Maulawi Faysal Maulawi argues that Bara’ has two meanings:33 First: The creedal concept, which signifies disassociation of disbelief. In the Qur’an it is stated: “Lo! I Barii’ (disassociate myself) of that which ye ascribe as partners (unto Him)” (Trans. 9:19). Furthermore, the Qur’an also states “And when Abraham said unto his father and his folk: ‘Lo! I Barii’ (disassociate myself) of what ye worship’” (Trans. 43:26). On this basis, it is a duty incumbent upon Muslims to declare their disassociation from disbelief. However, this declaration can be made in different ways. In the Qur’an it is stated: “Say: ‘O People of the Scripture! Come to an agreement between us and you: that we shall worship none but Allah, and that we shall ascribe no partner unto Him, and that none of us shall take others for lords beside Allah’. And, if they turn away, then say: ‘Bear witness that we are they who have surrendered (unto Him, i.e. we have become Muslims)’” (Trans. 3:64). In this verse, since it was revealed in the context of dialogue between Muslims and the people of the Book, Allah applies acceptance of Islam as an expression of Bara’ ˯΍ήΒϟ΍ rather than a disassociation of disbelief. Second: The second meaning, according to Maulawi, which pertains to actions, connotes a number of meanings. It signifies shouldering no responsibilities: In the Qur’an it is stated: And if they (thy kinsfolk) disobey thee, say: Lo! I am Barii’ (disassociate myself) from what they do. (Trans. 26:216)

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And if they deny thee, say: Unto me be my work, and unto thee be thy work. Ye are Barii’ (disassociated) of what I do, and I am Barii’ (disassociated) of what ye do. (Trans. 10:41)

It also refers to cancelling an effective treaty: In the Qur’an it is stated: “Bara’a (freedom from obligation) (is proclaimed) from Allah and His messenger toward those of the idolaters with whom ye made a treaty” (Trans. 9:1). It also refers to no support; the Prophet Muhammad, peace be upon him, said: “I am Barii’ (disassociate myself) from Muslims living in a non-Muslim country.”34 Bara’a (disassociation) in this hadith signifies that the Prophet Muhammad, peace be upon him, and the Muslims took no responsibilities for Muslims living in non-Muslim countries, if they suffered during times of war.

4.2.4 In Brief On the basis of the above mentioned, it is self-evident that Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ have various definitions, none of which can be stated as the default meaning on linguistic or theological grounds. Hence, to choose one meaning or another is entirely dependent on the context, which can sometimes be subject to a number of interpretations. Nevertheless, love is the source of Wala’ and hatred is the source of Bara’ í it is by this that both the heart and the hand are moved to act. Wala’ inspires intimacy, concern and help. Bara’ provokes obstruction, enmity and rejection.

4.3 Shahadah ΓΩΎϬη (Declaration of Muslim Faith) La Ilaha Illa Allah ௌ ϻ· Ϫϟ· ϻ (there are no gods but God), the first part of the declaration of Muslim faith, proves that divine attributes belong to none save Allah. Muhammad Rasul-ul-Lah ௌ ϝϮγέ ΪϤΤϣ (Muhammad is Allah’s messenger), the second part of the declaration of Muslim faith, signifies an infinite obedience to the Prophet Muhammad, peace be upon him.35

4.3.1 The Significance of Shahadah Shahadah is the key to Islam, as well as its cornerstone. Shahada means that Muslims seek Allah’s pleasure in all that they say and do and shun; love Allah and love people and things, as their love leads to attaining Allah’s pleasure; and hate people and things beacause hating them would lead to attaining Allah’s pleasure.

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Chapter Four The Prophet Muhammad, peace be upon him, said: “Whoever encounters Allah with firm belief in La Ilaha Illa Allah ௌ ϻ· Ϫϟ· ϻ (there are no gods but God) and Muhammad Rasul-ul-Lah ௌ ϝϮγέ ΪϤΤϣ (Muhammad is Allah’s messenger) will enter paradise.”36

Ibn Taymiyyah states that the delight of the hearts and their perfect pleasure are only viable through loving Allah and drawing nearer to Him by abiding by what He likes. His love is only possible when one turns away from all other types of love. This is the true meaning of La Ilaha Illa Allah ௌ ϻ· Ϫϟ· ϻ. This is the foundation of the divine message revealed to Abraham, Allah’s friend, and all the prophets.37 Al-Huki38 argues that the significance of Shahada is not counting its words and its memorisation, but rather living accordingly. So many lay people live by it, yet if any of them are asked to count its words he/she will fail. So many people have learnt its words and can rattle them off as quickly as lightning, yet they fail to live by it.39 Wahb Ibn Munabbah,40 when asked “Is not La Ilaha Illa Allah the key to paradise?” said: “Certainly, but every key has teeth. If you have a key with teeth, the door will be opened, whereas if the key has no teeth the door will not be opened.”41 In other words, the key is the words of La Ilaha Illa Allah, which is important, but living according to this declaration is the teeth of the key and they are vitally important.

4.3.2 The Prerequisites of Shahadah Shahada has seven prerequisites:42 first, knowledge of what is negated and what is confirmed by it. In the Qur’an it is stated: “So know that, La Ilaha Ill Allah (none has the right to be worshipped but Allah), and ask for forgiveness for your sin, and also for (the sin of) believing men and believing women. And Allah knows well your moving about, and your place of rest (in your homes)” (Trans. 47:19). The Prophet Muhammad, peace be upon him, said: “Whoever dies, while knowing that La Ilaha Illa Allah, will surely enter paradise.”43 The second prerequisite of Shahada is firm belief in it. In the Qur’an it is stated: “Only those are the believers who have believed in Allah and His Messenger, and afterward doubt not but strive with their wealth and their lives for the Cause of Allah. Those! They are the truthful” (Trans. 49:15). The Prophet Muhammad, peace be upon him, said: “I bear witness that there are no gods but God and that I am His messenger. Whoever

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encounters Allah believing therein, casting no doubt thereon, will certainly enter paradise.”44 According to Al-Qurtubi, a mere pronunciation of Shahada is not adequate. Certainty the knowledge of it is an essential requirement.45 The third prerequisite of Shahada is its acceptance and declaration. In the Qur’an it is stated: “Say O people of the Scripture! Come to a word that is just between us and you, that we worship none but Allah and that we associate no partners with Him and that none of us shall take others as lords besides Allah. Then, if they turn away, say: ‘Bear witness that we are Muslims’” (Trans. 3:64). The fourth prerequisite is the complete submission to Allah. In the Qur’an it is stated: “And turn in repentance and in obedience with true Faith to your Lord and submit yourselves to Him” (Trans. 39:54). The Prophet Muhammad, peace be upon him, said: “None of you is a true believer until his/her desires are in conformity with what I have come with.”46 In another place it is stated: “But no, by your Lord, they can have no Faith, until they make you judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission” (Trans.:64). In his exegesis, Ibn Kathir points out that Allah has taken an oath confirming that no one is a true believer until he/she accepts inwardly and outwardly the authority of the Prophet Muhammad, peace be upon him.47 The fifth prerequisite is sincerity. So the tongue gives truthful expressions of what is concealed in the heart. In the Qur’an it is stated: “And of mankind, there are some who say: ‘We believe in Allah and the Last Day’ while in fact they believe not. They endeavour to deceive Allah and those who believe, while they only deceive themselves, and perceive (it) not!” (Trans. 2:08-09). The Prophet Muhammad, peace be upon him, said: “Whoever truthfully believes that there are no gods but God and that Muhammad is His messenger will be forbidden for hell (will not be admitted in hell).”48 According to Ibn Al-Qaiyym, sincerity of Shahada is dependent on compliance to it and acceptance of its obligations, i.e. the Shari’ahh which gives the details of Shahadah.49

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The sixth prerequisite of Shahada is purity of intention. In other words, when a Muslim takes an action he/she seeks nothing but the pleasure of Allah and when he/she shuns an action he/she seeks nothing but the pleasure of Allah50. In the Qur’an it is stated: “Surely the religion is for Allah only. And those who take Auliya’ (protectors, helpers, lords, gods) besides Him (say): ‘We worship them only that they may bring us near to Allah.’ Verily Allah will judge between them concerning that wherein they differ. Truly, Allah guides not him who is a liar and a disbeliever’” (Trans. 39:03). The Prophet Muhammad, peace be upon him, said: “Those who say La Ilaha Illa Allah seeking Allah’s pleasure, Allah has made them forbidden for hell (they will not enter hell).”51 According to Al-Fudail Ibn ‘Iyad,52 a deed purely done for the sake of Allah cannot be accepted by Allah unless it be a good deed, and a deed can only be a good deed if it is harmonious to the Prophet Muhammad’s practices, and a good deed cannot be accepted by Allah unless it be purely done for Allah.53 The seventh prerequisite of Shahada is loving it, its requirements and those who hold fast to it, and hating its opposite.54 In the Qur’an it is stated: “And of mankind are some who take (for worship) others besides Allah as rivals (to Allah). They love them as they love Allah. But those who believe, love Allah more (than anything else). If only those who do wrong could see, when they will see the torment that all power belongs to Allah and that Allah’s punishment is severe” (Trans. 2:165). The Prophet Muhammad, peace be upon him, said: “He/she who harbours three characteristics will find the sweetness of faith; namely that Allah and His messenger should be the dearest to him/her, that he/she likes someone for naught but Allah’s sake and that he/she despises apostasy, after that Allah saved him/her from disbelief as much as he/she hates being cast in hell.”55

4.3.3 In Brief The utterance of Shahada is very important, but also living according to it is equally important. By virtue of Shahada Muslims deny four issues, namely, gods, tyrants, rivals to Allah and injustice. By virtue of Shahada Muslims seek Allah’s pleasure in all that they say and do and shun, love Allah and fear his chastisement. By virtue of Shahada Muslims’ entire lives are motivated by seeking Allah’s pleasure.

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4.4 Wala’, Bara’ and Shahadah According to Hafidh Al-Hukmi,56 to show Allah’s love is giving priority to what He likes even though it may be different to one’s desires, abhorring what is disliked by Allah even though it be one’s desire, allying with those who ally with Allah and His messenger, declaring hostility against Allah’s enemy, and following Muhammad’s Sunnah.57

4.4.1 Wala’ and Bara’ Are Essential Components of Shahadah According to Al-Qahtani,58 Wala’ and Bara’ are both related to the declaration of faith and constitute essential elements of it.59 The evidence for this from the Qur’an and the Sunnah is considerable. In the Qur’an it is stated: “Let not the believers take disbelievers as ‘Auliala in preference to believers. Whoever does this has no connection with Allah unless you are guarding yourselves against them as a precaution. Allah bids you to beware (only) of Himself. And to Allah is the journeying” (Trans. 3:28). In another place in the Qur’an it is stated: “Say: ‘if you love Allah, follow me; Allah will love you and forgive you your wrong actions. Allah is Forgiving, Compassionate’. Say: ‘Obey Allah and the Messenger. And if they turn away, then surely Allah does not love the disbelievers”’ (Trans. 3:31-32). It is narrated that Ibn ‘Abbas, one of Muhammad’s scholar Companions, said: Whoever loves for the sake of Allah, and hates for the sake of Allah, and whoever seals a Wala’ for His sake, or declares an enmity for His sake, will receive, because of this, the protection of Allah. No one may taste true faith except by this, even if his prayers and fasts are many. People have come to build their relationships around the concerns of the world, but it will not benefit them in any way.60

According to Jabir Ibn 'Abdullah,61 since Wala’ and Bara’ are based on love and hatred, faith is founded on loving Allah’s prophets and their followers for Allah’s sake and hating Allah’s enemy and His prophets’ foes for his sake.62 Jarir Ibn Abdullah reported that the Prophet Muhammad, peace be upon him, made him swear an oath to offer counsel to every Muslim and to steer clear of every disbeliever.63 Ibn Shayba reported that the Prophet

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said: “The strongest bond of faith is love for the sake of Allah and enmity for His sake.”64 According to Ibn Taymiyya,65 abiding by the Prophet Muhammad’s, peace be upon him, Sunnah and following his religion intrinsically and extrinsically are prerequisites of Allah’s love. Likewise, striving in Allah’s cause, declaring Muwalah Γϻ΍Ϯϣ to His Aulia’ (allies) ˯Ύϴϟϭ΃ and antagonism against His foes are the true love for Allah.66 Al-Hasan Al-Basri67 states that some people purportedly claimed Allah’s love, so Allah tested them with the following verse: In the Qur’an it is stated: “ Say: ‘If you (really) love Allah then follow me, Allah will love you and forgive you your sins. And Allah is Oft-Forgiving, Most Merciful’” (Trans. 3:31).68 ‘Aisha, the Prophet Muhammad’s, peace be upon him, wife, may Allah be pleased with her, narrated that the Prophet Muhammad, peace be upon him, said: “The religion is naught but love for the sake of Allah and hatred for the sake of Allah. In the Qur’an it is stated: ‘Say: “If you love Allah then follow me, Allah will love you and forgive you your sins. And Allah is Oft-Forgiving, Most Merciful”’ (Trans. 3:31).69 The narration of this hadith is classified as unreliable.70 That is to say, loving and hating for the sake of Allah constitute the cornerstone of Islam.

4.4.2 In Brief On the basis of the above-mentioned scriptural proofs Wala’ for the sake of Allah means to love Allah and to exhaust every possible means to assist His religion; it is to love those who are obedient to Him and to come to their help. Bara’ for the sake of Allah is to struggle against the enemies of Allah. Interpreting the concepts of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍and putting them into practice constitutes an essential requirement of being a good Muslim. This implementation should be conducted by heart, in terms of love and hatred, and also the entire body in terms of drawing near to Muslims and steering clear of non-Muslims.

4.5 The Party of Allah and the Party of Satan The Qur’an draws a clear distinction between the believers and the disbelievers. Allah has called the first group the party of Allah and the second the party of Satan: In the Qur’an it is stated: “Allah is the Wali

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(Protecting Guardian) of those who believe. He brings them out of darkness into light. As for those who disbelieve, their Walis (patrons) are false deities. They bring them out of light into darkness. Such are rightful owners of the Fire. They will abide therein” (Trans. 2:257). Al-Qahtani states that the emergence of Allah’s party and Satan’s party can be traced back to the time when Adam and Satan were in paradise.71 Allah ordered the angels to fall prostrate to Adam, yet Satan proudly refused. The Qur’an relates the story: And when We said unto the angels: Prostrate yourselves before Adam, they fell prostrated all save Satan. He demurred through pride, and so became a disbeliever. And We said: O Adam! Dwell thou and thy wife in paradise, and eat ye freely (of the fruits) thereof where ye will; but come not nigh this tree lest ye become wrong-doers. But Satan caused them to deflect therefrom and expelled them from the state in which they were; and We said: Fall down, one of you a foe unto the other! There shall be for you on earth a habitation and provision for a time. Then Adam received from his Lord words (of revelation), and He relented toward him. Lo! He is the relenting, the Merciful. We said: Go down, all of you, from hence; but verily there cometh unto you from Me guidance; and whoso followeth My guidance, there shall no fear come upon them neither shall they grieve (Trans. 2:34-38).

Al-Qahtani adds that people, then, are to be divided into two groups, one that follows guidance and the other that goes astray.72 This split is described in another place in the Qur’an, where it is stated: “It is He who created you, amongst you are disbelievers and amongst you are believers. Allah is well aware of what you do” (Trans. 64:2). Hence, as for the party which responds to the call of the Messengers, believes in the Books revealed by Allah and in the Messengers whom He sent as a mercy to mankind, they are the ‘Auliya (allies) of Allah, whereas the party which disbelieves, they are the ‘Auliya of Satan. At this point it should be marked clearly that by virtue of the Qur’an, Satan is described as the enemy of the believers. In the Qur’an it is stated: “O ye who believe! Come, all of you, into submission (unto Him); and follow not the footsteps of the devil. Lo! He is an open enemy for you” (Trans. 2:208). This meaning is reiterated by the fact that Satan saves no efforts to misguide the children of Adam.

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According to Ibn Al-Qaiyym, whoever belies the Prophet Muhammad, peace be upon him, shuns his example, abides not by his religion, holds not fast to his covenant, and allows ignorance to overcome him/her, and allows desires and lusts to control his/her heart and disobedience to be acted by organs of his body, is Satan’s Wali.73 Al-Qahtani states that it is self-evident, then, that the allies of Satan are the enemy of the allies of Allah.74 Satan’s allies are people anxiously waiting to seize any opportunity to drive Allah’s party astray.75 In the Qur’an it is stated: “Lo! the guilty used to laugh at those who believed and wink one to another when they passed them; and when they returned to their own folk, they returned jesting; and when they saw them they said: Lo! These have gone astray” (Trans. 83:28-32). In another place in the Qur’an it is stated: “And when Our revelations are recited unto them, thou knowest the denial in the faces of those who disbelieve; they all but attack those who recite Our revelations unto them” (Trans. 22:27). Al-Qahtani, on this basis,argues that neither are there commonalities between the two parties in this life nor are there commonalities between them in the hereafter. 76 Muhammad Ibn ‘Abdelwahhab77 states that one cannot be a true Muslim, even if he/she ascribes no partners unto Allah, unless he/she harbours antagonism to the polytheists and declares enmity and abhorrence to them.78 In the Qur’an it is stated: You will not find any people who believe in Allah and the Last Day, having love and nearness to those who oppose Allah and His Messenger even though they were their fathers, or their sons, or their brothers, or their kindred (people). For such He has written Faith in their hearts, and strengthened them with Rûh (proofs, light and true guidance) from Himself. And He will admit them to paradise under which rivers flow to dwell therein. Allah is pleased with them, and they with Him. They are the Party of Allah. Verily, it is the Party of Allah that will be the successful. (Trans. 58:22)

According to Al-Qahtani,79 the enmity between Allah’s party and Satan’s party is due to a number of reasons. The first reason is pride. The allies of Satan are too proud to acknowledge the truth. In the Qur’an it is stated: “Verily, those who dispute about the revelations of Allah, without any authority having come to them, there is nothing else in their breasts except pride. They will never have it. So seek refuge in Allah. Verily, it is He Who is the All-Hearer, the All-Seer.” (Trans. 40:56)

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The second reason is that Satan’s party prefers this world to the hereafter and is obsessed by worldly desires and lusts. In the Qur’an it is stated: “Those who prefer the life of this world to the Hereafter, and hinder (men) from the Path of Allah and seek crookedness therein í they are far astray” (Trans. 14:03). The third reason is that as Satan’s party has pride and preference of this world to the life to come, and does not feel at ease because of the presence of the believers; the Satan’s party envies the believers. In the Qur’an it is stated: “They wish that you reject Faith, as they have rejected (Faith), and thus that you all become equal” (Trans. 4:90). The fourth reason is that some rulers are glorified like gods. People fear them. But Allah’s religion frees mankind from worshipping people. The tyrant rulers, then, revolt against Islam. In the Qur’an it is stated: “They had no fault except that they believed in Allah, the All-Mighty, worthy of all Praise!” (Trans. 85:08). A number of other Muslim jurists agree with this opinion as follows: According to Ibn Taymiyya, part of Allah’s plan is that when He wills His religion to prevail, He allows its opponents to oppose it. Then He permits His true religion to prevail by allowing the truth to dispel falsehood.80 Hence, when there are two parties, the relationship between them is based on hatred and struggle. According to Ibn Al-Qaiym, the ‘Auliya of Satan are distinguished; should the truth oppose their way to power they will crush it and trample it under their feet. If they cannot, they will assault it. If they cannot assault it, they will besiege it in a certain area and divert their way. They are ready to cast it off to the best of their ability. If they have no other alternative, they will let it go, offering it money and religious duties while keeping it away from power. But if the truth supports them, they will hail it and submit themselves to it, yet not because it is the truth but rather because it is in conformity with their desires.81 In the Qur’an it is stated: “And when they are called to Allah and His Messenger to judge between them, lo! A party of them refuse (to come) and turn away. But if the right is with them, they come to him willingly with submission. Is there a disease in their hearts? Or do they doubt or fear lest Allah and His Messenger should wrong them in judgment. Nay, it is they themselves who are the wrong-doers” (Trans. 24:48-50). Here, Ibn Al-Qaiym agrees that the relations between Allah’s party and Satan’s party are based on struggle, but he states that the latter’s motivation is hunger for power.

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Ibn Taymiyya states that a believer should declare Wala’ for Allah’s sake and should declare enmity for Allah’s sake. Oppression does not absolve the bond of Wala’. In other words, the believer should have Wala’ for all believers, even though he/she might have been wronged by believers. In the Qur’an it is stated: And if two parties or groups among the believers fall to fighting, then make peace between them both. But if one of them outrages against the other, then fight you (all) against the one which outrages till it complies with the Command of Allah. Then if it complies, make reconciliation between them justly, and be equitable. Verily! Allah loves those who are equitable. The believers are nothing other than brothers. So make reconciliation between your brothers, and fear Allah, that you may receive mercy” (Trans. 49:0910).82

Here Ibn Taymiyya agrees on the hostile relations between Allah’s party on one hand, and Satan’s party on the other. Moreover, he does not perceive any justification for such a hostile attitude to be assumed among members of Allah’s party. Sa’eed Hauwa83 states that Wala’ for Allah, His messenger and believers is a duty incumbent on Muslims. Muslims should not have Wala’ for disbelievers and hypocrites. Whoever has Wala’ for believers has severed what Allah had commanded them to join. Whoever has Wala’ for disbelievers and hypocrites has joined what Allah had commanded to sever.84 Ibn Taymiyya states that love and hatred, Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ should be dependent on belief in Allah’s Book. Whoever believes in it is entitled to Wala’ and whoever disbelieves is entitled to Bara’. Hence, the early Muslim predecessors expressed Wala’ to each other, accepted one another as witnesses and learnt from one another, yet sometimes they fought against each other.85 According to Sayyid Qutb, Muslims should not unite on the basis of kinship or citizenship, and they should not be united by race or colour; they should be united by their Muslim creed.86

4.6 Examples of Wala’ and Bara’ in the Qur’an In the Qur’an it is stated:

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And mention in the Book Abraham. Verily he was a man of truth, a Prophet. When he said to his father: “O my father! Why do you worship that which hears not, sees not and cannot avail you in anything? O my father! Verily there has come to me of the knowledge that which came not unto you. So follow me, I will guide you to the Straight Path. O my father! Worship not Satan. Verily! Satan has been a rebel against the Most Gracious. O my father! Verily! I fear lest a torment from the Most Gracious should overtake you, so that you become a Wali (companion) of Satan.” He (the father) said: “Do you reject my gods, O Abraham? If you stop not, I will indeed stone you. So get away from me safely.” Abraham said: “Peace be on you! I will ask Forgiveness of my Lord for you. Verily He is unto me Ever Most Gracious.” And I shall turn away from you and from those whom you invoke besides Allah. And I shall call on my Lord and I hope that I shall not be unblessed in my invocation to my Lord. (Trans. 19:41-48)

When the Prophet Abraham, peace be upon him, realised that his father would not give up worshipping idols, he declared Bara’ from him. Here is the Prophet Hud, peace be upon him, giving an example of Bara’: In the Qur’an it is stated: “He said: ‘I call Allah to witness and bear you witness that I am Bari’ (free) from that which you ascribe as partners in worship’” (Trans. 11:54).

4.7 Manifestations of the Forbidden Wala’ Manifestations of the forbidden Wala’ is a broad term which includes a wide number of actions, ranging from actions resulting in apostasy to others deemed to be major sins.87 It is of great difficulty to classify an action as a manifestation of Wala’ or Bara’ since an action could be extrinsically perceived as an act of apostasy, yet on the basis of the intention of such an action, it could be classified under a different category. Nevertheless, by and large, the manifestation of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ ranges between acts of disbelief, such as loving disbelievers for their disbelief, and major sins such as paying tribute to disbelievers.88 Islam stresses the concept of the oneness of Allah. Acceptance of good deeds is entirely dependent on sincerity. The Prophet Muhammad, peace be upon him, said: “Actions are judged only by intentions”89. There are a number of manifestations of the forbidden Wala’. The first manifestation is to accept disbelief, endorse its validity and not to declare it as disbelief.90 Relying upon disbelievers, taking them as helpers and embracing their religion constitute the second manifestation of the forbidden Wala’. In the Qur’an it is stated: “Let not the believers take the disbelievers as Auliya’ (supporters, helpers) instead of the believers, and

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whoever does that will never be helped by Allah in any way, except if you indeed fear a danger from them. And Allah warns you against Himself (His Punishment) and to Allah is the final return” (Trans. 3:28). According to Ibn Jareer,91 whoever takes disbelievers as Auliya’ expressing Wala’ to them regarding their religion and supports them against Muslims will have no connections with Allah. In other words, he/she has declared Bara’ from Allah and consequently Allah declares Bara’ against him/her. This is the case, unless he/she should suffer harm as a result of residing in a non-Muslim land provided he/she does not follow their disbelief and does not support them against Muslims either.92 Sharing some of their disbelief and accepting their judgements and not the Book of Allah constitute the third manifestation of the forbidden Wala’. In the Qur’an it is stated: “Have you not seen those who were given a portion of the Scripture? They believe in Jibt and Taghat and say to the disbelievers that they are better guided with regards to the way than the believers” (Trans. 4:51). Al-Qahtani states that this category includes the claim of separating state from religion.93 He adds that this concept emerged in Europe when scientists were persecuted by Christian religious men.94 Under the guise that Islam organises the relations between human beings and their Lord and that running the state is entirely a different issue which has nothing to do with Islam, the concept of separating state from religion, was imported by some Muslims.95 The fourth manifestation of the forbidden Wala’ is having love and affection for disbelievers. In the Qur’an it is stated: You will not find any people who believe in Allah and the Last Day, having love and affection to those who oppose Allah and His Messenger even though they were their fathers, or their sons, or their brothers, or their kindred (people). For such He has written Faith in their hearts, and strengthened them with true guidance from Himself. And He will admit them to Paradise under which rivers flow to dwell therein. Allah is pleased with them, and they with Him. They are the Party of Allah. Verily, it is the Party of Allah that will be the successful. (Trans. 58:22)

According to Ibn Taymiyya, no true believer has love and affection for those who oppose Allah and His Messenger. The affirmation of one of them negates the other, so it is either belief or love and affection for those who oppose Allah and His Messenger.96

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The fifth manifestation of the forbidden Wala’ is inclination to the disbelievers. In the Qur’an it is stated: “And incline ϦϛήΗ (Tarkan) not toward those who do wrong, lest the Fire should touch you, and you have no protectors other than Allah, norwould you then be helped” (Trans. 11:113). According to Al-Qurtubi, Trakan means to depend, rely and accept.97 The sixth form of the forbidden form of Wala’ is flattery and adulation of the disbelievers’ faith. In the Qur’an it is stated: “They wish that you should compromise (in religion) with them: so they (too) would compromise with you” (Trans. 68:09). The seventh form is to take disbelievers as Bitanah ΔϧΎτΑ (advisors, consultants, protectors, helpers and intimate friends) rather than believers. In the Qur’an it is stated: “O you who believe! Take not as (your) Bitanah (advisors, consultants, protectors, helpers, intimate friends) those outside your religion since they will not fail to do their best to corrupt you. They desire to harm you severely. Hatred has already appeared from their mouths, but what their breasts conceal is far worse. Indeed We have made plain to you the verses if you understand” (Trans. 3:118). Bitanah ΔϧΎτΑ literally refers to the part of clothes that directly touches one’s body.98 In the above mentioned verse it has been metaphorically applied to refer to one’s closest people, who are aware of one’s private matters of which no other person has knowledge.99 The Prophet Muhammad, peace be upon him, said: “Allah has appointed for every messenger a Caliph and two Bitanahs ϦϴΘϧΎτΑ; one Bitanah commands and encourages him to do good and another Bitanah commands and exhorts him to do evil. Whoever shuns evil does so by Allah’s help.”100 The eighth form of the forbidden Wala’ is to obey orders issued by disbelievers.101 In the Qur’an it is stated: “And certainly, the devils do inspire their Auliya’ to dispute with you, and if you obey them, then you would indeed be polytheists” (Trans. 6:121). Accompanying disbelievers when ridiculing the Qur’an is the ninth form of the forbidden Wala’. In the Qur’an it is stated: “And it has already been revealed to you in the Book that when you hear Allah’s verses being denied and mocked at, then sit not with them, until they engage in different talk; (but if you stay with them) certainly, in that case, you would be like them. Surely, Allah will collect the hypocrites and disbelievers all together in Hell” (Trans. 4:140). According to Ibn Jarir, Muslims,

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accompanying disbelievers and those remaining in the company of disbelievers while they are mocking Allah’s verse, are just like the disbelievers. 102 Appointing non-Muslims in leading positions in a Muslim state is the tenth form of the forbidden Wala’. Giving non-Muslims authority over Muslims in a Muslim state means enabling them to ruin the Muslim state. Al-Salih (ruling from 1238í49) appointed a non-Muslim, Abu Al-Fadl Ibn Dukhan, as a prime minister. He reported the secrets of the Muslim state to non-Muslims. In addition, he practised discrimination against Muslims.103 The eleventh form of the forbidden Wala’ is trusting disbelievers. In the Qur’an it is stated: “Among the people of the Scriptures is he who, if entrusted with a Qintar (a great amount of wealth, etc.), will readily pay it back; and among them there is he who, if entrusted with a dinar (single silver coin), will not repay it unless you constantly demand it, because they say: ‘There is no blame on us to betray and take the properties of the illiterates (Arabs).’ But they tell a lie against Allah while they know it” (Trans. 3:75). Being pleased with the disbelievers’ deeds, imitating them and drawing nearer to them encompasses the twelfth form of the forbidden Wala’.104 Assisting disbelievers in their wrong-doing is the thirteenth form of the forbidden Wala’. The Qur’an gives two examples of that: Lot’s wife and Noah’s wife.105 Seeking and giving disbelievers advice, paying tribute to them and spreading their good attributes are the fourteenth form of the forbidden Wala’106 Honouring and giving disbelievers grand titles are the fifteenth forbidden form of Wala’. According to Mahmud At-Tuwaijari, Muslims are not allowed, when meeting disbelievers, to put their hand on their heads as a sign of honouring them. This act might lead to apostasy.107 Residing in a non-Muslim land and increasing their numbers, form the sixteenth form of the forbidden Wala’.108 Colluding with disbelievers, entering into pacts with them, spying for them and conveying Muslim secrets to them make up the seventeenth form of the forbidden Wala’.109 Fleeing from the Muslim land to the land of disbelief as a result of reviling Muslims and loving disbelievers makes up the eighteenth form of the forbidden Wala’.110 Involvement in secular political parties, such as

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communism, socialism, nationalism, etc., is the nineteenth type of the forbidden Wala’.111 According to Saleh Al-Fauzan,112 travelling to a land of disbelief for pleasure is another form of the forbidden Wala’. Using their chronology, especially if it is relevant to their rituals, is also another form of the forbidden Wala’. Taking part in their festivals and congratulating them thereon are also of the forbidden Wala’. Applying their names and seeking Allah’s forgiveness for them are another form of the forbidden Wala’.113

4.8 The Paramount Importance of Wala’ and Bara’ Ibn Taymiyya states that whoever hopes that human beings will give him/her victory, guide him/her or provide for him/her, his/her heart will be submitted to them. Consequently, the heart will contain a level of worship equivalent to that of submission. Needless to say, capturing the heart is greater than capturing the body, and subjecting the heart is greater than subjecting the body since capturing the body does not impact on sincerity, whereas capturing the heart does.114 In the scope of Wala’ and Bara’ ˯ϻϮϟ΍ ˯΍ήΒϟ΍ϭ included are not only actions but also feelings, as previously stated. According to Al-Qahtani, the issue of Wala’, when expressed to nonMuslims, is very serious since it affects Muslims as a nation.115 According to Ibn Taymiyya, it is more serious than disbelief since it is committed on the basis of misconception.116 In spite of its paramount importance, the subject of Wala’ and Bara’

˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍, or alliance and disassociation, did not attract much of the attention of the classical scholars. Al-Qahtani argues that this was due to the fact that this doctrinal aspect of Islam was clearly understood amongst the first generations of Muslims, since they enjoyed a very high level of awareness and understanding of Islam. Moreover, doctrinal division did not emerge in their time regarding the issue of Wala’ and Bara’. They were limited to being perceived as only divine attributes. The encroachment of scholastic theology (‘Ilm Al-Kalam) upon Islamic creed did not occur in the era of the first Muslim generation.117

4.9 Deliberation In spite of its considerable scriptural proofs, it is hard to accept the above-mentioned arguments, since they are not harmonious with the message of Islam. How can this be in conformity with the Islamic message

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when the Prophet Muhammad, peace be upon him, is categorically classified in the Qur’an as a mercy to all that exists. In the Qur’an it is stated: “We have sent ye not save as a mercy to all that exists” (Trans. 21:107). If the Prophet Muhammad, peace be upon him, is a mercy then his message should be a mercy. This mercy is not exclusive on the basis of race or faith. Moreover, it includes all creatures. The foundation and motivation of mercy can be naught save love. Islam, in a nutshell, means to submit your will to the will of your Creator, among whose attributes are The Most Merciful and The Most Gracious. Muslims call their Creator, as one of His Fair Names stated in the Islamic literature, The Peace. The concept of peace is firmly rooted in Muslim life. Moreover, the fact that the Muslim greeting is “peace be upon you” reiterates the hymns of peace in all aspects of Muslim life. When the infidels of Mecca persecuted Muslims, the Companions asked the Prophet Muhammad, peace be upon him, to pray to God to punish the disbelievers, he, peace be upon him, said: “I have not been sent to deprive people of Allah’s mercy, but rather as a mercy to mankind.”118 The Qur’an instructs Muslims to treat people with mercy and to show forgiveness. These attributes are deemed as a qualification for attaining paradise, which is the ultimate goal for all Muslims. In the Qur’an it is stated: “And obey Allah and the messenger, that ye may find mercy. And love one with another for forgiveness from your Lord, and for a paradise as wide as are the heavens and the earth, prepared for those who ward off (evil); Those who spend (of that which Allah hath given them) in ease and in adversity, those who control their wrath and are forgiving toward mankind; Allah loveth the good; And those who, when they do an evil thing or wrong themselves, remember Allah and implore forgiveness for their sins í Who forgiveth sins save Allah only? í and will not knowingly repeat (the wrong) they did” (Trans. 3:132-135). Moreover, the life of the Prophet Muhammad, peace be upon him, deemed to be a practical interpretation of the Qur’an, is full of examples of establishing and maintaining good relations with non-Muslims. The Prophet Muhammad, peace be upon him, bought food from a Jew and mortgaged his armour to him.119 This means Muslims can have relations with non-Muslims. Moreover, Islam is based on an inclusive mercy, by virtue of the Qur’an. In the Qur’an it is stated: “We sent thee not save as a mercy to all that exist” (Trans. 21:107). Such an overwhelming mercy leaves no room for hatred or grudge.

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With regard to Islamic education, nothing is more important than the creedal aspects of Islam. The first issue that the Prophet Muhammad, peace be upon him, addressed, when talking to non-Muslims about Islam, was the articles of faith. An essential requirement of Islam cannot be, under the guise of its clarity, ignored. Had the issue of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ been an essential element of the Islamic creed, we should have had clearer sentences about it. This opinion is divisive and exclusive and presents a number of challenges to Muslims all over the world and particularly Muslims living in non-Muslim countries. This opinion establishes the relations between Muslims and non-Muslims on the basis of hatred and war. At this point it should be noted clearly that Muslims remained in Mecca for thirteen years suffering from severe persecution, yet they never responded with violence against violence. In spite of the Muslims’ suffering, the period at Mecca before the Hijra120 was characterised by the peaceful relations maintained by Muslims towards the persecuting idol worshippers. Nonetheless this is a contested issue. There is argument and counter-argument. In the following, illustrations for both positions are presented. At that time, Muslims were capable of patience, which is its own reward. Moreover, not responding to those who pursued their whims was a political response.121 Moreover, the guidance of the Prophet Muhammad, peace be upon him, during this period was very significant. It was entirely centred on a rigorous spiritual training, patience under hardship and spreading the word in the face of violent opposition and treacherous connivance. The Muslims’ souls rose effortlessly above the squalor of disbelief, oppression and persecution.122 The Muslims’ tolerance in this period was divinely ordained, as was the active response later enjoined upon Muslims at Medina. This was because when Muslims were in Mecca, the disbelievers outnumbered them. If only a handful of them had challenged the rest to a fight, they would easily have been defeated. By the time the people of Yathrib pledged allegiance to the Prophet, their number was only around eighty. They said to the Prophet, “Shall we fall upon those camped in the valley, meaning Mina, and destroy them?” He said, “I have not been told to do this.”123 This argument is countered by the fact that in the battle of Badr, the first battle between Muslims and the idol worshippers, the Muslim army

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was made of 305124 fighters and the disbelieving army was made of 1,000 fighters.125 When we seek to understand the significance of the Muslims’ silence in Mecca, as Sayyid Qutb has pointed out, we try to attribute a divine significance, which Allah may never have made clear to us.126 However, according to all Muslim historical books, such as the writings of Sirat Ibn Hisham, Muslims suffered severe persecution at the hands of the idolworshippers of Mecca, which escalated to the extent that some of them were martyred, yet the Muslims reacted with unprecedented tolerance in order to avoid the spread of hostilities and war.

4.10 Categories of Wala’ and Bara’ Wala’ and Bara’ are based on love and hatred. Love and hatred are classified into three categories: 1. Pure love: It should be expressed as those who believe in Allah and His Messenger Muhammad, fulfil their Islamic obligations while understanding them and believing in them, seek with their actions and words naught but Allah’s pleasure, abide by His commands and refrain from His prohibitions, love for Allah’s sake, hate for Allah’s sake and give priority to Prophet Muhammad’s sayings.127 2. Love and hatred: Muslims who do good deeds and evil deeds are entitled to a level of love and Wala’ matching their good side and, also to a level of hatred and Bara’ matching their negative aspects. When ‘Abdullah Ibn Himar was brought before the Prophet Muhammad, peace be upon him, because of drinking alcohol, a man cursed him and said: “He has been brought many times.” The Prophet, peace be upon him, said: “Curse him not for he loves Allah and His Messenger.”128 Sa’eed Hauwa states that in the case of good and evil, righteousness and lewdness, and obedience and disobedience being harboured by one person, this person is entitled to a level of Wala’ according to the level of his good and is also entitled to a level of Bara’ according to the level of his disobedience. An example of this is a person who steals. He should be subjected to the punishment specified for this crime, yet he/she is entitled to receive an allowance from the Muslim Treasure House.129 According to Al-Baghawi,130 Muslim scholars consensually state that Bara’ should be expressed to the people of Bid’ah (innovations in religious matters).131

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3. Pure hatred: It should be expressed as those who disbelieve in Allah, His angels, His Books, His Messengers, the Day of Resurrection and destiny. It should be expressed as those who deny resurrection after death or any of the five Islamic pillars and those who ascribe partners to Allah.132 In the Qur’an it is stated: “You will not find any people who believe in Allah and the Last Day, having Wala’ with those who oppose Allah and His Messenger, even though they were their fathers, or their sons, or their brothers, or their kindred people. For such He has written Faith in their hearts, and strengthened them with true guidance from Himself. And He will admit them to Paradise under which rivers flow to dwell therein. Allah is pleased with them, and they with Him. They are the Party of Allah. Verily, it is the Party of Allah that will be successful” (Trans. 58:22).133 According to Faysal Maulawi, all types of Wala’ represents a duty incumbent on Muslims towards all Muslims. In the Qur’an it is stated: “And the believers, men and women, are Auliya’ (protecting friends) one of another; they enjoin the right and forbid the wrong, and they establish worship and they pay the poor-due, and they obey Allah and His messenger. As for these, Allah will have mercy on them. Lo! Allah is Mighty, Wise” (Trans. 9:71). In general a Muslim is not supposed to have Wala’ for non-Muslims. In the Qur’an it is stated: “O ye who believe! Choose not disbelievers for (your) Auliya’ (supporters) in place of believers” (Trans. 4:144). Nonetheless, Islamic texts classify certain types of Wala’ for non-Muslims as permissible. The following is the explanation: First, the infinite Wala’: There are a number of Qur’anic verses classifying Wala’ to non-Muslims in general as forbidden. Thus, “O Ye who believe! Choose not for Auliya’ (supporters) such of those who received the Scripture before you, and of the disbelievers, as make a jest and a game of your religion” (Trans. 5:57). Also in the Qur’an it is stated: “O ye who believe! Take not as Auliya’ (supporters) a folk with whom Allah is wrath” (Trans. 60:13). Also In the Qur’an it is stated: “O ye who believe! Take not the Jews and the Christians for Auliya’ (supporters)” (Trans. 5:51). These verses and the likes thereof explicitly indicate that all types of Wala’ between Muslims and non-Muslims, regardless of their faiths, are impermissible. Second, the limited Wala’: There are a number of Qur’anic verses that stipulate two conditions to prohibit Wala’ between Muslims and nonMuslims:

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1. When non-Muslims are fighting against Muslims. In the Qur’an it is stated: “Allah forbiddeth you only regarding those who warred against you on account of religion and have driven you out from your homes and helped to drive you out that ye make ‘Auliya’ (protectors, supporters and allies) of them. Whosoever giveth Wala’ to them í (All) such are wrongdoers” (Trans. 60:09). Also In the Qur’an it is stated: “O ye who believe! Choose not My enemy and your enemy for ‘Auliya’. Do ye give them Mawaddah (love and nearness) when they disbelieve in that truth which hath come unto you, driving out the messenger and you because ye believe in Allah, your Lord? If ye have come forth to strive in My way and seeking My good pleasure (show them not Mawaddah). Do ye show Mawaddah unto them in secret, when I am best aware of what ye hide and what ye proclaim? And whosoever doeth it among you, he verily hath strayed from the right way.” (Trans. 60:01) In these two verses Wala’ refers to support directed not to non-Muslims who have entered into a treaty with Muslims, nor those who maintain peaceful relations with Muslims, but rather to the non-Muslims, who are in a state of war against Muslims. 2. That the Wala’ for non-Muslims is directed against Muslims and not merely to support non-Muslims. In the Qur’an it is stated: “Let not the believers take disbelievers as Auliya’ in preference to believers” (Trans. 3:28). This verse prohibits support from Muslims to non-Muslims against Muslims and not just supporting non-Muslims, but supporting nonMuslims, with regard to what is permissible, is legitimate in Islam and could be recommended, and even categorised as a requirement if it is included in the scope of softening hearts, which is one of the expenses of Zakat, i.e. obligatory charity paid by Muslims. Third, the forbidden Wala’: Some Muslim scholars categorise Wala’ for non-Muslims in general as forbidden. Nevertheless, the majority of Muslim scholars classify it as forbidden only if the two conditions mentioned above are fulfilled.134

4.11 Different Layers of Wala’ According to Al-Qaradawi, human beings have various layers of Wala’: Wala’ to one’s family, Wala’ to one’s village, Wala’ to one’s governorate, Wala’ to one’s region, Wala’ to one’s country, Wala’ to one’s continent, Wala’ to one’s religion, Wala’ to one’s nation and Wala’ to the human family.135 Al-Qaradawi argues that these types of Wala’ are not

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contradictory and they are real in human lives. They are related to each other by means of particularity and generality. However, if Wala’ to a country contradicts Wala’ to Islam, then the latter should be given priority.136 The Prophet Muhammad, peace be upon him, and the Companions migrated from Mecca to Medina for the sake of their religion. Allah made it clear. In the Qur’an it is stated: “Say: If your fathers, and your sons, and your brethren, and your wives, and your tribe, and the wealth ye have acquired, and merchandise for which ye fear that there will be no sale, and dwellings ye desire are dearer to you than Allah and His messenger and striving in His way: then wait till Allah bringeth His command to pass. Allah guideth not wrongdoing folk” (Trans. 9:24). Contradiction among different layers of Wala’ occurs when people exaggerate the requirements and the meaning of nationalism, erecting it as a rival or an alternative to religion. If one can create equilibrium among these layers of Wala’, the occurrence of paradoxes will be very limited.137 This opinion is well-measured and does not impose hardship on Muslims, nor does it place obstacles in the way of coexistence. One can reach a peaceful conclusion if scriptural proofs are not used in a very selective way, but rather interpreted in a harmonious way with the rest of the text. When Muslims enter a non-Muslim country, they hold a visa deemed in Islamic theology to be a contract, the conditions of which both parties entering into it should fulfil. Also, when Muslims acquire citizenship of a non-Muslim country, they take an oath of fidelity. By virtue of the Qur’an, Muslims should abide by the conditions of the two contracts. In the Qur’an it is stated: “O ye who believe! Fulfil your undertakings” (Trans. 5:1). In the case of a contradiction arising between Islamic commitments and national duties of the country to which a Muslim belongs, he/she should exhaust every possible means to match them. If this proves to be impossible, then he/she should give priority to what is more important. If he/she gives priority to his/her religious obligation, he/she should declare it, take responsibility therefore and accept any legal punishment incurred. He/she should make it clear that he/she makes this choice as a result of the contradiction between the national duties and his/her religious convictions. If he/she gives priority to his/her national duties, he/she could be a sinner in the sight of Allah. But also he/she could be forced to do it, so Allah, if He wills, will forgive him.138

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When a Muslim agrees to live in a European country, he/she has committed himself/herself to the duties of citizenship, participation, dealing with people according to effective the law and subjection to the procedures taken by ruling authorities. Muslims have no problem in fulfilling most of these duties. But what can a Muslim do if his/her civil requirements are religiously forbidden? This problematic situation is not a problem exclusively faced by Muslims living in non-Muslim countries. Muslims living in Muslim countries encounter this problem too, since most Muslim countries do not apply Shari’ahh. Rules of Shari’ahh operate in a relative manner in various Muslim countries, sometimes in a way that is no different to non-Muslim countries. For instance, hijab is banned in some non-Muslim countries such as France and likewise it is banned in some Muslim countries such as Tunisia. In France, it is banned in educational institutions but in Tunisia it is banned generally. Civil marriage is the only marriage recognised by the state in some European countries. The same rule is applicable in some Muslim countries. In all these cases, a Muslim is supposed to match his/her religious obligations with his/her civil duties if possible. Ideally he/she can legally get an exemption from those civil duties that contradict his/her religious obligations. But if he/she cannot, then it could be justified by deeming it a necessity. In the Qur’an it is stated: “Allah burdens not a person beyond his scope” (Trans. 2:286). He/she may choose not to fulfil his civil duties violating the law and takes responsibility therefore, if he/she can.139

4.12 Loving Non-Muslims Certain types of Wala’ for non-Muslims who are not fighting against Muslims are legitimate. A Muslim husband’s love for his non-Muslim spouse is legitimate. In the Qur’an it is stated: “And of His sign is this: He created for you spouses from yourselves that ye might find rest in them, and He ordained between you love and mercy. Lo! Herein indeed are portents for folk who reflect” (Trans. 30:21). According to An-Nasafi,140 love and mercy are due requirements for marriage.141 At-Tabari states that Allah placed love and mercy among in-laws.142 Qutb highlights that people understand their feelings towards members of the opposite sex which motivates them to take certain steps. Nevertheless, they hardly remember Allah who created their spouses and places in their hearts these feelings and affection and makes their relations a source of peace and tranquility.143 Ibn Katheer144 states that out of His perfect mercy to the children of Adam, Allah makes their spouses of their race and places among them love and mercy.145 Given that in Islam it is permissible for a Muslim to marry a

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Christian or a Jewish woman, how, then, can love and mercy be prohibited between them? In Ireland there are 500 mixed marriages,146 i.e. Muslim men marrying Christian women. In Islam a family can only be formed on the basis of marriage between two members of the opposite sex united by a solemn covenant, founded on peace, love, harmony and tranquillity. In the Qur’an it is stated: “And of His signs is this: He created for you helpmates from yourselves that ye might find rest in them, and He ordained between you love and mercy. Lo! Herein indeed are portents for folk who reflect” (Trans. 30:21). Had it been true that relations between Muslims and non-Muslims were based on hatred and war, Islam would not have legalised mixed marriages. Muslim children may have a non-Muslim mother. In this regard, in the Qur’an it is stated: “We have enjoined on man kindness to parents; but if they strive to make thee join with Me that of which thou hast no knowledge, then obey them not. Unto Me is your return and I shall tell you what ye used to do” (Trans. 29:8). Moreover, marriage is not just one individual marrying another individual as often portrayed, but rather a family on one side marrying a family on the other side. They become in-laws, uncles and aunts. Islam portrays being kind to kinsfolk as an obligation incumbent upon Muslims and ranks being unkind to kinsfolk as one of the major sins. ‘Aisha, the mother of the believers, may Allah be pleased with her, narrated that the Prophet, peace be upon him, said: “The kinship is holding the Throne saying may Allah be kind to whomever is kind to his kinsfolk and may Allah show no kindness to those who are not kind to their kinsfolk.”147 This is a general rule whether relatives are Muslims or non-Muslims. Kindness is further confirmed when it comes to parents. ‘Asma’ Bin Abu Baker said: “My mother was a disbeliever and she came to visit me. So I asked the Prophet, peace be upon him: ‘Shall I be kind to her?’ The Prophet, peace be upon him, said: ‘Be kind to your mother’”. 148 In the Qur’an it is stated: “Verily you guide not whom you like, but Allah guides whom He wills. And He knows best those who are the guided” (Trans. 28:56). According to Ibn Katheer, this verse was revealed in relation to the Prophet Muhammad, peace be upon him, and his uncle Abu Talib. The Prophet Muhammad, peace be upon him, loved his uncle so much and wished to guide him to Islam. When Abu Talib was dying,

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the Prophet Muhammad, peace be upon him, invited him to Islam many times, but he declined.149 Qutb states that Islamic justice is transparent. In spite of the Prophet’s great love for him, Abu Talib, the Prophet’s uncle, died a disbeliever. His protection to the Prophet Muhammad, peace be upon him, was motivated by his kinship. It was not based on belief. Hence, it was fruitless.150 At-Tabari states that the Prophet, peace be upon him, loved Abu Talib since he was his uncle.151 Abu Talib was not a Muslim, yet the Prophet Muhammad, peace be upon him, practised a certain type of Wala’, i.e. love, with him. In the Qur’an it is stated: “Say: If your fathers, and your sons, and your brethren, and your wives, and your tribe, and the wealth ye have acquired, and merchandise for which ye fear that there will be no sale, and dwellings ye desire are dearer to you than Allah and His messenger and striving in His way: then wait till Allah bringeth His command to pass. Allah guideth not wrongdoing folk” (Trans. 9:24). In this verse Allah does not forbid loving worldly pleasures. Allah does not forbid love based on worldly relations either, as both of them, i.e. love based on worldly relations and love based on religious relations, are classified as innate love. Allah prohibits love based on worldly relations if it becomes dearer than a Muslim’s love of Allah and His messenger.152 The above verse proves the legitimacy of certain types of love between Muslims and nonMuslims. It manifestly stresses the legitimacy of a Muslim’s love for his father, children, siblings, wife and extended family members, even though they may not be Muslims. In the Qur’an it is stated: “And thou wilt find the nearest of them in affection to those who believe (to be) those who say: Lo! We are Christians. That is because there are among them priests and monks, and because they are not proud” (Trans. 5:82). This verse proves clearly that there can be love between Muslims and Christians even though neither worldly nor religious relations unite them. This meaning has been reiterated in another verse. In the Qur’an it is stated: “Allah forbiddeth you not those who warred not against you on account of religion and drove you not out from your homes, that ye should show them kindness and deal justly with them. Lo! Allah loveth the just dealers” (Trans. 60:8).

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Al-Qaradawi stresses that when Muslims live in a non-Muslim country, they establish relations of brotherhood and sisterhood with the indigenous people of the land and all the inhabitants there, regardless of their race and faith. This is what is called citizenship brotherhood.153 AlQaradawi adds that this term might not be warmly welcomed by some scholars as it contradicts literal interpretations. Their argument is that brotherhood can only be established on the basis of faith. They quote the Qur’an: “The believers are naught else than brothers” (Trans. 49:10). The Prophet Muhammad, peace be upon him, said: “A Muslim is a brother of a Muslim.”154 Al-Qaradawi states that he firmly believes in brotherhood based on faith and perceives it as the peak of all relations. It transcends all barriers such as race, colour, etc.155 The Prophet Muhammad, peace be upon him, said: “The similitude of the believers’ love, nearness and mercy to one another are the organs of one body. If one of them complains, the whole body shares the pain with fever and sleeplessness.”156 Nevertheless, there are various types of other brotherhoods such as brotherhood in citizenship, brotherhood in nationalism, brotherhood in humanity, etc. And the Qur’an proves that. In the Qur’an it is stated: “Noah’s folk denied the messengers, when their brother Noah said unto them: Will ye not ward off (evil)? Lo! I am a faithful messenger unto you, so keep your duty to Allah, and obey me. And I ask of you no wage therefore; my wage is the concern only of the Lord of the Worlds. So keep your duty to Allah, and obey me. They said: Shall we put faith in thee, when the lowest (of the people) follow thee?” (Trans. 26:105-111). In this verse the Qur’an describes certain relations between believers and disbelievers as the people of the Prophet Noah. They were disbelievers. They denied Allah and His messenger. In spite of this, the Qur’an establishes worldly relations between them and Allah’s messenger. In another place in the Qur’an it is stated: “(The tribe of) A’ad denied the messengers (of Allah). When their brother Hud said unto them: Will ye not ward off (evil)?” (Trans. 26: 23-124) “The folk of Lot denied the messengers (of Allah), when their brother Lot said unto them: Will ye not ward off (evil)?” (Trans. 26:160-161) The above-mentioned nations belied their prophets, yet the Qur’an establishes relations between each nation and their respective prophet on the basis of brotherhood. This is not discerned in the story of the Prophet Shu’eyb. In the Qur’an it is stated: “The dwellers in the wood (of Midian) denied the messengers (of Allah), When Shu’eyb said unto them: Will ye

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not ward off (evil)?” (Trans. 26:176-177). Shu’eyb was not a dweller of the Wood. Hence, the Qur’an did not call him “their brother” as it did for other prophets. Thus, the Qur’an proves relations of brotherhood between Muslims and non-Muslims. If these types of relationships are approved of by Islam, then their requirements such as love, equality and co-operation, deemed to be essential components of Wala’, are approved of as well. Then there are many layers of Wala’.157 Wala’ includes love in both its linguistic and Islamic definitions. This confirms that certain types of Wala’ for nonMuslims are permissible.

4.13 Muslims’ Support of Non-Muslims as a Manifestation of Wala’ Maulawi states that not only is a Muslim’s support of a non-Muslim permissible, it is an Islamic requirement if it involves enjoining justice and restoring rights í especially when it concerns a non-Muslim who has entered into a security treaty with Muslims such as dhimmi.158 This is supported by the hadith in which the Prophet Muhammad, peace be upon him, said: “Help your brother whether he is wrong or wronged.” The Companions asked: “We know how to help him if he is transgressed upon, but how to help him if he oppresses others?” The Prophet, peace be upon him, said: “By stopping his oppression.”159 This means that a Muslim should support a non-Muslim if another Muslim is wrong.160 This support is a type of Wala’. The Prophet, peace be upon him, entered into treaties with non-Muslims so that they would support one another. The Prophet Muhammad, peace be upon him, entered into a treaty with Jews residing in Medina, as stated in the Code of Medina: “Those Jews who follow the Believers will be helped and will be treated with equality (social, legal and economic equality is promised to all loyal citizens of the State.) The parties to this Pact are bound to help each other in the event of an attack on Yathrib.”161 This was a manifestation of Wala’ practised by the Prophet, peace be upon him, and his Companions, towards non-Muslims. The Prophet, peace be upon him, also entered into a treaty with the tribe of Khuza’ah. According to this treaty both parties supported each other, yet the Khuza’ah worshipped idols.162 Muhammad Rashid Rida163 states that Wala’ í allying and giving support í may occur among members of various faiths for the sake of worldly interests. Hence, it is permissible for Muslims to practise Wala’ with non-Muslims against non-

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Muslims because of mutual interest. This type of Wala’ is not included in the scope of the forbidden Wala’ since it does not meet the stipulated question, i.e. it should be directed against Muslims.164 As previously mentioned, in the Qur’an it is stated: “Allah forbiddeth you not regarding those who warred not against you on account of religion and drove you not out from your homes, that ye should show them kindness and deal justly with them. Lo! Allah loveth the just dealers” (Trans. 60:08). This verse explicitly limits the prohibition of Wala’ to the non-Muslims who are in a state of war against Muslims. This is the last verse revealed in this regard, so it either explains all previously revealed verses pertaining to Wala’ or abrogates them.165

4.14 Paradox or Harmony Muslim scholars who classify Wala’ for non-Muslims as a prohibition, support their argument with scriptural texts. Muslim scholars who classify Wala’ for non-Muslims as permissable, recommended or an obligation, also support their argument with scriptural texts. Maulawi illustrates that general verses are subject to the limits specified in other verses, provided the rule and the reason are the same. The issue of concern is included in this scope. All verses explain the same rule, i.e. the prohibition of Wala’, and the same reason, i.e. disbelief. So the general verses should be subject to the limits specified in other verses. On this basis, one can say the reasons for prohibition are disbelief, war and supporting non-Muslims against Muslims in wars.166 Hence, to classify a Wala’ as a prohibition, these conditions should be fulfilled.

4.15 Bara’ of People or Bara’ of Deeds The enmity between Satan and human beings is based on his attempts to tempt and misguide them. In his attempts, Satan might use all types of temptations, taking advantage of their innate inclinations, desires and lusts. While doing this, he may use people against people, not necessarily disbelievers against believers. Thus, his allies might and might not be disbelievers. Hence, Bara’ should be thought of as Bara’ of deeds and not of people.167 This concept has been stated in the Qur’an in many places. Allah says: “Say: ‘What thing is of most weight in testimony?’ Say: ‘Allah is Witness between you and me. And this Qur’an hath been inspired in me, that I may warn therewith you and whomsoever it may reach. Do ye in sooth bear witness that there are gods beside Allah?’ Say: ‘I bear no such

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witness’. Say: ‘He is only One Allah. Lo! I Barii’ (disassociate myself) of that which ye associate (with Him)”’ (Trans. 6:19).168

4.16 The Islamic Rule Regarding Committing the Forbidden Wala’ Maulawi states that according to all Muslim scholars and schools of Fiqh, Wala’ for non-Muslims warring against Muslims is deemed to be one of the major sins. Like other sins, if perpetrated and perceived as permissible, it leads to apostasy, whereas if committed because of fear, misinterpretation or any other reason, or committed and perceived as a shortcoming, it would be a sin resulting in decreasing the faith, yet it does not lead to apostasy.169

4.17 Deliberation Muslim scholars when classifying Wala’ for non-Muslims as prohibited and committing it as an act of apostasy, support their argument with two Qur’anic verses: First: “O ye who believe! Take not the Jews and the Christians for ‘Auliya’ (allies). They are allies one to another. He among you who taketh them for ‘Auliya’ (allies) is (one) of them” (Trans. 5:51).

Muhammad Rashid Rida states that this verse was generally revealed in relation to the Jewish tribes residing in Medina at the time of the Prophet Muhammad, peace be upon him. At the time of the migration to Medina, the Prophet Muhammad, peace be upon him, entered into treaties with Banu Quraidhah, Banu An-Nadeer and Banu Qainuqa’, all three of which were Jewish tribes residing in Medina at the time. After the battle of Badr, Banu Qainuqa’ broke the treaty and fought against Muslims. Six months after the battle of Badr, Banu An-Nadeer broke the treaty and plotted to kill the Prophet Muhammad, peace be upon him. Banu Quraidhah broke the treaty with the Prophet, peace be upon him, when they betrayed him during the battle of the Trench. Muslims fought against these three Jewish tribes and achieved victory.170 This verse in particular was revealed because when Banu Qainuqa’ fought against Muslims ‘Abdullah Ibn Salul defended them, whereas ‘Ubadah Ibn As-Samit disassociated himself from them and expressed his Wala’ to Muslims.171

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Ibn Jareer narrated that this verse was revealed regarding some Muslim hypocrites who, out of fear after the battle of ‘Uhud, joined some Jews to embrace Judaism, and some Muslim hypocrites who, out of fear, joined some Christians to embrace Christianity.172 Muhammad Rashid Rida illustrated that all the above-mentioned narrations confirm that Wala’ to Christians and Jews is prohibited if they are in a state of war against the Prophet Muhammad, peace be upon him, and Muslims and it is wrong. The Prophet Muhammad, peace be upon him, only fought against those who declared war against him.173 According to At-Tabari, it is forbidden for Muslims to have Wala’ for Jews and Christians when it is directed against Muslims. This verse was revealed in relation to a hypocrite who, out of fear, had Wala’ for Christians and Jews. The following verse attests to this interpretation. In the Qur’an it is stated: “And thou see those in whose hearts there is a disease (of hypocrisy), they hurry to them, saying: ‘We fear lest some misfortune of a disaster may befall us.’ Perhaps Allah may bring a victory or a decision according to His Will. Then they will become regretful for what they have been keeping as a secret in themselves’” (Trans. 5:52).174 According to Al-Alusi,175 this verse was revealed in relation to two Muslims. After the battle of Badr, out of fear one of them said: “I know a Jewish person. I will go to him requesting security and in return I will embrace Judaism.” The latter said: “I know a Christian who lives in Greater Syria. I will go to him and request security.” It was also revealed in relation to ‘Ubadah Ibn As-Samit, who disassociated himself from Jews and gave Wala’ to the Prophet Muhammad, peace be upon him. It was also reported in relation to ‘Abdullah Ibn ‘Ubai, who said: “I’m afraid of the future, so I will not disassociate myself from Jews.”176 In this deliberation, one can clearly perceive the context of the verse quoted above. If this context is overlooked, the conclusion will not be accurate. Second: “Let not the believers take disbelievers for their ‘Auliya’ (allies and supporters) in preference to believers. Whoso doeth that hath no connection with Allah unless (it be) that ye but guard yourselves against them, taking (as if it were) security”. (Trans. 3:28)

According to Muhammad ‘Abdu,177 this verse was revealed in relation to Hatib Ibn Balta’ah. During the lifetime of the Prophet Muhammad,

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peace be upon him, Hatib Ibn Balta’ah sent a message to the idol worshippers of Mecca informing them of the Muslim army’s march towards Mecca. Hatib explained that he sent the message since he had no blood relations in the Quraish. So the people of the Quraish would owe him a favour and in return they would grant protection to his relatives residing in Mecca. Hatib said: “Neither did I do it as an act of apostasy nor as an act of acceptance of disbelief after Islam.” The Prophet, peace be upon him, said: “He told you the truth.” The Prophet, peace be upon him, did not allow ‘Umar to kill Hatib.178 According to Muhammad Rashid Rida, Muslims who have no Islamic knowledge and interpret the Qur’an according to their desires, claim that this verse and those like it, indicate that it is forbidden for Muslims to be allies of non-Muslims, even if it serves Muslims’ interests.179 He adds, though, that they miss the fact that the Prophet Muhammad, peace be upon him, entered into alliance with the Khuza’ah and they were idol worshippers. Some fanatic Muslims, out of ignorance, state that it is forbidden for Muslims to treat non-Muslims kindly or to trust them.180 Rashid argues that this misunderstanding profoundly impacted on Muslims in Afghanistan. The Afghanis turned against their leader. They accused him of apostasy and ousted him, since he mixed with British nonMuslims, shared food with them and imitated their clothing style.181 Rashid stresses that the above-mentioned verse prohibits Muslims from having Wala’ with non-Muslims if it serves their interests against Muslims. Hence, the forbidden Wala’ is the Wala’ that harms Muslims or Islam. The Prophet, peace be upon him, was kind to idol worshippers when he conquered Mecca.182 At-Tabari also states that this verse clearly prohibits Muslims from having Wala’ with non-Muslims only of it is practised against Muslims.183 According to Ibn Al-Qayyim, there are four narrations of the reasons for revealing this verse: First: ‘Ubadah Ibn As-Samit had Jewish allies. On the day of the battle of the Trench he said: “O Messenger of Allah! I have 500 Jewish allies. Shall I seek their support against our enemy?” Second: It was revealed in relation to ‘Abullah Ibn ‘Ubai and his hypocrite friends. They had Jewish allies and they hoped to get victory over Muslims.

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Third: It was revealed in relation to a number of Muslims having secret relations with non-Muslims. Fourth: It was revealed in relation to Hatib Ibn Balta’ah and few other Muslims who had relations with idol worshippers of Mecca.184 On the basis of the above-mentioned deliberation, one can vividly perceive the context of the above-mentioned verse. If this context is overlooked, the conclusion will not be accurate. The same opinion is expressed by a number of scholars such as Salah Sultan.185 They do not perceive all types of Wala’ towards non-Muslims as prohibited. They argue that Wala’ for non-Muslims is prohibited if it involves loving nonMuslims, hating Muslims, obeying non-Muslims against Islamic law and supporting non-Muslims against Muslims.186 The above three conditions are stated in the Qur’an: “Have you not observed the hypocrites who say to their Auliya’ among the people of the Scripture who disbelieve: ‘If you are expelled, we indeed will go out with you, and we shall never obey any one against you; and if you are attacked (in fight), we shall indeed help you.’ But Allah is Witness that they verily are liars” (Trans. 59:11). Some scholars, such as Ali Ibn Abu Talib, Ahmad Ibn Hanbal and ‘Abdallh Ibn Ahmad, take a more serious step. They describe the terms Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ as non-Islamic terms and Bid’ah (innovation).187 Ben Baiyah states that it is really strange to see some Muslims exhausting every possible means to follow the Prophet Muhammad’s Sunnah and shun Bid’ah, yet, rather than understanding Qur’anic verses and Ahadith according to their context and in light of other verses that encourage co-operation with people for a greater good, they invent a term (Wala’ and Bara’) that early Muslim predecessors warned against.188 It is worth mentioning here that radical views were formed in the time when Muslims were fighting against others. But moderate views have been reached on a scriptural basis by early and contemporary scholars in a time of peace. The radical views have excluded many parts of the text and overlooked the context of certain parts of the text and applied them to support their argument. For instance, in the Qur’an it is stated: “And thou wilt find the nearest of them in affection to those who believe (to be) those who say: Lo! We are Christians. That is because there are among them priests and monks, and because they are not proud” (Trans. 5:82). This

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verse proves clearly that there can be love between Muslims and Christians even though neither worldly nor religious relations unite them. This meaning is reiterated in another verse. In the Qur’an it is stated: “Allah forbiddeth you, not those who warred not against you on account of religion and drove you not out from your homes, that ye should show them kindness and deal justly with them. Lo! Allah loveth the just dealers” (Trans. 60:8). Selecting verses and Ahadith and ignoring their context leads to applying very exclusive terms and this is a serious mistake, since it means excluding parts of the text.189 In light of this understanding, the Muslim community is integrating positively in Ireland. A great percentage of the Muslim community in Ireland is represented by immigrants.190 The Muslim community in Ireland represents a particular religious and ethnic minority in Irish society. Within the last few decades, it has become the fastest growing religious minority within the country which makes a considerable contribution in social, economic, ecumenical and inter-religious dialogue. The Muslim community in Ireland is employed in a wide range of professions such as medical doctors (estimated to be 5,000), businessmen, mainly involved in ethnic restaurants, the meat industry and Halal food.191 Islam is categorically described as a way of life. Hence approval by Muslims of a matter and disapproval of another should have scriptural foundations. Consequently, when Muslims were exposed to the issue of integration in Ireland, a thirst arose for scriptural support. Due to the fact that the Islamic scriptures elaborate on issues of a social nature and that Muslim history is teeming with social issues, such a thirst was quenched easily. In the Qur’an it is stated: “O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise each other). Verily the most honoured of you in the sight of Allah is (he who is) the most righteous of you. And Allah has full knowledge and is well acquainted (with all)” (Trans. 49:13). This verse forms one of the major cornerstones of Muslim integration. It vividly crystallises the fact that people come from one and the same source. Nevertheless, they have been made into tribes and nations. “That you may know each other” does not mean the mere knowledge of names and origins, but rather the positive integration that turns the individuals of one society into one congregation, crumbling all racial phenotypical traits

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in order to create an atmosphere, whereby, through diversity of origins, enrichment with an inclusive capacity that comprehends all individuals and groups with a unique understanding, can come into existence. When the spectrum of integration is enlarged to the extent that it almost touched every aspect of a Muslim’s life, there was a dire need for a European Muslim association, formed of Muslim scholars who were aware of the European reality. To meet this need, in 1997, the European Council for Fatwa and Research was founded consisting of thirty-five Muslim scholars who work to deliver Fatawa and give Islamic guidance in some of the prominent Islamic centres throughout Europe, along with a number of scholars who live in the Islamic world.192 This council has become an Islamic authority. Among its objectives, the council aims to facilitate a Muslim’s life in Europe, encouraging positive integration at all levels in light of the Islamic Holy Scripture. The forming of this council and this Muslim integration are practical interpretations of a sound understanding of Wala’ and Bara’.

4.18 Conclusion There appears to be an argument that supports coexistence for those scholars who suggest that Wala’ and Bara’ be included in Fatawa, yet it should be perceived in today’s context. In light of the arguments and counter-arguments, as detailed above, important questions emerge. Can Muslims have Wala’ for a non-Muslim country or should he/she declare Bara’ towards it? What are the Islamic doctrines of civic loyalty? It is on such questions that the next chapter focuses.

Notes 1 Ibn Mandhur, Lisan Al-Arab, third edition (Egypt: Dar-ul-Fikr, 1990), v. 15, p. 411. 2 Ibid., pp. 406í7. 3 Al-Fairuzabadi, Al-Qamus Al-Muheet, eighth edition (Beirut: Muassast AlRisalah, 2005), p. 1344. 4 Ibn Mandhur, Lisan Al-Arab, third edition (Egypt: Dar-ul-Fikr, 1990), v. 15, p. 409. 5 Ibid., p. 409; Al-Fairuzabadi, Al-Qamus Al-Muheet, eighth edition (Beirut: Muassast Al-Risalah, 2005), p. 1344. 6 Al-Tirmizi, Sunan Al-Tirmizi (Egypt: Mustafa Al-Halabi Press, 1975), v. 1, p. 633.

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Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 25. 8 Imam Ahmad, Musnad (Beirut: Muassasat Al-Risalah, 2005), v.4, p. 281. 9 Ibn Mandhur, Lisan Al-Arab, third edition (Egypt: Dar-ul-Fikr, 1994), v. 15, p. 410. 10 Ibid., p. 411. 11 Ibid., p. 410. 12 Muhammad Ar-Razi, Mukhtar As-Sihah (Egypt: Dar-ul-Ma’arif, 1973), p. 736. 13 Abu Dauud, Sunan Abu Dauud (Beirut: Al-Maktabah Al-‘Asriyah, n. d.), v. 3, p. 349. 14 Muhammad Ar-Razi, Mukhtar As-Sihah (Egypt: Dar-ul-Ma’arif, 1973), p. 736. 15 Ibid. 16 Ibid. 17 Ibn Mandhur, Lisan Al-Arab, third edition (Egypt: Dar-ul-Fikr, 1990), v. 1, p. 31. 18 Al-Fairuzabadi, Al-Qamus Al-Muheet, eighth edition (Beirut: Muassast-urRisalah, 2005), p. 34. 19 Ibn Mandhur, Lisan Al-Arab, third edition (Egypt: Dar-ul-Fikr, 1990), v. 1, p. 31. 20 Ibid., p. 33. 21 Ibid. 22 Ibid. 23 Ibid. 24 Al-Fairuzabadi, Al-Qamus Al-Muheet, eighth edition (Beirut: Muassast-urRisalah, 2005), p. 34. 25 Ibn Mandhur, Lisan Al-Arab, third edition (Egypt: Dar-ul-Fikr, 1990), v. 1, p. 31. 26 Ibnul Athir, An-Nihaaya fi Ghareebi al-Hadith, first edition (Beirut: Dar Ihya’ Al-Kutub Al-Arabiya, 1383 HJ), v. 1, p. 112. 27 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 91. 28 Naim Yasin, Kitab Al-Iman (Alexandria, Egypt: Dar ‘Umar Ibn Al-Khattab, n. d.), p. 3. 29 Fasal Mawlawi, Al-Muslim Muwatinan Fee ‘Uruba (Beirut: Beirut Press, 2008), pp. 19í21. 30 Ibid. 31 Naim Yasin, Kitab Al-Iman (Alexandria, Egypt: Dar ‘Umar Ibn Al-Khattab, n. d.), p. 145. 32 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 92. 33 Ibid. 34 Imam Tirmithi, Kitab At-Tirmithi, Hadith No. 1604. 35 Abdur-Raham Ibn Hassan, Fath Al-Majeed (Riyadh: Ansar Al-Sunah Press, 1377 HJ), p. 36. 36 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p., 1422 HJ), v. 1, p. 38.

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Ibn Taymiyah, Majmou’ Fatawa Sheikh Al-Islam (Rabat: Maktabat Al-Ma’arif, 1980), v. 28, p. 32. 38 Hafidh Ahmad Ali Ahmad Al-Hukmi, born in 1342 HJ, was a shepherd. He was renowned for his intelligence and remarkable memory. He learnt the whole Qur’an by heart before he was twelve years old. He is estimated to have written fifteen books. His publications include Sulam Alwusul, which is a book on Islamic beliefs written in poetic form and made up of 270 verses. He wrote this book when he was nineteen years old. He also wrote Al-Lu’lua’ Al-Maknuna Fi Ahwal Al-Mutun Wasl Sunan in poetic form made up of 340 verses. Other examples of his books are AlJauharah Al-Faridah Fi Tauheed Al-‘Aqidah, Lamiyat Al-Mansukh and Dalil Arbab Al-Falah Litahqiq Fan Al-Islah. In 1363 HJ he was appointed as a principal in Samtah School and a general supervisor for neighbouring schools. In 1373 he was appointed as a principal for a secondary school in Saudi Arabia. He passed away in Mecca in 1377 at age of thirty-five. 39 Hafiz Al-Hakmi, Ma’arij Al-Qabul (Riyadh: Administration of the Scientific Researches, n. d.), v. 1, p. 377. 40 A Tabi’i (lived with Muhammad’s Companions) and was the judge in San’aa. 41 Al-Bukhari, Sahih Al-Bukhari, Tauq Al-Najah (n. p.: 1422 HJ); Appendix to Kitab Al-Jana’z, Bab Man Kan Akhir Kalamuhu La Ilaha Illa Allah, v. 3, p. 109. 42 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), pp. 31í41. 43 Muslim, Sahih Muslim (Beirut: Dar Ihya’ Al-Turath Al-‘Arabi, n. d.), v. 1, p. 55. 44 Ibid., v. 1, p. 56. 45 Abdur-Raham Ibn Hassan, Fath Al-Majeed (Riyadh: Ansar As-Sunah Press, 1377 HJ), p. 36. 46 Al-Nawawi, Al-Arba’un An-Nawawiyah (Qatar: Qatar Press, 1937), p. 134. 47 Ibn Katkir, Tafseer Al-Qur’an Al-‘Adheem (Beirut: Dar Al-Kutub Al-‘Ilmiya, 1419 HJ), v. 2, p. 306. 48 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah, n. p., 1422 HJ), v. 1, p. 226. 49 Ibn Al-Qiyym Al-Jauzi, At-Tybian Fi Aqsam Al-Qur’an (Beirut: Dar AlMa’rifah), n.d., p. 43. 50 Abdur-Rahman Ibn Rajab, Kalimat-ul-Ikhlas (Riyadh: Al-Maktabulislami, 1397 HJ), p. 28. 51 Muslim, Sahih Muslim (Beirut: Dar Ihya’ Al-Turath Al-‘Arabi, n. d.), v. 1, p. 456. 52 Al-Fudail Ibn ‘Iyad was born in Samarkand in 107 HJ and died in 178 HJ. 53 Ibn Taymiya, Iqtida As-Sirat Al-Mustaqeem Mukhalafat Ashab Al-Jaheem (Riyadh: Ansar Assunnah, 1369 HJ), p. 451. 54 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 39. 55 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p.), v. 1, p. 60; Muslim, Sahih Muslim (Beirut: Dar Ihya’ Al-Turath Al-‘Arabi, n. d.), v. 1, p. 66. 56 Muslim scholar from Tuhamah, taught by Al-Qurqa’I, born 10 1342 HJ and died in 1377 HJ at the age of thirty-fivr.

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Hafidh Al-Hukmi, Ma’arij Al-Qabul (Riyadh: Idart Al-Buhuth Al-‘Ilmiyah, 1377 HJ), v. 1, p. 383. 58 Dr Muhammad Sa’eed Al-Qahtani received his PhD in 1984 from Um Al-Qura University. He worked as an Imam in Abu Bakr’s Mosque and Al-Furqan Mosque. Both mosques are in Saudi Arabia. His publications include A Commentary on AlSunnah by Abdullah Ibn Ahmad, A Commentary on Sharh Al-Sunnah by AlBarbahani and A Commentary on Tazkiyat Al-Nafs by Ibn Taimiyya. 59 Al-Qahtani, Al-Wala’ Wa’l-Bara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 25. 60 Ibn Rajab al-Hanbali, Jami’ al-Ulum wal Hikam, third edition (Egypt: Mustafa Al-Halabi, 1382 HJ), p. 30. 61 Jaber Ibn ‘Abdullah was one of the Prophet Muhammad’s Companions. He is one of the famous narrators of Ahadith. 62 Abdurrahman Ibn Sa’di, Al-Fatawa Al-Sa'diya, first edition (Damascus: Dar-ulHaiah, 1388 HJ), v. 1, p. 98. 63 Imam Ahmad, Musnad Al-Imam Ahmad, v. 4, p. 357. 64 Abu Bakr Abdullah ibn Muhammad ibn Shaybah At-Tabarani, Al-Mu’jam AlKabir (Cairo: Ibn Taymiya Press, 1994), v. 10, p. 171. 65 Taqi Al-Deen Ahmad Ibn Taymiyya was born in Harran, Turkey, in 1263 and died in 1328. He was a Hanbali jurist and logician. He was given the title Sheikhul-Islam because of his deep Islamic knowledge. He came from a family known for authoritative Islamic knowledge. He died in prison in 1328. He was famous for his revolutionary views, such as giving undue religious honor to Muslim shrines. He is estimated to have published 850 works, such as Majmu’ Al-Fatawa, Ninhaj AlSunnah Al-Nabawiya and Al-‘Aqidah Al-Wasatiyia. 66 Ibn Taymiya, At-Tuhfah Al-'Iraqiya (Cairo: Al-Matba’a As-Salafiya, 1399 HJ), p. 76. 67 Al-Hasan Al-Basri was born in Medina in 21 HJ and died in Basra 110 HJ. He was a son of a freed woman and a freed man. He was brought up in Um Salama’s house (the Prophet Muhammad’s wife) and he was taught Islam by a number of the Prophet’s Companions such as Ali Ibn Abi Talib and Abu Musa Al-Ash’ari. He is known for his sermons in which he warned Muslims against sins. Imam Hasan alBasri was a major religious figure of the Umayyad period. He produced writings and delivered sermons that were extremely influential in all areas of Islamic piety. He was critical of the Umayyad rulers. 68 Ibn Katheer, Tafseer Al-Qur’an Al-'Azeem (Cairo: Dar-ul-Hadith, 2005), v. 2, p. 35. 69 Ibid., pp. 35í6. 70 Ibid., p. 36. 71 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Rayidh: Dar Taibah, 1402 HJ), p. 113. 72 Ibid., p. 114. 73 Ibn Al-Qaiym, Hidaiat Al-Hayara (Medina: Al-Jami’a Al-Islamiya Press), p. 7. 74 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 116.

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Ibid. Ibid., p. 118. 77 Muhammad Ibn ‘Abdelwahhab was born in ‘Uyayna in 1703. He came from a line of scholars of the Hanbali School. His publications include Al-Qawa’d Al‘Arabiya, The Six Fundamental Principles and ‘Usul Al-Iman. 78 Muhammad Ibn ‘Abdelwahhab, Majmu’at At-Tawheed (Cairo: Dar-ul-Fikr, 1978), p. 19. 79 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), pp. 125í8. 80 Ibn Taymiyya, Majmu’ Al-Fatawa (Cairo: Matba’at Al-Manar, 1349 HJ), v. 28, p. 57. 81 Ibn Al-Qaiyym, Madarj As-Salikeem (Riyadh: Ansar-us-Sunnah, 1357 HJ), v. 1, p. 53. 82 Ibn Taymiyya, Majmu’ Al-Fatawa (Riyadh: Maktabat Al-Ma’arif, 1980), v. 28, pp. 208í9. 83 Sa’eed Hauwa was born in Syria in 1935. He died in Amman in 1989. He joined the faculty of Shari’ahh in Damascus in 1956. In 1966 he travelled to Saudi Arabia where he taught Arabic and Islam for four years. His publications include Kitab AlRasul, Kitab Al-Islam and Al-Mustakhlas Fi Tazkiyat Al-Anfus. 84 Sa’eed Hauwa, Al-Asas Fi At-Tafseer (Cairo: Dar-us-Salam, 1985), v. 3, p. 1421. 85 Ibn Taymiyya, Majmu’ Al-Fatawa (Cairo: Matba’at Al-Manar, 1349 HJ), v. 28, pp. 108í201. 86 Sayyid Qutb, Fe Dhilal AL-Qur’an (Beirut: Dar Al-Shuruq, 1999), v. 4, p. 1887. 87 Abdul-Latif Ibn Abdur-Rahman Aal Ash-Shaikh, Ar-Rasail Al-Mufidah (Cairo: Dar-ul-Ilum, 1398 HJ), p. 43. 88 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), pp. 233í49. 89 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p., 1422 HJ), v. 1, p. 6. 90 Muhammad Ibn Abdelwahhab, Majmu’at At-Tawheed (Cairo: Dar-ul-Fikr, 1978), p. 129. 91 Muhammad Ibn Jareer Al-Tabari, born in a village called Amol in the province of Tabaristan in 839 and died in Baghdad in 923, was a Muslim historian and religious scholar. He had a remarkable memory. He learnt the Qur’an by heart when he was seven years old. He studied in Amol, Baghdad, Kufa and Basra. He is renowned for his commentary on the Qur’an. His publications include Tarikh AlTabari. 92 At-Tabari, Tafseer At-Tabari (Beirut: Muassasat Al-Risalah, 2000), v. 3, p. 228. 93 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ, p. 239. 94 Ibid. 95 Ibid. 96 Ibn Taymiya, Al-Iman (n. p., Al-Maktab Al-Islami, 1392), p. 13. 97 Al-Qurtubi, Tafseer Al-Qurtubi (Cairo: Dar Al-Fikr, 1995), v. 9, p. 108. 76

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Muhammad Ibn Abdelwahhab, Majmu’at At-Tawheed (Cairo: Dar-ul-Fikr, 1978), p. 117. 99 Ibn Katheer, Tafseer Al-Qur’an Al-‘Adheem (Saudi Arabia: Taybah Press, Saudi 1999), v. 2, p. 106. 100 Ibid. 101 Ibid. 102 At-Tabari, Tafseer At-Tabari, v. 5, p. 330. 103 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), pp. 2245í6. 104 Muhammad Ibn Abdelwahhab, Majmu’at At-Tawheed (Cairo: Dar-ul-Fikr, 1978), p. 117. 105 Ibn Katheer, Tafseer Al-Qur’an Al-‘Adheem, v. 6, p. 210. 106 Muhammad Ibn Abdelwahhab, Majmu’at At-Tawheed (Cairo: Dar-ul-Fikr, 1978), p. 117. 107 Mahmoud At-Tuwaijari, Tuhfat Al-Ikhwan Bima Ja’a fe Al-Muwalah WaMu’adah Walhijran (Riyadh: Muassasatinnur, 1383 HJ), p19. 108 Abdul-Latif Ibn Abdul-r-Rahman Al-Ashaikh, Ar-Rasael Al-Mufeedah (Cairo: Dar-ul-‘Ulum, 1398 HJ), p. 64. 109 Muhammad Na’im Yaseen, Al-Iman Haqiqatuh Arkanuh Nawaqiduh (Jordan: Jam’iyat ‘Ummal Al-Matabi’, 1398 HJ), p. 147. 110 Muhammad Kadhm Habib, Ar-Ridah Ben Al-Ams Walyaum (Lahore, Pakistan: Al-Maktabah Al-‘Ilmiyah, 1398 HJ), p. 33. 111 Ibid., p. 40. 112 Saleh Ibn Fauzan Ibn Abdullah, born in Saudi Arabia in 1933, is a famous Saudi Muslim scholar. He received his undergraduate and postgraduate degrees from the faculty of Shari’ahh, Islamic University in Saudi Arabia. He worked as a lecturer in the same place and then he became the head of the Supreme Court of Justice in Saudi Arabia. Currently he is a member in the Permanent Committee for Fatwa and Research in Saudi Arabia. He is also a member of the Council for Religious Edicts and Research. He is also the Imam in Prince Mitaeb Mosque in Riyadh. 113 http://d1.islamhouse.com/data/ar/ih_books/single/ar_3556.pdf. 114 Ibn Taymyia, Risalat Al-‘Ubudiah (Beirut: Al-Maktab Al-Islami, 2005), pp. 95í6. 115 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 234. 116 Ibn Taymyia, As-Sarim Al-Maslul ‘Ala Shata’im Ar-Rasul (Saudi Arabia: AlHaras Al-Watani, 1379 HJ), p. 371. 117 Al-Qahtani, Al-Wala’ Walbara’ Fe ‘Aqidatis-Salaf (Riyadh: Dar Taibah, 1402 HJ), p. 95. 118 Muslim, Sahih Muslim (Beirut: Dar Ihya’ Al-Turath Al-‘Arabi, n. d.), v. 4, p. 206. 119 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah, n. p., 1422 HJ), v. 3, p. 62. 120 Muslims’ migration from Mecca to Medina that occurred in 13 HJ.

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Ahmad Mahmud al-Ahmad, Alaqat al-Ummah al-Muslima bi alUmam alUkhra’, pp. 8í9. 122 Muhammad Amin al-Misri, Sabeel ad-Da'wah al-Islamiyya, pp. 111í13. 123 Ibn Kathir, Tafseer Ibn Kathir, v. 5, p. 431; the hadith is reported in Ahmad, Musnad Ahmad, v. 3, p. 462. 124 Al-Waqidi, Al-Maghazi (Beirut: Dar Al-A’lami, 1989), v. 1, p. 23. 125 Al-Buti, Fiqh Al-Sirah (Damascus: Dar Al-Fikr, 2009), p. 185. 126 Qutb, Fi Dhilal al-Qur’an (Beirut: Dar Al-Suruq, 1979), v. 2, p. 714. 127 Ibn Samhan, Irshad At-Talib (Cairo: Al-Manar, 1340 HJ), p. 13. 128 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p., 1422 HJ), v. 12, p. 75. 129 Ibid., v. 28, p. 209. 130 Abu Muhammad Al-Hussein Ibn Masoud Ibn Muhammad Al-Farra AlBaghawi was born in 433 HJ and died in 516 HJ. He was a renowned Persian Muslim scholar best known for his book Tafsir Al-Baghawi. His works include AlAnwar Fi Shama’il Al-Nabi Al-Mukhtar, Al-Jam’u Bain Al-Sahihain and AlTahdheeb Fi Fiqh Al-Imam Ash-Shafi’i. 131 Al-Baghawi, Sharh As-Sunnah (Beirut: Al-Maktab Al-Islami, Ihya’ Al-Turath Al-‘Arabi, 1391 HJ), v. 1, p. 227. 132 Ibn Samhan, Irshad At-Talib (Cairo: Al-Manar, 1340 HJ), p.19. 133 Also in another place in the Qur’an it is stated: “O you who believe! Take not for Auliya’ (supporters and helpers) your fathers and your brothers if they prefer disbelief to Belief. And whoever of you does so, then he is one of the wrong-doers. Say: If your fathers, your sons, your brothers, your wives, your kindred, the wealth that you have gained, the commerce in which you fear a decline, and the dwellings in which you delight are dearer to you than Allah and His Messenger, and striving hard and fighting in His Cause, then wait until Allah brings about His Decision (torment). And Allah guides not the people who are disobedient to Allah” (Trans. 9:23-24). 134 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beiru: Beirut Press, 2008), pp. 22í3. 135 Al-Qaradawi, Al-Watan Wa-l-Muwatanah fe Dau’ Al-Usul Al-Aqaidiya Walmaqasid Al-Shar’iya (Beirut: Beirut Press, 2008), p. 53. 136 Ibid., p. 53. 137 Ibid., p. 56. 138 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), pp. 66í7. 139 Ibid., pp. 69í70. 140 Abu al-Barakat, Abdullah Ibn Ahmad Ibn Mahmud An-Nasafi is known as ‘hafiz al-deen’. He was born in the village of ‘Nasaf’ from the area known as Saghd. He died in 710 HJ. He was a famous author and great Hanafi jurist. AnNasafi studied under the prominent scholars of his era, such as Muhammad bin Abd al-Sattar Karwari, known as the sun amongst the scholars. His publications include Sharh Al-Fiqh Al-Nafi', I'timad Al-I'tiqad, his commentary on Al-Umdah, Fadha'il Al-A'mal and Tafseer Madarik al-Tanzeel. 141 Sa’id Hauwa, Al-Asas Fi At-Tafseer (Cairo: Dar-us-Salam, 1985), v. 8, p. 4266.

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At-Tabari, Tafseer At-Tabari (Beirut: Muassasat Ar-Risalah, 2002), v. 6, p. 98. Saiyd Qutb, Fi Dhilal Al-Qur’an (Cairo: Dar Ash-Shuruq, 2005), v. 5, p. 2763. 144 Abu Al-Fida, 'Imad Ad-Din, Isma'il Ibn 'Umar bin Kathir, Al-Qurashi, AlBusrawi, born in 1301 in Busra in Syria and died in Damascus in 1373, was a Muslim jurist, historian and commentator. He was taught by great Muslim scholars such as Ibn Taymiyya. His publications include Tafseer Ibn Katheer, Qasas AlQur’an and Al-Bidaiah Wan-Nihaiah. 145 Ibn Katheer, Tafseer Al-Qur’an Al-‘Adheem (Cairo: Dar Al-Hadeeth, 2005), v. 6, p. 326. 146 Islamireland.ie (2 October 2010). 147 Muslim, Sahih Muslim (Beirut: Dar Ihya’ Al-Turath Al-‘Arabi, n. d.), v. 4, p. 1981. 148 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p., 1422 HJ), v. 3, p. 164. 149 Ibid., v. 6, p. 260. 150 Saiyd Qutb, Fi Dhilal Al-Qur’an (Cairo: Dar Ash-Shuruq, 2005), v. 5, p. 2702. 151 At-Tabari, Tafseer At-Tabari (Beirut: Muassasat Ar-Risalah, 2002), v. 6, p. 36. 152 Muhammad Rashid Rida, Tafseer Al-Manar (Beirut: Dar Al-Ma’arif, 1973), v. 10, p. 29. 153 Yusuf Al-Qaradawi, Al-Watan Wa-l-Muwatana fi Daw’ Al-‘Usul Al-‘Aqadiya wa-l-Maqasid Al-Shar’iya (Beirut: Beirut Press, 2008), p. 50. 154 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p., 1422 HJ), v. 3, p. 128. 155 Yusuf Al-Qaradawi, Al-Watan Wa-l-Muwatana fi Daw’ Al-‘Usul Al-‘Aqadiya wa-l-Maqasid Al-Shar’iya (Beirut: Beirut Press, 2008), p. 50. 156 Muslim, Sahih Muslim (Beirut: Dar Ihya’ Al-Turath Al-‘Arabi, n.d.), v. 4, p. 1999. 157 Yusuf Al-Qaradawi, Al-Watan Wa-l-Muwatana fi Daw’ Al-‘Usul Al-‘Aqadiya wa-l-Maqasid Al-Shar’iya (Beirut: Beirut Press, 2008), p. 52. 158 A non-Muslim living in a Muslim land. 159 Al-Bukhari, Sahih Al-Bukhari (Tauq Al-Najah: n. p., 1422 HJ), v. 3, p. 128. 160 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), pp. 24í5. 161 Muhammad Hameed Allah, Majmu’at Al-Watha’iq Al-Sitasiya (Beirut: Muassasit Al-Risalah, n. d.), p. 38. 162 Ibn Hisham, Sirat Ibn Hisham (Egypt: Mustafa Al-Halabi Press, 1955), v. 2, p. 102. 163 Muhammad Rashid Rida, born in Syria in 1865 and died in Egypt in 1935, was one of the most influential scholars of his time. He was also a prominent student of Muhammad Abdu. In 1897 he moved to Egypt where he, in co-operation with Muhammad Abdu, launched a monthly journal called Al-Manar where he worked until he died. He was very critical of certain Muslims’ weak points such as the stagnation of Muslim scholars in his time. He was a Muslim reformist. His publications include Tafseer Al-Manar. 164 Muhammad Rashid Rida, Tafseer Al-Manar (Damascus: Dar Al-Ma’arif, 1979), v. 6, p. 430. 143

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Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), p. 25. 166 Ibid., p. 26. 167 Ben Baiyah, Al-Wala’ Bin Al-Din wa Bina Al-Muwatanah (Beirut: Beirut Press, 2008), p. 104. 168 “And when he saw the sun uprising, he cried: This is my Lord! This is greater! And when it set he exclaimed: O my people! Lo! I Barii’ (disassociate myself) of all that ye associate (with Him)” (Trans. 6:78). Also, “And if they deny thee, say: Unto me my work, and unto you your work. Ye are Barii’ (disassociated) of what I do, and I am Barii’ (disassociated) of what ye do” (Trans. 10:41). Also, “And if they (thy kinsfolk) disobey thee, say: Lo! I am Barii’ (disassociated) of what they do” (Trans. 26:216). 169 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), p. 26. 170 Muhammad Rashid Rida, Tafseer Al-Manar (Damascus: Dar Al-Ma’arif, 1979), v. 6, p. 242. 171 Ibid. 172 Ibid., v. 6, p. 425. 173 Ibid. 174 At-Tabari, Tafseer At-Tabari (Beirut: Muassasat Ar-Risalah, 2002), v. 3, p. 116. 175 Muhammad Ibn Abdullah Al-Husaini Al-Alusi Al-Baghdadi, born in 1857 and died in 1924, was an Iraqi historian, teacher and reformist. He was an activist in Iraq under the Ottoman Caliphate so he suffered persecution and he was exiled for a short period. His publications include Ruh Al-Ma’ani. 176 Al-Alusi, Ruh Al-Ma’ani (Beirut: Dar-ul-Fikr, 1993), v. 4, p. 230. 177 Muhammad ‘Abdu, born in the Nile Delta in 1849 and died in Alexandria in 1905, was an Egyptian jurist deemed to be the founder of Islamic modernism. He was educated at Al-Ahmadi mosque, one of the largest educational institutions at his time. In 1866 he enrolled at Al-Azhar University in Cairo. In 1878 he was appointed as a professor at Dar Al-‘Ulum in Cairo. He occupied a number of other positions such as editor of Al-Waqa’I’ Al-Masriya, the official newspaper of the state and a Mufti in Egypt. He was an activist so he was exiled for six years. He visited France and the UK. His publications include RisƗlat al-taw‫ۊ‬Ưd, Tafsir Surat al-`Asr, Tafsir juz’ `Amma and al-Matb Al-Amiriyya. 178 Muhammad Rashid Rida, Tafseer Al-Manar (Damascus: Dar Al-Ma’arif, 1979), v. 3, p. 277. 179 Ibid. 180 Ibid. 181 Ibid, p. 278. 182 Ibid. 183 At-Tabari, Tafseer At-Tabari (Beirut: Muassasat Ar-Risalah, 2002), v. 2, p. 240. 184 Al-Jauzi, Zad Al-Maseer (Beirut: Al-Maktab Al-Islami, 1987), v. 1, p. 371. 185 Member of the European Council for Fatwa and Research. 186 Salah Sultan, Al-Muwatana Fi Ghair Diyar Al-Muslimeen (Beirut: Beirut Press, 2008), p. 151.

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Ben Baiyah, Al-Wala’ Bin Al-Din wa Bina Al-Muwatanah (Beirut: Beirut Press, 2008), p. 105. 188 Ibid, p. 103. 189 Ben Baiyah, Al-Wala’ Bin Al-Din wa Bina Al-Muwatanah (Beirut: Beirut Press, 2008), p. 106. 190 nccr.ie. 191 Islamireland.ie (2 October 2010). 192 Ecfr.ie (11 January 2010).

CHAPTER FIVE THE ISLAMIC DOCTRINES OF CIVIC LOYALTY

In the previous chapter, a detailed illustration of the concepts of Wala’ and Bara’ was presented, which, according to the interpretations of a great number of scholars, adds support for an acceptance of the concept of coexistence of Muslims in non-Muslim countries. Focus on this concept is important because of its serious implications on Muslimínon-Muslim relations. As the concepts of Wala’ and Bara’ are based on love and hatred expressed in sincerity, friendship, disassociation and hostility, not only does it seriously impact on Muslimínon-Muslim relations, but it also has great influence on Muslims’ attitudes towards non-Muslim countries and states.

5.1 Concept of Loyalty In this chapter the concept of loyalty is explored, along with its consequences for the concept of coexistence. Is it islamically legal for Muslims to have sincerity towards a non-Muslim country? When Muslims live in a non-Muslim country they have a number of national duties. From an Islamic point of view should they refrain from performing their national duties? Over the past years, a number of scholars endeavoured to reach a description that would qualify the position of the Muslim minorities in contemporary Western Europe in light of Islamic legal classical terminology. When doing so, they claimed that they would produce expert interpretations of Islamic norms and values socially, judicially and politically, pertinent to the position of Muslims residing in non-Muslim lands.1

5.1.1 ‘Aqd ΪϘϋ (Contract) Muslims enter non-Muslim countries on the basis of ‘Aqd ΪϘϋ (contract) represented by their visa. Such a contract is based on binding stipulations. In addition, Muslim citizens of a non-Muslim country have another type of‘Aqd ΪϘϋ (contract), i.e. citizenship. By virtue of the Qur’an and Ahadith,

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it is a duty incumbent on Muslims to uphold their contracts. In the Qur’an it is stated: It is not Al-Birr (piety, righteousness) that you turn your faces towards east and (or) west (in prayers); but Al-Birr is to believe in Allah, the Last Day, the Angels, the Book, the Prophets and give wealth, in spite of love for it, to the kinsfolk, to the orphans, and to the poor, and to the wayfarer, and to those who ask, and to set slaves free, perform prayers, and give the Zakat, and fulfil one’s covenant when one makes it, and to be patient in extreme poverty and ailment and at the time of fighting. Such are the people of the truth and they are the pious people. (Trans. 2:177) O you who believe! Fulfil (your) obligations. (Trans. 5:01) And fulfil the Covenant of Allah when you have covenanted, and break not the oaths after you have confirmed them. Indeed you have appointed Allah your surety. Verily! Allah knows what you do. (Trans. 16:91) And fulfil (every) covenant. Verily, the covenant will be questioned about. (Trans. 17:34)

The Prophet Muhammad, peace be upon him, warned people against betrayal and described it as a serious sin, the perpetrators of which will have a public mark on the Last Day. The Prophet Muhammad, peace be upon him, said: “When Allah gathers all people on the Day of Judgment he will raise a flag for every person who betrays a trust. It will be said this is the perfidy of such and such, son of such and such.”2 Even in the case of war, Muslims fulfil their agreements. Hudhaifah Ibn Al-Yaman3 said: Nothing stopped me from taking part in the battle of Badr except that when I came out with my father Husayl to participate in this battle we were caught by some unbelievers from the Quraish. They asked us: “Do you intend to go to Muhammad?” We replied: “We do not intend to go to him. We would like to go back to Medina.” So they took a covenant from us in the name of Allah that we would go back to Medina and would not fight on the side of Muhammad. So we came back and related the event to the Prophet, peace be upon him. He said: “Both of you shall proceed to Medina. We will fulfil the covenant made with them, but seek Allah’s help against them.”4

The above-mentioned citations confirm that Muslims should fulfil the stipulation of the ‘Aqd ΪϘϋ they enter into. Muslims enter non-Muslim countries on the basis of ‘Aqd ΪϘϋ (contract), represented by their visa. This

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is deemed to be ‘Aqd ΪϘϋof Aman ϥΎϣ΃(security). Al-Sarkhasi5 states that it is abhorrent for a Muslim to request an Aman (security treaty) from nonMuslims by swearing by his/her religion to deceive them, since treachery is forbidden in Islam. The Prophet, peace be upon him, said: “He, who betrays a trust, will have a flag stuck in his anus on the Day of Judgment so that his betrayal may be known.”6 This opinion is held by the Hanbali School. According to Ibn Qudamah,7 Muslims, when entering the land of their enemy on the basis of ‘Aqd ΪϘϋ, should refrain from deceit and betrayal, since these are the conditions of the contract, yet not pronounced. The Prophet, peace be upon him, said: “Al-Muslimun ‘Inda Shurutuhum ϢϬρϭήη ΪϨϋ ϥϮϤϠδϤϟ΍ (Muslims are bound by their terms).”8 Al-Nawawi9 states that if non-Muslims capture a Muslim, it is incumbent upon him to flee as soon as he can. If they free him without condition, he should fight them back. But if they free him granting him security, then they also are granted security by him. If they ask for security from him, then it is forbidden for him to fight them. In the Qur’an it is stated: “O ye who believe! Fulfil your contracts” (Trans. 5:01). But if they break their covenant of security, then it is permissible for him to break his.10 Ibn Qudamah illustrates that even the condition of remaining in the country must be respected. The Prophet, peace be upon him, said: “Muslims are bound by their conditions.”11 Tariq Ramadan expresses the same opinion. He states that the terms of a covenant, once agreed upon, should be respected. Should there be a point against Muslims’ rights or even their conscience as believers, it should be subject to negotiations as it is unanimously prohibited for Muslims to breach a treaty.12 The European Council for Fatwa and Research has held nineteen sessions up until 2011. At the end of each session the ECFR strongly recommended that Muslims should commit themselves to what is stated in the Holy Qur’an and Sunnah, and what Muslim Fuqaha’ (jurists) have unanimously agreed upon regarding the obligation of keeping the requirements of the pledge of security and the terms of citizenship and residence in the European countries where they live.13 The ECFR stresses that among the most important things Muslims should observe and do is believe that the souls, properties and honour of non-Muslims are immune by virtue of the pledge according to which they

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enter these lands. They are to abide by that in their conduct according to which they are permitted to enter these countries and continue residing in them. Allah Almighty says: “And fulfil (every) engagement for (every) engagement will be enquired into (on the Day of Reckoning).” 14 The ECFR highlights that Muslims are to respect the laws of the countries that accommodate them and protect them and enable them to enjoy all the securities of noble living. Allah Almighty says: “There is no reward for good other than good.”15

5.1.2 In Brief Abiding by pledge, covenant and contract is a religious obligation regardless of the faith and the race of the parties entering into it. Entering and residing in a non-Muslim country is based on issuing a visa, which is deemed to be a contract. Hence, abiding by the conditions stipulated is thereby an Islamic obligation. Similarly, acquiring citizenship of a nonMuslim country is conducted on the basis of citizenship legislation, according to which a Muslim gains citizenship on the basis of acceptance of certain responsibilities and entitlements to given rights. Consequently, it is also a form of contract that once signed, the abiding of which becomes an Islamic obligation.

5.2 A Contested Duty A just life for a Muslim involves not only performing acts of worship or avoiding sins but also serving the community of believers in any way requested. Hence, civic loyalty to a non-Muslim state pertaining to military activities is a contested issue

5.2.1 The National Military Duty A Muslim is not allowed to kill another Muslim except for a just cause. In the Qur’an it is stated: It is not for a believer to kill a believer except (that it be) by mistake; and whosoever kills a believer by mistake, (it is ordained that) he must set free a believing slave and compensation (blood money, i.e. Diya) be given to the deceased’s family, unless they remit it. If the deceased belonged to a people at war with you and he was a believer, the freeing of a believing slave (is prescribed); and if he belonged to a people with whom you have a treaty of mutual alliance, compensation (blood money – Diya) must be paid to his

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family, and a believing slave must be freed. And whoso finds this (the penance of freeing a slave) beyond his means, he must fast for two consecutive months in order to seek repentance from Allah. And Allah is Ever All-Knowing, All-Wise. And whoever kills a believer intentionally, his recompense is Hell to abide therein; and the Wrath and the Curse of Allah are upon him, and a great punishment is prepared for him. (Trans. 4:92-93) And do not kill anyone whose killing Allah has forbidden, except for a just cause. And whoever is killed wrongfully, We have given his heir the authority. But let him not exceed limits in the matter of taking life. Verily, he is helped (by the Islamic law) (Trans. 17:33).

The Prophet Muhammad, peace be upon him, stresses the same meaning saying: “The blood of a Muslim who proclaims that there is no god but God and that I am the messenger of God should not be legally spilt except in three cases: a life for life, the married person who commits adultery and one who forsakes his religion and abandons his community.”16 Even carrying a weapon against a Muslim is forbidden to all Muslims. The Prophet Muhammad, peace be upon him, said: “Whoever carries arm against us is not one of us.”17 The Prophet Muhammad, peace be upon him, declared that Muslims fighting against each other will be punished in hell. He said: “If two Muslims meet with their swords then both the killer and the killed are in hell for the killed was eager to kill his brother.”18 The Prophet Muhammad, peace be upon him, classified fighting against a Muslim as apostasy. He said: “Reciprocating curse with a Muslim is lewdness and fighting him is disbelief.”19 Even pointing an arm against a Muslim is forbidden. The Prophet Muhammad, peace be upon him, said: “None of you shall point his weapon towards his brother for you do not know, perhaps Satan will tempt you to hit him and you will fall into a pit of fire.”20 The Prophet Muhammad, peace be upon him, also warned Muslims against helping someone kill another Muslim saying: “Whoever assists in killing a believer even by half a word will meet Allah with no hope of Allah’s mercy written on his face.”21 Not only a Muslim’s life but also his wealth and his honour are to be respected by all Muslims. The Prophet Muhammad, peace be upon him, said: “Every Muslim is inviolable to all other Muslims; his blood, his property and his honour.”22 The above-mentioned citations from Muslim texts provide a scriptural foundation for the prohibition of serving in a non-Muslim army engaged with hostilities against Muslims. Muslim jurists have not only extrapolated from these texts the prohibition of helping non-Muslims in combat against

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Muslims but also the rule that doing so constitutes disbelief. Al-Qaradawi states that it is not permissible to serve in a non-Muslim army against Muslims. He classifies it as an act of disbelief.23 Ibn Taymiyya states that assisting those who do not follow Islamic Shari’ahh is forbidden.24 According to Sulejman Topoljak, if Muslims have no alternative to joining non-Muslims in a battle, their intention should not be elevating the word of disbelievers but rather bringing about benefit to Muslims and supporting Allah’s word.25 The above-mentioned scholars express their opinions prohibiting military participation if the non-Muslim country where Muslims reside or hold citizenship is involved in war against Muslims. Other Muslim scholars express stricter approaches. Abdelqader26 states that it is a duty incumbent on Muslims to preserve their lives and that they should not expose themselves to potential death except in certain circumstances. Helping disbelievers is not a legitimate ground for which one would sacrifice one’s own life.27 The same opinion is given by Al-Sarkhasi. According to Al-Sarkhasi, it is not permissible for Muslims residing in a non-Muslim country to fight if the non-Muslim country is attacked by another non-Muslim country, unless they fight to protect themselves.28 This opinion is also expressed by Ibn Nujaim, a Muslim scholar in the sixteenth century.29 According to Tapoljak, it is permissible for Muslim minorities to join a non-Muslim country in fighting against another non-Muslim country in the case of necessity and defending themselves, their families and properties. It is permissible for Muslim minorities to fight with a non-Muslim commander, if he respects Muslims and secures Muslims’ rights if they fear that he might be defeated by someone who will oppress them. It is also permissible for Muslims to join a non-Muslim country in fighting against another non-Muslim country, if they fear a greater enemy.30 In light of the above-mentioned arguments and scriptural texts the following question is raised: is this sufficient to demonstrate incompatibility with the theory of civic loyalty? No, it is not especially when we see a number of Muslim scholars, such as Salah Sultan, stating that every citizen should defend his country against any transgression, even if this involves fighting against a Muslim country. In the Qur’an it is stated:

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If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other, then fight ye (all) against the one that transgresses until it complies with the Command of Allah; but if it complies, then make peace between them with justice, and be fair: for Allah loves those who are fair (and just). (Trans. 49:09)

In other words, Sultan stresses that if a Muslim is a citizen residing in a non-Muslim country on which another country, whether Muslim or nonMuslim, transgresses, it becomes a duty incumbent upon this Muslim to defend his/her country. But if his/her country oppresses another country, whether Muslim or non-Muslim, it becomes a duty incumbent upon him/her to renounce this oppression. Any type of participation therein is forbidden.31 Hence, the permissibility and impermissibility of being involved in military action is not dependent on its cause. In this case Muslims should avail of the law that exempts citizens from military service on the basis of conscientious objections, as done by Muhammad Ali Clay in the Vietnam War. According to Al-Qaradawi, there is no harm in performing military service required by the theory of civic loyalty. It is possible that a Muslim country would fight against another Muslim country, as occurred in the first Gulf War. In other words, the possibility of a Muslim country fighting against another Muslim country does not forbid Muslims from fulfilling their civic duties towards their countries. One should differentiate between oppression and justice.32 One of the most important civic duties is military service. Faysal Maulawi states that when a Muslim citizen serves in a European army, he realises that war – in cases of defending the land and rights, a national duty that he should fulfil by virtue of citizenship í is islamically permissible, since a Muslim should defend the truth and support the wronged regardless of their faith and nationality. Muslim history books relate that a revolution was conducted against Negus, and the migrant Muslims decided to fight with him against the revolutionists but he declined.33 Maulawi adds that the duty of performing military service is permissable when he is defending his home, where he lives, and his fellow citizens with whom he lives. In the Prophet’s biography in Mecca and particularly in his dealing with the Jews, there are manifest proofs. Maulawi states that if military activities transcend defending the land and

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rights and become an act of trespassing on others’ land and violating their rights, it is impermissible for a Muslim to be involved in this transgression whether it violates Muslims’ or non-Muslims’ rights.34 In the Qur’an it is stated: “but transgress not. Truly, Allah likes not the transgressors” (Trans. 2:190).

5.2.2 In Brief According to the above-mentioned Fatawa, if a Muslim serves in a European army it is not permissible for him to be involved in any act of aggression, even if it is against non-Muslims. If a European army attacks China or Japan, a Muslim should not be involved in this aggression. The issue is not dependent on the religion of a certain group but rather the fact that a Muslim soldier fights to defend rights and does not transgress on others regardless of their faith. The prohibition of being involved in aggressive military operations is further confirmed if this aggression is against a Muslim country. In this regard, many clear scriptural proofs that warn Muslims against committing this violation have been narrated. For instance, the Prophet Muhammad, peace be upon him, said: “If two Muslims encounter each other with swords, both of them will go to hell.” It was said: “The murderer is wrong but what about the murdered.” The Prophet, peace be upon him, said: “He was eager to kill his brother.”35 On this basis, it is forbidden for a Muslim soldier to fight with his national army if it transgresses on his Muslim brothers and sisters. It might be difficult for a Muslim soldier to abide by this Islamic obligation; nevertheless, it should be made clear to him and to European societies and governments. At this point it should be clearly marked that by law in many European and Western countries a soldier can be exempted from war on the basis of conscientious grounds, or he might have no option but to resign. If that is the only option, then a Muslim soldier should resign. It is not permissible for him to take part in an oppressive war against his Muslim brothers and sisters or even non-Muslims. Another very important part of civic loyalty is abiding by the law as discussed previously.

5.3 Conclusion There is a strong Muslim scholarly argument that classifies civic loyalty in all fields of life as a religious obligation and describes it as a fulfilment of one’s covenant. Another important point that profoundly affects the issue of civic loyalty in a non-Muslim land is a Muslims’

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perception of this land. How do Muslims perceive non-Muslim lands? How do they classify them? This will be addressed in the next chapter.

Notes 1 Wasif Shadid and Sjoerd van Koningsveld, eds., Political Participation and Identities of Muslims in Non-Muslim States (UK: Peeters Publishers, 1996), p. 84. 2 Muslim, Sahih Muslim, v. 3, p. 1359. 3 One of Muhammad’s Companions. 4 Muslim, Sahih Muslim, v. 3, p. 1414. 5 A great Muslim jurist who died in 1090. 6 Al-Sarkhasi, Al-Mabsut (Beirut: Dar Al-Kutub Al-‘Ilmiyya, 2001), v. 10, p. 105. 7 Muwaffaq Al-Din Muhammad Ibn ‘Abdullah Ibn Ahmad Ibn Muhammad Ibn Qudamah, born in Palestine in 1147 and died in Damascus 1123, memorised the whole Qur’an at a very young age. He was a remarkable Hanafi jurist who was taught by great Muslim scholars such as Abu Al-Makarim Ibn Hilal and Abu AlFadl At-Tunisi. His publications include Al-‘Umdah, Al-Mughni, Al-‘Uddah and Al-Kafi. 8 Ibn Qudamah, Al-Mughni (Cairo: Dar Al-Hadith, 1995), v. 13, pp. 152í3. 9 A great Shafi’I jurist in the thirteenth century. 10 Al-Nawawi, Al-Majmu’ (Beirut: Dar Al-Fikr, 2000), v. 21, p. 130. 11 Ibn Qudama, Al-Mughni (Cairo: Dar Al-Hadith, 1995), v. 13, pp. 184í5. 12 Tariq Ramadan, To Be a European Muslim (Markfield: Islamic Foundation, 1999), p. 162. 13 The European Council for Fatwa and Research, Qararat Wa Fatawa (Cairo: Dar At-Tauzee’ Wan-Nashr Al-Islamiya, 2002), p. 19. 14 Ibid. 15 Ibid. 16 Al-Bukhari, Sahih Al-Bukhari, v. 9, p. 5; Muslim, Sahih Muslim, v. 3, p. 1302. 17 Al-Bukhari, Sahih Al-Bukhari, v. 9, p. 5. 18 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 15; Muslim, Sahih Muslim, v. 9, p. 4. 19 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 19; Muslim, Sahih Muslim, v. 1, p. 81. 20 Al-Bukhari, Sahih Al-Bukhari, v. 9, p. 49. 21 Ibid. 22 Muslim, Sahih Muslim, v. 4, p. 1986; Ibn Majjah, Sunan Ibn Majjah (Kitab AlFitan). 23 Islamonline.net/fatwa/English/FatwaDisplay.asp?hfatwaID=52014. 24 Ibn Tymiya, Majmu’ Al-Fatawa (Rabat: Maktabat Al-Ma’arif, 1980), v. 28, p. 240. 25 Topoljak, Al-Ahkam As-Siyasiya Lilaqalliyat Al-Muslimah Fi Al-Fiqh Al-Islami (Beirut: Dar Al-Nafa’s, 1977), p. 117. 26 Born in Lebanon in 1961, he received his undergraduate degree in Qatar and his postgraduate degree in Beirut. He has a number of Islamic publications such as Ibn Taymiyya, Rad Muftaryat.

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Khalid Muhammad Abelqader, Fiqh Al-Aqaliyat Al-Muslimah (Qatar: Ministery of Endowments and Islamic Affairs, 1998), p. 170. 28 Al-Sarkhasi, al-Mabsut (Beirut: Dar Al-Kutub Al-‘Ilmiya, 2001), v. 10, p. 106. 29 Ibn Nujaim, Al-Bahr Ar-Ra’iq (Beirut: Dar Al-Ma’arif, 1993), v. 5, p. 107. 30 Topoljak, Al-Ahkam As-Siyasiya Lilaqalliyat Al-Muslimah Fi Al-Fiqh Al-Islami (Beirut: Dar Al-Nafa’s, 1977), pp. 119í21. 31 Salah Sultan, Al-Muwatana fe Ghair Diyar Al-Islam (Beirut: Beirut Press, 2008), p. 154. 32 www.islamonline.com (1 October 2006). 33 Faysal Maulawi, Al-Muslim Muwatinan Fe Uropa (Beirut: Beirut Press, 2008), pp. 45í6. 34 Ibid. 35 Al-Bukhari, Sahih Al-Bukhari, Hadith No. 6672.

CHAPTER SIX TAQSEEM AL-DAR έ΍Ϊϟ΍ ϢϴδϘΗ (CLASSIFICATION OF THE WORLD)

The last chapter concerned civic loyalty and its classification in different fields of life. It also concerned the fulfilment of one’s covenant. The theme of classification will also dominate this chapter.

6.1 Introduction One of the Islamic terms which has profound repercussions on the issue of coexistence and subsequently integration is Taqseem Al-Dar (classification of the world). The entire world is classified into various Dair έΎϳΩ (lands). This term is not a new term. Al-Judai’1 argues that the issue of the classification of the world is not an Islamic contemporary phenomenon, but rather an ancient one. It existed even during the time of the Qur’anic revelations. As the Qur’an was being revealed, the geographical divisions were in effect, since people were divided into groups taking the form of tribes or countries, the relations among whom were based on antagonism and authoritarianism. At that time the Arabs applied the law of the jungle, as did all other nations including the two most powerful empires: the Persian and the Roman empires.2

6.1.1 Dar Al-Islam Al-Judai’ adds that prior to the Muslim migration to Medina, there was no land called Dar Al-Islam ϡϼγϹ΍ έ΍Ω. Dar Al-Islam originated in Medina when the Prophet Muhammad, peace be upon him, migrated there.3 This concept can be contested by the story of the descent of Adam and Eve to the earth, illustrated in the second chapter of this book. Since Islam means submission to God and acceptance of His commands, they were Muslims. Consequently the entire earth was originally Dar Al-Islam. On this basis one can argue that originally the entire earth was classified as Dar Al-

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Islam and the emergence of Dar Al-Kufr (land of disbelief) coincided with the existence of the first disbeliever.

6.1.2 Dar in Fiqh Muslim scholars of Fiqh elaborate on the matter of the classifications of the world and enrich the Islamic Fiqh with great explanations pertaining to this matter. They express a number of opinions. Some Muslim jurists accept the classifications of the world and others refute them. According to Abu Zaid Ad-Dabbusi, a Hanafi jurist, the whole world is divided into Dar Al-Islam (the land of Islam) and Dar Al-Harb (the land of war).4 According to Imam Shafi’i, the entire world is one Dar (land).5 What is the reason of Taqseem Al-Dar? What are the requirements of this classification? Is Taqseem Al-Dar a general Islamic requirement or a requirement pertaining to a certain context? What are the definitions of all types of Dair? In this chapter an elaboration on these issues is presented.

6.2 The significance of the Term Darέ΍Ω The term Dar signifies the house inhibited by people and also the location wherein they are based. These two meaning can be understood from three Qur’anic verses: But they denied him, and the dreadful earthquake took them, and morning found them prostrate in their Dar (dwelling place). (Trans. 92:37) Those who entered the Dar (city) and the faith before them love those who flee unto them for refuge, and find in their breasts no need for that which hath been given them, but prefer (the fugitives) above themselves though poverty become their lot. And whoso is saved from his own avarice í such are they who are successful. (Trans. 50:09) And We wrote for him, upon the tablets, the lesson to be drawn from all things and the explanation of all things, then (bade him): Hold it fast; and command thy people (saying): Take the better (course made clear) therein. I shall show thee the Dar (abode) of evil-livers. (Trans. 7:245)

Hence, Dar signifies a house and its surroundings that can be used by one inhabitant, few inhabitants and many inhabitants. Hence, Dar also means city.6

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6.3 Taqseem Al-Dar Has Been Stated in Many Ahadith Salamah Ibn Nufail narrated that the Prophet Muhammad, peace be upon him, said: “The original place of Islam is Greater Syria.”7 Buraida Al-As-Lami reported that whenever the Prophet Muhammad, peace be upon him, appointed a commander for an army or a detachment, he, peace be upon him, used to command him to observe his duties to Allah, be kind to the Muslims under his leadership and invite people to Islam. The Prophet, peace be upon him, said: “If they accept it, leave them alone. Then invite them to migrate from their Dar to the Dar of the immigrants.”8 The Prophet, peace be upon him, said: “There is no usury between Muslims and the people of Dar Al-Harb (land of war) in Dar Al-Harb.”9 The above-mentioned quotations attest to the concept that Taqseem Al-Dar is an authentic Islamic term and is not a Bid’ah (innovation). It is a term that emerged in the time of the Prophet Muhammad, peace be upon him.

6.4 Definitions: Dar Al-Islam ϡϼγϹ΍ έ΍Ω (the Land of Islam) and Dar Al-Harb ΏήΤϟ΍ έ΍Ω (the Land of War) Different schools within Islam interpret things differently. This does not mean that there is a contradiction or a schism.

6.4.1 The Hanafi School10 According to Al-Kisani, the Hanafi jurists consensually agree that Dar Al-Kufr (land of disbelief) turns into Dar Al-Islam when it is ruled according to Islamic law.11 Hence, according to Al-Kisani, Dar Al-Islam refers to the land ruled according to Islamic law and Dar Al-Kufr refers to the land ruled according to non-Islamic law. Nidham also highlights that Dar Al-Harb (land of war) becomes Dar Al-Islam when it is ruled according to Islamic law and Dar Al-Islam turns into Dar Al-Harb when it is ruled according to non-Islamic law.12 This opinion gives rise to a very important question. Which land nowadays can be classified as a Muslim land? Only Saudi Arabia declares that Islamic law is the law applied by the Saudi state. Other countries in the Muslim world, such as Egypt, claim that Shari’ahh constitutes the foundation of their laws. Under what category are these countries classified? Are they classified as Dar Al-Islam or Dar Al-Kufr? Al-Sarkhasi states that Dar Al-Islam is the land under Muslim control. The criterion is that Muslims should be secured and safe in such land to

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classify it as Dar Al-Islam.13 Al-Kisani perceives the definitions of Dar AlIslam and Dar Al-Harb as having nothing to do with Islam and disbelief but rather they are entirely dependent on the issue of security and fear. In other words, if Muslims entirely enjoy security and non-Muslims entirely have fear, then it is Dar Al-Islam. If non-Muslims entirely enjoy security and Muslims entirely have fear, then it is Dar Al-Kufr.14 This opinion is not based on the possibility of peaceful coexistence. It presumes that a charged atmosphere is a given; therefore it contradicts many of the abovementioned authentic Muslim narrations of peaceful coexistence. Moreover, it overlooks many of the above-mentioned Islamic texts. Al-Shaibani15 argues that according to the Hanafi School, a Dar is deemed to be Dar Al-Islam provided that it is governed by Islamic law and Muslims living in that Dar enjoy safety and security. In addition to the above-mentioned conditions, Al-Sarkhasi stipulates that the ruling authority should be in the hands of Muslims, which is described by AlShaibani as Dhuhur Al-Imam.16 Nevertheless, according to Al-Kisani’s above-mentioned definitions of Dar Al-Islam and Dar Al-Harb, this third condition is not explicitly stipulated to classify a land as a land of Islam. When Muslims enjoy safety and security while being able to live their lives according to Islam in a system that gives them the authority regarding issues pertaining to their distinctiveness, then the land where they live is classified as a land of Islam.

6.4.2 The Maliki School17 Al-Qasim, an early Maliki scholar, describes Mecca in the Meccan period of Islamic promulgation as Dar Al-Harb (land of war) since it was governed by pre-Islamic laws.18 Al-Judai’ illustrates that the terms Dar AlIslam and Dar Al-Harb are frequently applied by Imam Malik and his students. This application clearly indicates that Dar Al-Islam refers to an Islamic land ruled by Shari’ahh and Dar Al-Harb refers to other lands.19 A different view is given by later Maliki scholars. They define Dar AlIslam (land of Islam) as the place where Muslims are not afraid of their enemies. They define Dar Al-Harb (land of war) as the location where Muslims are afraid of their enemies, whether it is Dar Al-Kufr (land of disbelief) or Dar Al-Islam.20 According to Al-Adawi, a Maliki jurist, Dar Al-Harb signifies the location where soldiers are based even if it is part of Dar Al-Islam as there is no security.21

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The Maliki School does not make the classification of Dar Al-Harb dependent on being part of Dar Al-Kufr, but rather entirely dependent on safety and security. Dar Al-Harb could be part of a Muslim land if it is a military area where military confrontations occur, as there is no security. Consequently a Dar Al-Kufr is not classified as a Dar Al-Harb until a war or antagonism is declared against Muslims. The Maliki understanding of Dar Al-Harb is distinctively different from the Maliki understanding of Dar Al-Kufr. But the Hanafi definitions mentioned above do not reflect this distinction.

6.4.3 The Shafi’i School22 According to Ash-Shafi’i, Dar Al-Islam or Dar Al-Dhimmah Δϣάϟ΍ έ΍Ω (land of treaty) becomes Dar Al-Islam if a Muslim state overcomes nonMuslim authority therein.23 This opinion is supported by a narration stated by Al-Baihaqi: Abu Sufian Ibn Harb embraced Islam in Mar24 when the Prophet, peace be upon him, overcame Mecca. Mecca turned into Dar Al-Islam when the Prophet, peace be upon him, overcame the idol worshippers residing in Mecca and its inhabitants embraced Islam. Abu Sufian’s wife, Hind Bent ‘Utbah was not a Muslim and Mecca was, then, Dar Al-Harb. When Abu Sufian invited her to Islam, Hind held his beard and said: “Kill this old man who has gone astray”. She remained a non-Muslim for a few days. Afterwards Hind embraced Islam and gave the pledge to the Prophet, peace be upon him. Hind and Abu Sufian remained together as a husband and a wife. The Prophet, peace be upon him, entered Mecca and most of its inhabitants embraced Islam. Hence, Mecca became a Muslim land. ‘Ikrimah’s wife and Safwan’s wife embraced Islam, but their husbands remained as non-Muslims and escaped through the sea way towards a Dar Al-Kufr in the direction of Yemen. Afterwards, they returned to Mecca as 25 Muslims.

The narration quoted above indicates that a land is classified as Dar AlIslam when it comes under Muslim authority, so it agrees with the abovementioned opinion given by Al-Sarkhasi. According to Al-Mawardi,26 a non-Muslim land becomes Dar Al-Islam if its inhabitants embrace Islam and consequently such land will be governed by Shari’ahh.27 Abu Mansur Al-Baghdadi28 illustrates that a land where Muslims can practise their religion while not being guarded, supported or paying Jiziah (a kind of poll tax) and the dhimmis Δϣάϟ΍ Ϟϫ΃ (non-Muslims living in Muslim lands), where they enjoy their rights and fulfil their responsibilities specified

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by Islam, and people of Bid’aΔϋΪΒϟ΍ (religious innovations) do not overcome true Muslims, is Dar Al-Islam. If otherwise, then it is Dar Al-Kufr.29 The above-mentioned Shafi’i citations stipulate two conditions to classify a land as Dar Al-Islam. First, the ruling authority should be in Muslim hands and second, the ruling regulations should be Islamic regulations. This is harmonious with the opinions expressed by Muhammad Ibn Al-Hassan and Al-Sarkhasi, two Hanafi jurists.

6.4.4 The Hanbali School30 According to Ibn Muflih, a land where the laws of Islam prevail is Dar Al-Islam and a land where non-Islamic laws prevail is Dar Al-Kufr. There can be either Dar Al-Islam or Dar Al-Kufr. 31 Hence, the Hanbali School stipulates one condition to classify a land as Dar Al-Islam í the ruling regulations should be Islamic.

6.4.5 Other Opinions Ibn Al-Qaiyym states that Dar Al-Islam is the land inhabited by Muslims where Islamic law is in effect. If Islamic law is not in effect the land will not be classified as Dar Al-Islam, even if it shares borders with Dar Al-Islam.32 Here Ibn Al-Qaiyym accepts the condition stipulated by the Hanbali School to classify a land as Dar Al-Islam, which is that the land should be governed by Islamic law. However, he adds another condition í the land should be inhabited by Muslims. According to Ibn Hazm Al-Dhahiri,33 Dar Ahl Al-Dhimmah (land inhabited by non-Muslims under Muslim control) is Dar Al-Islam. He states that the Prophet Muhammad, peace be upon him, appointed Muslims in Khaiber, a land inhibited by Jews that was seen as Dar AlIslam. Dar Ahl Al-Dhmimah, if inhabited only by Ahlu-Dh-Dhimmah, Muslims trading in or ruling the land of Ahlu-Dh-Dhimmah are not deemed as disbelievers or sinners, but rather good Muslims living in Dar Al-Islam and not Dar Al-Kufr, since a Dar is classified as Dar Al-Islam if ruled by a Muslim. If non-Muslims overcome Muslims in a Dar Al-Islam, whoever co-operates with them and coexists with them has committed apostasy even if he/she claims to be a Muslim.34 Hence, according to Ibn Hazm’s definition, ruling the land according to Islam is a condition stipulated to classify it as Dar Al-Islam. Ibn Hazm cited Khaiber to support his argument, but the Jews ruled their affairs

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according to their faith in Khaiber. The Jews, who lived in Khaiber, had the right to rule their affairs according to their faith.35 At this point it should be highlighted that Ibn Hazm considers the ruler as a Muslim if he rules according to Islam.36 According to Ibn Hazm’s definition, Muslim countries occupied by non-Muslims are not classified as Dar Al-Islam, even if the occupiers permit Muslims to practise their religion. This opinion creates a special difficulty for the Palestinians and the Iraqis as currently their lands are occupied and ruled by non-Muslims. Hadawaiyah, a Zaidi group, explains that Dar Al-Islam is the land where Islamic prayers and Shahadah37 are openly practised, and no nonIslamic practices are done without the Muslims’ permission and protection such as Judaism and Christianity in Dar Al-Islam.38 According to Al-Shaukani,39 Dar Al-Islam is the land where authority is in the hands of Muslims, so non-Muslims cannot practise their religion unless permission is obtained from Muslims. A land being classified as Dar Al-Islam will not be affected if non-Muslim practices are observed publicly since they are not practised by force. This is the case of Ahl AlDhimmah Γϡάϟ΍ Ϟϫ΃ in current Muslim countries. If the situation is otherwise then it will not be Dar Al-Islam.40 According to Sayyid Qutb, the entire world is classified into only two categories: Dar Al-Islam and Dar Al-Harb. Dar Al-Islam refers to every country ruled by Islamic Shari’ahh í whether the inhabitants there are entirely Muslims, Muslims and Ahl-Al-Dhimmah, or entirely Ahl AlDhimmah í provided the rulers there are Muslims who apply Shari’ahh law. It also refers to a land inhabited entirely by Muslims or Muslims and Ahl Al-Dhimmah and invaded by non-Muslims, yet where the inhabitants there apply Shari’ahh. As for Dar Al-Harb, it refers to every country where Islamic Shari’ahh is not in effect, whether the inhabitants there are Muslims, people of the Book (Christians and Jews) or disbelievers.41 According to Muhammad Abu Zahrah42 Dar Al-Islam is the land ruled by Muslims and the authority there is in the hands of Muslims.43 Abu Zahrah summarises the beliefs of all the Muslim schools of thought regarding land classifications, stating that Muslim Fuqaha (jurists) almost consensually apply the term Dar Al-Harb to all the non-Dar Al-Islam, since during the era of Ijtihad of Fiqh (forming Islamic jurisprudence) non-Muslims frequently attacked Muslims and Muslims were in a state of continuous defence.44

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This explanation is of paramount importance. It explains the connotations of Dar Al-Harb and limits its application to a number of nonMuslim countries, which are those that transgress on Muslim countries. It clarifies two significant matters: first, the tension between Muslims and the governments of certain non-Muslim countries where Muslims reside, for example the United States of America, and second, the harmony and peaceful relations Muslims enjoy in a number of non-Muslim countries where Muslims reside, for example Ireland. Perception is of paramount importance í peaceful and violent actions are justified on the basis of it. In the above pages, a wide range of opinions are presented. Whether one gives pre-eminence to one opinion or another, one has to answer the following questions: Can Dar Al-Harb turn into Dar Al-Islam and can Dar Al-Islam turn into Dar Al-Harb? What are the implications of the abovementioned classifications?

6.4.6 Is Classification of Land Temporary? According to Ibn Taimiyah, classifying land into Dar Al-Harb, Dar AlIslam, Dar Al-Iman ϥΎϤϳϹ΍ έ΍Ω (land of belief), Dar Al-Ta’ah ΔϋΎτϟ΍ έ΍Ω (land of obedience to God), or Dar Al-Ma’siyah ΔϴμόϤϟ΍ έ΍Ω (land of disobedience) is temporary. A land can be classified as Dar Al-Islam and become Dar Al-Harb or vice versa in full conformity with its inhabitants and their attributes in that same way that a man can be a disbeliever and then become a believer and vice versa.45 According to a number of Muslim jurists such as Nidham and Ibn ‘Abdeen, Dar Al-Islam can be classified as Dar Al-Harb when Muslims are overcome by non-Muslims in a battle or war, when the people of a land become apostates and do not apply Islamic law and when Ahlu-dhDhimmah (non-Muslims living in a Muslim land) breach the treaty they entered into with Muslims and overcame them.46 Hence, if Dar Al-Islam fails to continue meeting the conditions qualifying it to be Dar Al-Islam it turns into Dar Al-Harb or Dar Al-Kufr. Nevertheless, Muslim scholars have six opinions in this regard, all of which are discussed in the section below. According to Abu Hanifah, Dar Al-Islam turns into Dar Al-Harb when non-Islamic law prevails over Islamic law, where the former renders the latter ineffective, and where Muslims who live there have no security and Ahl Al-Dhimmah also have no security.47 Ibn ‘Abdeen48 comments on this Hanafi opinion stating that if non-Islamic law and Shari’ahh are in effect

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in a land, such land is not classified as Dar Al-Harb.49 Ibn ‘Abdeen reported that some later Hanafi jurists state that if a Dar Al-Islam meets the above-mentioned conditions and the Muslims living there enjoy security and have a Muslim judge issuing sentences according to Shari’ahh, such a land regains its title as a Dar Al-Islam.50 According to Abu Yusuf Al-Qadi51 and Muhammad Ibn Al-Hassan AlShaibani, Dar Al-Islam turns into Dar Al-Kufr when it is governed by nonIslamic law. Al-Kisani explains that these scholars qualify one Dar (land) as Dar Al-Islam when Islam prevails and they qualify another Dar as Dar Al-Kufr where disbelief prevails. Likewise, paradise is classified as Dar Al-Salam ϡϼδϟ΍ έ΍Ω (the place of peace) as people there enjoy peace, and hell is classified as Dar Al-Bawar έ΍ϮΒϟ΍ έ΍Ω (place of destruction) since people there will be destroyed. According to these opinions, the prevalence of Islam means the prevalence of Islamic law and vice versa.52 According to a number of the Shafi’i jurists such as Al-Jwaini,53 AlHatami54 and Ash-Shams Al-Ramly,55 Dar Al-Islam turns into Dar AlHarb if it is occupied by non-Muslims. As previously mentioned, this opinion creates a unique dilemma for certain countries in their current situations such as Iraq, Palestine and Afghanistan. It gives rise to a Muslim discourse on the issue of Muslims residing in these countries. According to the Maliki School, Dar Al-Islam does not turn into Dar Al-Harb if occupied by non-Muslims, provided Islamic rituals or most of the Islamic rituals are observed there.56 According to Al-Rafi’i, a Shafi’i jurist, when reading opinions given by some early Shafi’i scholars one gets the impression that if Dar Al-Islam is occupied by non-Muslims it remains as Dar Al-Islam. Nevertheless, some later Shafi’i scholars state that if Muslims are not allowed to live there, then Dar Al-Islam turns into Dar Al-Kufr.57 Also Al-Tartus, a Shafi’i jurist, states that if non-Muslims occupy a Muslim land it does not turn into Dar Al-Harb.58 In support of their argument, they quote the hadith in which the Prophet Muhammad, peace be upon him, said: “Islam prevails and nothing prevails over it.”59 According to some Hanafi Scholars, Dar Al-Islam remains as Dar AlIslam unless there is proof that it is not. According to Baha’ Ad-Deen Muhammad Ibn Ahmad Al-Isbijani, a Hanafi jurist in the seventh century, Dar Al-Islam, occupied by Tartars, remained as Dar Al-Islam since the judges there were Muslims. This land was not connected to Dar Al-Harb and was not ruled by non-Islamic law. He adds that if any of the abovementioned issues are secured in a land, it remains as Dar Al-Islam. That

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part of the Muslim land, prior to being occupied by the Tartars, was classified as Dar Al-Islam. After occupation, Islamic rituals such as Adhan (prayer call), and congregational prayers were practised. Hence, it preserved its classification as Dar Al-Islam.60 This last opinion is more moderate, since if Dar Al-Islam is occupied but the people living there are still Muslims who practise their Islamic rituals, it becomes very difficult to classify it as Dar Al-Harb or Dar AlKufr. Classifying it as Dar Al-Kufr means diminishing Dar Al-Islam; it also becomes possible that there could be no Dar Al-Islam, which means Muslims could be homeless. Moreover, it gives rise to serious questions pertinent to the issue of the residence of Muslims in these lands. The above-mentioned wide range of opinions gives rise to the following question: Can one land have multiple classifications? In other words, can a land be classified as Dar Murakkabah ΔΒϛήϣ έ΍Ω (compound land)?

6.5 Dar Murakkabah ΔΒϛήϣ έ΍Ω (The Compound Land) Dar Murakkabah ΔΒϛήϣ έ΍Ω (the Compound Land) is a term implicitly indicated by the various opinions of a number of Muslim scholars. Ibn Taymiyyah was asked whether Marden was Dar Al-Harb or Dar Al-Silm ϢϠδϟ΍ έ΍Ω (land of peace) or not. He was asked whether it was incumbent upon Muslims living there to leave for Dar Al-Islam or not. Ibn Taymiyyah replied that it could not be purely classified as Dar Al-Harb or Dar Al-Silm since it had the characteristics of both of them. He added that it was rather Dar Murakkabah. Hence, he said, it should have belonged to a third category where Muslims should live according to Islam and nonMuslims according to their faith.61 Al-Judai’ also argues that it is clear that lands where Muslims can live according to Islam cannot be classified as Dar Al-Harb.62 A land where Muslims enjoy peace cannot be classified as Dar AlHarb. Furthermore, a land where the affairs of Muslims are organised according to Islam cannot be classified as Dar Al-Kufr. Can it then be classified as Dar Al-Islam? According to the above-mentioned definitions it can be, especially when one takes into consideration the reasons for the classifications of the world. This is a land where Muslims can practise their religion in peace, safety and security.

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In the context of Muslims who live in Dar Al-Harb while being able to practise their religion, Al-Marudi, a Shafi’i scholar, states that they should live there and preserve their Muslim identity. If this happens this Dar AlHarb turns into Dar Al-Islam. But if Muslims leave it, it turns into Dar AlHarb.63 Al-Haitami and Al-Sherbini, Shafi’i scholars, state that a Muslim who is able to protect himself/herself, preserve his/her identity and is not assimilated should remain in Dar Al-Harb, since the place where he/she lives is classified as Dar Al-Islam. However, if he/she leaves it, it becomes Dar Al-Harb and this is forbidden in Islam.64 In other words, if Muslims reside in a non-Muslim country such as Ireland, preserving their Muslim identity while being protected and able to practise Islam, then they live in Dar Al-Islam since they enjoy safety and security in their dwellings and in their community and they can practise Islam freely. Hence, Dar Al-Islam not only refers to the land that lies within the borders of Islamic countries, it also means that Muslims can create Dar Al-Islam wherever they live. This opinion is vitally important since it provides a unique argument against the prohibition of living in non-Muslim countries expressed by a number of scholars as discussed in chapter two. Al-Shaukani states that according to Al-Mawardi, wherever Muslims practise their religion in Dar Al-Kufr, it turns into Dar Al-Islam.65 According to ‘Abd-ul-Qader ‘Udah,66 all places inhabited by Muslims where they are able to practise Islam are Dar Al-Islam.67 In other words, Muslims living in a non-Muslim land freely practising their religion and enjoying their rights while not being opposed are living in Dar Al-Islam regarding to their houses and the places where they gather.

6.6 Dar Al-‘Ahd ΪϬόϟ΍ έ΍Ω (The Land of Treaty) The last classification of land, called Dar Al-‘Ahd ΪϬόϟ΍ έ΍Ω (land of treaty), is divided into two categories: permanent Dar Al-‘Ahd, which is Dar Al-Islam for non-Muslims, and temporary Dar Al-‘Ahd, which is Dar Al-Harb for Muslims.68 In the following pages we will focus on the second category since it is pertinent to this study.

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6.6.1 Definition Temporary Dar Al-‘Ahd refers to Dar Al-Harb when the ruler there enters into a security treaty with a Muslim ruler in return for compensation or without compensation.69 In Islamic literature a number of terms have been applied in this regard: ‘Ahda (covenant), Sulh (reconciliation), Muhadanah (truce), Mu’ahadah (treaty), Musalamah (reciprocal peace) and Musalahah (reciprocal reconciliation).70

6.6.2 Legality According to the Qur’an and Sunnah, Muslim rulers are permitted to enter into a security treaty with rulers of Dar Al-Harb. In the Qur’an it is stated: “And if they incline to peace, incline thou also to it, and put your trust in Allah. Lo! He is the Hearer, the Knower” (Trans. 8:61). According to Abu Yusuf, Muslim rulers may enter into a peace treaty with non-Muslims, if this serves Muslim or Islamic interests.71 A Muslim ruler has the authority to determine whether it serves the interests of Muslims or not.72 Al-Jassas illustrates that if they are unable to resist or if they have fear, Muslims may enter into a peace treaty with their enemy.73 The legality of security treaties between Muslims and non-Muslims is well established in Islamic legislation. During the time of revelation, Muslims were not permitted to enter into security treaties with those who broke their treaties with Muslims, or who had the power to restore their rights. If there is a justification, such as Muslim interest and respecting the treaty by both parties, Muslims may enter into a security treaty with nonMuslims.74 There are many examples throughout history where Muslims entered into security treaties with non-Muslims.

6.6.3 In the Sunnah: Al-Hudaibiyah Treaty When Arabia witnessed an impressive sweep in the Meccans’ favour, Muslims endeavoured to restore their right to observe worship in the sacred sanctuary of Ka’bah. In the sixth year of Hijra, the Prophet, peace be upon him, saw in a dream, while he was still in Medina, that he, in security with his followers, had entered the sacred sanctuary in Mecca and performed ‘Umrah (minor pilgrimage). His Companions, when informed of this dream, leapt up with joy since they were longing to perform hajj. In the company of fifteen hundred Muslims and his wife Umm Salamah, the Prophet Muhammad, peace be upon him, set out to Mecca. Since they had

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no intention of fighting, the Muslims carried no weapons with them. As they reached Dhi Hulaifa, a place near Mecca, the Prophet Muhammad, peace be upon him, and his Companions put on the Ihram garbs.75 On the other side, the Quraishites prepared a huge army to oppose them. The Quraishites decided to prevent the Muslims from entering the Ka’bah. The Muslims continued on their way until they reached a place called Al-Hudaibiyah. Fudail bin Warqa’ Al-Khuza‘i, an idol worshipper living in Mecca at this time, with some celebrities of the Khuza‘ah tribe, the Prophet’s confidants, came to him and asked him about the reason of his coming in the company of his Companions to Mecca. The Prophet Muhammad, peace be upon him, replied that he came to perform ‘Umrah. He, peace be upon him, said that he did not come for war, yet if the Quraishaites debarred Muslims from ‘Umrah, he would fight them. The delegations carried the message back to the Quraishaites, who sent another delegate called Mikraz bin Hafs. On seeing him, the Prophet, peace be upon him, said that he was a treacherous man. He was given the same message to deliver to his people. He was followed by another representative known as Al-Hulais bin ‘Alqamah. He was impressed by the spirit of devotion that the Muslims had for the Sacred Ka‘bah. He returned to his people and warned them against debarring the Prophet Muhammad, peace be upon him, and his Companions from performing ‘Umrah. Hulais was succeeded by ‘Urwa bin Mas‘ud Ath-Thaqafi to negotiate with the Prophet Muhammad, peace be upon him. He returned to his people expressing how the Companions were obedient to the Prophet Muhammad, peace be upon him. Negotiations went on but with no results. Then the Prophet, peace be upon him, commissioned ‘Uthman Ibn ‘Affan to meet chiefs of Quraish on his behalf. ‘Uthman went to Abu Sufyan and the other chiefs and told them that the Muslims had come only to visit Ka’bah to do worship there, and that they had no intention to fight. ‘Uthman also assured them that after the performance of ‘Umrah the Muslims would depart peacefully. The Quraishites were adamant and not willing to grant Muslims the permission to visit the Ka‘bah. After some further interchange of messages, they agreed to conclude a treaty of reconciliation and security with the Muslims. The clauses of the said treaty stated that Muslims would return that time and come back the following year and that they would not stay in Mecca for more than three days. Also, they would not come back armed but could bring swords only sheathed in scabbards and these shall be kept in bags. Also war would be

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suspended for ten years, during which time, both parties would live in full security and neither of them would raise a sword against the other. Also if anyone from the Quraish would go over to the Prophet Muhammad, peace be upon him, he/she would be sent back to the Quraish, but should any of Muhammad’s followers have returned to the Quraish, he/she would not have to be sent back. Also whoever joined the Prophet Muhammad, peace be upon him, or entered into a treaty with him, was allowed to do so; and likewise whoever joined the Quraish, or entered into a treaty with them, was allowed to do so.76 On another occasion, about AD 638, the Caliph ‘Umar Ibn al-Khattab, entered the city of Jerusalem, then called Aelia Capitoline by the Romans or “Aelia” by the Arab conquerors. According to tradition, the Caliph ‘Umar Ibn al-Khattab granted to the people of Jerusalem and to the Patriarch Safronius a covenant of security and protection, which came to be known as the Covenant of ‘Umar, or the Code of ‘Umar. It reads as follows: In the Name of Allah, the Most Merciful, the Most Compassionate. This is an assurance of security and protection given by the servant of Allah ‘Umar, Commander of the Believers to the people of Aelia (Jerusalem). He gave them an assurance of protection for their lives, property, church and crosses as well as the sick and healthy and all its religious community. Their churches shall not be occupied, demolished nor taken away wholly or in part. None of their crosses or property shall be seized. They shall not be coerced in their religion nor shall any of them be injured. None of the Jews shall reside with them in Aelia. The people of Aelia shall pay Jizia tax (head tax on free non-Muslims living under Muslim rule) as inhabitants of cities do. They shall evict all Romans and thieves. He whoever gets out shall be guaranteed safety for his life and property until he reaches his safe haven. He whoever stays shall be (also) safe, in which case he shall pay as much tax as the people of Aelia do. Should any of the people of Aelia wish to move together with his property along with the Romans and to clear out of their churches and crosses, they shall be safe for their lives, churches and crosses, until they have reached their safe haven. He whoever chooses to stay may do so and he shall pay as much tax as the people of Aelia do. He whoever wishes to move along with the Romans, may do so, and whoever wishes to return back home to his kinsfolk, may do so. Nothing shall be taken from them, their crops have been harvested. To the contents of this convent here are given the Covenant of Allah, the guarantees of His Messenger, the Caliphs and the Believers, provided they (the people of Aelia) pay their due Jizia tax. Witnesses hereto are Khalid Ibn al-Waleed, Amr Ibn al-Ass, Abdul-Rahman Ibn’Auf, and Mu’awiya Ibn abi-Sifian. Made and executed in the year 15 AH.77

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The above-mentioned quotation proves the permissibility and validity of treaties entered into by Muslims and non-Muslims. Furthermore, they clearly indicate that justice and equity among all parties are indispensable foundations for such treaties. In addition, they stress that all parties are entitled to freedom of belief and practice secured by authorities.

6.6.4 Rules of the Security Treaty 6.6.4.1 Period of the Treaty According to Imam Ahmad and the Hanafi School, taking into consideration the interest of Muslims, a Muslim ruler may enter into a security treaty with non-Muslims for more than ten years. According to Imam Shafi’i and some of the Hanbalies, it is illegal for a Muslim ruler to enter into a security treaty with non-Muslims for a period of more than ten years.78 Abdelmalik Ibn Habib reports that Imam Malik states that it is permissible for a Muslim ruler to enter into a security treaty with nonMuslims for limited and unlimited periods.79 According to Ibn Al-Qayyim, it is permissible for a Muslim ruler to enter into a security treaty with nonMuslims for periods of more than ten years, provided it serves the interest of the Muslims.80 Entering into a security treaty is a state’s affair. Hence, it should be conducted by a ruler or his representative.81 Muslim scholars consensually state that if a Muslim ruler enters into a peace treaty with a ruler of Dar Al-Harb, Dar Al-Harb will not be classified as Dar Al-Harb any longer.82 6.6.4.2 Revocation of the Treaty If Muslims fear that the other party may be treacherous, the treaty can be revoked, provided the other party is informed. In the Qur’an it is stated: “And if thou fearest treachery from any folk, then throw back to them (their treaty) fairly. Lo! Allah loveth not the treacherous” (Trans. 8:58, Pickthall).

6.7 The Impact of the Classifications of the World on Islamic Law In light of the above discussion, classification of a land as Dar AlIslam is dependent upon the prevalence of Islamic law and the ability to practise Islam. Hence, the type of land where a Muslim lives affects Islamic practices. Muslim scholars express a number of views in this

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regard. Prior to elaborating on these views, it is worth mentioning here that, in general, a Muslim is supposed to adhere to Islam regardless of the time and the place whereto he/she is related. According to the majority of the Maliki, Shafi’i and Hanbali jurists, the land where a Muslim lives does not impact on Islamic law. What is permissible remains permissible and what is forbidden remains forbidden. What is permissible in Dar Al-Islam is permissible in Dar Al-Harb.83 Imam Shafi’i illustrates that what is permissible in Dar Al-Islam is permissible in Dar Al-Kufr and what is impermissible in Dar Al-Islam is impermissible in Dar Al-Kufr.84 According to Imam Maliki, when it comes to the issue of Hudud (specified Islamic punishments), the land where a Muslim lives is not taken into consideration, since Muslims living in a non-Islamic land, unlike non-Muslims, recognise Islamic law.85 According to the Hanafi School, the land where Muslims reside impacts on Islamic law.86 The Hanafi School illustrates that Islamic law, independent of Muslim judicial authorities, such as purchasing, selling, prayers and fasting, is applicable equally in Dar Al-Islam and elsewhere. Islamic law dependent on Muslim judicial authorities such as adultery and fornication is applicable for Muslims living in Dar Al-Islam but not Muslims living in Dar Al-Harb.87

6.8 Deliberation The classifications of the world resulted from Ijtihad (reasoning), which was motivated and affected by the political context of the Muslim state in an era marked with tension and counter-tension between Muslims and non-Muslims. Nevertheless, the classifications of the world are based on scriptural foundations.88 Muslim scholars consensually accept the classifications of the world into either two or three divisions. Nonetheless, it remains a matter of Ijtihad subject to time, place and context. At this point it should be clearly noted that many historical opinions based on Ijtihad were suitable for their time and place but are not binding for Muslims today. However, when today’s context resembles the context in which these opinions emerged, they become applicable. The classifications of the world are not unique in this regard. Many other opinions based on Ijtihad were formed in a particular era due to certain circumstances, but were not binding for Muslims afterwards as

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circumstances changed. Hence, if we endeavour to apply the abovementioned definitions of Dar Al-Islam and Dar Al-Harb to today’s world, we will face a number of obstacles. A fundamental condition for a land to be classified as Dar Al-Islam is to apply Shari’ahh there. This condition is hardly fulfilled in any contemporary country. The only applicable articles of Shari’ahh are items pertinent to family status. Alternatively, positive laws are effective throughout most, if not all, of the current Muslim countries. Nevertheless, Islamic practices such as prayer calls, prayer and fasting are still practised publicly and freely. Another fundamental condition for a land to be classified as Dar AlIslam is safety and security enjoyed by Muslims where they live. A large number of Muslims have migrated from their Muslim countries and currently reside in non-Muslim countries as asylum seekers. This migration is due to lack of security, fear and persecution. Hence, Muslims do not enjoy safety and security in their Muslim countries. On the basis of this and the above-mentioned definitions of Dar Al-Islam, one can say that there is no Dar Al-Islam in today’s world. The same argument can be said about Dar Al-Harb. A fundamental condition to classify a land as Dar Al-Harb is not fulfilled. Most nonMuslim countries are not involved in war with Muslim countries. The entire world has entered into treaties through the United Nations. Many Muslim countries have entered into mutual treaties with non-Muslim countries. Moreover, Muslims who live in non-Muslim countries as legal residents or citizens enjoy peace, safety and security. In addition, their religious practices are guaranteed by the law of the countries in which they reside. Hence, they cannot be classified as Dar Al-Harb.89 Abu Zahra states that the entire world has joined the United Nations. All members have agreed to accept the resolutions and conventions reached by the UN. By virtue of Islam, Muslims have to fulfil their commitments to this, since fulfilling contracts is a well-established Islamic rule. Hence, non-Muslim lands cannot be classified as Dar Al-Harb but rather Dar Al-‘Ahd.90 Abu Zahra’s opinion is confronted by the widespread conviction that the UN is not an equitable organisation. It is controlled by powerful

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countries. The fact that some countries have the right of veto turns the UN into a tool of discrimination and oppression. For instance, the United States of America cast its veto thirty-two times to shield Israel against draft resolutions between 1972 and 1997.91

6.9 Conclusion Muslim scholars exert great efforts to classify the world according to global political circumstances. They agree and disagree on this. By and large Muslim scholars consensually classify the world into two or more sections. The above-mentioned definitions of the classifications of the world stipulate the prevalence of Shari’ahh to classify the land as Dar AlIslam. Most Muslim scholars explicitly or implicitly take the religion of the governor into consideration when classifying the land as Dar Al-Islam. Dar Al-Islam is the land ruled according to Islam and vice versa. The definitions of the terms Dar Al-Harb and Dar Al-Kufr are usually varied in the expressions given by most of the Muslim scholars. This could be explained by the fact that during the time of these scholars Dar Al-Kufr was called Dar Al-Harb since it was actually involved in or expected to be involved in wars against Muslims. According to Abu Hanifa and some of his followers, as well as some of the Shafi’i jurists, applying Islamic Shari’ahh with regard to Muslim affairs in a non-Muslim land, helps to classify their area as Dar Al-Islam. Some Maliki scholars limit applying Dar Al-Harb to the battlefield. When Muslims enjoy security it is either Dar Al-Islam or Dar Al-Kufr. Considering the above-mentioned opinions in light of their respective circumstances, classifying land into Dar Al-Islam or otherwise is dependent on whether the ruling authority is in the hands of Muslims or not. Based on the aforementioned views, Dar Al-Harb and Dar Al-Kufr turn into Dar Al-Islam when the land comes under Islamic sovereignty. But is it possible that Dar Al-Islam turns into Dar Al-Harb or Dar AlKufr? According to the above-mentioned definitions of Dar Al-Islam, it is clear that once the conditions stipulated to classify a land as Dar Al-Islam are no longer fulfilled, then the land turns into either Dar Al-Kufr or Dar Al-Harb. Nevertheless, in this regard Muslim scholars express six opinions, the most preponderant of which states that Dar Al-Islam remains as Dar Al-Islam provided manifestations of Islamic aspects, such as public

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practice of Islamic rituals, e.g. Friday prayer, are practised publicly and freely. If the inhabitants there commit apostasy then it turns into Dar AlKufr or Dar Al-Harb. Muslim scholars apply the term Dar Murakkabah (the compound land) to refer to the land where Muslims apply Shari’ahh regarding Muslim affairs, in an equal or almost equal way to the way others organise their affairs according to their laws. The reason for stipulating the effectiveness of Shari’ahh in a land, classifying it as Dar Al-Islam, is to guarantee for Muslims living there the freedom to practise Islam and to protect their rights. Hence, if a Muslim lives in a non-Muslim land where he/she practises his/her religion publicly and his/her rights are protected, then he/she lives in Dar Al-Islam. It is also permissible for Muslims to enter into a security treaty with non-Muslims. According to this treaty both sides should enjoy security. If this security is violated by either side, they should take responsibility for it. On the basis of the above-mentioned arguments, one can make a strong case for the Islamic legality of Muslims residing in non-Muslim countries, and that it is islamically legal for Muslims to have good relations with non-Muslims. But when Muslims live in non-Muslim countries, they live in a different context to that of Muslims who live in Muslim countries. Hence, they face different challenges in their social lives and they need different answers. Consequently there is a need for a different Fiqh (Islamic jurisprudence).

Notes 1

Abdullah Ibn Yusuf Ibn ‘Isa Ibn Ya’qub Al-Ya’qubi, born in 1959 in Basra, is a contemporary Muslim jurist based in the UK. He is a member in the ECFR and the International Union for Muslim Scholars. He worked as an Imam in Iraq for two years and in Kuwait for eight years. He was the secretary general for the ECFR for two years. He has a number of Islamic publications such as Al-Ajwibah AlMurdiyah Fi Al’As’ilah Al-Najdiya, Tayseer ‘Ilm ‘Usul Al-Fiqh and I’fa’ AlLihyah. 2 Abdullah Ibn Yusuf Ibn ‘Isa Ibn Ya’qub Al-Ya’qubi Al-Judai’, Taqseem AlMa’muah Fe Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 8. 3 Ibid. 4 Abdullah Ibn ‘Umar Ad-Dabbusi, Ta’sees An-Nasar (Cairo: Al-Imam Press, 1972), p. 79. 5 Ibid. 6 Abdullah Al-Judai’, Taqseem Al-Ma’muah Fe Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 8.

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At-Tabari, Al-Kabeer, v. 7, p. 53, Muhammad Ibn Sa’eed Al-Zuhari, At-Tabakat Al-Kubra (Beirut: Dar Sader, n. d.), v. 7, pp. 427í8, Ya’qub Ibn Sufian Al-Faswi, Al-Ma’rifah Wat-Tareekh (Medina, Maktabat Ad-Dar, 1410 HJ), v. 2, p. 298. 8 Muslim, Sahih Muslim, v. 3, p. 1357; Abu Dauud, Sunan, v. 3, p. 37. 9 Sarkhasi, Al-Mabsut, v. 14, p. 69; Ibn Al-Humam, Sharh Fath Al-Qadeer (Beirut: Dar-ul-Fikr, 1977), v. 7, p. 38. 10 The Hanafi School or Madhhab of Fiqh or Islamic jurisprudence is a Sunni school founded by Imam Abu Hanifa. Its followers are known in English as Hanafites or Hanifites. The Hanafi School is predominant among Sunni Muslims in Pakistan and northern Egypt. It is followed by approximately 30 per cent of Muslims worldwide. The Constitution of Afghanistan allows Afghan judges to use Hanafi jurisprudence in situations where the Constitution lacks provisions. The Hanafi School should not be viewed as a schism. It is quite common for a Muslim to follow one school but take the point of view of another school for a certain issue. 11 ‘Ala’ Al-Din Al-Kisani, Badai’ Al-Sana’I (Cairo: Al-Imam Press, n. d.), v. 9, p. 4374; Al-Sarkhasi, Al-Mabsut (Beirut: Al-Kutub Al-‘Ilmiya Press, 2001), v. 10, p. 27. 12 Nidham, Al-Fatawa Al-Hindia (Beirut: Dar Ihya’ At-Turath Al-‘Arabi, 1980), v. 2, p. 232. 13 Al-Shaibani, Sharh Al-Siyar Al-Kabeer by Al-Sarkhasi (Arab League: Ma’had Al-Makhtutat Al-‘Arabiya, 1971), v 4, p. 1253. 14 Al-Kisani, Badai’ Al-Sana’, v. 9, p. 4375. 15 Imam Muhammad Ibn al Hasan al Shaibani, born in 135 HJ and died in 189 HJ, was an eminent Hanafi scholar of his time, who also served as the Chief Justice in Baghdad. He was educated by Imam Abu Hanifah and afterwards by Abu Yusuf. He was also educated by Imam Malik. 16 Al-Shaibani, Sharh Al-Sair Al-Kabeer by Al-Sarkhasi (Arab League: Ma’had AlMakhtutat Al-‘Arabiya, 1971), v. 4, p. 1149. 17 The Maliki School or Madhhab of Fiqh or Islamic jurisprudence is a Sunni school founded by Imam Malik Ibn Anas. Its followers are known in English as Malikis. The Maliki School is predominant among Sunni Muslims in North Africa, West Africa, the United Arab Emirates, Kuwait, some parts of Saudi Arabia, and some parts of Europe, such as Spain when it was under Islamic rule. It is followed by approximately 25 per cent of Muslims worldwide. The Maliki School should not be viewed as a schism. It is quite common for a Muslim to follow one school but take the point of view of another school for a certain issue. 18 Sahnun Ibn Sa’eed Al-Tannukhi, Al-Mudauwanah Al-Kubra (Beirut: Dar Sabr, n. d.), v. 2, p. 22. 19 Abdullah Al-Judai’, Taqseem Al-Ma’murah Fi Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 55. 20 Shams Al-Din Ibn Ahmad Ibn Arafah Ad-Dusuqi, Hashiat Ad-Dusuqi Ala AlSharh Alkabier (Beirut: Sar-ul-Fikr, 2002), v. 1, p. 570. 21 Muhammad Benis, Hashiat Al-Adawi Ala Kifaiat Al-Talib (Beirut: Dar-ul-Fikr, 2003), v. 1, p. 366.

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The Shafi’i School or Madhhab of Fiqh or Islamic jurisprudence is a Sunni school founded by Imam Ash-Shafi’i. Its followers are known in English as Shafi’is. The Shafi’i School is predominant among Sunni Muslims in Palestine, Indonesia, Malaysia, Kurdistan, parts of Egypt, Somalia, Sudan, Maldives, Pakistan, Saudi Arabia, South Africa, Singapore, Vietnam, Colombia and the Philippines. It is followed by approximately 29 per cent of Muslims worldwide. The Shafi’i School should not be viewed as a schism. It is quite common for a Muslim to follow one school but take the point of view of another school for a certain issue. 23 Ash-Shafi’i, Al-‘Um (Beirut: Dar Qutaibah, 1996), v. 9, p. 371. 24 Mar Al-Dhahran is a place close to Mecca. 25 Ash-Shafi’i, Al-‘Um, v. 10, p. 149, quoting Al-Baihaqi, Al-Sunan Al-Kubra, v. 7, p. 186. 26 Abu al-Hasan Ali Ibn Muhammad Ibn Habib al-Mawardi, born in Basra in 972 and died in 1058, was initially educated in Basra then in Baghdad. He worked as a judge and then became the Chief Justice in Baghdad. The Abbasid Caliph Al-Qaim bi Amr Allah appointed him as an ambassador and sent him to a number of countries as the head of special missions. Al-Mawardi was a great Muslim jurist, sociologist and an expert in political science. His publications include Kitab AlAhkam Al-Sultania, Qanun Al-Wazarah and Kitab Nasihat Al-Mulk. 27 Abu Al-Hassan Al-Mawardi, Al-Ahkam-ul-Sultaniah (Cairo: Mustafa Al-Halabi, 1973), pp. 49í50. 28 Abu Mansur Abd al-Qahir ibn Tahir ibn Muhammad ibn Abdallah al-Tamimi alShaffi al-Baghdadi, born in 980 and died in 1037, was a Muslim Arab mathematician. He belonged to the Shafi’i School. He was one of the great teachers of his time. His publications include Kitab fi'l-misaha and al-Takmila fi'lHisab. 29 Abu Mansur Al-Baghdadi, ‘Usul Al-Din (Istanbul: Madrasat Al-Ilahiyat, 1928), p. 270. 30 The Hanbali School or Madhhab of Fiqh or Islamic jurisprudence is a Sunni school founded by Imam Ahmad Ibn Hambal. Its followers are known in English as Hanbalites. The Hanbali School is predominant among Sunni Muslims in the Arabian Peninsula. The Hanbali School should not be viewed as a schism. It is quite common for a Muslim to follow one school but take the point of view of another school for a certain issue. 31 Muhammad Ibn Muflih, Al-Adab Al-Shar’iyah (Beirut: Mu’ssasat Al-Risalah, 2000), v. 1, pp. 255í6. 32 Ibn Al-Qaiyym Al-Jauziyah, Ahkamu Ahli Adh-Dhmmah (Beirut: Dar Al-‘Ilm Lilmalaieen, 1981), v. 1, p. 336. 33 Abu Muhammad Ali Ibn Ahmad Ibn Sa’eed Ibn Hazm, born in 994 and died in 1064, was an Andalusian philosopher, littérateur, psychologist, historian and a jurist. He was educated in Cordoba. He was a leading figure of the Dhahiri Islamic School. He produced about 400 works of which forty survived. His works include Al-Muhalla Bil ‘Athar, Ihkam Al-Ahkam Fi Usul Al-Ahkam and Tauq AlHamamah.

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Muhammad Ibn Hazm Al-Andalusi, Al-Mahilla (Beirut: Dar Al-Jeel, n. d.), v. 11, p. 200. 35 Abdullah Al-Judai’, Taqseem Al-Ma’murah Fi Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 60. 36 Ibid. 37 Testifying that there is only one God and Muhammad is His messenger. 38 Muhammad Ibn Ali Al-Shaukani, As-Sail Al-Jarrar Al-Mutadaffiq Ala Hadaiq Al-Azhar (Beirut: Dar Al-Kutub Al-‘Ilmiya, 1985), v. 4, p. 575. 39 Muhammad Ibn Ali Ibn Muhammad Ibn Abdullah Al-Shaukani, born in 1759 and died in 1834, descended from a Shiite family, but later on he became a Sunni. Al-Shaukani is derived from Hijrah Al-Shaukan, a town near Sana’a. He was a Mujtahid. His works include Nail Al-Autar, Fath Al-Qadeer and Irshad Al-Fuhul. 40 Ibid. 41 Qutb, Fi Dhilal Al-Qur’an (Cairo: Dar Al-Shiruq, 1998), v. 2, pp. 873í4. 42 Muhammad Abu Zahra, born in 1898 and died in 1974, was an Egyptian intellectual and an influential Muslim jurist. He occupied a number of positions; he was a lecturer of Islamic law at Al-Azhar University and a professor at Cairo University. He was also a member of the Islamic Research Academy. His works include Abu Hanifa, Malik and Ash-Shafi’i. 43 Abu Zahra, Muhammad, Al-‘Alaqat Ad-Dauliah Fe Al-Islam (Cairo: Dar Al-Fikr Al-‘Arabi, 1995), p. 56. 44 Ibid., p. 55. 45 Ibn Taimiyah, Majmu’ Al-Fatawa, v. 27, p. 45. 46 Nidham, Al-Fatawa Al-Hindiah (Beirut: Ihia’ Dar Al-Turath Al-‘Arabi, 1980), v. 2, p. 232; Muhammad Ameen Ibn Abdeen, Hashiyat Rad Al-Mukhtar (Cairo: Al-Halabi, 1966), v. 4, p. 174. 47 Al-Kisani, Badai’ Al-Sana’i, v. 9, pp. 4374í5; Al-Sarkhasi, Al-Mabsut, v. 10, p. 141; Ibn Qydamah, Al-Mughni, v. 8, p. 138; Nidham, Al-Fatawa Al-Hindiah, v. 2, p. 232; Ibn ‘Abdeen, Hashiat Rad Al-Mukhtar, v. 4, p. 175. 48 Muhammad Alaa’ Al-Din Ibn Muhammad Ameen Ibn ‘Umar Ibn ‘Abdelazeez Abdeen, born (1828) and died in Damascus (1889) was educated by a number of famous Muslim scholars of his time such as Muhammad Sa’eed Al-Halabi and Muhammad Shaker Al-‘Aqqad. He was an Imam of Al-Ta’deel Mosque and he played a significant role in issuing Fatwa in Damascus. His many works include Raf’ Al-Ishtibah ‘An ‘Ibarat Al-Ashbah, Al-‘Ilam Al-Dhahir Fi Ra’ Al-Nasab AlTahir and Risalatain Fi Fan Al-‘Arood. 49 Muhammad Ameen Ibn Abdeen, Hashiyat Rad Al-Mukhtar (Cairo: Al-Halabi, 1966), v. 4, p. 175. 50 Ibid. 51 Ya’qub Ibrahim Al-Ansari, died in 798, was a student of Abu Hanafa who played an important role in spreading the Hanafi School of Islamic theology. He was appointed as a judge in Baghdad. He was the first Muslim to attain the title of grand judge conferred on him by Harun Al-Rasheed, the Abbasid Caliph. His works include Kitab Al-Kharij, Usul Al-Fiqh and Kitab Al-Rad ‘Ala Siyar Al‘Auza’i.

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Ibid. Abu Al-Qasim Al-Rafi’i, Fath Al-‘Azeez Sharh Al-Wajeez (Beirut: Dar AlKutub Al-‘Ilmiyah, 1997), v. 6, p. 404. 54 Ibn Hajar Al-Haitamy, Tuhfatulmuhtaj Bisharh Al-Muhtaj (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2005), v. 4, p. 211. 55 Shams Al-Din Al-Ramly, Nihayatulmuhtaj ‘Ila Sharh Al-Minhaj (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2003), v. 8, p. 82. 56 Shams Al-Din Ibn Ahmad Al-Dusuqi, Hashiat Al-Dusuqi Ala Al-Sharh AlKabeer (Beirut: Dar-ul-Fikr, 2002), v. 2, p. 279 and also Ahmad As-Sawi, Bulghat As-Salik Liaqrab Al-Masalik Li Madhhab Al-Imam Malik (Beirut: Dar Al-Madar Al-Islami, 2002), v. 2, p. 218. 57 Al-Qasim Al-Rafi’i, Fath Al-‘Azeez Sharh Al-Wajeez (Beirut: Dar Al-Kutub Al‘Ilmiyah, 1997), v. 6, p. 404. 58 Muhammad Ibn Muhammad Al-Shirbini, Mughni Al-Muhtaj ‘Ila Ma’rifat Alfadh Al-Minhaj (Beirut: Dar Ihia’ Al-Turath Al-‘Arabi, 2001), v. 4, p. 7. 59 Abu Bakr Al-Rauiani, Musnad (Pakistan: Al-Majlis Al-‘Ilmi, 1963), Hadith No. 783. 60 Abdulkareem Zidan, Ahkam-uz-zimeen walmusta’maneen Fi Dar Al-Islam, (Beirut: Mu’ssasat Al-Risalah, 1982), pp. 20í1. 61 Ibn Taymiyah, Majmou’ Al-Fatawa, v. 28, pp. 240í1; Ibn Muflih, Al-Adab AlShar’iyah, v. 1, pp. 255í6. 62 Abdullah Al-Judai’, Taqseem Al-Ma’murah Fe Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 68. 63 Ibid., p. 69. 64 Al-Haitami, Tuhfat Al-Muhtaj, v. 4, p. 211; Al-Sherbini, Mughni Al-Muhtaj, v. 4, p. 7. 65 Muhammad Ibn Ali Al-Shaukani, Nail Al-‘Autan Sharh Muntaqa Al-Akhbar (Cairo: Maktabat Al-Kulliyat Al-Azhariya, 1978), v. 9, p. 270. 66 A Muslim jurist born in Kafer Al-Haj, Egypt in 1906. He faced capital punishment in 1954. 67 ‘Abd-ul-Qader ‘Udah, Al-Tashree’ Al-Jinai Al-Islami (Beirut: Mua’ssar AlRisalah, 1989), v. 1, p. 295. 68 Abdullah Al-Judai’, Taqseem Al-Ma’murah Fi Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 79. 69 Ibn Qudamah, Al-Mughni, v. 9, p. 459; Yahia Ibn Khair Al-Imrani, Al-Baian Sharh Al-Muhadhab (Jeddah: Dar Al-Minhaj Press, 1421 HJ), v. 12, p. 301; Ibn Al-Qaiym, Ahkam Ahl-udh-Dhimmah, v. 2, p. 476. 70 Ibn Qudamah, Al-Mughni, v. 8, p. 459; Al-Kisani, Badai’ Al-Sana’I’, v. 9, p. 4324; Al-Imrani, Al-Baian, v. 12, p. 301; Al-Shirbini, Mughni Al-Muhtaj, v. 6, p. 124. 71 Abu Yusuf Al-Qadi, Al-Kharaj (Beirut: Dar Al-Ma’rifah, 1979), p. 207. 72 Abu Zakariya An-Nawawi, Rawdat At-Talibeen (Beirut: Al-Maktab Al-Islami, 1975), v. 10, p. 334. 73 Abu Bakr Al-Jassas, Ahkam Al-Qur’an (Beirut: Dar Al-Kitab Al-‘Arabi, 1335 HJ), v. 1, p. 220. 53

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Abdullah Al-Judai’, Taqseem Al-Ma’murah Fi Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 79. 75 Clothes worn by Muslim pilgrims. 76 Safiur-Rahman Al-Mubarakpuri, The Sealed Nectar (Cairo: Darussalam, 2001), pp. 668í82, Ibn Hisham, Sirat Ibn Hisham, Dar Ibn Al-Haitham, v. 3, pp. 162í74, Al-Bidah Wannihaiah, Dar Ibn Haiyan, v. 4, pp. 195í210, At-Tabarai, Tarikh AtTabari Cairo: Pal-Husainiya Press, 1336 HJ), v. 2, pp. 115í25. 77 Imam al-Tabari, Tareekh Al Umam wal Molouk (Cairo: Pal-Husainiya Press, 1336 HJ), v. 3, p. 105. 78 Abu Bakr Ibn Al-Munzer, Al-Ausat (Riyadh: Dar Taybah, 1999), v. 11, pp. 312í32; Kamal Al-Din Ibn Al-Humam, Sharh Fath Al-Qadeer (Beirut: Dar AlFikr, 1977), v. 5, p. 456; Al-Marudi, Al-Hawai, v. 14, p. 296; Al-Ramli, Nihaiat Al-Muhtaj, v. 8, p. 107, Al-Farra’, Al-Tamam (Riyadh: Riyadh Press, 1414 HJ), v. 2, pp. 228í9; Ibn Qudamah, Al-Mughni, v. 8, pp. 459í60. 79 ‘Abdullah Al-Qurtubi, Al-Jami’ Liahkam Al-Qur’an (Beirut: Ihya’ Al-Turath Al‘Arabi), v. 8, p. 41. 80 Ibn Al-Qayyim, Zad Al-Ma’ad (Beirut: Muassasat Al-Risalah, 1996), v. 3, p. 371. 81 Al-Sawi, Bulghat Al-Salik Liaqrab Al-Masalik Li Madhhab Al-Imam Malik (Beirut: Dar Al-Madar Al-Islami, 2002), v. 2, p. 237. 82 Al-Judi’, Taqseem Al-Ma’murah fee Al-Fiqh Al-Islami (Beirut: Beirut Press, 2007), p. 81. 83 Sahnun, Al-Mudauwanah, v. 6, p. 291; Al-Muzni, Mukhtasar Al-Muzni (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 1998), p. 259; Abu Zaid Al-Qairawani, Al-Nawader Walziyadat (Beirut: Dar Al-Arab Al-Islami, 1999), v. 3, pp. 319í20. 84 Shafi’i, Al-‘um, v. 7, p. 375. 85 Ibn Abu Zaid Al-Qairawani, An-Nawader Waz-Ziyadat, v. 3, p. 320. 86 Sarkhasi, Al-Mabsut, v. 10, p. 96; ‘Abdullah Al-Hattab, Mawahib Al-Jalil (Beirut: Dar Al-Fikr, 2002), v. 3, p. 477; Al-Shirbeeni, Mughni Al-Muhtaj, v. 4, p. 311; Al-Mawardi, Al-Insaf (Beirut: Ihia’ Dar Al-Turath Al-‘Arabi, n. d.), v. 8, p. 135. 87 Zain Al-Din Ibn Nujaim, Al-Bahr Al-Ra’iq Sharh Katar Al-Daqa’iq (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 1997), v. 8, p. 246. 88 Wahbah Al-Zuhaili, ‘Athar Al-Harb Fi Al-Fiqh Al-Islami (Damascus: Dar AlFikr, 1998), p. 176. 89 Fasal Maulawi, Al-‘Usus Al-Shar’iyah Lil’alaqat Bin Al-Muslimeen wa Ghair Al-Muslimeen (n. p., n. d.), p. 79. 90 Muhammad Abu Zahra, Al-‘Alaqat Al-Diwaliyah Fi Al-Islam (Cairo: Dar AlFikr, 2010), p. 57. 91 Donald Neff, Former Time Magazine Bureau Chief, Israel, “U.S. Vetoes of U.N. Resolutions on Behalf of Israel”, published on http://www.ifamericaknew. org/us_ints/p-neff-veto.html, September 1993.

CHAPTER SEVEN FIQH AL-AQALLIYAT ΕΎϴϠϗϷ΍ ϪϘϓ (FIQH OF MINORITIES)

7.1 Introduction Muslims, like all religious communities, whether they live in Muslim or non-Muslim lands, confront a number of Fiqh (Islamic jurisprudence) challenges ranging from individual, economic and family to social problems. Nevertheless, due to their distinctive circumstances, Muslim minorities face particular Fiqh challenges, a number of which are more urgent to them than others. This chapter will review aspects of Fiqh AlAqalliyat in the context of the concept of coexistence.

7.1.1 Muslims and Islam Muslims perceive Islam as a realistic and comprehensive religion, which aims to work in the interest of humans and to elevate them materially and spiritually. They believe it is applicable at all times and in all places. Hence, Muslims – be they rich or poor, the subjects and the rulers í whether they live in a Muslim or a non-Muslim land, should hold fast to Islam regardless of the time and place in which they live. In the Qur’an it is stated: “And to Allah belong the east and the west, so wherever you turn (your faces) there is the Face of Allah. Surely! Allah is All-Sufficient for His creatures’ needs, All-Knowing” (Trans. 2:115). Nonetheless, their adherence to Islam has to be conducted within their capabilities, while taking into consideration their respective needs and necessities duly appreciated by Shari’ahh. Islam does not aim to impose hardship on Muslims, nor does it aim to overburden them. In the Qur’an it is stated: “And Allah has not laid upon you in religion any hardship” (Trans. 22:87). Also in the Qur’an it is stated: “Allah intends for you ease, and He does not want to make things difficult for you” (Trans. 2:185). On this basis, Muslims, regardless of the land where they live, whether they are ruled by Islamic or non-Islamic systems, should apply Shari’ahh

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within the limits of their capacity. No Muslim can purportedly state that he/she is exempted from Shari’ahh or Islamic obligations unless Shari’ahh exempts him/her due to his/her circumstances. For instance, pregnant women are exempted from fasting. As a result of the above-mentioned argument this chapter is dedicated to the Fiqh of minorities. By virtue of the above-mentioned verse, Muslims should accept Islam entirely. They cannot be selective about it. However, Islam recognises the fact that human beings can be affected by necessities, time and place. Hence, taking these factors into consideration, a specific Fatwa can be issued to remove hardships from Muslims, applying an accepted rather than an ideal solution. Fatawa should emanate from understanding Islam and understanding the context. This can be compared to a doctor who is visited by two patients suffering from the same disease, yet he prescribes them different medicines due to their respective circumstances. Medicine that is suitable for one person is not necessarily suitable for another. Nevertheless, both medications can be prescribed on the basis of medical understanding, yet preference towards one or the other of them is formed on the basis of understanding the respective circumstances. In the following pages an argument will be presented to support the concept that Fatwa changes from time to time and from place to place. In the following pages the elucidation of Fiqh Al-Aqalliyat will be presented, aiming to answer the following questions: What are the objectives of Fiqh Al-Aqalliyat? What are its characteristics? What are its sources? What are its foundations? This will be followed by a wide range of real examples of Fatawa of Fiqh Al-Aqalliyat.

7.2 Significance of the Term Aqalliya ΔϴϠϗ΃ (Minority) Al-Qaradawi argues that due to the occurrences of many migrations and globalisation, which has turned the whole world into a small village, the term minorities has been frequently used. Al-Qaradawi adds that this term refers to a group of people distinguished from the majority that shares the same land with them in terms of their religion, race, language, etc. This includes Muslim minorities in the West, Buddhists in China and Christians in Egypt, Syria and Iraq. It also encompasses Barbers in Algeria and Morocco and Kurds in Iraq, Turkey and Syria.1 Charles Wagley stresses that the term minorities refers to a group of people, the members of which are united on the basis of biological or cultural commonalities, which

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distinguish them from the members of the wider society where they live. Wagley adds that members of this group are not treated equally if compared to other members of their society.2 Wael Allam gives a similar definition of the term minorities as he explains that it refers to a group of people having religious, racial, national or linguistic commonalities, which are not shared by members of their societies. Allam adds that this group is not involved in the governing authorities and suffers from racism.3 These two definitions consider social and political factors in order to classify a group as a minority, ignoring their numbers. Ahmad Wahban argues that numbers are considered an important factor when classifying a group as a minority. He supports his argument by citing examples such as the white minorities in South Africa, which ruled the black majority until the 1990s.4 F. Capotorti agrees that numbers constitute an important factor when classifying a group as a minority, as he defines them as: A group, numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, tradition, religion or language.5

Deirdre Fottrell and Bill Bowring described this definition as frequently cited and gaining considerable authority.6 Deschenes formulated a refined form of Capotorti’s definition, stating that the term minorities refers to: A group of citizens of a state, constituting a numerical minority and in a non-dominant position in that state, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.7

These two definitions classify a group as a minority on the basis of numerical and socio-political inferiority, nationality, religious or linguistic ethnicity and a sense of solidarity shared by members of the group. AbdulKareem Al-Jiba’i highlights that the term minorities has a number of definitions and that this is because these definitions have been formed on the basis of various points of interest and in different contexts.8 Many efforts have been devoted to reaching a satisfactory definition of the term, yet none of them have proved to be successful. The difficulty in forming such a definition is due to the fact that various minorities live in a wide range of circumstances; some minorities have formed their own ghettos such as the Kurds in Turkey, whereas others feel that they are integrated

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into parts of their societies such as the Muslim Minorities in India, so they are part of the majority. Nevertheless, Jamal Atiya states that there is a common definition of the term minorities: it refers to ethnic minorities distinguished from the majorities of their societies in terms of their nationalities, religions and languages.9 Muslim minorities residing in non-Muslim lands are divided into two categories. The first category is represented by indigenous people and the second category is represented by immigrants, some of whom are naturalised citizens and others, who have permission to live in these countries.10 The two above-mentioned categories of Muslim minorities residing in non-Muslim lands are in need of Fiqh based on Ijtihad (reasoning), while taking into consideration their respective times and locations and the fact that they have no other option but to abide by the laws of their lands, sometimes resulting in contradicting Shari’ahh.

7.3 Characteristics of Fiqh Al-Aqalliyat In order to achieve its objectives, Fiqh Al-Aqalliyat should fulfil a number of characteristics so that it might match the respective circumstances of various Muslim minorities, while being in full conformity with Islamic foundations. In the following pages, the most important characteristics, according to a number of Muslim scholars, will be listed and elucidated.

7.3.1 Achieving Muslims’ Interest Legally Muhammad Al-Khidr11 argues that Muslim scholars consensually agree that the purpose of the Islamic Shari’ahh is Hifdh Al-Masalih Wa Dar’ Al-Mafasid ΓΪδϔϤϟ΍ ΃έΩϭ ΔΤϠμϤϟ΍ φϔΣ (protecting public interest and warding off mischief).12 Muslim classical scholars have given a number of definitions to Maslaha ΔΤϠμϣ (interest) as described in the section below. According to both Al-Ghazali13 and Ibn Qudamah,14 Maslahah refers to the Islamic legal objective of accomplishing interests or warding off an evil.15 Al-Khawarizmi, as quoted by Al-Shaukani, similarly defines Maslahah as implementing Islamic objectives by preventing mischief.16 Al-Tufi17 argues that Maslahah, according to norms, is what provides a benefit such as trade leading to profits. Al-Tufi adds that Maslahah,

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according to Islam, is the reason for accomplishing Islamic objectives regarding worldly or spiritual affairs.18 Ibn Al-Hajib19 states that Maslahah refers to a matter which is neither approved of nor rejected by Islamic scriptural texts, or a consensus expressed by the majority of Muslim scholars.20 This opinion is welcomed by Abu Zahrah.21 Almost the same opinion is given by Al-Bidawi as he states that Maslahah is a description of a suitable rule, which is neither approved of nor rejected by Islam.22 Salah Sultan stresses that Maslahah refers to deducing an Islamic rule, based on an islamically recognised interest, in an event on which no Islamic text has been narrated.23 According to Al-Salmi,24 Maslahah is a suitable description for what works in people’s interest and wards off evil; such a description is neither approved of nor rejected by Islam.25 AlMashat states that Maslahah refers to a suitable description which is neither approved of nor rejected by Islam.26 The same definition was given by Ali Hasaballah27 and Badran Abu Al-‘Ainain.28 Al-Buti highlights that Maslahah refers to every interest included in the scope of Islamic objectives, yet there is no Islamic text approving of it or rejecting it.29 Abdulwahhab Khallaf30 illustrates that Maslahah refers to formulating a rule deduced on the basis of people’s interest in a particular event, on which no Islamic text has been narrated or the consensus of Muslim scholars has been reached.31 If a Muslim scholar is requested to issue a Fatwa on a particular issue, he endeavours to find an Islamic text that deals directly with such a matter. If he fails then he endeavours to find an Islamic text that deals with the matter in an indirect way. If he fails in this, then he endeavours to find an Islamic rule applied to a different event that shares similarities to this event. If this, too, fails then he should issue his Fatwa taking into account people’s interest encompassed in the scope of Islamic objectives. This, then, is the Maslahah ΔΤϠμϣ.32 Al-Buti states that the Maslahah ΔΤϠμϣ has to be recognized by Shari’ahh so that it might not be abused. The Maslahah ΔΤϠμϣ does not mean one’s desires or lusts.33 According to Al-Shatibi,34 Maslahah ΔΤϠμϣ can only be taken into account if it is compatible with Islamic objectives and does not contradict any of them. It should also be logically accepted and not pertinent to Islamic acts of worship. Taking it into account should lead to preserving something essential to Islam or removing a hardship for

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Muslims. Taking it into account should not lead to losing a more important Maslahah. It should not contradict an authentic analogy.35 The example of this is the practice of ‘Umar when he declined to give a portion of the Zakat to the people who used to receive a part of it by means of softening their hearts.36 In brief, according to the above-mentioned definitions of the term Maslahah, one can discern that rules issued on the basis of Maslahah are not based directly on scriptural proofs, but rather are a logical process of considering the needs of Muslims and the objectives of the Islamic Shari’ahh. This practice of reasoning is permissible in Islam. It shows the flexibility of Islam and how people can comfortably lead their lives according to Islam. It helps Muslims to preserve their Muslim identity. 7.3.1.1 Maslahah ΔΤϠμϣ is not Bid’ah ΔϋΪΑ The divine revelation reached its culmination by the demise of the Prophet Muhammad, peace be upon him, in 632. Since that date new events are continually occurring, and Muslims cannot always find a Qur’anic text that directly or indirectly deals with them. From the earliest Islamic era, Muslims have had to issue Fatawa on the basis of the main objectives of Shari’ahh, its general rules and the Maslahah approved of by a text of a general nature. The practice of Maslahah is not Bid’a (innovation), but rather a practice conducted by the Companions of the Prophet Muhammad, peace be upon him. Shortly after the death of the Prophet Muhammad, peace be upon him, a number of Muslims in the Arabian Peninsula committed apostasy. Hence, a series of wars, such as Al-Yamamah, where a number of Hafidh37 were killed, occurred. Consequently, ‘Umar Ibn Al-Khattab suggested collecting the Qur’anic records. Abu Bakr’s prompt response was: “How can I do something not done by the Prophet, peace be upon him?” ‘Umar Ibn Al-Khattab could not find scriptural proof to support his argument, so he said: “By Allah it is good for Muslims.” On second thought, Abu Bakr welcomed the idea and commissioned Zaid Ibn Thabit to do it and he did.38 The Muslim history does not record any disapproval of any Companion in this regard. Sultan argues that the Companions based a number of rules, decided on after the demise of the Prophet Muhammad, peace be upon him, on the Maslahah Mursalah (public interest). For instance, they elected Abu Bakr to be the first Caliph, they collected the whole Qur’an in one book and

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Abu Bakr appointed ‘Umar as the second Caliph.39 The Tabi’un40 followed the example of ‘Umar. For instance, ‘Umar Ibn ‘Abdelazeez collected the Sunnah41 and recorded it.42 7.3.1.2 Opinions and Deliberation Imam Malik: According to Hussein Hamid,43 the term Maslahah Mursalah ΔϠγήϣ ΔΤϠμϣ is not mentioned in Imam Malik’s methodology of forming Islamic law. Nevertheless, considering Malik’s Fiqh and the opinions expressed by his students gives clear indications that Imam Malik took into account the Maslahah Mursalah more than all other Imams.44 Ibn Daqiq Al-‘eid states that Malik excelled in this field.45 Ash-Shatibi stresses that Imam Malik, while observing the Shari’ahh objectives, elaborates on the Maslahah Mursalah regarding issues pertaining to transactions and worldly affairs. He clarifies that Imam Malik did not apply the Maslahah Mursalah regarding acts of worship.46 Imam Malik takes into account the Maslahah Mursalah, provided that the issue he considers is not an act of worship, is harmonious with Shari’ahh objectives, is logically accepted and leads to preserving the Maslahah Daruriyah Δϳέϭήο ΔΤϠμϣ or removing unavoidable hardship.47 The best example of Maslahah Mursalah in Malik’s methodology of forming rules is when he states that if impure saffron is found in the hands of the one who adulterates it, then the punishment for the owner is that it should be taken and given to the poor as charity.48 Imam Ahmad Ibn Hanbal: Ibn Hanbal was the second Imam who perceived the paramount importance of Maslahah Mursalah. Ibn Daqiq states that there is no doubt that Imam Malik excelled in the field of Maslahah Mursalah, and the second Imam to do so was Ibn Hanbal.49 Ibn Al-Qaiyym highlights that Shari’ahh is based on rules and the Maslahah Mursalah. Shari’ahh is mercy and justice aiming to achieve Maslahah Mursalah. Hence, a matter that does not include any of these three cannot be part of Shari’ahh.50 One of the famous Hanbali Fatawa issued that takes Maslahah Mursalah into account states that disposing of property that belongs to others, without acquiring their approval first, is permissible if justified by necessity. For instance, if someone sees smoke coming out of his neighbour’s house and he breaks into the house, according to this Fatwa

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Islamically he is not required to repair what he damaged in order to enter the house.51 As for Abu Hanifa as well as Ash-Shafi’i, there are various opinions about whether they took Maslahah Mursalah into account or not. AshShafi’i issued a number of Fatawa confirming his consideration of the Maslahah Mursalah. For instance, according to Ash-Shafi’i, if someone does not bear witness and as a result someone is killed, then he is deemed a murderer.52 At-Tufi states that the strongest evidence lies in the Qur’anic texts and the consensus of Muslim scholars. Nevertheless, if the evidence contradicts Maslahah Mursalah, priority should be given to Maslahah Mursalah by means of explaining them and not deactivating them.53 AtTufi adds that with regard to rules pertaining to acts of worship, priority is given to Qur’anic texts and consensus of the Muslim scholars. As for issues pertaining to transactions, priority is given to Maslahah Mursalah.54 According to Ash-Shatibi, the validity of Maslahah Mursalah is proved by a Shari’ahh process of induction. Considering its general and specific rules and proofs, one can form a rule such as Hatim’s generosity and the courageousness of Ali Ibn Abu Talib, May Allah honour his face. To prove the authenticity of these issues, people did not depend on a particular proof, but rather a number of respective events in various chapters of Fiqh.55 The best example is represented by individual narrations, when added to each other, reach the level of Tawatur.56 Al-Ghazali does not classify Maslahah Mursalah as the fifth source of Islamic law, since applying it is part of the Qur’an and Sunnah and is not an independent proof. He states that the Maslahah Mursalah refers to preserving an Islamic objective in conformity with the Qur’an and Sunnah in general, but not with a specific verse or a particular hadith.57 Salah Sultan states that the methods applied to achieve one’s interests may vary from one place to another and from time to time. Moreover, people’s interests may vary from one place to another and from time to time. For instance, yesterday’s developmental interests could be today’s necessary interests. This means there is a need for rules suited to these alterations. Sultan argues that if Maslahah Mursalah is not taken into account, Muslims will face difficulty and hardship and this is contrary to Islam.58

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A number of Islamic obligations mentioned in the Qur’an are followed by an explanation as to why they have been prescribed for Muslims. For instance, in the Qur’an it is stated: “And establish prayers, for prayers prevent evil and wicked deeds” (Trans. 29:45). In this verse, Allah prescribes prayers for Muslims explaining that they prevent mischief. Also in another place in the Qur’an it is stated: “So when Zaid had divorced her, We gave her to you in marriage, so that there may be no difficulty for the believers in respect of the marriage of the wives of their adopted sons when the latter have divorced them. And Allah’s Command must be fulfilled” (Trans. 33:37). Allah commanded the Prophet, peace be upon him, to marry Zaid’s divorced lady, Zainab Bint Jahsh, to abrogate adoption. Prior to the revelation of this verse, it was not permissible for Muslims to marry the ex-wives of their adopted sons. In other words, parts of Islamic legislation are based on certain reasons. Hence, there is no harm in taking into account the Maslahah Mursalah when forming a rule.59 7.3.1.3 In Brief Muslim scholars take Maslahah Mursalah into consideration when issuing Fatawa pertaining to the transactions and issues of a worldly nature since they are subject to change from time to time and from place to place. As for Islamic acts of worship, they cannot be subjected to the rule of Msalahah Mursalah, since they are fixed and not affected by place or time. Moreover, there is no room for reasoning in this field. God, the unseen and unchangeable, commands that he be worshipped in a certain way. Hence, Islamic worship cannot be subjected to the rule of Maslahah Mursalah. 7.3.1.4 Scriptural Proof In the Qur’an, certain verses are cited in relation to Maslahah Mursalah. Among these are the following: And has not laid upon you in religion any hardship. (Trans. 22:78) We have sent ye naught but as a mercy to all that exists. (Trans. 21:107) Allah wills to lighten your burden. (Trans. 4:28) Allah intends for you ease and He does not will to make things difficult for you. (Trans. 2:185)

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The above verses are a guide to mercy and to easing and removing hardship, which cannot be achieved unless Maslaha Mursalah is taken into account. In the Qur’an it is stated: “O you who believe! Answer Allah and (His) Messenger when he calls you to that which will give you life” (Trans. 8:24). Answering Allah means being obedient to Him; one can have a true life only if he/she abides by the religion. Hence, this religion must secure the interest of humans in this life and their salvation in the hereafter. It is reported that the Prophet Muhammad, peace be upon him, said to ‘Aisha: “Had your people not been new Muslims I would have knocked down the Ka’bah and rebuilt it making there two gates; one entry and the other exit.”60 That is to say, the Prophet Muhammad, peace be upon him, aimed to remove hardship from Muslims, as the Muslims in his time would find it difficult to see any changes in the building of the Ka’bah. Not only do the above-mentioned texts prove the validity of Maslahah Mursalah, but also the concept that Maslahah Mursalah ensures Shari’ahh rules. 7.3.1.5 Three Categories of Maslahah Mursalah Three categories of Maslahah Mursalah have been discerned. 1. Maslahah Daruriya Δϳέϭήο ΔΤϠμϣ (the necessary interest): AlShatobi states that this refers to the Maslahah, which no one can do without. The affairs of this life and the life to come cannot be run properly without it. If it is not secured, then this life turns into chaos and there will be no salvation in the hereafter.61 It can be secured by facilitating its existence and instilling its rules, but also it should be protected against any real and expected danger.62 In the scope of the Daruriyah the protection of religion, life, mind, lineage and wealth is included;63 neglecting these objectives leads to failure in this life and in the hereafter.64 2. Maslahah Hajiyah ΔϴΟΎΣ ΔΤϠμϣ (needed interest): This refers to the Maslahah needed to remove hardship such as purchasing, selling, etc.65

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3. Maslahah Tahsiniyah ΔϴϨϴδΤΗ ΔΤϠμϣ (developmental interest): This refers to applying better practices such as avoiding extravagance.66 The most important element of the Maslahah Daruriyah is the protection of religion, since it is essential for the individual’s life and the congregational life and his/her life in the hereafter. Ibn Al-Qayyim stated that what human beings need most is religion.67

7.3.2 Preserving the Muslim Identity Various cultures based on non-religious foundations, which prevail in non-Muslim societies, have a profound effect on Muslim minorities. In order to facilitate an Islamic lifestyle for Muslim minorities, preserving a Muslim identity becomes an essential and fundamental characteristic of Fiqh Al-Aqalliyat. An-Najjar68 argues that preserving Muslim identity represents a fundamental importance for Fiqh in general, but when it comes to Fiqh Al-Aqalliyat, it enjoys essential importance since Muslim minorities live in different circumstances and confront distinctively different challenges. He adds that, consequently, the requirements for preserving the Muslim identity for Muslim minorities are different from the requirements for preserving the Muslim identity for Muslim majorities.69 As he/she endeavours to achieve religious interest for Muslim minorities, a Muslim scholar, when issuing a Fatwa should take into consideration the context to which they are related. Preserving religious identity serves both religious and worldly interests. Such equilibrium enables human beings to tolerate difficult times. Ibn Taymiyya argues that when a Muslim scholar is issuing Fatwa for Muslim minorities, they should bear in mind that the Maslahah is classified into various categories: Maslahah Daruriya (belief); Maslahah Hajiyah (acts of worship such as prayer and fasting); Zakat and Hajj; and Maslahah Tahsiniyah (voluntary acts of worship such as voluntary charity).70 The minimum requirement for leading an Islamic life involves fulfilling Islamic obligations and shunning the prohibitions.71 In order to fulfil its mission, religion should be protected against remissness and excessiveness, since both of these detract from the mission of religion, i.e. working in the interest of humans. The Prophet Muhammad, peace be upon him, said: “Each of you has a responsibility for which he/she will be held accountable. An Imam is responsible for his subjects and he will be held accountable therefore. Man has responsibility in his house and he will be accountable for his responsibility. Woman is responsible in her husband’s house and she will be held accountable for it.

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A servant is responsible for his master’s wealth and he will be held accountable therefore.”72 By virtue of this hadith, the responsibility of preserving religious identity lies with the state. However, in the case of Muslim minorities living in non-Muslim states, this responsibility lies with the scholars. Hence, the process of issuing Fatawa should take this into account. In addition, Muslim individuals should shoulder this responsibility.

7.3.3 Taking into Account the Respective Distinctiveness of Muslim Minorities Islam not only involves rituals, it is also a constitution that organises the worldly affairs of humans. Abiding by Shari’ahh is an Islamic obligation on which the authenticity of one’s belief is dependent. The Qur’an states: It is not for a believing man or a believing woman, when Allah and His Messenger have decided a matter that they should have a choice about their affair. And whoever disobeys Allah and His Messenger has certainly strayed into clear error. (Trans. 33:36) The only statement of the true believers when called to Allah and His Messenger to judge between them is that they say we obey and those are the successful. (Trans. 24:51) But nay, by your Lord, they can have no Faith, until they make you judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission. (Trans. 4:65)

Due to a Muslim’s limited knowledge and the unlimited divine knowledge, a believer believes that Allah’s choice is better than his/hers. Allah is more merciful with human beings than even one’s own parents are. On this basis, Muslim scholars consensually state that Shari’ahh has been set to serve the interests of humans in this life and in the life to come.73 Al-Qaradawi states that some Orientalists, out of their prejudice, stress that since it is a text-centred religion, Islam is a fixed religion and is unable to cope with contemporary developments. In support of their argument they quote from the Qu’ran, as mentioned above: “But nay, by your Lord, they can have no Faith, until they make you judge in all

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disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission” (Trans. 4:65). Al-Qaradawi comments that the above foundation is correct but the conclusion is wrong. He states that by all means this cannot be accepted, since for centuries Shari’ahh has been the juridical and legislative foundation of the entire Muslim world, which encompassed peoples of different races and various cultures, and provided solutions to all problems. He adds that Islamic texts, deemed to be the foundation for Shari’ahh, have never been an obstacle in the way of Islamic civilization, but rather a guide for it. For a period of thirteen centuries Shari’ahh has organised the affairs of Muslims and satisfied their needs, despite belonging to different races, times and having had different cultures. He explains that this was due to the fact that Shari’ahh provided logical arguments; it took into consideration the distinctiveness of each locality; it maintained equilibrium between rights and responsibilities and the material and the spiritual; and it aimed at Jalb Al-Manafi’ Wa Dar’ AlMafasid (serving interests and warding off evil). He concluded, stating that Allah places in this Shari’ahh flexibility that makes it suitable for all places and times.74 This suitability is reflected by other scholars too. Ibn Al-Qaiyym dedicates a complete chapter of his book I’lam Al-Muwaqi’een to the change of Fatawa, elucidating that this chapter is of great benefit to Muslims. Shari’ahh basically aims to serve people’s interests in this life and in the hereafter.75 Al-Buti states that a number of scholars are against the term ‘change of rules of Shari’ahh’. In fact the rules do not change, though they can vary due to the alteration of circumstances.76 In other words, rules issued on the basis of certain reasons vary if the reasons change. Moreover, rules based on the distinctiveness of certain times and places change if either or both of them vary. As for perpetual rules, they cannot be altered. According to Ash-Shatibi, the fact that Islamic law, based on the distinctiveness of each locality, varies is due to the Islamic concept that Shari’ahh is meant to be applicable to all places and times. In other words, when considering an issue relevant to a certain locality, an Islamic rule will be issued taking into account the distinctive circumstances of such a locality. Nevertheless, this rule should be based on a given Islamic foundation and should not be a Bid’ah (innovation).77 Al-Biltaji78 elucidates that Islamic texts are classified into two categories. The first category includes texts pertaining to certain events, such as rules of inheritance and Zakat. The second category includes

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general texts, such as the obligation of believing in the oneness and unity of Allah and the prohibition of polytheism, the obligation of enjoining good and forbidding evil and the obligation of enforcing justice.79 Ali Hasaballah also states that Islamic law, based on the distinctiveness of each locality, varies depending on time and place. For him a prohibition is not legalised, nor is it a permissible act prohibited.80 According to Al-Qaradawi, the classical Muslim scholars name four foundations on the basis of which Fatawa can be changed: alteration of place, alteration of time, alteration of circumstances and alteration of customs and norms.81 Al-Qaradawi adds that Fatawa can also be changed if information, the needs of people, capabilities, social, political and economic circumstances and opinions alter, and also when non-Islamic practices are widely spread among Muslims. They can also be changed as a result of general affliction.82 7.3.3.1 In Brief Rules of the Islamic Shari’ahh organise the worldly and religious affairs of Muslims. These rules are divided into two categories í fixed rules and flexible rules. Fixed rules are not dependent on people’s circumstances. Flexible rules are usually based on reasons pertaining to people’s circumstances. When these circumstances vary, reasons vary. Consequently Islamic law can be changed. This makes abiding by Islam attainable. 7.3.3.2 Scriptural Proofs The concept of Fatwa alteration as a result of a change of place, time, situations, norms and customs is based on a number of scriptural proofs, which are arranged under the following headings. 7.3.3.2.1 Qur’an In the Qur’an it is stated: O Prophet! Urge the believers to fight. If there are twenty steadfast people amongst you, they will overcome two hundred, and if there be a hundred steadfast people they will overcome a thousand of those who disbelieve, because they are people who do not understand. (Trans. 8:65)

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It is also stated: Now Allah has lightened your task, for He knows that there is weakness in you. So if there are of you a hundred steadfast people, they shall overcome two hundred, and if there are a thousand of you, they shall overcome two thousand with the Leave of Allah. And Allah is with the patient. (Trans. 8:86)

Ibn ‘Abbas83 stated that when Allah revealed: “If there are twenty steadfast people amongst you”, Muslims found it difficult that it was not Islamically legal to turn their heels, if they were fighting against an army that outnumbered them ten times, so Allah revealed “Now Allah has lightened your task, for He knows that there is weakness in you”. That lightening of the task was balanced by an equal decrease in patience,84 in other words, the demands of Muslim duties were decreased as their situation was altered. This is an example of a change of the rules. When reading the Qu’ran, one can discern that it suggests respective solutions, each of which is relevant to a particular place and a certain time. For instance, among the people of Lot, homosexuality spread. This might not have been the only problem in this society, yet it was the only issue of theirs which the divine providence tackled in a unique way. In the Qur’an it is stated: And mention Lot! When he said to his people: ‘Do you commit sodomy while you see?’ Do you practise your lusts on men instead of women? Nay, but you are a people who behave senselessly. There was no other answer given by his people except that they said: “Drive out the family of Lot out of your city Verily, these are men who want to be pure.” So We saved him and his family, except his wife. We destined her to be of those who remained behind. And We sent down on them a rain (of stones). So evil was the rain of those who were warned. (Trans. 27:54-58)

As for the Pharaoh and his people, the divine providence tackled a different issue í political corruption. The Pharaoh was a dictator. He enslaved people. In the Qur’an it is stated: “Verily, Pharaoh exalted himself in the land and made its people sects, weakening a group among them: killing their sons, and letting their females live. Verily, he was of the tyrants” (Trans. 28:04). As for the people of Shu’aib, among them spread economic corruption. It was not the only issue of theirs, yet the divine providence dealt with it. In the Qur’an it is stated:

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And to the people of Median We sent their brother Shu'aib. He said: O my people! Worship Allah, you have no other deity but Him, and give not short measure or weight. I see you in prosperity and verily I fear for you the torment of a Day encompassing. And O my people! Give full measure and weight in justice and reduce not the things that are due to the people, and do not commit mischief in the land, causing corruption. That which is left by Allah for you (after giving the rights of the people) is better for you, if you are believers. And I am not a guardian over you. (Trans. 11:84-86)

7.3.3.2.2 Sunnah When reviewing Sunnah, one comes across a huge number of narrations indicating the paramount importance of taking into account the place, time, situations, norms and traditions when giving religious advice. At the commencement of Prophet Muhammad’s Islamic promulgation, the followers of Islam were subjected to severe persecution and were tortured harshly. Hence, the Prophet Muhammad, peace be upon him, gave permission to Muslims to migrate to Abyssinia. The Prophet’s choice was based on his consideration of the place and the circumstances there. The Prophet, peace be upon him, said: “There is a king with whom no one is oppressed.”85 Also when the Prophet, peace be upon him, commissioned Mu’ath to Yemen, he said to him: “The people you are going to are people of the Book. Let the first thing you invite them thereto be the declaration of the oneness of Allah.”86 This hadith vividly reflects how important it was for the Prophet, peace be upon him, to issue his command on the basis of his awareness of the circumstances of the relevant place. This meaning is reiterated by the respective answers given to the same question when it was raised by various individuals. It is reported that a man asked the Prophet, peace be upon him: “Who is the best Muslim?” The Prophet, peace be upon him, said: “The best Muslim is the Muslim who causes no harm to Muslims by his tongue or his hand.”87 Another man came to the Prophet, peace be upon him, and asked him: “Who is the best person?” The Prophet, peace be upon him, said: “The best person is the person who struggles in Allah’s way in his person and with his wealth.” The man asked: “Who is next?” The Prophet, peace be upon him, said: “A believer who worships Allah in his place and causes no harm for others.”88 Abu Hurairah reported that an old man asked the Prophet, peace be upon him, about kissing his wife while fasting. The Prophet, peace be upon him, allowed him. But when a young man asked about the same thing, the Prophet, peace be upon him, did not allow him.89

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When a man asked the Prophet, peace be upon him, to advise him, he said: “Do not get angry.”90 When another man asked the Prophet, peace be upon him, to advise him, he said: “Say I believe in Allah and adhere to the straight path.”91 This shows that the Prophet, peace be upon him, gave different answers to the same questions because the circumstances were different. It is just like a doctor prescribing different medicines to a number of people suffering from the same disease; what is suitable for one person is not necessarily suitable for another person. 7.3.3.2.3 The Companions Ibn ‘Umar reported that the Prophet, peace be upon him, commanded Ramadan’s Zakat to be the amount of a handful of dates or a handful of barley.92 So, in the time of the Prophet, peace be upon him, the Companions gave a handful of dates or a handful of barley as their Ramadan’s Zakat. Nevertheless, later on some Companions gave a half of a handful of wheat as their Ramadan’s Zakat. Abu Sa’eed Al-Khudari93 said that during the Prophet’s lifetime they used to give a handful of food, a handful of dates, a handful of barley, a handful of raisins or a handful of dried grapes as Zakat in Ramadan. When ‘Umar Ibn Al-Khattab became the Caliph and people had a lot of wheat, he made Ramadan’s Zakat a half of a handful of wheat instead of the other materials.94

7.3.4 Fatwa Changes Because Time Changes Changing Fatwa as a result of a change of time, which can be seen clearly in Islamic texts such as the graduation of the revelation of the verses of rules, is not merely a change of days and years but rather the requirements.95 According to Al-Qaradawi, the classical Muslim scholars state that a Fatwa varies from time to time. Nevertheless, he adds, the change of time does not signify moving from one century to another but rather changes in human beings. People change over time. The level of mercy and selfishness and the level of morality and mischief vary from time to time. Consequently, the Fatwa should change. ‘Umar Ibn ‘Abdel ‘Azeez said: “People encounter new events matching the level of their mischief.”96 The Hanafi scholars explain that Abu Yusuf and Muhammad, Hanafi scholars, disagreed with the great Imam Abu Hanifah, the founder of the Hanafi School, regarding almost one-third or two-thirds of the Hanafi School Fiqh because of their respective times.97

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The Islamic punishment for drinking alcohol represents one of the examples of changing the Fatwa since the timing factors vary. ‘Uqbah Ibn Al-Harith reported that when Nu’iman was drunk he was brought to the Prophet, peace be upon him, who commanded those who were in the house to hit him with fronds.98 Abu Hurairah reported that when a man who drank alcohol was brought to the Prophet, peace be upon him, he commanded people to hit him and so they did. Some did with their shoes, others with their hands and others with their clothes. When he left some people said: “May Allah disdain you.” The Prophet, peace be upon him, said: “Do not support Satan against him.”99 Ibn ‘Abbas states that the Prophet, peace be upon him, did not specify a Had (a specified Islamic punishment) for drinking alcohol. He adds that while the man who drank alcohol was being escorted to the Prophet, peace be upon him, he escaped as he was passing by Al-‘Abbas’ house and entered Al-‘Abbas’ house and stayed next to him. When this was reported to the Prophet, peace be upon him, he laughed and did not command to take any action against him.100 When Abu Bakr, may Allah be pleased with him, became the Caliph, he specified the punishment for drinking alcohol as being forty lashes.101 When ‘Umar became the Caliph and as people indulged in drinking, he consulted with the Companions regarding the punishment of drinking. Ali, may Allah honour his face, said: “If a man drinks, he speaks insanely and if he speaks insanely he will make false allegations. So apply the punishment for Qathf (false allegation) to drinking.” So ‘Umar stated that the punishment for drinking would be eighty lashes equal to the Had of making false allegations.102 In other words, the Prophet, peace be upon him, did not specify a particular punishment for drinking. Hence, a number of Fatwa were issued in this regard, taking into account the distinctiveness of each era. Another example is the obligatory will. The emergence of the Fatwa of the obligatory will resulted from changes occurring to people over time. Muslim scholars in Egypt, Syria and some other Arab countries issued a Fatwa to their states to enact a law of the obligatory will that gives a portion of the inheritance left by a grandfather to his grandchildren, in the event that their father passes away before their grandfather. If not, they will have to suffer the loss of their father and deprivation. In the past, uncles looked after their nephews and nieces in the same way as they

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looked after their own children. But as individualism has impacted on most, if not all societies, Muslim scholars issued this Fatwa.103 In the Qur’an it is stated: “It is prescribed unto you, when death approaches any of you, if he leaves wealth, that he make a bequest to parents and next of kin, according to reasonable manners” (Trans. 2:180). It is reported that Ibn ‘Umar,104 may Allah be pleased with him, called for prayer on a cold night. Then he successively said: “Pray in your tents”.105 Islam urges people to pray congregationally in a mosque or a prayer area. Nevertheless, because of circumstances at certain times, i.e. cold weather, it recommends that Muslims offer their prayers in suitable places. 7.3.4.1 In Brief The flexible Islamic rules can change as time changes. Over time, the reasons for these rules vary and, consequently, they can be changed. This occurred in the past, it is happening in the present and it will happen in the future, since life is constantly changing and developing.

7.3.5 Fatwa Changes Because Place Changes One of the factors that affect Fatawa is place. The environment to which one is related profoundly impacts on his/her thinking and behaviour. People of the city are different from those from the village. The lifestyle of people living in cold areas varies from the lifestyle of people living in hot places. When issuing a Fatwa, these differences and others should be taken into consideration in order to achieve Maslahah targeted by Shari’ahh. In the Qur’an it is stated: “O you who believe! Approach not prayer when you are in a drunken state until you know what you utter, nor when you are in a state of sexual impurity except when you are on a journey till you wash your whole body. And if you are ill, or on a journey or one of you come after answering the call of nature, or you have sexual relations with women and you find no water, perform Tayammum (dry ablution) with clean earth and rub therewith your faces and hands. Truly, Allah is Ever Oft-Pardoning, Oft-Forgiving” (Trans. 4:43). But this is not available for people living in inundated land. How can they avail of this Islamic exemption if they are in a position where they, due to heath or other circumstances, cannot make ablution? According to Al-Qaradawi, for them clean earth refers to snow.106

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Also for Muslims living in countries where they have six months daytime and six months night time, Al-Qaradawi issued a Fatwa stating that their daily twenty four hours should be measured according to the time in Mecca and Medina, as the divine revelation was revealed there. He added that alternatively their daily twenty-four hours should be measured according to the time of the nearest country to them, where there is regular day and night alternation.107 The impact of the change of place on Fatawa motivated the establishment of the European Council for Fatwa and Research. It is an Islamic independent entity comprised of thirty-five Muslim scholars residing in various European countries. Its current headquarters are in the Republic of Ireland. The inaugural meeting of the European Council for Fatwa and Research was held in London on 29 March 1997. The ECFR has been established to achieve proximity and to bring together the Muslim scholars in Europe in an attempt to issue unanimous Fatawa on the main Fiqh issues pertinent to Muslim affairs in Europe. The ECFR, while taking into account the distinctiveness of its locality, aims to issue Fatawa on the basis of Islamic accredited sources. Some of these sources are Maslahah Mursalah, traditions, norms and warding off evil.108 An-Najjar, Assistant Secretary General of the ECFR, states that the ECFR was set up to help Muslims residing in Europe with setting an equilibrium that enables them to lead a Muslim life in the societies to which they are related, which are socially, economically and culturally non-Islamic. An-Najjar adds that, while living in non-Muslim societies, they encounter a wide range of challenges to preserve their Muslim identity. An-Najjar argues that the ECFR was set up to issue Fatawa pertaining to this particular Muslim situation in Europe. This was so that Muslims might contribute to all fields in full conformity with Islamic law inducted by the ECFR on the basis of accredited Islamic sources, while taking into consideration the distinctive circumstances of the distinctive localities to which these Muslims are related.109 According to its constitution, the ECFR holds an ordinary session on an annual basis to discuss studies and research submitted by members and observers who were invited to research an issue concerning the Muslim community in Europe. The ECFR invites experts and specialised individuals, and requests their attendance at sessions in which issues pertaining to their expertise are discussed.110 So the ECFR seeks knowledge by inviting experts to submit papers and subject these papers to

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discussion, so that members of the ECFR might avail of them in light of the requirements of their European context. An-Najjar explains that since Muslims living in non-Muslim countries are encountering and will continue to encounter new challenges, the role of issuing Fatawa by the ECFR is deemed to be perpetual. An-Najjar states that due to the alteration of certain circumstances, the ECFR may reconsider Fatawa they issued before and either reconfirm them or issue different Fatawa. According to An-Najjar the developmental Muslim existence in Europe nevertheless creates an urgent need for developing the Fiqh of issuing Fatawa, so that instead of limiting Fatawa to limited daily issues, it should encompass inclusive issues that have cultural dimensions necessitated by the current Muslim situation in Europe where it is a cultural partnership. This can be described as Ifta’ Hadari ϱέΎπΣ ˯ΎΘϓ· (issuing cultural Fatawa).111 An-Najjar argues that the existence of Muslims in Europe is developing at a very fast rate in terms of the population and objectives of Muslims. Moreover, they feel that the responsibility of bearing religious witness is becoming stronger and stronger in the hearts of Muslims. In the Qur’an it is stated: “Thus We have made you a just nation, that you be witnesses over mankind and the Messenger a witness over you” (Trans. 2:143). An-Najjar states that this responsibility requires that, on the one hand, Muslims should inform of the good solutions they have to sort out problems the societies, where they live suffer from, and, on the other hand, they avail of such societies spiritually and materially. An-Najjar adds that such a development of the quantity and the quality of Muslim existence in Europe necessitates that the religious addresses directed to Muslims residing in Europe should suggest a new objective, i.e. cultural partnership. In other words, Muslim minorities living in Europe should contribute to the development and progress of their societies as individuals and congregations.112 An-Najjar argues that Ifta’ Hadari (issuing cultural Fatawa) refers to advising Muslims religiously regarding major issues pertaining to their future existence in Europe, such as cultural partnership. He adds that it involves providing Muslims with visions, based on Islamic foundation, on major issues of such partnership. An-Najjar argues that the Ifta’ Hadari should deal with major issues pertaining to the future of Muslim existence in Europe. He says that it should also be based on long-term strategic visions and Islamic objectives relating to supreme Masalih (interest). AnNajjar argues that such a vision based on supreme objectives should apply

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an inclusive methodology that encompasses minor daily issues, issuing Fatawa on them that serve the supreme objectives. An-Najjar also states that the Ifta’ Hadari should apply an integrated methodology that establishes a link between Fatawa organising the daily affairs on the one hand and, on the other hand, Fatawa issued on major issues pertaining to the future of Muslims in Europe. An-Najjar argues that this does not allow any room for contradiction between Fatawa organising the daily affairs of Muslims and Fatawa planning for the future of Muslims.113 This requires thorough research of issues awaiting Fatawa, considering the Islamic objectives in a more inclusive way, a better understanding of the European context and co-operating with European experts who are specialised in the matters of concern.114 7.3.5.1 In Brief Islamic flexible rules can change if place changes. The reasons on which these rules are based can vary if place changes; consequently, these rules can be changed. People’s lives vary from one place to another, moreover, a change of place results in a change of concerns and approaches to them. This necessitates issuing new Fatawa pertaining to new issues. This issuing of these new Fatawa should be based on a thorough understanding of the distinctiveness of each locality and the objectives of Islamic Shari’ahh.

7.3.6 Fatwa Changes Because Circumstances Change Fatwa is, to a large extent, dependent on people’s circumstances. Some people are healthy, while others are sick; some are travelling, while others are settled; some are young and others are old; some are strong and others are weak. When issuing a Fatwa these variables should be taken into consideration. In the Meccan period, Muslims were not allowed to respond to the transgression practised by the infidels of Mecca against them. This was the case for almost thirteen years. But when they migrated to Medina, Muslims were permitted to fight back. In the Qur’an it is stated: “Permission to fight is given to those who are fought against, because they have been wronged; and surely, Allah is Able to give them victory” (Trans. 22:39). Fasting is one of the pillars of Islam. Due to the change in people’s circumstances, certain categories of people are exempted from it. In the Qur’an it is stated: “O you who believe! Fasting is prescribed unto you as it was prescribed unto those before you, that you may become righteous.

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Fasting is for a fixed number of days, but if any of you are ill or on a journey, the same number (should be made up) from other days. As for those who can fast with difficulty, they have to feed a poor person. But whoever does good of his own accord, it is better for him. And that you fast, it is better for you if only you know” (Trans. 2:183-184). Prayer is the second pillar in Islam. Muslims should perform ablution before they pray. Due to the change in people’s circumstances, certain categories of people are exempted from it. In the Qur’an it is stated: “O you who believe! When you intend to offer a prayer, wash your faces and your hands up to the elbows, rub your heads, and (wash) your feet up to ankles. If you are in a state of Janaba (i.e. after a sexual discharge), purify yourself. But if you are ill or on a journey, or any of you comes after answering the call of nature, or you have been in contact with women (i.e. sexual intercourse), and you find no water, then perform Tayammum (dry ablution) with clean earth and rub therewith your faces and hands. Allah does not want to place you in difficulty, but He wants to purify you, and to complete His Favour on you that you may be thankful” (Trans. 5:06). Also when Muslims are on a journey they are granted a level of exemption from prayer. They shorten their prayers. In the Qur’an it is stated: “And when you travel in the land, there is no sin on you if you shorten the prayer if you fear that the disbelievers may attack you, verily, the disbelievers are ever unto you open enemies” (Trans. 5:101). The shortening of prayers while being a journey is not dependent on fear.115 It is reported that ‘Umar said: “Prayer, when travelling, is two Rak’at.”116 7.3.6.1 In Brief This point is significant since Muslims who migrate from their Muslim homes and reside either permanently or temporarily in a non-Muslim lands, live in different circumstances and face different challenges. Verily, their needs may not be perceived as needs by Muslims living in Muslim lands. By and large, they live in a different context.

7.3.7 Fatwa Changes Because Information Changes Al-Qaradawi highlights that Fatawa change when information changes. He explains that this means that when Islamic information or worldly information varies, Fatwa changes.117 For instance, a Muslim scholar may establish his Fatwa on the basis of a hadith, that later, he comes to understand is a weak hadith or vice versa. For instance, when

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Ash-Shafi’i moved to Egypt, he established his new school of Fiqh. Some people think the changes Ash-Shafi’i introduced to his old school of Fiqh were a result of living in a different environment. In other words, it was because the time and place changed. Al-Qaradawi argues this is one of the reasons that made Ash-Shafi’i establish his new school of Fiqh. In addition to the change of time and place, Al-Qaradawi adds that AshShafi’i was enlightened by Egyptian scholars, so the changes he introduced when forming his new school of Fiqh were due to changes of time, place and information.118 Abu Yusuf, Muhammad and Zafar Ad-Deen ‘Ashur, Hanafi jurists, introduced many changes to the Hanafi School founded by their teacher Abu Hanifa. In fact, they disagreed with Abu Hanifa in more than onethird of his teachings. This disagreement was due to a change of time and also a change of information on which Fatawas were formed.119 Another example for this is the dilemma a woman faces if she embraces Islam while her husband is not a Muslim. They may be very much in love and cannot live without each other. Moreover, they may have children. In this case, most of the current Muslim scholars state that this marriage is to be terminated. Ibn Al-Qaiyym narrates nine opinions regarding this issue. According to the first opinion, expressed by ‘Umar Ibn Al-Khattab, as narrated by Muhammad Ibn Hasm, Jabr Ibn ‘Abdellah, Ibn ‘Abbas, Sa’eed Ibn Jubair, ‘Umar Ibn ‘Abdelazeez, Qatadah, AlHasan Al-Basri and Al-Shu’abi, if a non-Muslim woman married to a nonMuslim man embraces Islam while her husband remains non-Muslim, their marriage is nullified. If her husband embraces Islam, in the blink of an eye their marriage is terminated. Ibn Al-Qaiyym argues that this opinion could not be narrated about ‘Umar Ibn Al-Kattab, since other narrations contradicting this opinion are narrated about ‘Umar. According to the second opinion, expressed by Abu Hanifah, if a husband or his wife embraces Islam, if they live in a land of Islam, the non-Muslim spouse should be invited to Islam; if the non-Muslim spouse accepts Islam then their marriage continues and if not, the marriage is terminated without ‘Iddahh (a waiting period during which women cannot marry). According to the third opinion, expressed by Malik, if, prior to the marriage being consummated, a wife embraces Islam while her husband remains non-Muslim, their marriage is terminated. But, if she embraces Islam after marriage being consummated, then, if he becomes a Muslim during her ‘Iddahh, their marriage continues, but if not, then their marriage is terminated. If a husband embraces Islam and his wife remains non-

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Muslim, she is to be invited to Islam. If she accepts Islam their marriage continues and if not, their marriage is terminated the moment she declines. According to the fourth opinion, expressed by Ibn Shibrimah, if a wife embraces Islam while her husband remains non-Muslim, their marriage is terminated. But if he embraces Islam and she embraces Islam during her ‘Iddahh, their marriage continues and if not, then their marriage is terminated. According to the fifth opinion, expressed by Al-‘Auza’i, AlLaith, Ahamd, Ash-Shafi’i and Ishaq, if a spouse embraces Islam while the other spouse remains non-Muslim prior to marriage being consummated, their marriage is terminated. But if this occurs after the marriage being consummated, then, if the other spouse embraces Islam, during her ‘Iddahh, their marriage continues, and if not, then their marriage is terminated. According to the sixth opinion, expressed by Ibn Sireen and AlKhutaimi, when a wife of a Christian man embraced Islam ‘Umar gave her the choice either to remain his wife or to terminate the marriage. Ibn AlQaiyym explains that this does not mean that it is permissible for her to practise her marital relations with her non-Muslim husband, but rather to live with him and portray patience until he embraces Islam. According to the seventh opinion, expressed by Ali Ibn Abu Talib, if a spouse embraces Islam while the other spouse remains non-Muslim, they continue as husband and wife. According to the eighth opinion, expressed by Al-Zuhari as reported by Ibn Shaibah, if a wife embraces Islam and her husband remains nonMuslim, they continue as husband and wife unless their marriage is terminated by a Muslim authority. Finally, according to the ninth opinion, expressed by Daoud Ibn Ali, if a wife embraces Islam and her husband remains a Christian or a Jew, they remain husband and wife, but sexual intercourse is not permissible. However, Ibrahim Al-Nukh’i said intercourse is permissible.120 The European Council for Fatwa and Research perceived this issue as a matter of concern for Muslim minorities. Hence, in its eighth session held at the Islamic Cultural Centre in Valencia, Spain, between 26 April and 1 May 1422 AH, corresponding to 18 to 22 May 2001, the EFCR considered it and issued a Fatwa on the basis of Islamic accredited sources, while taking into account the distinctiveness of their localities and the fact that if information changes Fatwa changes too.

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The Council confirms that it is forbidden for a Muslim female to enter into marriage with a non-Muslim male. This has been an issue of consensus throughout the history of the Muslim nation. However, in the case of marriage being established prior to the wife’s embracing Islam, the Council has resolved that if both husband and wife embrace Islam and there is no Shari’ahh objection to their marriage, such as particular blood relations or relations established as a result of breast-feeding, which turn the very establishment of marriage unlawful, the marriage shall be deemed valid and correct. If the husband alone embraces Islam, and there is no objection to the establishment of marriage if the woman is a Jew or a Christian, then the marriage shall be deemed valid and correct. If the wife embraces Islam and her husband remains a non-Muslim while the marriage is not consummated, then this marriage should be immediately terminated. If she embraces Islam and their marriage has already been consummated and the husband also embraces Islam before the expiry of her ‘Iddah (period of waiting), then the marriage is deemed valid and correct. If the wife embraces Islam while the marriage has already been consummated and the ‘Iddah expires, then she is allowed to wait for him to embrace Islam even if that period is a lengthy one. Once he does so, then their marriage is deemed valid and correct. If the wife chooses to marry another man after the expiration of the ‘Iddah, she must first request a dissolution of her marriage through legal channels. According to the four main schools of jurisprudence, it is forbidden for a wife, who embraces Islam, to remain with her husband, or indeed to allow him conjugal rights, once her ‘Iddah expires. However, some scholars see that it is permissible for her to remain with him, allowing him full conjugal rights; if he does not prevent her from exercising her religion and that she has a hope that he will embrace Islam. The Fatwa has been issued as some women might be deterred from Islam if they realise that they are to be separated from their husbands and must desert their families by doing so. The ECFR scholars based their view upon the ruling reported about Omar ibn Al-Khattab, may Allah be pleased with him, in the case of the women from Al-Heera who reverted to Islam while her husband remained non-Muslim. According to the authentic narration of Yazeed ibn Abdullah Al-Khatmi, Omar ibn AlKhattab gave the woman the choice. They also based their opinion on the view of Ali ibn Abi Talib, concerning the Christian woman who reverted to Islam while being married to a Christian or a Jew í that her husband was more deserving of his conjugal rights as he had a contract. This is also an authentic narration. It is also known that Ibraheem An-Nakh’i, AshShi’bi and Hammad ibn Abi Sulayman had the same views.121 The ECFR issued this Fatwa after researching the matter and learning about the

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above-mentioned authentic narrations. Hence, a change of information leads to a change of Fatwa. 7.3.7.1 In Brief Fatawa are issued on the basis of Islamic knowledge and worldly knowledge. These two types of knowledge are subject to change. Hence, Fatawa are liable to change as well. As quoted above, this change happened in the past. It is also happening now but faster. In the past, people had to travel by riding animals to reach a source of knowledge whether it was a human being or a record, whereas nowadays people have easy access to information. The worldwide spread of libraries containing millions of books in all fields facilitates the process of finding and authenticating knowledge. The invention of the computer makes it even easier. Typing and electronic storing make a huge difference. The invention of the internet caused a revolution in this field. People can, from any location, electronically search any topic and get information on it. In the past, people struggled to get an answer to a question, whereas today people can get it at the click of a button.

7.3.8 Fatwa Changes Because People’s Needs Change Yesterday’s accessories have become today’s needs. People in Europe use heating systems and people in Africa use air-conditioners and fans. In the past, people used horses and camels as means of transportation, whereas today, people travel in vehicles and airplanes. Attending schools and universities was not classified as a need in the past, whereas nowadays it is. Al-Qaradawi stresses that all these needs should be catered to, prior to considering the minimum that requires the payment of Zakat.122 AlQaradawi also argues that in many Western countries, old people, due to their loneliness, have dogs. Having these dogs is classified as a need for them.123 Al-Qairawani, a Maliki scholar, was paid a visit by a number of his contemporary scholars. When they saw Al-Qairawani’s guard dog, they said to him that Malik disliked dogs. In his response, Al-Qairawani stated that, had Malik been alive during his time, he would have had a vicious lion.124 Abu Sa’eed reported that the Prophet, peace be upon him, used to go to an open prayer place on Eid-ul-Fitr125 and Eid-ul-Adha.126 He started with prayer. Then he faced the Muslims, set in lines, admonished,

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recommended and commanded them. If he wanted to commission a brigade or give a command, he would do it and then leave. People continued following this practice until either Eid-ul-Fitr or Eid-ul-Adha, when Abu Sa’eed went out with Marawan, the ruler of Medina. When they reached the prayer place, they found that his pulpit was set up by Kuthaier Ibn Al-Salt. Marawan wanted to climb the pulpit before prayer, so Abu Sa’eed caught his clothes. He pulled his clothes back and climbed the pulpit and delivered his speech prior to praying. Abu Sa’eed said to him: “I swear you have made a change.” He replied: “People do not stay after the prayer, so I delivered the speech before the prayer.”127 The issue of purchasing a house with a usurious loan (a loan that incurs interest) represents a contemporary example of changing Fatwa as people’s needs changes. The European Council for Fatwa and Research deliberated on detailed papers concerning the purchasing of mortgaged houses and came to the following conclusion. The ECFR stresses the Fatwa expressed consensually by Muslim scholars that usury is forbidden. It is deemed to be a major sin and is one of the seven gravest ones. Those who commit it are deemed to be waging war against Allah and His Prophet, peace be upon him. In this vein, the ECFR confirms what has been decided by Fiqh Councils throughout the Muslim World í that bank interests are usury. The ECFR therefore appeals to the Muslim community to do its utmost to seek Islamic alternatives such as Murabaha (sale at a profit), which is provided by Islamic banks. Muslims should spare no efforts to avoid doubtful matters. The ECFR encourages Muslims to establish their own construction companies that can build houses and sell them to Muslims in relaxed, less strict ways of payments. The ECFR appeals to Islamic organisations in Europe to enter into negotiations with European banks to find Shari’ahh compliant formulas. Formulas like Bei Al-Taqsit (sale for deferred payments), where the buyer is required to pay more money due to the fact that payment is not immediate. This formula will help both banks as well as Muslim purchasers. This formula is in operation in some European banks. In addition to this, some European banks opened branches in some Muslim countries where Shari’ahh compliant transactions are facilitated, as in Bahrain. The ECFR also appeals to European banks to observe the needs of the Muslim community.

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If all the above suggestions are not available, the ECFR, on the basis of evidence and juristic considerations, sees no harm in purchasing mortgaged houses, provided that the house to be bought must be for the buyer and his household, that the buyer does not have another house and that the buyer does not have any surplus of assets that can help him/her buy a house by any means other than a mortgage. The ECFR based this Fatwa on the following two juristic considerations: First, the agreed upon juristic rule Al-Darurat Tubieh Al-Madhurat Ε΍έϮψΤϤϟ΍ ΢ϴΒΗ Ε΍έϭήπϟ΍ (necessities turn unlawful matters lawful). The ECFR states that this rule is derived from five Qur’anic texts. For instance, in the Qur’an it is stated: “He (Allah) has explained to you in detail what is forbidden to you, except under compulsion or necessity” (Trans. 6:119), and “But whosoever is forced by necessity without wilful disobedience, nor transgressing due limits; (for him) certainly, your Lord is oftForgiving, most merciful” (Trans. 6:145). The ECFR argues that according to Muslim jurists Hajah ΔΟΎΣ (need), whether for an individual or a group, can be treated in equal terms like Darurah Γέϭήο (necessity). Hajah is defined as a matter that, if not fulfilled, puts a Muslim in difficulty, even if he/she can do without it. Darurah (necessity) is defined as that which a Muslim cannot do without. Allah does not overburden Muslims. In the Qur’an it is stated: “And He has not laid upon you in religion any hardship” (Trans. 22:78). Also in the Qur’an it is stated: “Allah does not will to place you in difficulty, but He wants to purify you, and to complete His Favour to you that you may be thankful” (Trans. 5:06). The house that fulfils the criteria set up by the definition of Hajah (need) and Darurah (necessity) is the one that is suitable for the Muslim family in terms of size, location, locality and amenities. This Fatwa is based on the rule of Darurah (necessity) or hajah (need). In addition, the ECFR stresses that this rule is regulated and complemented by another rule, i.e. Ma ‘Ubiha Bid-Darurah Yuqadaru Bi Qadariha ΎϫέΪϘΑ έΪϘϳ ΓέϭήπϟΎΑ ΡΎΒϳ Ύϣ (what has been made permissible due to a necessity must be handled with great care and taken in due measures). It should be restricted to those who are in real need of a house. This Fatwa does not allow taking out a mortgage to buy a house for commercial reasons or for any purpose other than buying one’s own house for those who do not have one.

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The ECFR issued this Fatwa taking into account the needs of the Muslim minorities. The ECFR elucidated that accommodation is necessary for individuals as well as families. Allah described it as a favour He grants to His servants. In the Qur’an it is stated: “And Allah has made for you in your home an abode” (Trans. 16:80). The Prophet, peace be upon him, explained that a spacious house is one element of three or four elements that constitute the concept of happiness. Rented houses do not fulfil what a Muslim normally needs. They do not give him/her the sense of security, as he/she keeps paying rents for long periods of time. A tenant might be asked to evacuate their rented accommodation for reasons like the size of the family or the number of guests visiting him/her. When getting older or having no income they might even be thrown out of the house. Buying one’s own house removes all these burdens and discomforts and helps Muslims settle closer to mosques, Islamic centres or schools. It helps them to build up their Muslim community within their host countries, where families get to know each other and work to establish their cultural identity. Buying one’s own house also allows Muslim families to modify it to accommodate their social and religious needs. Besides the abovementioned benefits, it helps the Muslim community, being a minority, to free themselves from the financial pressure caused by renting accommodation. This gives the Muslim community the opportunity to positively contribute to their societies. This is impossible if the Muslim family works all the time just to cover the costs of their rented accommodation and living costs. Second, the juristic verdict, which states that it is permissible for Muslims to trade with usury and Islamically invalid contracts in nonMuslim countries. This opinion is held by a number of renowned scholars such as Abu-Hanifah, his colleague Muhammad Al-Shaybani, Sufayn AlThawri, Ibrahim An-Nakh’i, and an opinion of Ahmad Ibn Hanbal declared to be true by Ibn Taymiah, according to some Hanbalite sources. It is also the opinion of the Hanafi School of jurisprudence. In this regard, the preponderance of this dogma is due to the fact that according to Shari’ahh, Muslims are not obliged to abide by the civil, financial and political status of Shari’ahh in non-Muslim countries, as these lie beyond their capabilities. Allah does not require people to do things that are beyond their capacity. Moreover, prohibiting usury is a matter that concerns the non-Muslim host countries; it is related to their socioeconomic philosophies. Nevertheless, in such countries Muslims should abide by Shari’ahh rulings in matters that concern them in person such as

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the rules that govern acts of worship, food, drink and clothes, marriage, divorce, inheritance, etc. If Muslims chose not to deal with these invalid contracts, including contracts involving usury in non-Muslim countries, this would weaken them financially. Islam aims to strengthen Muslims and not to weaken them, to increase them and not to diminish them, to benefit and not to harm them. Some Salafi scholars claimed that by virtue of the hadith in which the Prophet, peace be upon him said: “Islam increases and does not decrease”,128 which means Islam increases Muslims in power, wealth, etc., Muslims could inherit non-Muslims. Also the Prophet, peace be upon him, said: “Islam is superior and none can excel it.”129 Therefore, if Muslims are not to trade with these invalid contracts and transactions in nonMuslim countries, then they will end up paying what they are required to pay, while not being benefited in return. They will lose, since they are obliged to honour these transactions, but in return they get nothing. In this way Muslims will be financially deprived and suppressed. Islam never punishes Muslims for their Islam, nor puts them in a position where nonMuslims can take advantage of them in non-Muslim countries. Islam does not mean to let non-Muslims abuse Muslims financially or otherwise by prohibiting Muslims from getting any benefit in return. As for the claim that the Hanafi School allows usury in cases where the Muslim is the recipient, i.e. the beneficiary, and that the Hanafi School permits Islamically invalid contracts provided the Muslim is the beneficiary, and it does not involve deceiving non-Muslims and that the Fatwa does not meet these criteria, the ECFR argued that Muslims are the beneficiaries as they will own their houses. Moreover, these conditions have not been authenticated as affirmed by Muhammad Al-Shaibani, one the chief scholars of the Hanafi Madhab and student of Abu-Hanifah, in his book Al-Siyar Al-Kabir. Moreover, earlier scholars of the Hanafi School did not stipulate any conditions. Furthermore, information forwarded by Muslims living in Europe to the ECFR through correspondence and/or direct contacts states that payments made towards a mortgage are equal, and sometimes lower, than those paid as rent. It follows that if the ECFR forbids usurious transactions, Muslims will be impeded from securing their own house, despite it being one of Al-Hajat Al-Asliyyah ΔϴγΎγϷ΍ ΕΎΟΎΤϟ΍ (the essential and basic need), according to jurists’ terminology. Hence, Muslims will end up paying rent for a number of years without owning their houses,

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while they can own them if these payments are to be made towards mortgages. Finally, even if this transaction is invalid according to the Hanafi School, it will certainly be consensually permissible when it is classified as Hajah as it is treated by jurists on similar grounds like Darurah, i.e. extreme necessity, which makes impermissible things permissible.130

7.3.9 Fatwa Changes Because People’s Capabilities Change Al-Qaradawi argues that Fatwa changes because people’s capabilities change. Al-Qaradawi states that human beings acquired great capabilities through the seven revolutions of knowledge í revolution of technology, revolution of biology, revolution of astronomy, nuclear revolution, electronic revolution, data revolution and telecommunication revolution.131 For instance, the Prophet, peace be upon him, forbade Muslims, if travelling, to return home at night. He commanded them to return home in the day time. That was the case when people could not communicate. In other words, Muslims had no means to inform their wives of the time of their return. That prohibition was issued because a sudden return could have seemed like an act of suspicion. Nowadays, however, people have a number of ways to communicate. Husbands can easily inform their wives of the time of their return. Husbands can return home day or night as long as they have already informed their wives of the time of their return.132

7.3.10 Fatwa Changes Because Non-Islamic Practices Are Widely Spread Among Muslims Al-Qaradawi elucidates that when non-Islamic practices are widely spread among Muslims Fatwa should change, since it gives an indication that there is a Hajah ΔΟΎΣ (need) evaluated by Shari’ahh by virtue of the Islamic rule Al-Hajah Tunazal Manzilat Al-Darurah ΔϟΰϨϣ ϝΰϨΗ ΔΟΎΤϟ΍ Γέϭήπϟ΍ (a need is considered as a necessity). For instance, some Muslim scholars perceive having a beard as an obligation, while others see it as Sunnah (an action which, if performed, will reward a person. If not performed, a person will be held accountable). There are a huge number of Muslims who shave their beards so there is a need to highlight the matter. If not, then they will be disqualified as witnesses. If so, where will Muslims get witnesses from?133

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7.3.11 Fatwa Changes Because Muslim Social, Political and Economic Affairs Change Social, political and economic changes all affect Fatwa. Al-Qaradawi states that due to global changes, he disagrees with Ibn Taimyah regarding congratulating non-Muslims on their festivals, provided these nonMuslims are not involved in fighting against Muslims. This meaning is confirmed when these non-Muslims are neighbours or colleagues.134

7.3.12 Fatwa Changes Because ‘Urf ϑήόϟ΍ (Customs and Norms) Changes Fatawa based on ‘Urf change as ‘Urf changes. Fiqh (Islamic jurisprudence) takes ‘Urf into consideration, since people establish it to accomplish their interests or satisfy their needs recognised by Islam as public interest. Hence, Islamic law can be based upon ‘Urf, provided it does not contradict Islamic texts.135 A question, posed to Al-Qarafi136 and listed in his book as number 39, reads as follows: Which are the correct Islamic laws stated by the Shafi’i School, the Hanafi School and others on the basis of ‘Urf? If the ‘Urf on the basis of which they issued their Fatawa varies, will these Fatawa be invalid, and will new Fatawa be issued on the basis of the new ‘Urf? Shall we say that we just follow, as we are not qualified to issue new Fatawa on the basis of new ‘Ijtihad (reasoning)? In his answer, Al-Qarafi highlights that stating that Fatawa issued on the basis of ‘Urf are fixed and are perpetual, yet ‘Urf varies, is rejected consensually and is based on ignorance of the religion. Islamic law based on ‘Urf varies when ‘Urf changes. This is not a new Ijtihad to raise the question of qualification, but rather a rule based on our predecessors’ ‘Ijtihad. It is a consensually accepted rule. Hence, we are not initiating, but rather following.137 According to Al-Qarafi,138 when issuing a Fatwa, jurists should take into account the variation of ‘Urf that results from the change of time or place. They should not adhere blindly to what is written in our books. If a man goes to a jurist asking for a Fatwa, the jurist should not issue his Fatwa on the basis of his ‘Urf but rather on the basis of the man’s ‘Urf. If this is not done, then it will be ignorance of the Muslim jurists’ objectives and the objectives of the early Muslim predecessors.139

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If one reads the books of Fiqh issued by the Hanafi, Shafi’i, Hanbali and Maliki Schools, one will come across a number of Fatawa based on the ‘Urf of their time. Today’s ‘Urf is different, hence such Fatawa are to be changed. For instance, when selling gold, the commodity and the payment are to be handed over immediately. Sometimes people buy gold and give cheques that require a number of days to cash. This transaction is Islamically valid as using cheques is part of today’s ‘Urf. During a transaction, if someone agrees to pay the price, this price is determined according to the ‘Urf. If it is money, then it should be money, and if otherwise, then it should be otherwise. Al-Qadi Isma’il140 states that Malik’s opinion, which states that if a husband and a wife argue regarding receiving the dowry, the husband’s statement should be accepted, was based on the ‘Urf of his time in Medina, according to which conjugal rights were not practised until the dowry had been paid. But now as the ‘Urf is different, the woman’s statement is to be accepted.141 7.3.12.1 In Brief ‘Urf constitutes a serious factor in the process of issuing Fatawa. What can be impermissible in one place can be classified as permissible in another place, for no reason but the fact that ‘Urf varies from one place to another. ‘Urf aims to work in people’s interest. Shari’ahh also aims to achieve people’s interest. The requirements of people’s interest vary from one place to another. Consequently, ‘Urf and Fatawa vary from one place to another. This variation is clearer when considering a place where Muslims constitute the majority and a place where Muslims represent the minority, since in the first case Islam is the norm and in the latter the nonIslamic law prevails.

7.3.13 Da’wah ΓϮϋΩ Da’wah represents the fifteenth characteristic of Fiqh Al-Aqalliyat. To a large extent, Da’wah is related to the story of belief and disbelief, which is as ancient as the creation of Adam. 7.3.13.1 Introduction At the beginning of this book I cited the story of Adam, Eve and Satan, highlighting how Satan disobeyed Allah and tempted Adam and Eve to eat from the forbidden tree. They were sent down to earth and Allah promised

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paradise to the believers and hell to the disbelievers. Al-Ghazali stresses that the story of belief and disbelief is a destiny that one cannot escape.142 In the Qur’an it is stated: “He it is Who created you, then some of you are disbelievers and some of you are believers. And Allah is All-Seer of what you do” (Trans. 64:02). Al-Ghazali adds that the options offered to the children of Adam are founded on the basis of this segregation.143 In his opinion, as people inherit phonotypical traits and languages, they inherit belief and disbelief. Nevertheless, people do not question their inheritance of languages and phonotypical traits, but they question their inherited beliefs, especially when they reach maturity and when they have an opportunity to make a comparison between their beliefs and others’ beliefs. The ancient and perpetual existence of belief and disbelief and evil and good makes the existence of Da’wah perpetual.144 7.3.13.2 Definitions of Da’wah The term Da’wah is one of many Islamic terms; when misunderstood it becomes one of the divisive terms. Understanding the significance of this term is the first step towards turning it into a factor of inclusiveness. 7.3.13.3 Linguistically Da’wah linguistically means a request. It is derived from Da’a ϰϋΩ, which means to request.145 Abdur-Rahman Habankah states that the term Da’wah linguistically means a request, but a strong one í to do or shun an action of belief, uttering words or embarking on a deed. This strong request can be expressed in words, writing, or by giving an example directly or indirectly.146 7.3.13.4 Islamically A number of Muslim scholars endeavoured to define the term Da’wah Islamically. In his definition to this term, Muhammad Al-Rawi states that it refers to a comprehensive code of human behaviour and a specification of a human’s rights and responsibilities.147 In such a definition, Al-Rawi presents a combination of the concept of religion and the concept of Da’wah. Muhammad Al-Khidr Hussein illustrates that Da’wah refers to the act of exhorting people to do good and abide by divine guidance, enjoining good and forbidding evil, so that they might be successful in this life and the life to come.148 This definition is accepted by Ali Mahfuz.149 Ahmad

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Ghalwash defines Da’wah in a similar way, stating that Da’wah is the science with which we come to learn various methods to convey Islam as a whole, including beliefs, Shari’ahh, and morals for all people.150 These definitions overlook certain aspects of Da’wah, since it includes informing, forming and embarking on activities, as will be explained in the coming pages. Al-Ghazali elucidates that Da’wah refers to a comprehensive programme that includes all types of knowledge needed by human beings to learn the objectives of their creation and to discover the ways to gather them in paradise.151 In this definition Al-Ghazali includes the objectives of Da’wah. The same thing is done by Adam Abdullah Al-Alwari when defining Da’wah, as he states that Da’wah refers to the process of diverting people’s attention to a creed useful to them or a benefit to avail of. It also refers to saving people from potentially straying or committing a sin.152 This definition is welcomed by Muhammad Khair Ramadan.153 According to Muhammad Abu Al-Fath Al-Bayanuni,154 Da’wah refers to conveying Islam to people, and teaching them Islam and adhering to it.155 A similar definition to this is given by Bahi Al-Khuli, which states that Da’wah refers to rendering the nation from one situation to another.156 Also, a similar definition is given by Ra’uf Shalabi stating that Da’wah refers to an Islamic movement in terms of theoretical and practical aspects.157 Al-Bayanuni’s definition includes three phases of Da’wah í conveying, forming and executing. It is also in conformity with the Prophet’s style of Da’wah. This is supported by the Qur’anic verse in which Allah attributes these three characteristics to the Prophet Muhammad, peace be upon him. In the Qur’an it is stated: “He it is Who sent among the unlettered ones a Messenger from among themselves, reciting unto them His Verses, purifying them, and teaching them the Book and Al-Hikmah. Verily, they had been before in manifest error” (Trans. 62:02).158 This perception was reiterated by the Prophet Muhammad, peace be upon him, since he used to meet with the Muslims in Dar Al-Arqam in Mecca to teach them Islam.159 Moreover, in his lifetime, whenever a person embraced Islam, he, peace be upon him, commanded his Companions to teach him/her Islam and the Qur’an.160 In other words, Da’wah is a theory put into practice when it comes to MuslimíMuslim and Muslimínon-Muslim encounters.161 Nevertheless, in his perception of the term Da’wah, Abdur-Rahman Habankah limited the practice of it towards non-Muslims and Muslims who mould their life in a non-Islamic

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way. He stated that Da’wah refers to strongly requesting and exhorting non-Muslims to embrace Islam intrinsically and extrinsically, i.e. in both belief and behaviour.162 7.3.13.5 The Commencement of Da’wah A number of Muslim scholars state that Da’wah commenced when the Prophet Muhammad, peace be upon him, started preaching Islam to his people. For instance, Al-Bayanuni argues that Da’wah theoretically and practically commenced when the Prophet, peace be upon him, started preaching Islam to people, reciting the Qur’an to them and teaching Islam to those who wanted to be Muslims. He adds that afterwards his Companions and then their followers carried the message of Da’wah, which passed from one generation to another. He argues that the burden of Da’wah was also shouldered by Islamic states. So it has been the mission of both individuals and institutions.163 Al-Ghazali holds the same opinion. He highlights that Da’wah came into existence the day the Muslim creed, acts of worship, morality and the values of a good society came into existence.164 In support of his argument, Al-Ghazali quotes the first verse revealed in the Qur’an. In the Qur’an it is stated: “Read in the name of thy Lord” (Trans. 96:1). He also adds that the second chapter revealed in the Qur’an elaborated on Da’wah. Based on these quotations and citing them in such a context gives the impression that Al-Ghazali believes that Da’wah coincided with the Prophet Muhammad’s Islamic promulgation. Approximately 100,000 Muslims who performed his farewell pilgrimage in the company of the Prophet, peace be upon him, shouldered the mission of Da’wah after the Prophet’s demise.165 To a large extent it is difficult to accept these two opinions, since Da’wah is intertwined with and interrelated to Islam, deemed to be the name given to all divine revelations. Al-Bayanuni states that the theme of Da’wah is Islam.166 Al-Ghazali himself stresses that Islam is a title given to an ancient truth that dates back to the time of creation. It is perpetual throughout history as it has been conveyed by all Prophets such as Moses, Jesus, and Muhammad, peace be upon him. The same religious objectives and pillars have been revealed to the Prophets whose names we know, and the Prophets whose names we ignore.167 In support of his argument, AlGhazali quotes a verse from the Qur’an. In the Qur’an it is stated: “The same religion has He established for you as that which He enjoined on Noah í the which We have sent by inspiration to thee í and that which

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We bequeathed on Abraham, Moses, and Jesus: Namely, that ye should remain steadfast in religion, and make no divisions therein: to those who worship other things than Allah, hard is the (way) to which thou callest them. Allah chooses to Himself those whom He pleases, and guides to Himself those who turn (to Him)” (Trans. 42:13).168 .

Also in his book Al-Da’wah Al-Islamiya fe Al-Qarn Al-Hali, AlGhazali highlights that the term Islam refers to the knowledge of Allah, submission to Allah and a harmony with the universe that glorifies His praises.169 Sa’eed Hauwa elucidates that Islam means to submit yourself to Allah. In other words, Islam means to abide by the divine commands and refrain from Allah’s prohibitions.170 Hauwa argues that Islam is the religion of all Prophets, commencing with Adam and reaching culmination with Muhammad.171 This meaning is stated clearly in the Qur’an. According to Habanka Al-Maydani,172 since the time of their formation, human beings have passed through phases. He adds that century after century, human beings accomplished social, political, military and moral development. He said that at intervals, Allah sent His messengers according to the need of each nation. He said that Allah had given divine revelation to His messengers, who conveyed it to their people. He concluded that those who believed in the divine revelation were commanded to abide by it, learn it and invite others to believe in it. This is Da’wah.173 Prophets chose, from among their followers, certain individuals to burden the mission of Da’wah. For instance, the Prophet Jesus chose his disciples.174 7.3.13.5.1 In Brief Although many Muslim scholars state that Da’wah was commenced by the prophethood of the Prophet Muhammad, peace be upon him, they perceive that Islam is the name given to the divine revelations given to the respective messengers. They state that Da’wah is a theory and a practice. It includes belief, putting this belief into practice and inviting others to become believers. This means that Da’wah was practised by all the messengers. Hence, it becomes difficult to accept that Da’wah commenced with the prophethood of Prophet Muhammad, peace be upon him.

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7.3.13.6 The Islamic Rule of Da’wah Muslim scholars consensually state that Da’wah is an obligatory duty. Nevertheless, some argue that it is a collective duty, while others stress that it is an individual duty. For instance, Habanka Al-Maydani illustrates that the duty of Da’wah should be shouldered by the entire Muslim nation. He adds that it should do all the necessary preparations to qualify Da’iahs175 who will convey Islam to all people regardless of their race, language and location. A Muslim could be a full-time Da’iah or a parttime Da’iah, like a Da’iah doctor, a Da’iah engineer, a Da’iah merchant or a Da’iah professor, fulfilling their Da’wah duty according to their respective capabilities.176 In other words, all Muslims are deemed to be Da’iahs, yet at various levels. Each of them has a Da’wah duty that matches his/her knowledge. Al-Ghazali highlights that according to socialism, a teacher who teaches Marxism serves socialism and a person who travels to space equally serves Marxism. Likewise, all Muslims, regardless of their theoretical and practical jobs, serve the objectives of Da’wah, according to their talents and qualifications.177 The opinion that Da’wah is an individual duty is supported by the following Islamic texts. In the Qur’an it is stated: “Let there arise in you a group of people inviting to all that is good, enjoining good and forbidding evil. And it is they who are the successful” (Trans. 3:104). The Qur’anic linguistic application in this verse indicates that Da’wah is an individual duty and not a collective duty.178 Also, in another place in the Qur’an it is stated: “You are the best of peoples ever raised up for mankind; you enjoin good and forbid evil, and you believe in Allah” (Trans. 3:110). Also Abu Sa’eed Al-Khudri reports that the Prophet Muhammad, peace be upon him, said: “If you see evil then forbid it with your hand and if this is beyond your ability then forbid it with your tongue and if this is beyond your ability then forbid it in your heart. This is the lowest level of faith.”179 Also, the Prophet Muhammad, peace be upon him, said: “Let the present of you report it to those who are absent.”180 The opinion that Da’wah is a collective duty is supported by a number of Islamic texts. In the Qur’an it is stated: “Let there arise in you a group of people inviting to all that is good, enjoining good and forbidding evil. And it is they who are the successful” (Trans. 3:104). The Qur’anic linguistic application in this verse indicates that Da’wah is a collective duty and not an individual duty.181 This interpretation is supported by another verse in the Qur’an which states: “And it is not for the believers to go out to fight all together. Of every group of them, a party only should go

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forth, that they may get averse in the religion, and that they may warn their people when they return to them, so that they may beware” (Trans. 9:122). According to Al-Bayanuni, there is no practical difference between the first and the second opinion, since they both state that Da’wah is a duty incumbent on Muslims. Moreover, the scholars who classify it as an individual obligation stipulate that it should be fulfilled within the limits of one’s capabilities. Hence, if one does not have knowledge, then he/she is exempted from it. As for the scholars who classify Da’wah as a collective duty, they perceive that Da’wah is a recommended activity for all Muslims. Moreover, the duty of Da’wah has no end since it involves inviting non-Muslims and Muslims to Islam.182 7.3.13.7 The Place of Da’wah in Islam Da’wah is deemed to be the most honoured activity in Islam.183 In the Qur’an it is stated: “And who is better in speech than the one who invites (people) to Allah, and does righteous deeds, and says: ‘I am one of the Muslims” (Trans. 41:33). People who do this lead a similar life to the Prophet’s. They are promised a great reward. The Prophet Muhammad, peace be upon him, said: “Whoever invites people to guidance, he/she will have an equal reward granted to those who follow him/her.”184 7.3.13.8 Priorities To practise Da’wah one should be fully aware of the distinctiveness of the people to whom he/she is making Da’wah. Al-Bayanuni states that on the basis of his/her thorough understanding of their context, he/she can specify his/her priorities and apply a well-balanced approach.185 As every location has its distinctive cultural context and priorities, approaches of Da’wah vary from one place to another. That is to say that it makes a big difference to approaches and prioritising when Muslims constitute a minority rather than a majority. There is a big difference between a country where the mainstream religion and culture is Islamic and another country where it is non-Islamic. For instance, the Islamic Cultural Centre of Ireland (ICCI),186 located in Clonskeagh, Dublin, embarks on a number of Da’wah activities, whereas Ali Ibn Abu Talib Mosque, located in Luxor, Egypt, embarks on entirely different Da’wah activities.

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7.3.13.9 Social Activities The ICCI holds an annual multicultural day. On this day, most of the communities residing in Ireland, especially Muslims, display items representing their cultural backgrounds on the premises of the ICCI. This programme also includes sports activities and games. The point of this day is to break down barriers between these communities and provide an opportunity to bring about a more cohesive society based on understanding and friendly relationships. Such an activity would be out of context in Ali Ibn Abu Talib Mosque since Egypt is not a multicultural society. On an annual basis the ICCI also holds neighbourhood week. It usually presents Islamic arts such as Arabic calligraphy, Muslim handcrafts, etc. This activity is conducted to introduce Islamic arts to Irish society. This would also be out of context in Ali Ibn Abu Talib Mosque. At the ICCI, Fridays’ prayers are held between 1pm and 2pm. Friday sermon cannot exceed a certain period of time. This is due to the fact that Friday is a working day in Ireland. But in the Ali Ibn Abu Talib Mosque Friday is considered part of the weekend. People go to the mosque early. Even topics addressed at the ICCI are not necessarily the same topics addressed at Ali Ibn Abu Talib Mosque. The ICCI provides funeral services. If a Muslim passes away, the corpse will be delivered to the mortuary at the ICCI where the body will be washed and shrouded. Afterwards, the body is brought to the mosque where the funeral prayer is offered. This will be followed by taking the body to the cemetery for burial and prayers.187 The role of Ali Ibn Abu Talib Mosque is limited to offering the funeral prayer if someone passes away. The ICCI also has among its facilities, matrimonial services. When a couple are planning to marry, they follow the procedures at the marriage registration office, but their marriage is solemnised by the Imam at the ICCI.188 People only use Ali Ibn Abu Talib Mosque as a place of gathering. The ICCI also holds a biannual book fair and bookshop. A great display of Arabic books, literature and Islamic books is usually provided. Also, large selections of Islamic ladies’ clothes are displayed.189 Such activity would be out of context in Ali Ibn Abu Talib Mosque.

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The ICCI has a multi-purpose hall. It is open for functions, including wedding celebrations, banquets to celebrate the birth of a child and sports activities such as football, badminton and basketball. In the month of Ramadan, meals for breaking the fast are held at the weekend. It is also used for Eid (Muslim feasts) celebrations, exhibitions and receptions.190 Such activity would be out of context in Ali Ibn Abu Talib Mosque. 7.3.13.10 Education Activities Nur-ul-Huda: The Nur-ul-Huda Qur’anic School was officially inaugurated at the ICCI on 15 March 1999 to primarily cater for the needs of the Muslim children of Dublin. Two subjects are taught here í memorisation of the Qur’an and Arabic. Nur-ul-huda Qur’anic School was established as a response to the needs of the growing Muslim community in Ireland. To assist the Muslim community in Ireland to integrate into Irish society, while still retaining their Muslim identity, and in order to facilitate the teaching of the Qur’an, the Nur-ul-huda Qur’anic School started a series of lectures and study circles organised at the mosque. In 1999, thirty students were organised into two regular classes. In 2000 the school was developed to cater for five classes, with a capacity of eightyfive students. The curriculum included memorisation of the Qur’an, learning the rules of recitation of the Qur’an, and some elementary Arabic. A committee of experts was formed to set school policy, to decide on rules and regulations and to supervise the running of the school. In 2001, the school took the unprecedented initiative of providing outreach education. To facilitate this service branches have been inaugurated in two areas with a large Muslim population: 1.

Castleknock: This branch was initiated in May 2001. A two-hour class is held on a weekly basis in a rented hall. At present around fifty students are attending this class.

2.

Drogheda: Drogheda lies outside Dublin where a large Muslim community resides. At present a small hall is used to organise a two-hour class on a weekly basis with a capacity of thirty students.191

Other Muslim schools are as follows: The Libyan School: This is hosted by the ICCI and follows the Libyan Curriculum. It is an accredited school in all Arabic speaking countries. It

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runs every weekend from 10am to 1pm for a full Libyan academic year. It caters for children from First Class to Junior Certificate level. In First, Second and Third Class students study Arabic, Maths and Religion. In Fourth, Fifth and Sixth Class and in Secondary Years students study Arabic, Math, Science, Geography, History and Religion. Moreover, in First and Second Year, students study Math (Algebra, Geometry) and Science (Chemistry, Physics and Biology). Parents of students volunteer their services as teachers in the school.192 The Muslim National School: The ICCI hosts the Muslim National School. This is a state-funded primary school established by the Islamic Foundation of Ireland (IFI) and follows the Irish national curriculum. The school applies an Islamic ethos. In addition to the Irish curriculum, the students are taught the Qur’an, Arabic and Religious Studies.193 In the context of Ali Ibn Abu Talib Mosque, one may come across a non-official Qur’anic School. It is run for a few hours a week. The organisation and dissemination of education, particularly among Muslim children and adolescents, are of particular importance when building the knowledge around the concept of coexistence. In the above-mentioned comparison one can discern that the ICCI conducts intensive Da’wah activities. This is due to the fact that Muslims, as minorities, have different concerns and priorities than the concerns and the priorities of Muslim majorities. By and large, Muslim minorities have more serious concerns regarding preserving their Muslim identity. In addition, Muslim minorities always feel that they have to prove that they are organically an integrated part of the societies in which they live and they have to prove that they are great assets to their societies. Moreover, they perceive themselves as the windows through which non-Muslims can learn about Islam. 7.3.13.11 Methodology and Atmosphere of Da’wah in the West According to ‘Adulmajeed An-Najjar, Islam is a universal religion, which guides all human beings to prosperity and success in this life and the life to come. He adds that Muslims are commissioned with the Prophets’ mission í conveying the Islamic message until the occurrence of the Last Day.194 In the Qur’an it is stated: “Say, ‘This is my way; I invite to Allah with insight, I and those who follow me. And exalted be Allah; and I am not of those who associate partners unto Him’” (Trans. 12:108).

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An-Najjar argues that Allah is merciful and is called The Just. He has equipped the Muslim nation with proper qualifications so that they can fulfil their mission. The foremost qualification is moderation.195 In the Qur’an it is stated: “And thus we have made you a moderate nation that you will be witnesses over the people and the Messenger will be a witness over you” (Trans. 2:143). Wahbah Al-Zuhaili196 stresses that Muslims are eager to spread Islam all over the world. Nevertheless, this can only be conducted in light of Islamic teaching. He adds that it is forbidden to impose Islam on nonMuslims. Due to it being harmonious with human nature and being a necessity for an honourable existence, millions of people worldwide accepted Islam willingly as their religion.197 In the Qur’an it is stated: “Let there be no compulsion in the religion. The right course stands clear from the wrong course. So whoever disbelieves in false gods and believes in Allah has grasped the most trustworthy handhold with no break in it. And Allah is Hearing and Knowing” (Trans. 2:119). Muslims will not be held accountable if people do not accept Islam. A Muslim’s mission is not to revert people to Islam but rather to explain Islam to them and present it in its true image. In the Qur’an it is stated: “Verily, We have sent you with the truth as a bringer of glad tidings and a warner. And there was no nation but that there had passed within it a warner” (Trans. 35:24). According to Wahbah Al-Zuhaili, it is not permissible for Muslims to endeavour to spread Islam save through dialogue and presenting the true image of Islam in word and action.198 In the Qur’an it is stated: “Invite people to the way of thy Lord with wisdom and good instruction, and argue with them in a way that is best. Indeed, your Lord is most knowing of who has strayed from His way, and He is most knowing of who is guided” (Trans. 16:120). If Da’wah in the West is a duty that cannot be fulfilled save by Muslims living in the West, they should have the Islamic morality that reflects the true image of Islam. Their scholars have to act in full conformity with the divine command issued to Moses and Aaron. In the Qur’an it is stated: “Go, both of you, to Pharaoh. Indeed, he has transgressed. And speak to him with gentle speech that perhaps he may be reminded or fear [Allah]” (Trans. 20:43-44). Although Pharaoh Ramses III was a tyrant who exceeded all limits in oppression and disbelief, Allah commanded Moses and Aaron to address him in a kind way. Muslims

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should remember that they are coexisting with the people of the Book, i.e. the Christians and the Jews, whose food is permissible for Muslims and the food of Muslims is permissible for them. Moreover, Muslim men are allowed to marry Jewish and Christian women. In the Qur’an it is stated: “This day good foods have been made lawful for you, and the food of those who were given the Scripture is lawful for you and your food is lawful for them. And lawful in marriage are chaste women from among the believers and chaste women from among those who were given the Scripture before you, when you have given them their due compensation, desiring chastity, not unlawful sexual intercourse or taking secret lovers. And whoever denies the faith his work has become worthless, and he/she, in the Hereafter, will be among the losers” (Trans. 5:05). That is to say that Islam does not have a hostile attitude against the West in general or a country in particular. This meaning is reiterated in another verse. In the Qur’an it is stated: “and you will find the nearest of them in affection to the believers those who say, ‘We are Christians’. This is because among them are priests and monks and because they are not arrogant” (Trans. 5:82). The Qur’an shows another distinction of a deeper relationship between Muslims on one hand and people of the Book on the other hand. In the Qur’an it is stated: “The Byzantines have been defeated in the nearest land. But they, after their defeat, will attain victory within three to nine years. To Allah belongs the command before and after. That day the believers will rejoice the victory of Allah. He gives victory to whom He wills, and He is the Exalted in Might, the Merciful” (Trans. 30:02-05). In these verses the Qur’an sheds light on the PersianíByzantine conflict. The Persians were not classified as people of the Book but the Byzantines were. The fact that the Qur’an states that the Byzantines lost the battle but they would win it in the near future attests to the concept that the people of the Book have been given special care and a share in Islam. In spite of that the Western media always raise a question: “Why do Muslims hate the West?” Al-Quradaghi199 highlights that the Western media turned this question into a reality that westerners believe in.200 Al-Quradaghi adds that what is even worse, is that the media do not mention colonialism supporting oppression and creating Israel in the heart of the Muslim world as the grounds for this hatred, but rather it states that this hatred is because Muslims hate Western freedom such as freedom of

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expression, freedom of belief, freedom of election, etc.201 Al-Quradaghi states that Muslims do not hate Western positive aspects.202 Nevertheless, there is a conflict between Muslims and the West. It is based on misconstruing Islam, Islamophobia, land and economics. It is also due to the role performed by the Christian Church in creating and maintaining a religious rift.203 According to Abdelfattah Abdel-Maqsud, the Church has serious concerns about the spread of Islam among Christians. Hence, in 1189 the Church incited hatred between Christians and Muslims by making a statue of Jesus being slaughtered by Muhammad’s knife.204 ‘Abdel-Haleem Mahmoud stresses that Pope Urban II played a vital role in the crusades as he stated that the Holy War was not to conquer one city but rather the entire Asian regions.205

7.4.1 The Foundations of Fiqh Al-Aqalliyat Figh Al-Aqaliyat was formed because Muslim minorities lived in contexts different from the contexts in which Muslim majorities lived. It does not represent a new Islam but rather a thorough understanding of Islam and the circumstances confronting Muslim minorities. Hence, it is a combination of religious and worldly understanding. This can only be conducted through applying one’s mental faculties to form Islamic law in light of certain circumstances. This is not an innovation but rather an application of the Islamic rule of Ijtihad. It is the first foundation of Figh Al-Aqaliyat. 7.4.1.1 Definition of Ijtihad ΩΎϬΘΟ΍ Linguistically it is derived from Jahada ΪϫΎΟ which means to exert efforts.206 It also signifies doing one’s best to achieve something. ‘Ijtihad is a formula used to state that an action is done in an extreme way.207 According to ‘Abdelwahhab Khallaf,208 technically ‘Ijtihad refers to exerting efforts to reach an Islamic rule on the basis of detailed Islamic evidence.209 According to Sharif Muhsin Mahmud, ‘Ijtihad is linguistically derived from Jahid ΪϬΟwhich means that one does his/her best to accomplish a goal, whether it is a material goal such as industry, agriculture or trade, or a spiritual goal such as exerting efforts to reach linguistic or medical expertise, etc.210 According to Sharif Muhsin Mahmud, ‘Ijtihad technically signifies that a Muslim jurist exhausts every possible means and does his/her best to

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reach a practical Islamic rule through deduction based on considering Islamic proofs.211 According to Al-Qaradawi, among the fundamental Islamic terms are two terms: Jihad and ‘Ijtihad. They are derived from the same root Ω ˰ϫ Ν (JHD) and they have a profound impact on Islamic life and Islamic history. It can be pronounced as JUHD meaning exerting efforts and it can be pronounced as JAHD meaning accepting difficulties.212 Al-Qaradawi argues that these two terms are intertwined and interrelated. The objective of ‘Ijtihad is to have knowledge of the divine guidance revealed by Allah to His prophets. As for Jihad, it aims at protecting the divine guidance. The field of the first word is applying one’s mental faculties, so it is a theoretical field. As for the latter term, its field is actions and behaviour, so it is a practical field.213 According to Al-Qaradawi, the fruit of ‘Ijtihad could be spoiled if there is no power to put it into practice. The fruit of Jihad could, likewise, be spoiled if there is no knowledge to guide it.214 According to ‘Abdelkarim Zidan,215 ‘Ijtihad linguistically refers to exerting efforts and doing one’s best in an activity.216 According to ‘Adelkarim Zidan, ‘Ijtihad technically refers to exerting efforts by a Mujtahid ΪϬΘΠϣ (a Muslim scholar exercising ‘Ijtihad)217 to gain knowledge of Islamic law through deduction.218 Jirjis Jaras states that ‘Ijtihad technically refers to deducing general Islamic rules from Islamic proofs or exerting efforts to deduce general rules and reach an Islamic rule based on conjecture.219 7.4.1.2 In Brief In light of the above-mentioned technical definitions one can conclude that ‘Ijtihad refers to exerting efforts and doing one’s best to reach a practical Islamic rule through deduction.220 Nevertheless, Zidan stipulates that the process of ‘Ijtihad should be conducted by a Mujtahid. According to Zidan, the meaning of Mujtahid is indicated by the definition of ‘Ijtihad. The title of Mujtahid can only be applied to a Muslim jurist who can deduce practical Islamic law through considering detailed Islamic proofs.221

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7.4.1.3 Necessity of ‘Ijtihad Sharif Muhsin argues that it is Allah’s will that human lives are always developed and their affairs are renewed. Their issues are endless and ceaseless. Allah blesses all human beings with minds and commands them to apply their mental faculties to run and improve their affairs. Hence they should exert efforts and do their best.222 New events are constantly occurring in all societies. Moreover, the context of one society is not necessarily the same for another society. Nevertheless, there could be similarities. People tend to have distinctive cultures in their respective localities at their specific times. Hence, there can be no system that, when organising human relations, includes in its legislation articles for all types of incidents and activities all over the globe regardless of time and place. For this reason laws are amendable and replaceable so that people might be able to abide by them and avail of them. According to Muhammad Shamah,223 the case is the same for divine legislation. Divine revelations explain the main principles applicable in all times and places regardless of their respective contexts. New events should be judged according to regulations enacted in harmony with the spirit of the main principles revealed by Allah.224 This is what is called ‘Ijtihad in Islamic legislation.225 Hence, ‘Ijtihad is the only way to enact rules for unprecedented events. It is an indispensable element for the comprehensive Shari’ahh of Islam to meet people’s needs and assist their development.226 According to Al-Qaradawi, Islamic Shari’ahh is well able to cope with any development if Muslims operate ‘Ijtihad, but it should be practised by qualified Muslims.227 Al-Qaradawi warns that under the pressure of current lifestyles in non-Muslim countries which have not been formed by Islam nor by Muslims, some Muslims may misuse ‘Ijtihad to justify these lifestyles.228 7.4.1.4 In Brief On the basis of the above-mentioned arguments, one can conclude that ‘Ijtihad is an essential component of life development. It is an indispensable element of improving circumstances in Muslim societies. ‘Ijtihad essentially is a type of renewal. Hence, there is a link between ‘Ijtihad and modernisation. According to Al-Qaradawi, this modernisation

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includes modernising Fiqh and the religious understanding. It also includes modernising belief and holding fast to the religion and the Da’wah. This modernisation can only be achieved through a sound contemporary ‘Ijtihad.229 7.4.1.5 Types of ‘Ijtihad According to Muhammad Abu Zahra, ‘Ijtihad can be deductive; it can mean to exert efforts and consider Islamic sources to reach an Islamic rule. ‘Ijtihad can also be selective, meaning to choose an opinion. This choice is based on taking into consideration people’s interests, deemed to be of great value from an Islamic point of view.230 Muhammad Ma’ruf perceives ‘Ijtihad as a method of reaching new rules by means of reformation.231 Similarly, according to Al-Qaradawi, ‘Ijtihad is classified into two categories: selective ‘Ijtihad and deductive ‘Ijtihad. Selective ‘Ijtihad refers to the process of reasoning used to choose one opinion over others on the basis of understanding Islamic objectives and people’s circumstances. For instance, Ibn Al-Qaiyym mentions nine opinions regarding a woman who reverts to Islam while her husband remains a nonMuslim. There is a need to practise ‘Ijtihad to choose the most appropriate opinion in light of the circumstances of Muslim minorities and the evidence supporting each opinion.232 The second type of ‘Ijtihad is deductive ‘Ijtihad. There are thousands of new issues confronting Muslims for which one does not find an Islamic text that directly deals with it. This huge and rapid development is normal, yet the ancient Muslim jurists could not have thought of it. Consequently ‘Ijtihad is an indispensable tool for Fiqh of minorities.233 7.4.1.6 Qualifications for ‘Ijtihad Being a Mujtahid is one of the best positions in Islam. A Mujtahid acts on behalf of the Prophet Muhammad, peace be upon him.234 Hence, a Mujtahid should fulfil certain conditions. According to Zidan, a Mujtahid should have such a thorough understanding of Arabic that he/she might understand Arabic conversations and expressions by means of being a native speaker or a learner.235 This is essential since it is the way to understand the Qur’an and the Sunnah.236 A Mujtahid should be so well versed in Arabic grammar that he/she might understand Arabic precisely.237 Muhammad Shams AlDin238 highlights that a Mujtahid should clearly understand Arabic

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grammar and how the grammatical context affects the meaning. He/she should be able to use Arabic dictionaries and grammar books to understand what he/she does not understand.239 Having good Arabic by means of being a native speaker or a learner is essential for a Mujtahid, since ‘Ijtihad is based on applying mental faculties that involves deep thinking of both near and far meanings of Islamic texts and then making a deduction. This process will be very limited if a Mujtahid does not have good knowledge of Arabic, since he/she will exert his/her efforts only through the windows provided by a translator. Moreover, the level of Islamic knowledge attained by the translator increases and decreases the number of windows available. Khallaf stresses that a Mujtahid should also be knowledgeable about the Qur’an.240 In other words, a Mujtahid should have such a thorough understanding of the verses of rules that if a question is raised he/she is able to recall the verses and rules pertaining to it. A number of scholars dedicated efforts to collecting Qur’anic legal verses, elaborating on them and explaining them in one book, for example Ahkam Al-Qur’an by AlRazi (d. 370 HJ), Ahkam Al-Qur’an by Ibn Al-‘Arabi (d. 543 HJ), AlJami’ Li-Ahkam Al-Qur’an by Al-Qurtubi (761 HJ) and Tafseer Al-Tabari written in the sixth century of Hijra. Zidan argues that a Mujtahid should understand all the Qur’anic verses since rules might be drawn from other verses provided one considers them carefully.241 Sharif argues that a Mujtahid should not only understand the Qur’an but he/she should know it by heart.242 Al-Qaradawi states that a Mujtahid should have general knowledge of all the Qur’anic verses but that he/she should give special care to the verses of the rules. For instance, the permissibility of doing the lesser evil if one has no other option is drawn from the story of Al-Khidr and Moses and it is not based on verses of rules. How does a Mujtahid know this rule if he/she has knowledge of the verses of the rules only?243 According to Khallaf, a Mujtahid should be fully aware of the reasons for which Islamic laws have been enacted.244 Al-Qaradawi stresses that knowing the reasons for revelation is an essential factor of a sound understanding of the Qur’an.245 A Mujtahid should be aware of them. In addition, a Mujtahid should be aware of the abrogated verses.246 Understanding the reasons of revelation is of paramount importance for Fiqh of minorities, since the whole theory of Fiqh of minorities revolves

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around locating authentic Islamic law that matches the most special circumstances Muslims face while living in non-Muslim societies. Zidan states that a Mujtahid should also have a thorough knowledge of the Sunnah. This does not mean learning it by heart. Nevertheless, he/she should be able to distinguish between the strong narrations and the weak narrations.247 Zidan adds that a Mujtahid should have thorough knowledge of the sources of Fiqh and the objectives of Shari’ahh.248 A Mujtahid should have innate characteristics, such as intelligence needed to make ‘Ijtihad.249 This condition stipulated by Zidan is of vital importance for Fiqh of minorities, since understanding the objectives of Shari’ahh forms the foundation of reaching authentic Fatawa convenient to Muslim minorities as they live in non-Muslim societies and face distinctive circumstances. According to Sharif, a Mujtahid should be aware of people’s context, traditions and what is needed to reform their affairs.250 This condition is very significant, since if a Mujtahid is not fully aware of the context in which people are living, he/she will fail to take into account people’s interests, deemed to be of great value in Islam. A Mujtahid that fails to take people’s interests into positive consideration fails to understand the spirit of Shari’ahh. The above-mentioned concepts of the change of Fatawa on the basis of the change of time and place are based on an understanding of people’s contexts. A typical example would be Ireland, with a population of approximately 4.2 million including a number of Muslim minority groups totalling around 50,000, where the dogma of Figh-ul-Aqalliyat is of particular relevance to the question of coexistence. Muhammad Shams Al-Din argues that a Mujtahid should have a thorough understanding of Arabic literature, which can be obtained not only through reading Arabic grammar books but also intellectual books.251 He adds that a Mujtahid should have thorough knowledge of the early history of Islam. Moreover, he should have good knowledge of the early Muslims as their narrations are on various levels í some are weak and some are strong.252 According to Tami Ad-Deen Al-Sabki,253 a Mujtahid should be fully aware of the areas where Muslim scholars reached consensus.254

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7.4.1.7 In Brief A Mujtahid should fulfil theoretical aspects, i.e. Islamic knowledge and knowledge of methods that enable one to gain Islamic knowledge such as Arabic, and practical aspects, i.e. knowledge of the circumstances surrounding people and their interests. These conditions are based on the concept that Islam aims to achieve the best for all human beings and to remove any hardship. The practice of Ijtihad nowadays is not as active as it was in the past. This is due to two reasons í very few are able to practise Ijtihad and there is a segregation between Shari’ahh and real life.255 The above-mentioned conditions that a Mujtahid should meet to practise ‘Ijtihad are not viable nowadays. Which Muslim contemporary scholar meets all these conditions? Hence, there is a need for a congregational body made up of a number of scholars integrating to fulfil these conditions. This could be the reason why Islamic academies have been set up. It could also be the reason for the creation of the European Council for Fatwa and Research. 7.4.1.8 Types of Mujtahid Mujtahid is categorised into three ranks: Mujtahid Mutlaq ϖϠτϣ ΪϬΘΠϣ (general), Mujtahid Mathhab ΐϫάϣ ΪϬΘΠϣ (certain school), and Mujtahid Fatia ΎΒΘϓ ΪϬΘΠϣ (Fatawa).256 Mujtahid Mutlaq (general) applies to a Mujtahid who, while fulfilling the conditions of practising general ‘Ijtihad, exerts efforts and considers Islamic sources to reach an Islamic rule.257 The majority of Muslim scholars state that this type of Mujtahid is limited to certain eras, but the Hanbali jurists argue that this type of Mujtahid should be available in all eras.258 Mujtahid Mathhab (certain school) refers to a Mujtahid who, while having thorough knowledge of the school of Fiqh he/she follows, exerts efforts to consider texts mentioned in his/her school to reach an Islamic rule if not stated by the Imam of such a school. It also refers to a Mujtahid who, while having good knowledge of his/her school, exerts efforts and considers Islamic sources to reach an Islamic rule. But while doing this, he/she applies only the methodology applied in the school he/she follows.259 Mujtahid Fatia (Fatawa) refers to a Mujtahid, who, while having thorough knowledge of the school he/she follows, prefers one opinion to another, although both of them are stated by the Imam of his/her school.260

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7.4.1.9 Fields of ‘Ijtihad By virtue of its definition, fields of ‘Ijtihad are inclusive of all issues pertaining to a Muslim’s life provided one can find no direct text pertaining to it.261 ‘Ijtihad cannot be operated to answer certain questions such as “is the Qur’an the word of God?”, since there are clear Islamic, scriptural proofs pertaining to this point. ‘Ijtihad cannot be operated to prove that evil is forbidden, because there are clear proofs of this already. ‘Ijtihad cannot be operated to prove that prayer is an Islamic obligation, because there are clear proofs that it is an obligation. ‘Ijtihad cannot be operated to prove that Muslims should pray at certain times of the day, because there are clear proofs that they should. ‘Ijtihad is a process of reasoning, using Islamic legal proofs in light of the context in which people live. Hence, ‘Ijtihad is related to all issues pertaining to public interest, including the five major interests, religion, life, mind, offspring and wealth, protected in all religions as stated by AlShatibi.262 Hence, the ‘Ijtihad, which renews Islamic law and reforms the circumstances of Muslims, aims to serve people’s interests in light of the spirit of Shari’ahh, which is, according to Ibn Al-Qaiyym, founded on people’s interests in this life and the life to come.263 Hence, ‘Ijtihad, which serves people’s interests in a just way, achieves the spirit of Shari’ah. Al-Zarkashi264 states that the majority of Muslim scholars state that issues confronting Muslims are classified into two categories: issues ruled on the basis of clear-cut proofs, and issues not ruled on the basis of clearcut proofs. ‘Ijtihad is not applicable to the first category, such as the obligation to fast during Ramadan and the prohibition of adultery, but it is applicable to the latter category.265 7.4.1.10 In Brief Muslim minorities face many challenges and problems in all aspects of life. Most of these challenges raise unprecedented questions for Muslims. Hence, there is a dire need for this ‘Ijtihad, which involves reasoning using Islamic Shari’ahh in light of the context, in order to reach Islamic law that achieves the spirit of Islamic Shari’ahh. This ‘Ijtihad will remove hardship from Muslims and facilitate success of Muslims in their respective non-Muslim societies. Nevertheless, ‘Ijtihad should be practised by qualified Mujtahidun, who have a thorough understanding of

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Islam and the context in which Muslims live. The emergence of a number of Muslim academics practising congregational ‘Ijtihad is a healthy phenomenon, as the availability of scholars who fulfil the conditions of ‘Ijtihad on an individual basis is very limited in the present day. ‘Ijtihad should not be misused. Under the guise of ‘Ijtihad, one cannot breach Islamic Shari’ahh. ‘Ijtihad can only be applied to issues which are not ruled on the basis of clear-cut proofs and issues ruled on the basis of no rules at all.266 A great part of Islamic legislation is based on ‘Ijtihad. These issues are still open for ‘Ijtihad. They can be subjected to contemporary ‘Ijtihad that takes into consideration the current circumstances of Muslim minorities in Europe. Consequently, new rules which are more convenient to the current situation of Muslim minorities can be formed, such as the legality of the continuation of a marriage between a wife who reverts to Islam while her husband does not, giving the value of Zakat in money.267 7.4.1.11 Acts of Worship are Founded on Ritual Foundations, and Rules Organising Relations between People are Based on Reasoning One of the main Islamic concepts is that acts of worship are founded on ritual foundations and that rules organising relations between people are based on reasoning. In other words, acts of worship in Islam should be performed in the exact way they are stated. Human beings cannot interfere with them. As for the rules organising relations between people, human beings may consider them and reconsider them and subject them to reasoning. Ibn Al-Zannad states that it has frequently occurred that ritual obligations are not regulated in a way harmonious to a Muslim’s thinking. For example, Muslim women must make up the days during which they do not observe fasting during their monthly period, but they do not have to make this time up for missed prayers.268 Al-Shatibi highlights that according to Islam, when it comes to acts of worship, one should perform them in the way they are stated. However, the rules organising people’s relations are subject to consideration.269 Malik said: “It is calling for wonder. Aunts do not inherit from nephews and nieces, but nephews and nieces inherit from aunts.”270 The above-mentioned rule is confirmed by many texts. For instance, spiritual purity is achieved by using water but, if it is not available, or it is

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available and one cannot use it, then spiritual purity can be achieved by using dust. In the Qur’an it is stated: O ye who believe! When ye prepare for prayer, wash your faces, and your arms up to the elbows; Rub your heads; and wash your feet up to the ankles. If ye are in a state of seminal impurity, bathe your whole body. But if ye are ill, or on a journey, or one of you have satisfied the call of nature, or ye have been in contact with women, and ye find no water, then take for yourselves clean sand or earth, and rub therewith your faces and hands, Allah doth not wish to place you in a difficulty, but to make you clean, and to complete his favour to you, that ye may be grateful. (Trans. 5:06)

7.4.1.12 In Brief Al-Shatibi, like all the contemporary Muslim jurists elaborating on the objectives of Shari’ahh, draws a distinction between the rules of the acts of worship and the rules organising relations between people. Fulfilling the first category of rules is not dependent on finding the reasons for following them, but the second category of rules are based on reasoning. Acts of worship should be performed according to their scriptural description, as there can be no logical explanation for them. Since they are performed purely to seek the pleasure of Allah, acts of worship should be performed on the basis of submission to Allah. As for the rules organising relations between people, scholars may consider and reconsider them, as what appears to be of people’s interest today might not be of their interest tomorrow. Since they are enacted to organise worldly affairs at both individual and congregational levels, rules organising relations between people may be reconsidered as life is always developing and changing. In the Kuwaiti Fiqh encyclopaedia, it is stated that rules of acts of worship are not based on reasoning since acts of worship are performed as a means of worshipping Allah. As for rules organising relations between people, they are founded on reasoning since they are meant to serve people’s interests.271

7.4.2 Adopting a Moderate Approach is the Second Foundation of Fiqh Al-Aqalliyat According to Muhammad Shamah, in order to understand the significance of the word Islam one should consider its root.272 Shamah states that Islam is derived from Aslama which means to submit, so

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Muslims are those who submit their will to Allah’s will.273 Nevertheless, Islam aims at removing hardship and establishing modernity. This concept has been reiterated in more than one place in the Qur’an. In the Qur’an it is stated: “Allah intends every facility for ye; He does not intend to put ye to difficulties” (Trans. 2:158). Also in the Qur’an it is stated: “Allah will not place hardship on thee” (Trans. 5:06). This meaning has been confirmed by many Ahadith. The Prophet, peace be upon him, said: “Facilitate and place no hardship on people.”274 When a desert Arab defecated in the mosque, the Companions wanted to punish him. The Prophet Muhammad, peace be upon him, did not allow them and said: “You have been commissioned to facilitate and not to place hardship on people.”275 ‘Amr Ibn Al-‘As was in a case of seminal impurity. When he wanted to pray, instead of performing the Islamic spiritual whole body wash, he performed dry ablution. When those who were in his company reported that to the Prophet Muhammad, peace be upon him, he said that he recalled the verse in which the Qur’an states: “And cause not destruction to yourselves” (Trans. 5:06). The Prophet Muhammad, peace be upon him, smiled.276 Through his reading the history of Islamic Fiqh, Al-Qaradawi states that the highest level of facilitation is manifested in the Fiqh of the Prophet Muhammad, peace be upon him, and the second highest level of facilitation is manifested in the Fiqh of the Prophet’s Companions.277 Afterwards, the level of facilitation diminished and diminished until it reached the current situation.278 7.4.2.1 In Brief Facilitation is not an innovation but rather a well-established Islamic concept. This meaning is reiterated when it comes to people facing difficult circumstances. The Prophet Muhammad, peace be upon him, sympathised with the desert Arab because of his unique circumstances. Muslim minorities face unique circumstances. Hence, adopting facilitation is more important for them. However, this facilitation should be limited to areas of ‘Ijtihad, otherwise it will lead to breaching the Islamic Shari’ah.

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Notes 1

Al-Qaradawi, Fe Fiqh Al-Aqalliyat Al-Muslima (Cairo: Dar Al-Shuruq, 2001), p. 15. 2 Charles Wagley, Minorities in the New World (New York: Colombia University Press, 1985), p. 4. 3 Wael Allam, Himayat Huquq Al-Aqalliyat Fe Al-Qanun Ad-Dauli Al-‘Am (Cairo: Dar Al-Nahda Al-Arabiya, 1994), p. 8. 4 Ahmad Wahban, Al-Sira’at Al-‘Irqiya Wastiqrar Al-‘Alam Al-Mu’asir (n. p., 2006), pp. 163í200. 5 Thorneberry, super note 3, at 7; Mckean, Equality and Discrimination Under International Law, 1984. 6 Deirdre Fottrell and Bill Bowring, eds., Minorities and Group Rights in the New Millennium (Netherlands: Kluwer Law International, 1999), p. 43. 7 UN Doc. E/CN.4/Sub. 2, para. 181, 1985. 8 Abdel-Kareem Al-Jiba’I, “Masalat Al-Aqaliyat”, published on bredband.net/ b153948/stu14.htm, 2011. 9 Jamal Al-Din Atiya Muhammad, Nahu Fiqh Jadeed Lilaqaliyat (Cairo: Dar AsSalam, 2003), pp. 7í8. 10 Al-Qaradawi, Fe Fiqh Al-Aqalliyat Al-Muslima (Cairo: Dar Al-Shuruq, 2001), p. 17. 11 Muhammad Al-Khidr Hussein, born in 1876 and died in 1958, was one of the greatest Maliki jurists of his time. His family came from Algeria but migrated from there as a result of the French invasion. He studied at Al-Azhar. He was the first non-Egyptian Grand Sheikh of Al-Azhar. He was one of the founders of the Arabic Language Academy in Cairo. He was renowned for his strong beliefs against secularism. His works include Al-A’mal Al-Mutakamilah, Khams Rihlat Ila AlJaza’ir and Muhammad Rasulullah Wakhatam An-Nabieen. 12 Muhammad Al-Khidr Hussein, Al-Shari’ahh Al-Islamiyah Salihah Likul Makan Wa Zaman (Cairo: Nahdat Misr Liltiba’ah Wannashr, 1999), p. 24. 13 Muhammad Al-Ghazali Al-Saqqa, born in Al-Buhaira, Egypt, in 1917 and died at Medina, Saudi Arabia, in 1996, was an Egyptian Muslim scholar. He graduated from Al-Azhar University. He lectured at Um Al-Qura University in Mecca, the University of Qatar and Al-Ameer Abdulqadir University in Algeria. He was also the Chairman of the Academic Council of the International Institute of Islamic Thought in Cairo. He was an influential Muslim jurist who authored a number of books including Dhalam Min Al-Gharb, Jadid Haiatak and Al-Fasad Al-Siyasi. 14 Ibn Qudamah, Raudat An-Nadhir (Beirut: Al-Fikr Al-‘Arabi, n. d.), p. 86. 15 Al-Ghazali, Al-Mustasfi Min ‘Ilm Al-‘Usul (Bulaq, Egypt: Al-Amiriya Press, Bulaq, n. d.), v. 1, p. 286. 16 Al-Shaukani, Irshad Al-Fuhul Fee Tahqiq Al-Haq Min Al-‘Usul (Al-Munirah, Egypt: Idarat Al-Tiba’ah, n. d.), p. 242. 17 Najm Al-Din Sulaiman Ibn ‘Abd Al-Qawi Al-Tufi, born in 657 and died in 716 HJ, was a great Hanbali jurist in the eighth HJ century. He was educated by Abu Haiyan Al-Nakhwi. He authored many works including Mukhtasar Al-Raudahh Wa Sharhuha, ‘Ilm Al-Jathal Fi ‘Ilm Al-Jadal and Dar’ Al-Qaul Al-Qabeeh.

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Najm Al-Din Al-Tufi, Al-Maslaha Al-Mursalah Fee Al-Tashree’ Al-Islami (Beirut: Dar Al-Fikr Al-Arabi, 1954), p. 19. 19 ‘Uthman Ibn ‘Umar Ibn Abi Kakr Ibn Unus Ibn Al-Hajib, born in Isna, Egypt, in 1174, and died in Alexandria, Egypt, in 1249, was a great Egyptian Maliki jurist and an Arabic linguistic scholar. He authored many works including Al-Kafiya, AlShafiya, Jami’ Al-‘Ummahat and Mukhtasr Muntaha Al-Su’al Wa Al-Amal. 20 Ibn Al-Lahham, Al-Mukhtasar Fee ‘Usul Al-Fiqh (Damascus: Dar Al-Fikr, 1400 HJ), v. 2, p. 289. 21 Muhammad Abu Zahrah, ‘Usul Al-Fiqh, Dar An-Nu’man (Najaf, 1958), p. 221. 22 Muhammad Abu An-Nur Zuhair, ‘Usul Al-Fiqh (Cairo: Dar Al-Tiba’ah AlMuhammadiyah, n. d.), v. 3, p. 185. 23 Salah Sultan, Al-Maslahah Al-Mursalah Wa Mada Hijiyatuha (USA: Sultan Press, 2004), p. 14. 24 Muhammad Al-Salmi, born in Cairo, Egypt, in 1960, is a descendant of a family that gave great importance to knowledge. His father was a great medical doctor in Egypt. He graduated from the faculty of engineering; afterwards he enrolled in the Islamic University in Medina where he received a bachelor’s degree in Islamic studies. Then he joined Al-Azhar University where he received his master’s degree in Qur’anic interpretation. Then he received his PhD degree in Qur’anic interpretation and interpreters in Western Africa. He occupied a number of positions such as a researcher in King Fahd Academy in Medina. He also founded Al-Khandaq Privat Schools in Medina. He authored a number of books including Man Amma An-Naas Falukhafif, Is’af An-Nisaa’ Bifasl As-Sufrah Men Ad-Dimaa’ and Jam’ Al-Fawa’id ‘Ikhtisar Islah Al-Masajid Min Al-Bida’ Wal’awa’id. 25 Muhammad Al-Salmi, Shams Al-‘Usul (Cairo: Al-Musu’at Press, n. d.), p. 185. 26 Hassan Ibn Muhammad Al-Mashat, Al-Jawahir Al-Thaminah Fee Baian Adilat ‘Alam Al-Madinah (Saudi Arabia: Dar Al-Gharb Al-Islami, 1406 HJ), p. 249. 27 Ali Hasaballah, ‘Usul Al-Tashri’ Al-Islami (Kuawit: Dar Al-Muthaqaf Al‘Arabi, 1982), p. 249. 28 Badran Abu Al-‘Ainain, ‘Usul Al-Fiqh (Cairo: Dar Al-Ma’arif, 1965), p. 301. 29 Sa’eed Al-Buti, Dawabit Al-Maslahah Fee Al-Shari’ahh Al-Islamiyah (Beirut: Muassasit Al-Risalah, 1402 HJ), p. 330. 30 Abdulwahhab Khallaf, born in Kafr Al-Zaiyat, Egypt, in 1888 and died in Cairo in 1956, was an Egyptian Islamic jurist. He was educated at Al-Azhar. He also joined the School of Al-Qada’ Al-Shar’i where he worked as a teacher afterwards. He participated in the Egyptian revolution in 1919. He occupied a number of positions such as an Islamic judge in Egypt, a general director for mosques in Egypt and a lecturer for Shari’ahh at the faculty of law, Cairo University. He authored a number of books including Ahkam Al-Ahwal Al-Shakhsiya, Al-Siyasah Al-Shar’iyah and Nur Min Al-Islam. 31 Abdulwahhab Khallaf, Masadir Al-Tashri’ Fee ma la Nasa Feeh (Kuwait: Dar Al-Qalam Press, 1985), pp. 85í6. 32 Salah Sultan, Al-Maslahah Al-Mursalah Wa Mada Hijiyatuha (USA: Sultan Press, 2004), pp. 11í12.

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Muhammad Sa’eed Al-Buti, Dawabit Al-Maslahah (Beirut: Muassasat AlRisalah, 1402), pp. 44í67. 34 Ibrahim Ibn Mosa Ibn Muhammad, born in Granada in 720 HJ and died in 790 HJ, was a Maliki jurist. He was educated by a number of Muslim scholars such as Ibn Al-Fakhar Al-Bairi, Al-Qasim Al-Sabti and Al-Tilmisani. He authored a number of books including Al-‘I’tisam, Al-‘Ifadat Wal-‘Inshadat and Al-Maqasid Al-Shafiya Fi Sharh Al-Khulasah Al-Kafiyah. 35 Al-Shatibi, Al-I’tisam, Maktabat Misr (Egypt: Al-Fajjalah, n. d.), pp. 129í235. 36 Al-Baihaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Kutub Al-‘Ilmiyya, 2003), v. 7, p. 20. 37 A title given to the person who learns the Qur’an by heart. 38 Al-Shatibi, Al-I’tisam (Egypy: Maktabat Misr, Al-Fajjalah, n. d.), pp. 21í115. 39 Salah Sultan, Al-Maslahah Al-Mursalah Wa Mada Hijiyatuha (USA: Sultan Press, 2004), pp. 91í2. 40 A title given to the people who came after the Prophet’s death and lived with his Companions. 41 Words, actions and approvals reported about the Prophet, peace be upon him. 42 Sa’eed Al-Buti, Dawabit Al-Maslahah Fee Al-Shari’ahh Al-Islamiyah (Beirut: Muassasit Al-Risalah, 1402 HJ), pp. 361í5. 43 A contemporary Muslim scholar and a member in the European Council for Fatwa and Research. 44 Hussein Hamid, Nadhariyat Al-Maslahah feeAl-Fiqh Al-Islami (Cairo: ‘Abdeen Press, n. d.), p. 50. 45 Al-Shaukani, Irshad Al-Fuhul Fee Tahqiq Al-Haq Min Al-‘Usul (Egypt: Idarat Al-Tiba’ah, Al-Munirah, n. d.), p. 242. 46 Al-Shatbi, Al-I’tisam, v. 2, p. 133. 47 Ibid, v. 2, pp. 129í33. 48 Ibid, v. 2, p. 124. 49 Al-Shaukani, Irshad Al-Fuhul Fee Tahqiq Al-Haq Min Al-‘Usul (Egypt: Idarat Al-Tiba’ah, Al-Munirah, n. d.), p. 242. 50 Ibn Al-Qaiyym Al-Jauziyah, I’lam Al-Muwaqi’een ‘an Rab Al-‘Alameen (Beirut: Dar Al-Kutub Al-‘lmiyya, 1991), v. 3, p. 3. 51 Ali Hasaballah, ‘Usul Al-Tashri’ Al-Islami (Kuwait: Dar Al-Muthaqaf Al‘Arabi, 1982), p. 180. 52 Muhammad Al-Zahri Al-Ghamrawi, Al-Siraj Al-Wahhaj (Egypt: Mustafa Halabi Press, n. d.), pp. 612í621. 53 Mustafa Zaid, Maslahah Mursalah fee Al-Tashree’ Al-Islami wa Najm Al-Din Al-Tufi (Beirut: Dar Al-Fikr, 1954), p. 17. 54 Ibid., p. 36. 55 Al-Shatibi, Al-Muwafaqat, v. 1, p. 51. 56 A narration reported by a number of people so many that falsehoods become impossible. 57 Abu Hamid Al-Ghazali, Al-Mustasfi Min ‘Ilm Al-‘Usul (Cairo: Al-Amiriya Press, n. d.), v. 1, p. 311.

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Salah Sultan, Al-Maslahah Al-Mursalah Wa Mada Hijiyatuha (USA: Sultan Press, 2004), pp. 91í2. 59 Ibid., p. 92. 60 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 17. 61 Abi Ishaq Ibrahim Ibn Musa Al-Shatibi, Al-Muwafaqat Fe Usul Al-Shari’ahh (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2005), v. 2, pp. 2í8. 62 Salah Sultan, Al-Maslahah Al-Mursalah Wa Mada Hijiyatuha (USA: Sultan Press, 2004), p. 19. 63 Ibid. 64 Abi Ishaq Ibrahim Ibn Musa Al-Shatibi, Al-Muwafaqat Fe Usul Al-Shari’ahh (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2005), v. 2, p. 7. 65 Salah Sultan, Al-Maslahah Al-Mursalah Wa Mada Hijiyatuha (USA: Sultan Press, 2004), p. 19. 66 Ibid. 67 Ibn Al-Qayyim, Miftah Dar As-Sa’adah (Al-Mansurah: Maktabat Al-Iman, n. d.), v. 2, p. 2. 68 A contemporary Muslim scholar originally from Tunisia and currently living in France. He is the Assistant Secretary General for the European Council for Fatwa and Research. 69 Abdul Majeed An-Najjar, “Nahwa Ta’seel Fiqhi Lilaqaliyat Al-Muslimah”, Journal published in the Scientific Magazine for the European Council for Fatwa and Research, fourth edition (Beirut: Beirut Press, 2002), p.13. 70 Qawa’d Al-Ahkam, v. 1, p. 29. 71 Ibn Taymiya, Majmu’ Al-Fatawa, v. 7, p. 314. 72 Al-Bukhari, Sahih Al-Bukhari, v. 2, p. 5. 73 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), p. 19. 74 Al-Qaradawi, ‘Awamil Al-Si’ah Walmurunah Fe Al-Shari’ahh Al-Islamiyah (Egypt: Alexanderia Press, 1994), pp. 10í13. 75 Ibn Al-Qaiyym Al-Jauziyah, ‘I’lam Al-Muwaqi’een ‘an Rab Al-‘Alameen, v. 3, p. 3. 76 Sa’eed Al-Buti, Dawabit Al-Maslahah Fee Al-Shari’ahh Al-Islamiyah (Beirut: Muassasit Al-Risalah, 1402 HJ), p. 245. 77 Al-Shatibi, Muwafaqat (Beirut: Dar Al-Ma’rifah, n. d.), v. 2, p. 285. 78 Muhammad Al-Biltaji, born in 1951, is an Egyptian scholar. He is a member of the Council of the Qur’anic Scientific Miracle based in Cairo. He is also the Secretary of the Committee of the Qur’anic Scientific Miracle in the Islamic Da’wah Institute in Alexandria. He authored a number of books including AlQur’an Yatahadda, Sir Al-Wujud and Al-Mu’jiza Al-Kubra. 79 Muhammad Biltaji, Manhaj ‘Umar Ibn Al-Khattab Fee Al-Tashri’ (Beirut: Dar Al-Fikr Al-‘Arabi, 1390 HJ), pp. 122í3. 80 Zidan, Al-Wajeez fee ‘Usul Al-Fiqh (Beirut: Mu’ssasit Al-Risalah, 1987), p. 251. 81 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), p. 39. 82 Ibid., pp. 39í40.

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One of the Prophet’s Companion famous for his Islamic knowledge. Ibn Hajar, Fath Al-Bari Fi Sharh Sahih Al-Bukhari (Beirut: Dar Al-Kutub Al‘Ilmiyya, 1989), v. 8, p. 314. 85 Ibn Hisham, Al-Sirah Al-Nabawiyah (Cairo: Mustafa Al-Halabi Press, 1936), v. 1, p. 76. 86 Al-Bukhari, Sahih Al-Bukhari, v. 8, p. 267. 87 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 11. 88 Muslim, Sahih Muslim, v. 3, p. 1503. 89 Abu Daoud, Sunan, Hadith No. 2387. 90 Al-Bukhari, Sahih Al-Bukhari, Kitab Al-Adab, Hadith No. 6116. 91 Muslim, Sahih Muslim, Kitab Al-Iman, Hadith No. 38. 92 Al-BuKhari, Sahih Al-Bukhari, v. 2, p. 131. 93 One of the Prophet’s Companions. 94 Abu Daoud, Sunan, v. 2, p. 112. 95 http://islamtoday.net/bohooth/artshow-86-1379.htm 24/08/2010. 96 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), pp. 49í50. 97 Ali Hasaballah, ‘Usul Al-Tashri’ Al-Islami (Kuwait: Dar Al-Muthaqaf Al‘Arabi, 1982), pp. 84í5. 98 Al-Bukhari, Sahih Al-Bukhari, v. 8, p. 158. 99 Ibid, v. 8, p. 158. 100 Imam Ahmad, Sunan Ahmad, Hadith No. 2963. 101 Al-Shatbi, Al-I’tisam, p. 118. 102 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), p. 53. 103 Ibid., p. 59. 104 One of the Prophet’s Companions famous for his Islamic knowledge. 105 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 134. 106 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), p. 44. 107 Ibid, p. 45. 108 The ECFR, Resultions and Fatwas, Al-Majmu’atan Al-‘Ula Wa-th-thaniya (Cairo: Dar Al-Tauzee’ wa Al-Nashr Press, 2002), pp. 11í13. 109 Abdulmajeed Al-Najar, Fiqh Al-Muwatanah Lil Muslimeen fe ‘Uropa (Beirut: Beirut Press, 2009), p. 77. 110 The ECFR, Resultions and Fatwas, Al-Majmu’atan Al-‘Ula Wa-th-thaniya (Cairo: Dar Al-Tauzee’ wa Al-Nashr Press, 2002), p. 15. 111 Abdulmajeed Al-Najar, Fiqh Al-Muwatanah Lil Muslimeen fe ‘Uropa (Beirut: Beirut Press, 2009), p. 78. 112 Ibid., pp. 79í80. 113 Ibid., p. 82. 114 Ibid., pp. 84í5. 115 As-Saiyd Sabiq, Fiqh As-Sunnah (Beirut: Dar Al-Fikr, 1992), p. 239. 116 Ibn Majjah, Sunan, v. 1, p. 338. A rak’a is a unit in prayer. 84

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Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), pp. 75í6. 118 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), pp. 75í6. 119 Ibn ‘Abdeen, Majmu’it Rasael Ibn ‘Abdeen, v. 2, p. 125. 120 Ibn Al-Qaiyym, Ahkam Ahl Al-Thimmah (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2002), v. 3, pp. 339í452. 121 The Final Statement of the ECFR’s eighth session held in Valencia, Spain, between 26 Aprilí1 May 1422 AH, 18í22 May 2001. 122 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), pp. 83í5. 123 Ibid., p. 84. 124 Muhammad ‘Alaish, Minah Al-Jalil Sharh Mukhtasar Khalil (Beirut: Dar AlKutub Al-‘Ilmiya, 2003), v. 9, p. 369. 125 A Muslim feastival celebrated on the first of the tenth month of the Muslim calender. 126 A Muslim feastival celebrated on the eleventh day of the twelfth month of the Muslim calendar. 127 Al-Bukhari, Sahih Al-Bukhari, v. 2, p. 17. 128 Abu Dawood narrated (No. 2912) as did Al-Bayhaqi, through the same channel (6/205, 254í5) as Abdullah ibn Burayda, “That two brothers; a Jew and Muslim, fell into a conflict and asked Yehia ibn Ma’een to arbitrate between them, whom went on to award the Muslim the inheritance. He, i.e. Yehia, said: Abul Aswad informed me that a man told him that Mu’ath had told him: “I heard the Prophet Mohammed (pbuh) say: “Islam increases and does not decrease”, and upon this he awarded the inheritance to the Muslim. The chain of narration to Abul Aswad is correct, however this chain is disconnected between Muath and Abul Aswad, as the narrator who made the narrated connection is unknown, however it is linked to the hadith of A’ith ibn Amr, with which it becomes a good narration. 129 A good hadith due to another. Narrated by Al-Rawyani in his “Musnad” (No. 783), Abu Nu’aym in “Akhbar Asbahan” (1/65) and Al-Bayhaqi (6/205), where two narrators are unknown. However, the previously mentioned hadith of Mu’ath ibn Jabal testifies to its authenticity, in addition to the fact that this hadith also came with a correct chain of narration that links it to Ibn Abbas, and which is relayed by Al-Tahawi in “Sharh Ma’ani Al-Athar” (3/257) and which Al-Bukhari considered as suspended (1/454) in “Kitab Al-Jana’iz” and authenticated by Ibn Hajar in “Al-Fath” (9/421). This hadith and the one previously mentioned are both supported by the Qur’anic verse: “It is He Who sent His Messenger with Guidance and the True Religion to make it prevail over all religions” (Trans. 9:33). 130 The ECFR, Resultions and Fatwas, Al-Majmu’atan Al-‘Ula Wa-th-thaniya (Cairo: Dar Al-Tauzee’ wa Al-Nashr Press, Egypt), 2002, p. 15. 131 Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), p. 89. 132 Ibid., pp. 90í1. 133 Ibid., p. 93.

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Ibid., p. 100. Al-Qaradawi, Mujibat Taghaiur Al-Fatwa Fe ‘Asrina (Cairo: International Union for Muslim Scholars, 2010), p. 67. 136 Abu Al-‘Abbas Ahmad Ibn Idris Al-Qarafi, the Egyptian greatest Maliki scholar of his time, born in 626 HJ and died in 684 HJ. He is known as Al-Qarafi since when he left his house to go to school he passed by a cemetery known as AlQarafah. In the introduction of his book entitled Al-‘Ihkam fee Tameez Al-Fatawa ‘An Al-Ahkam Wa Tasarufat Al-Qadi Walimam, he stated that he came to write this book as a result of a discussion he had with other scholars on the issue of the difference between Islamic law and Fatwas, and Islamic rules that can be abrogated and Islamic rules that cannot be abrogated. Hence, his book is formed in questions and answers form. 137 Al-Qarafi, Al-‘Ihkam fee Tameez Al-Fatawa ‘An Al-Ahkam Wa Tasarufat AlQadi Walimam (Aleppo: Al-Matbu’at Al-Islamiya, 1967), p. 231. 138 Shihab Al-Din Abu Al-‘Abbas Al-Qarafi, born in 626 HJ and died in 684 HJ, was an Egyptian scholar. He authored a number of books including At-Tanqih Fi ‘Usul Al-Fiqh, Al-‘Aqd Al-Mandhum Fi Al-Khusus Wal-‘Umum and Al-‘Istighna’ Fi Ahkam Al-Istisna’. 139 Al-Qarafi, Al-Furuq, Al-Matba’ah Al-Tunisiah Al-Rasmiya (Syria: Dar Ihia’ AlKutub Al-‘Arabiya, 1344HJ), v. 1, pp. 176í7. 140 Abu Ishaq Isma’il Ibn Ishaq, a Maliki scholar born in Basra in 200 HJ and died in 282 HJ, grew up and was educated in Baghdad. He spread the Maliki School in Iraq. He worked as a judge for almost fifty years in Iraq. He wrote a number of books such as Muwata’, Musnad Hadith Malik Ibn Anas, Musnad Hadith Abu Hurairah, Kitab Al-Sunan and Ahkam Al-Qur’an. 141 Al-Qarafi, Al-‘Ihkam fee Tameez Al-Fatawa ‘An Al-Ahkam Wa Tasarufat AlQadi Walimam (Aleppo: Al-Matbu’at Al-Islamiya, 1967), p. 232. 142 Al-Ghazali, Jihad Al-Da’wah Bin ‘Ajs Al-Dakhil Wa Kil Al-Kharj (Cairo: Nahdat Misr, 2005), p. 8. 143 Ibid. 144 Ibid. 145 Ibrahim Mustafa, Ahmad Al-Zaiyat, Hamid Abdulqader and Muhammad AnNajjar, Al-Mu’jam Al-Waseet (Cairo: Maktabt Al-Shuruq, 2004), v. 2, p. 630. 146 ‘Abdur-Rahman Hassan Hankabah Al-Maidani, Fiqh Al-Da’wah Ila Allah (Damascus: Dar Al-Qalam, 2004), v. 1, p. 15. 147 Muhammad Al-Rawi, Al-Da’wah Al-Islamiyah Da’wah ‘Alamiyah (Saudi Arabia: Maktabat Al’ubaikan, 1995), p. 12. 148 Muhammad Al-Khidr Hussein, Al-Da’wah Ila Al-Islah (Damascus: Dar AlNawader, 2010), p. 17. 149 Ali Mahfuz, Hidaiat Al-Murshideen, Al-Nasr Liltiba’ah Al-Islamiyah (Cairo, Egypt: Dar Al-I’tisam Press, 1979), p. 14. 150 Ahmad Ghalwash, Al-Da’wah Al-Islamiyah (Cairo: Dar Al-I’tisam, 1986), p. 10. 151 Al-Ghazali, Ma’a Allah, p. 17. 135

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Adam Abdullah Al-Alwari, Tarikh Al-Da’wah Bin Al-‘Ams Walyaum (Cairo: Maktabat Wahbah, 1396 HJ), p. 17. 153 Muhammad Khair Ramadan, Al-Da’wah Al-Islamiyah (Rayiadh: Dar Tuwaiq, 1414 HJ), p. 12. 154 Muhammad Abu Al-Fath Al-Bayanuni, born in 1940 in Aleppo, Syria, received his PhD degree from Al-Azhar University in 1390 HJ. Since 1389 HJ he has been lecturing at faculty of Shari’ahh, Muhammad Ibn Su’ud University. He authored a number of books including Sufian Al-Thauri and Dirasat Fi Al-‘Ikhtiliafat AlFiqhiyah. 155 Muhammad Abu Al-Fath Al-Bayanuni, Al-Madkhal Ila ‘Ilm Al-Da’wah (Beirut: Mu’assasat Al-Risalah, 2001), p. 17. 156 Bahi Al-Khuli, Tathkirah Al-Du’ah (Kuwait: Maktabat Al-Falah, 339 HJ), p. 38. 157 Ra’uf Shalabi, Al-Da’wah Al-Islamiyah Fi ‘Ahdiha Al-Makki (Damascus: Dar Al-Qalam, 1982), p. 38. 158 Also in the Qur’an it is stated: “Indeed Allah conferred a great favour on the believers when He sent among them a Messenger from among themselves, reciting unto them His Verses, and purifying them and instructing them (in) the Book and Al-Hikmah while before that they had been in manifest error”(Trans. 2:164). “Our Lord! Send unto them a Messenger of their own who shall recite unto them Your Verses and instruct them in the Book and Al-Hikmah, and purify them. Verily! You are the All-Mighty, the All-Wise” (Trans. 2:129). 159 Ibn Hisham, Sirat An-Nabawiyah (Cairo: Mustafa Al-Halabi, 1936), v. 1, p. 253. 160 Ibn Rushd, Al-Bidayah Wan-Nohaiah (Beirut: Dar Al-Kutub Al-‘Ilmiyyah 1988), v. 3, p. 313. Also Al-Kandahlawi, Hayat-us-Sahabah (Beirut: Mu’ssast AlRisalh, 1999), v. 1, p. 193. 161 Inspite of the paramount importance of understanding the concept of Da’wah, in his books ’Usul Al-Da’wah and Muqaddimat Lilnuhud Bil’amal Al-Da’awi, Dr ‘Abdulkareem Zidan did not define the term Da’wah. Also Alghazali, in his book Jihad Al-Da’wah did not give any definition to the term Da’wah, likewise did some other writers such as Mustafa Al-Tahhan in his book Nadharat Fi Waqi’ AlDa’wah Wal-Du’ah and Bin Baz and Al-‘Uthaimeen and Salih Ala Al-Sheikh in their book entitled Majmu’at Durus wa Rasa’l fe Al-Da’wah Ila Allah. 162 ‘Abdur-Rahman Hassan Hankabah Al-Maidani, Fiqh Al-Da’wah Ila Allah (Damascus: Dar Al-Qalam, 2004), v. 1, p. 16. 163 Muhammad Abu Al-Fath Al-Bayanuni, Al-Madkhal Ila ‘Ilm Al-Da’wah (Beirut: Mu’assasat Al-Risalah, 2001), p. 23. 164 Al-Ghazali, Al-Da’wah Al-Islamiya fe Al-Qarn Al-Hali (Cairo: Dar Al-Shuruq, 2006), p. 7. 165 Ibid., pp. 10í11. 166 Muhammad Abu Al-Fath Al-Bayanuni, Al-Madkhal Ila ‘Ilm Al-Da’wah (Beirut: Mu’assasat Al-Risalah, 2001), p. 35. 167 Al-Ghazali, Hatha Dinuna (Cairo: Dar Al-Shuruq, 2006), p. 11.

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To support this arqument, in another verse in the Qur’an it is stated: “Say: ‘We believe in Allah, and in what has been revealed to us and what was revealed to Abraham, Isma’il, Isaac, Jacob, and the Tribes, and in (the Books) given to Moses, Jesus, and the prophets, from their Lord: We make no distinction between one and another among them, and to Allah do we bow our will (in Islam)’” (Trans. Yusuf Ali, 2:84). 169 Al-Ghazali, Al-Da’wah Al-Islamiya fe Al-Qarn Al-Hali (Cairo: Dar Al-Shuruq, 2006), p. 9. 170 Sa’eed Hauwa, Al-Islam (Cairo: Maktabit Wahbah, 2004), p. 3. 171 Ibid., p3. 172 Hassan Habanka Al-Maidani, born in Damascus, Syria in 1908 and died in Syria 1978, was renowned for his remarkable intelligence. He learned reading, writing and the Qur’an before joing the school in Damascus. He was educated by a number of Muslim scholars such as Talib Haikal, ‘Abdel-Qadir Al-Ashab and Mahmoud Al-‘Attar. He played a significant role in reviving Da’wah in Syria. He was the director of one of the schools he helped to found, i.e. the School of Wiqayat Al-Abnaa’. He was actively involved in the Da’wah activities in Manjak Mosque. He did not author many books since he was entirely dedicated in his efforts to educate others. A number of the leading Muslim scholars were his students such as Sa’eed Al-Buti, Muhammad Kareem and Mustafa Al-Khun. 173 Abdur-Rahman Hassan Hankabah Al-Maidani, Fiqh Al-Da’wah Ila Allah (Damascus: Dar Al-Qalam, 2004), v. 1, pp. 22í3. 174 Ibid., p. 32. 175 A term used for Muslims promulgating Islam. 176 Abdur-Rahman Hassan Hankabah Al-Maidani, Fiqh Al-Da’wah Ila Allah (Damascus: Dar Al-Qalam, 2004), v. 1, pp. 47í9. 177 Al-Ghazali, Al-Da’wah Al-Islamiya fe Al-Qarn Al-Hali (Cairo: Dar Al-Shuruq, 2006), p. 10. 178 Ibn Katheer, Tafseer Al-Qur’an, v. 2, pp. 195í6; Al-Razi, Tafseer Al-Razi (Beirut: Dar ‘Ihya’ Al-Turath Al-‘Arabi, 1420 HJ), v.7, pp. 177í8; Al-Qurtubi, Tafseer Al-Qurtubi (Cairo: Dar Al-Kutub Al-Masriya, 1964), v. 4, p. 165. 179 Muslim, Sahih Muslim (Beirut: ‘Ihya’ Al-Turath Al-Arabi, n. d.), v. 1, p. 69; Ibn Majjah, Sunan (Beirut: Ihya’ Al-Kutub Al-Arabiya, n. d.), v. 2, p. 1330. 180 Al-Bukhari, Sahih (n. p.:Tauq Al-Najah, 1422), v. 1, p. 33. 181 Ibn Katheer, Tafseer Al-Qur’an, v. 2, pp. 195í6; Al-Razi, Tafseer Al-Razi, v. 7, pp. 177í8; Al-Qurtubi, Tafseer Al-Qurtubi, v. 4, p. 165. 182 Muhammad Abu Al-Fath Al-Bayanuni, Al-Madkhal Ila ‘Ilm Al-Da’wah (Beirut: Mu’assasat Al-Risalah, 2001), pp. 31í4. 183 Ibid., p. 153. 184 Muslim, Sahih Muslim, v. 2, p. 1506. 185 Muhammad Abu Al-Fath Al-Bayanuni, Al-Madkhal Ila ‘Ilm Al-Da’wah (Beirut: Mu’assasat Al-Risalah, 2001), p. 160. 186 The Islamic Cultural Centre of Ireland was established in 1996, evolving into a distinguished landmark and an elite Islamic edifice not only in Ireland but in

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Europe as a whole. The construction and operation of the ICCI is sponsered by His Highness Sheikh Hamdan Bin Rashid Al Maktoum. 187 http://www.islamireland.ie/facilities-services/mortuary (30 October 2010). 188 http://www.islamireland.ie/facilities-services/matrimonial (30 October 2010). 189 http://www.islamireland.ie/facilities-services/bookfair-bookshop (30 October 2010). 190 http://www.islamireland.ie/facilities-services/multi-purpose-hall (30 October 2010). 191 http://www.islamireland.ie/icci-departments/education (30 October 2010) 192 http://www.islamireland.ie/icci-departments/education/libyan-school (30 October 2010) 193 http://www.islamireland.ie/icci-departments/education/muslim-national-school (30 October 2010). 194 ‘Abdulmajeed An-Najjar, Al-Ummah Al-Wasat Wal-Shahadah Ala An-Nas, Journal published in Al-Ummah Al-Wasat (Beirut: International Union for Muslim Scholars, 2009), p. 165. 195 Ibid., p. 166. 196 Wahbah Mustafa Al-Zuhaili, born in Dair ‘Atiya, Damascus, in 1932, received his bachelor’s degree from the faculty of Shai’ah, Al-Azhar University. He also received a bachelor’s degree in education from the faculty of Arabic, Al-Azhar University and a bachelor’s degree in law from faculty of law, Cairo University in 1957. In 1959 he received his master’s degree from Shari’ahh institute, Cairo University. In 1963 he received his PhD degree. In 1963 he was appointed as a lecturer in Damascus University. He authored many books including Al-Waseet Fi ‘Usul Al-Fiqh Al-Islami, Al-Fiqh Al-Islami Fi ‘Uslubih Al-Jadeed and Al-Wajeez Fi ‘Usul Al-Fiqh. 197 Wahbah Al-Zuhaili, “Al-Khitab Al-Wasati Wa Tahadi Al-‘Unf”, journal published in Al-Ummah Al-Wasat (Beirut: International Union for Muslim Scholars, 2009), p. 332. 198 Ibid, p. 335. 199 Head of Fiqh Department Qatar University, member of the Fiqh Academy in Mecca, member of the European Council for Fatwa and Research and head of the committee of Islamic minorities’ issues in the International Union for Muslim Scholars. 200 Ali Al-Quradaghi, Nahnu Wal’akhar (Beirut: International Union for Muslim Scholars, 2005), p. 140. 201 Ibid. 202 Ibid., p. 141. 203 Ibid., p. 133. 204 Abdelfattah Abdel-Maqsud, Salibiah Ila Al-Abad (Egypt: The Egyptian General Authority for the Book, 1975), p. 44. 205 ‘Abdel-Haleem Mahmoud, Al-Ghazu Al-Salibi (Saudi Arabia: Dar Ukadh, n. d.), p. 72. 206 Al-Razi, Mukhtar Al-Sahhah (Beirut: Al-Maktabah Al-‘Asriya, 1999), p. 114.

Fiqh Al-Aqalliyat ΕΎϴϠϗϷ΍ ϪϘϓ (Fiqh of Minorities)

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Muhammad Al-Khudari, ‘Usul Al-Figh (Cairo: Dar Al-Hadith Press, 2003), p. 422. 208 An ex-professor of Islamic Shari’ahh in the faculty of law, Cairo University, born in 1888 and died in 1956. 209 Abdelwahhab Khallaf, ‘Ilm ‘Usul Al-Figh (Cairo: Dar Al-Turath, 1947), p. 216. 210 Sharif Muhsin Mahmud, Masadir Tashri’ Al-Ahkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), p. 188. 211 Ibid. 212 Al-Qaradawi, Al-Ijtihad Fi Al-Shari’ahh Al-Islamiya (Kuwait: Dar Al-Qalam, n. d.), p. 2. 213 Ibid. 214 Ibid. 215 Dr ‘Abdelkareem Zidan was the former leader of the Al-Ikhwan Al-Muslimun in Iraq. He is one of the renowned Muslim Sunni scholars in Iraq. He occupied a number of positions such as professor of Shari’ahh and head of Shari’ahh department in the faculty of law, Baghdad University; professor of Shari’ahh and head of the religion department in the faculty of arts, Baghdad University; and professor of Shari’ahh and dean of the faculty of Islamic Studies. He authored many books including Al-Madkhal Lidirasat Al-Shari’ahh Al-Islamiya, Al-Sharh Al-‘Iraqi Lil’usul Al-‘Ishreen and Athar Al-Qusud Fi At-Tasarufati Wal’uqud. 216 ‘Abdelkarim Zidan, Al-Wajiz fi ‘Usul Al-Fiqh (Cairo: Dar Al-Tauzi’ WanNasher Al-Islamiya Press, 1993), p. 399. 217 A term given to certain Muslims who have achieved a given level of knowledge. 218 ‘Abdelkarim Zidan, Al-Wajiz fi ‘Usul Al-Fiqh (Cairo: Dar Al-Tauzi’ WanNasher Al-Islamiya Press, 1993), p. 399. 219 Jirjis Jaras, Mu’jam Al-Mustalahat Al-Fighiyah Walqanuniya (Beirut: AlSharikah Al’Alamiya Lilkitab, 1996), p. 20. The same definition is given by Ali Al-Jurjani, Kitab Al-Ta’rifat (Beirut: Lebanon Press, 1990), p. 9. 220 In addition to the above-mentioned scholars, Ibn Al-Hajib, Ibn Al-‘Atheer and Muhammad Shams Al-Din express the same definition. 221 Jirjis Jaras, Mu’jam Al-Mustalahat Al-Fighiyah Walqanuniya (Beirut: AlSharikah Al’Alamiya Lilkitab, 1996), p. 400. 222 Sharif Muhsin Mahmud, Masadir Tashri’ Al-Ahkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), pp. 187í8. 223 A contemporary Muslim thinker. He has written a number of books such as AlIslam Quwat Al-Ghad Al-‘Alamiya and Al-Islam Fi Al-Fikr Al-‘Urubi. 224 Muhammad Shamah, Al-Islam Kama Yanbaghi An Na’rifuh (Cairo: Wahbah Press, 1983), p. 197. 225 Ibid., p. 198. 226 Ibid.; in his book Fiqh Al-‘Aqaliyat Al-Muslimah, Al-Qaradawi stated that ‘Ijtihad is an Islamic obligation necessitated by life affairs. It makes Islam applicable at all times and places. 227 Al-Qaradawi, Shari’aht-ul-Islam Salihah Liltatbeeq Fi Kuli Makanin Wa Zaman (Cairo: Wahbah Press, 1997), p. 77.

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Al-Qaradawi, Al-Ijtihad Al-Mu’sir bin Al’indibat wa Al-‘Infirat (Cairo: Dar AlTauzee’ wa Al-Nashr, 1996), pp. 94í5. 229 Al-Qaradawi, Fiqh Al-Aqaliyat (Cairo: Dar Al-Shuruq, 2001), p. 41. 230 Muhammad Abu Zahra, Usul Al-Fiqh (Cairo: Dar Al-Fikr Al-Arabi, n. d.), p. 379. 231 Muhammad Ma’ruf, Al-Madkhal Ila Ilm Usul Al-Fiqh (Damascus: Damascus University, 1959), p. 1963, p. 407. 232 Al-Qaradawi, Fiqh Al-Aqaliyat Al-Muslimah (Cairo: Dar Al-Shuruq, 2001), p. 40. 233 Ibid., p. 41. 234 Abu Ishaq Al-Shatibi, Al-Muwafaqat (Cairo: Dar Al-Hadith, 2006), v. 4, p. 140. 235 ‘Abdelkarim Zidan, Al-Wajiz fi ‘Usul Al-Fiqh (Cairo: Dar Al-Tauzi’ WanNasher Al-Islamiya Press, 1993), p. 400. This is also stated by Sharif Muhsin Mahmud, Masadir Tashri’ Al-Ahkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), p. 191. Other scholars express the same opinion such as Al-Ghazali. 236 Abdelwahhab Khallaf, ‘Ilm ‘Usul Al-Figh (Cairo: Dar Al-Turath, 1947), p. 218. 237 Al-Qaradawi, Al-Ijtihad Fi Al-Shari’ahh Al-Islamiya (Kuwait: Dar Al-Qalam 1996), p. 20. The qualification of having good Arabic has also been stipulated by a number of other scholars such as Al-Shukani, Al-Shatibi and Al-Ghazali. 238 Muhammad Mahdi Shams Al-Din, born in Al-Najaf 1936 and died in Beirut 2001, was a prominent Shiite thinker. His father migrated from Lebanon to Iraq where they lived until Muhammad was twelve years old. His father returned to Lebanon but he stayed in Al-Najaf to seek knowledge. He was educated by renowned Shiite scholars such as Muhsin Al-Hakeem and Abu Al-Qasim AlKhau’i. He spent almost thirty-five years in Iraq, during which time he was involved in building mosques and libraries. He also played an important role in teaching Fiqh. Afterwards, he returned to Lebanon and co-operated with Mosa AlSadr to protect his home against intrinsic and extrinsic dangers. He authored many books including ANidham Al-Hukm Wal-Idarah Fi Al-Islam, Al-Ihtikar Fi AlShari’ahh Al-Islamiya and Al-Masa’il Al-Harijah Fi Fiqh Al-Mar’ah. 239 Muhammad Shams Al-Din, Al-Ijtihad Wa Wt-Tajdeed fi Al-Fiqh Al-Islami (Beirut: Al-Mu’assasah Al-‘Alamiya, 1998), p. 42. 240 Abdelwahhab Khallaf, ‘Ilm ‘Usul Al-Figh (Cairo: Dar Al-Turath, 1947), p. 218. 241 ‘Abdelkarim Zidan, Al-Wajiz fi ‘Usul Al-Fiqh (Cairo: Dar Al-Tauzi’ WanNasher Al-Islamiya Press, 1993), p. 401. The same opinion was given by a number of other scholars such as Ibn Amir Al-Hajaj (a Hanafi jurist), Al-Tufi (a Hanafi jurist), Al-Qarafi and others. 242 Sharif Muhsin Mahmud, Masadir Tashri’ Al-Ahkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), p. 191. 243 Al-Qaradawi, Al-Ijtihad Fi Al-Shari’ahh Al-Islamiya (Kuwait: Dar Al-Qalam, 1996), p. 9. 244 Abdelwahhab Khallaf, ‘Ilm ‘Usul Al-Figh (Cairo: Dar Al-Turath, 1947), p. 219. 245 Al-Qaradawi, Al-Ijtihad Fi Al-Shari’ahh Al-Islamiya (Kuwait: Dar Al-Qalam, 1996), p. 10. 246 Ibid., p11.

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‘Abdelkarim Zidan, Al-Wajiz fi ‘Usul Al-Fiqh (Cairo: Dar Al-Tauzi’ WanNasher Al-Islamiya Press, 1993), p. 402; Abdelwahhab Khallaf, ‘Ilm ‘Usul Al-Figh (Cairo: Dar Al-Turath, 1947), p. 219; Sharif Muhsin Mahmud, Masadir Tashri’ AlAhkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), p. 191. 248 ‘Abdelkarim Zidan, Al-Wajiz fi ‘Usul Al-Fiqh (Cairo: Dar Al-Tauzi’ WanNasher Al-Islamiya Press, 1993), pp. 402í3. 249 Ibid., p. 403. 250 Sharif Muhsin Mahmud, Masadir Tashri’ Al-Ahkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), p. 191. 251 Muhammad Shams Al-Din, Al-Ijtihad Wa Al-Tajdeed fi Al-Fiqh Al-Islami (Beirut: Al-Mu’assasah Al-‘Alamiya, 1998), p. 42. 252 Ibid. 253 Abu Al-Hassan Ali Ibn ‘Abdel Kafi Ibn Ali Al-Sabki, born in Sabk, AlMunufiyah, Egypt in 638 HJ and died in Egypt 756, was a prominent Shafi’i jurist. Seeking knowledge he travelled a lot in Egypt the Great Syria and the Arabian Peninsula. He was renowned for his remarkable ability to make prompt quotations. His knowledge was not limited to Islamic concerns but also included mathematics, history and others. He was educated by prominent Muslim scholars such as Najm Al-Din Ibn Ar-Rif’ah, Al-Hafidh Sa’d Al-Din Al-Harithy and Abu Haiyan AlAndalusi. He authored many books including Al-‘I’tibar Bibaqa’ Al-Jannah Wannar, Al-Ibtihaj Fi Sharh Al-Minhaj and Al-Fatawa Al-Kubra. 254 Muhammah Al-Khidr Al-Shanqiti, Qam’ Ahl Al-Zaigh Wal-Ilhad Fi Al-Ta’an Fi Taqleed A’imat Al-Ijtihad (Beirut: Al-Risalah, 1999), p. 16. 255 Muhammad Al-Ruki, Al-Ijtihad Al-Fiqhi Ai Daur wa Ai Jadid (Rabat: Faculty of Arts and Humanities, 1996), p. 97. 256 Muhammah Al-Khidr Al-Shanqiti, Qam’ Ahl Al-Zaigh Wal-Ilhad Fi Al-Ta’an Fi Taqleed A’imat Al-Ijtihad (Beirut: Al-Risalah, 1999), p. 5. 257 Ibid., p. 6; also Muhammad Al-Ruki, Al-Ijtihad Al-Fiqhi Ai Daur wa Ai Jadid (Rabat: Faculty of Arts and Humanities, 1996), p. 95. 258 Ibid. 259 Muhammah Al-Khidr Al-Shanqiti, Qam’ Ahl Al-Zaigh Wal-Ilhad Fi Al-Ta’an Fi Taqleed A’imat Al-Ijtihad (Beirut: Al-Risalah, 1999), p. 21. 260 Ibid., p. 22. 261 Sharif Muhsin Mahmud, Masadir Tashri’ Al-Ahkam Fi Al-Figh Al-Islami (Cairo: Al-Muqatam Press, 2006), pp. 188í9. The same opinion has been expressed by a number of scholars such as Abdelwahhab Khallaf, ‘Ilm ‘Usul AlFigh (Cairo: Dar Al-Turath, 1947), p. 216. 262 Abi Ishaq Ibrahim Ibn Musa Al-Shatibi, Al-Muwafaqat Fe Usul Al-Shari’ahh (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2005), v. 2, p. 10. 263 Ibn Al-Qaiyym, I’lam Al-Muwaqi’een An Rab Al-‘Alameen (Beirut: Dar AlFikr, 1955), v. 3, p. 1. 264 Abu ‘Abdullah Muhammad Badr Al-Din Al-Zarkashi, born in Cairo in 745 HJ and died in Egypt 794, was a prominent Muslim jurist. Seeking knowledge he travelled Apollo and Damascus. He was educated by prominent Muslim scholars such as Ibn Qudamah, Ibn Katheer and Athra’i. He authored many books including

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Al-Bahr Al-Muheet Fi ‘Usul Al-Fiqh, Salasi Adh-Dhhab Fi ‘Usul Al-Fiqh and AlQawa’id Fi Furu’ Al-Shafi’yah. 265 Al-Zarkashi, Al-Bahr Al-Muheet Fi ‘Usul Al-Fiqh (Kuwait: Ministry of Endowment, 1992), v. 6, p. 240. 266 Ibid., v. 6, pp. 216í17; the same opinion was expressed by Abdulkareem Zidan in his book Al-Wajeez Fi Usul Al-Fiqh (Beirut: Al-Risalah Press, 1999), p. 306. 267 Al-Mabsout, v. 3, p. 107. 268 Ibn Hajar Al-‘Asqalani, Fath Al-Bari Sharh Sahih Al-Bukhari (Beirut: Dar AlKutub Al-‘Ilmiya, 2000), Kitab Al-Saum, Bab Al-Ha’id Tatrruk Al-Saum. 269 Abi Ishaq Ibrahim Ibn Musa Al-Shatibi, Al-Muwafaqat Fe Usul Al-Shari’ahh (Beirut: Dar Al-Kutub Al-‘Ilmiyah, 2005), v. 2, p. 10. 270 Malik, Muwata’ (Cairo: Dar Al-Hadith, 1999); Kitab Al-Fara’id, Bab Ma Ja’a Fi Al-‘Amma, Hadith No. 1092, p. 349. 271 Fiqh ensyclopidia (Kuwait: Ministry of Endowment and Islamic Affairs–Beirut: Dar Ihia’ Al-Turath Al-Arabi, 1998), v. 12, p. 319. 272 Muhammad Shamah, Al-Islam Kama Yanbaghi An Na’rifuhu (Cairo: Wahbah Press, 1983), p. 17. 273 Ibid. 274 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 25. 275 Ibid., v. 1, p. 54. 276 Abu Dauud, Sunan Abu Dauud (Beirut: Al-Maktabah Al-‘Asriah, n. d.), v. 1, p. 92. 277 Al-Qaradawi, Fiqh-ul-Aqaliyat (Cairo: Dar Al-Shuruq, 2001), pp. 48í9. 278 Ibid.

CHAPTER EIGHT ISLAMIC RESPONSIBLE COEXISTENCE

8.1 Introduction Coexistence is an inevitable issue that has occupied a major part of people’s concerns throughout history. People are called to coexist since every society is made of groups, the members of which are united on the basis of religious, racial, cultural or linguistic commonalities. These commonalities that unite members of each group form the basis of otherness. A successful, responsible coexistence can only be viable when acceptance of others is secured. Due to the paramount importance of this issue, Islam bases acceptance of others on a number of common intellectual and ideological foundations, highlighting several natural and religious differences that form a sound perception of others.1

8.2 Commonalities and Perception of Others According to Islam According to Islam, Allah created all human beings, Muslims and nonMuslims, from dust and they go through the same phases. In the Qur’an it is stated: If you have any doubts about resurrection, We created you from dust, then a drop of semen, then an embryo, then a chewed up lump of flesh shaped and shapeless, that We may explain to you. We keep what We please in the womb for a certain time, then you come out as a child, then reach the prime of age. Some of you die, some reach the age of dotage when they forget what they knew. You see the earth all withered, then We send down rain upon it, and it bestirs itself, swells, and brings forth every kind of beauteous verdure. (Trans. 22:05)

Islam stresses that Muslims and non-Muslims carry in their respective bodies souls breathed into them by Allah. Consequently, all human beings share that honour and dignity bestowed upon them by Allah. In the Qur’an

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it is stated: “Who made all creatures He created excellent. He first fashioned man from clay, then made his offspring from the extract of base fluid, then proportioned him and breathed into him of His spirit, and gave you the senses of hearing, sight and hearts. And yet how little are the thanks you offer” (Trans. 32:7-9). Hence, all creatures carrying souls breathed into them by Allah are entitled to respect and their rights should be secured.2 According to ‘Abd-ul-Haleem Mahmoud,3 one of the foremost Islamic social principles is honouring human beings, respecting their rights and prohibiting all types of transgressions against them.4 In the Qur’an it is stated: “We have honoured the children of Adam; provided them with transport on land and sea; given them for pure and sustenance; and conferred on them special favours, above a great part of our creation” (Trans. 17:70). This honouring is manifested in the way human beings are fashioned, souls breathed into them, the position conferred on them in the universe, minds bestowed upon them and they are given the ability to make their choices.5 Muslims and non-Muslims have the same parents í Adam and Eve. The Prophet Muhammad, peace be upon him, said: “All people are Adam’s children and Adam was created from dust.”6 The Lord of Muslims is the Lord of non-Muslims. Highlighting and stressing these commonalities many times in the Qur’an, which are recited by Muslims in their five daily prayers and various occasions as an act of worship and a source of blessings, profoundly impact on Muslims. It vividly indicates the religiously vital importance of accepting and respecting others, since they all are brothers and sisters and they all carry souls breathed into them by Allah. This meaning is confirmed by the fact that Islam accepts and recognises the existence of others. In the Qur’an it is stated: To thee We sent the Scripture in truth, confirming the scripture that came before it, and guarding it in safety: so judge between them by what Allah hath revealed, and follow not their vain desires, diverging from the Truth that hath come to thee. To each among you have we prescribed a law and an open way. If Allah had so willed, He would have made you a single people, but (His plan is) to test you in what He hath given you: so strive as in a race in all virtues. The goal of you all is to Allah; it is He that will show you the truth of the matters in which ye dispute. (Trans. 5:48)

This verse represents the Islamic acceptance of the existence of others. According to Muhammad ‘Imarah,7 the existence of others motivates people to compete with each other in terms of creativity and civilizations.8

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Al-Rifa’i9 highlights that in general, people, individuals and groups, have one common origin, since they have been made of dust, and have a common father and a common mother, Adam and Eve. People have different religions and various cultures, yet they all raise the same urgent, innate questions: Who am I? Where do I come from? Where am I going? Al-Rafi’i argues that since the earliest times in history humans have argued over such questions. Endeavouring to answer these questions gave rise to a wide range of schools, philosophies and ideologies. Al-Rafi’i states that such a wide range of various approaches agree that this world did not come out of nothing, yet they disagree on specifying the source. By and large, some say it has been created by God and others say it has been created by nature. The religions state that God is the creator and cherisher of the universe. Al-Rafi’i concludes that this means that the biggest percentage of the world’s population believe that they have a common spiritual source called Allah by Muslims, God by Christians and Jews, and the Supreme Being by Hindus. This highlights that the innate belief is one of the commonalities between human beings. In the Qur’an it is stated: “When thy Lord drew forth from the Children of Adam – from their loins – their descendants, and made them testify concerning themselves, (saying): ‘Am I not your Lord (who cherishes and sustains you)?’ They said: ‘Yea! We do testify!’ (This), lest ye should say on the Day of Judgment: ‘Of this we were never mindful’” (Trans. 7:172). Hence, all human beings have in common the material out of which they have been created, their maternal and paternal background and innate belief.10

8.3 We and Others, Sameness or Otherness It is natural to make distinction between Us and Them, since we have things that we share with some people who are like us, and things that we do not share with some people who are not like us. Anna Duzak argues that there are reasons that bring people together and reasons that keep them apart. Social inclusion and exclusion are usually based on values, beliefs, lifestyles, experiences and expectations. Duzak adds that only when people compare themselves to others can they form affiliations and alignments. In her opinion, this occurs only when they are able to convey and receive messages of solidarity and detachment. When people interact, they can find commonalities and differences such as symbols, gender, ethnic appearance, age and words. The construction and management of social identities are formed through discourse based on linguistic mechanisms and strategies. Anna Duzak adds that the concept of social identity was developed within social psychology by a number of scholars,

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such as Tajfel, Forgus and Tunar, who define social identity as that part of the individual’s self-concept that came from knowledge of his/her membership in a social group with significant emotional attachment to it. This mental process of categorisation provides the grounds for distinction, i.e. others and us. Anna Duzak argues that belonging to a group is a human desire. It may, in turn, generate hostility towards other groups. But one belongs to a number of groups and may change his/her group. All groups have similar dynamics of emergence and development.11 Hence, Anna Duzak perceives the existence and recognition of We and Others as a healthy phenomenon. Muhammad Idris agrees with this opinion, stating that cultural differences are a universal fact that people should believe in and accept.12 A very similar opinion is given by Rashid, but in stronger words. According to Rashid Rida, any attempt to practise genocide against others is a challenge to a universal fact willed by Allah. Differences between people are a natural phenomenon and have theoretical and practical benefits.13 Al-Quradaghi agrees with Rida. Al-Quradaghi states that the occurrence of these differences is by Allah’s will and His ways of disposing the worldly affairs.14 Al-Quradaghi argues that all human beings come from Adam and Eve. Nevertheless, there are fundamental differences between them. Each individual has their own distinctive characteristics such as fingerprints. Everyone is different. He adds that people have differences in terms of their phonotypical traits. People speak various languages. They have various intellectual levels and different feelings. Al-Quradaghi states that Islam highlights these differences between people as a psychological and religious preparation for accepting others. In addition, it aims to encourage people to integrate and avail of this diversity.15 Allah highlights some of the physical differences between people. In the Qur’an it is stated: “And from among His Signs are the creation of the heavens and the earth, and the variations in your languages and your colours: verily in that are Signs for those who know” (Trans. 30-22). Allah highlights ideological and religious differences between people. In the Qur’an it is stated: People were one single nation, and Allah sent Messengers with glad tidings and warnings; and with them He sent the Book in truth, to judge among people in matters wherein they differed; but the People of the Book, after the clear Signs came to them, did not differ among themselves, except

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through selfish contumacy. Allah by His Grace guided the believers to the Truth, concerning that wherein they differed. For Allah guided whom He will to a path that is straight. (Trans. 2:213)

Allah highlights that these differences occurred by His will. In the Qur’an it is stated: “If Allah so willed, He could make you all one people: But He leaves straying whom He pleases, and He guides whom He pleases: but ye shall certainly be called to account for all your actions” (Trans. 16-93). Al-Quradaghi states that the above-mentioned verses indicate that diversity is a natural matter. Nonetheless, these differences vary depending on the people concerned. The biggest differences can be discerned between Muslims and atheists, yet they have a number of commonalities such as physical commonalities. The differences between Muslims and the people of the Book are less than the above-mentioned differences. The differences between Muslims and Christians are less than the differences between Muslims and Jews.16 Muhammad Mahfuz17 raises a number of significant questions in this regard. His answers are revolutionary. His first question is whether or not human beings, as individuals or in a group, are able to understand themselves while being isolated from others. His second question is whether or not the relationship between one’s identity and others at an individual and congregational level is so complex that the understanding of one’s identity is entirely dependent on the understanding of others and the definition of one’s identity is based on the definition of others. In his answers he states that if one’s identity has a religious definition, then one is desperately in need of coexisting with others in order to understand his/her identity. If one’s identity has a racial or ideological definition, one will not be capable of understanding realities unless he/she forms sound relations with others. Mahfuz concludes that the existence of others is essential for understanding one’s identity.18

8.4 Muslimínon-Muslim Relations Are Based on Justice and Kindness Islam has been revealed to organise relations between human beings and their Lord, relations between human beings, and relations between human beings and the entire universe. Hence, Islam establishes certain rules and principles to organise such relations.19 In other words, relations between Muslims and non-Muslims are theo-centred and can only be

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improved or deteriorated on the basis of a theological understanding. This highlights the paramount importance of unwrapping the Muslim theological foundations of inter-religious relations. The issue of Muslimínon-Muslim relations is not a new matter. It started when the Prophet Muhammad, peace be upon him, commenced his Islamic promulgation. This means that not only are Muslimínon-Muslim relations founded on Qur’anic verses but also on the prophetic interpretation of these verses. The main foundations for Muslimínon-Muslim relations have been laid down in the following verse: It may be that Allah will grant love (and friendship) between you and those whom ye (currently) hold as enemies. For Allah is all powerful; And Allah is Oft-Forgiving, Most Merciful. Allah forbids you not, with regard to those who fight you not for (your) Faith nor expel you out of your homes, from dealing kindly and justly with them: for Allah loved those who are just. (Trans. 60:7-8)

Another very important foundation for Muslimínon-Muslim relations is portrayed in another verse in the Qur’an, which states: “Among the People of the Book are some who, if entrusted with a hoard of gold, will pay it back; others, who, if entrusted with a dinar, will not pay it back unless thou constantly stoodest demanding it” (Trans. 3:75). This verse highlights the paramount importance of an Islamic concept í individual accountability. All people, regardless of their faith and race, by virtue of the above-mentioned verse are entitled to enjoy such Islamic value. This meaning is reiterated by a number of other verses.20 Muhammad Babili states that Islamic Shari’ahh is distinguished in the sense that it combines equity, the scope of which is so broad that if it is not well balanced it will impact on all fields in the near future, and kindness, which is a clear indication of high morality and tolerance, presented as two fundamental Islamic principles. Kindness is given priority. Nevertheless, it is utterly dependent on the attainment of equality.21 Al-Qaradawi highlights that justice, deemed to be an Islamic obligation, is an inclusive Islamic concept. It includes justice among people in all worldly affairs. Included in its scope is the social and economic justice that organises the relations between the rich and the poor in a way that bridges the gap between them. Included in its scope is also juridical justice that makes all people stand on the same footing before the law.22 In a Holy hadith23 it is stated: “O My worshippers! I have forbidden oppression for Me and prohibited it for you, so oppress not one another.”24

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According to Al-Quradaghi, Al-‘Adl ϝΪόϟ΍ (justice) is deemed to be one of the fundamental principles on which not only Islamic Shari’ahh is based but also the creation of heavens and earth.25 Proof of the paramount importance of the term Al-‘Adl is indicated by the fact that this term and its derivatives have been mentioned in the Qur’an twenty-eight times. Moreover, its synonym Al-Qist ςδϘϟ΍ (equity) has been mentioned twentyseven times in the Qur’an. In the Qur’an it is stated: “Verily, Allah enjoins justice, the doing of good, and liberality to kith and kin, and He forbids indecencies, and injustice and oppression: He instructs you, that ye may receive admonition” (Trans. 16:90).26 Muhammad Shamah stresses that perceiving oneself as superior to others is an act of oppression contradicting Islamic justice and equity. It is a crime perpetrated against an individual who suffers. It is also against society as it creates disharmony.27 Muhammad Babili argues that justice is an Islamic obligation enjoined on Muslims í both subjects and rulers.28 A Muslim should practise justice with himself/herself and others, whether the others are friends or enemies or even animals. Justice with oneself refers to holding fast to the straight path and shunning all means of distraction. Justice with other human beings refers to being truthful with them, giving them sincere advice, accepting their good characteristics and being patient when they cause harm. Justice with animals refers to animals’ welfare.29 Al-Qaradawi argues that brotherhood and sisterhood of all human beings is part of the fruit of the divine Oneness and Unity, preached by Islam to all human beings, whose prerequisite is equality.30 All the people, by virtue of the call to the divine Oneness and Unity, are servants of the Deity, who created and fashioned them. And this is an equal footing for all human beings. Al-Qaradawi adds that in spite of their respective races, colour, languages and homes, all human beings come from Adam. And this is another equal footing on which all human beings stand.31 According to Islam, Allah sent the messengers to establish justice among all human beings. In the Qur’an it is stated: “Surely We sent aforetime our apostles with Clear Signs and sent down with them the Book and the Balance so that people may stand forth in justice” (Trans. 57:25). Justice should be practised with all people regardless of the ones who benefit from it and the ones who lose from it. Allah revealed nine verses in the chapter “Women” blaming the Prophet Muhammad, peace be upon

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him, as he intended to support a number of weak Muslims accusing a Jew of theft and he was innocent. In the Qur’an it is stated: “We have sent down to thee the Book containing the truth, that thou mightiest judge among people, as guided by Allah: so be not an advocate to those who betray their trust. But seek the forgiveness of Allah; for Allah is Oftforgiving, most Merciful. Contend not on behalf of such as betray their own souls; for Allah loveth not one given to perfidy and crime” (Trans. 4:105-107). In addition, Allah commands Muslims to hold fast to justice even if it is against their interest or the interest of their kinsfolk. In the Qur’an it is stated: “O ye who believe! stand out firmly for justice, as witnesses to Allah, even though as against yourselves, or your parents, or your kin” (Trans. 4:135). According to Islam, justice is an Islamic obligation on the basis of which Muslims should deal with Muslims and non-Muslims. This Islamic principle facilities coexistence. It creates and maintains a friendly ground between one and others, deemed to be an essential requirement of acceptance of others.

8.5 Subtle Morals Set Up by Islam for Dealing with Others Al-Quradaghi states that not only does Islam enact binding legislation to secure the implementation of the rights and responsibilities of Muslims and others, but it also relates the implementation of the rights and responsibilities to Islamic moral and creed. Hence, Islam exhorts Muslims to have a high level of morality, speak well, have cheerful faces, be tolerant, show mercy, accept others, and forgive them.32 In the Qur’an it is stated: “Good and evil are not alike. Repel (Evil) with what is better: Then will he between whom and thee was hatred become as it were thy friend and intimate!” (Trans. 41:34). Also in the Qur’an it is stated: “Dispel evil with that which is best: We are well acquainted with the things they say” (Trans. 23:96). In order to maintain such a spirit of tolerance Islam elaborates on a number of issues: First, Islam founds the relations between neighbours on the basis of rights, responsibilities and morality. This Islamic foundation is inclusive of all neighbours regardless of their faith and race.33 In the Qur’an it is stated: “And pay homage to Allah, and ascribe not any partners unto Him;

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and do good í to parents, kinsfolk, orphans, those in need, neighbours who are akin to you, neighbours who are strangers, the companion by your side, the wayfarer (ye meet), and what your right hands possess: For Allah loveth not the arrogant, the vainglorious” (Trans. 4:36). The Prophet Muhammad, peace be upon him, said: “Gabriel continued commanding me to be kind to my neighbours to the extent that I thought neighbours would share inheritance.”34 According to Ibn ‘Uthaimeen, the term neighbour refers to forty houses neighbouring one’s house from all directions. Second, Islam makes it a duty incumbent on Muslims to show a high level of morality when arguing with others.35 In the Qur’an it is stated: “And argue ye not with the People of the Book, unless it be in the best way, unless it be with those of them who inflict wrong: but say, ‘We believe in the revelation which has come down to us and in that which came down to you; Our Allah and your Allah is one; and it is to Him we bow (in Islam)’” (Trans. 29:46). Third, which is, according to Al-Quradagi, deemed to be one of the foremost Islamic methods encouraging cohesion, tolerance and integration, is the fact that Islamically, it is legal for a Muslim man to marry a Christian or a Jewish woman. Thus, a Christian or a Jewish woman may become a Muslim’s wife and the mother of his children. Her brothers and sisters become his children’s uncles and aunts. Her father and mother become his children’s grandfather and grandmother. Her family members become his in-laws. Hence, Islam legalises kinship between Muslims and people of the Book. Consequently, rights and responsibilities between Muslims and people of the Book can be founded in a deeper root, that of kinship.36

8.6 An Islamic Perception of the Relations between Muslim Minorities and the Non-Muslim Countries Where They Live Islam establishes relations between Muslim minorities and the nonMuslim countries in which they live on the basis of mutual rights and responsibilities. Muslims living in a non-Muslim country avail of the services provided there and also avail of the progress attained there. Consequently, they have responsibilities towards such a non-Muslim country. In the Qur’an it is stated: “One good turn deserves another” (Trans. 55:61). Muslims are also partners and shareholders in the non-

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Muslim countries where they live. As mentioned previously, these minorities are made of permanent residents, natives and temporary residents. They contribute to the progress and welfare of these countries as they work there and pay tax. Hence, they are entitled to certain rights in the non-Muslim countries where they live. The relations between Muslim minorities and the non-Muslim countries where they live are based on reciprocal rights and responsibilities. According to Haitham Rahmah,37 Islam has become the second largest religion in Europe.38 The emergence of the European Union, which is involved in social, political and economic affairs, provided a platform for the unity of the components of Muslim communities throughout Europe. The European Union also exerts efforts to organise their work through the formation of European Muslim organisations concerned with Muslim issues in Europe and in particular issues pertaining to integration, participation and coexistence. Hence, the issue of moral responsibilities of |Muslims towards the non-Muslim countries in which they reside is a matter of concern for both Muslim minorities and European countries.

8.6.1 Muslims’ Moral Responsibilities Towards the NonMuslim Countries Where They Live Before looking at the rights of Muslim minorities in non-Muslim countries in which they reside, the moral responsibilities of Muslims to non-Muslim countries is examined. In this section, then, the importance of fulfilling contracts and of holding fast to one’s Islamic values is examined. 8.6.2.1 Fulfilling Contracts Muslims enter a non-Muslim land on the basis of a visa, which is deemed to be a contract. The conditions of this contract are accepted by both the state and the immigrants. Muslims can be natives of a nonMuslim land. In this case citizenship is considered the contract, the conditions of which are accepted by both the state and the Muslim citizen. This point will only be briefly explained as it was illustrated in detail in the sixth chapter. According to Al-Quradaghi, the fulfilment of such conditions is the first moral responsibility towards the non-Muslim state where a Muslim resides, provided they do not involve breaching well established Islamic rule.39 Haitham Rahmah stresses that it is a duty incumbent on Muslims to abide by the terms and conditions of the contracts they enter into regardless of the race or faith of the other party.40

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In its rule regarding revoking a contract after it has been signed, the European Council for Fatwa and Research states that signing a contract in any transaction renders the contract obligatory for both parties and that none of them is entitled to revoke it unilaterally without the consent of the other party.41 This rule is stated in a number of places in the Qur’an: O Ye who believe! Fulfil contracts. (Trans. 5:01) And fulfil the covenants, for certainly you will be held accountable therefore. (Trans. 17:34) O Ye who believe! Why do ye profess that which ye practise not? Grievously odious is it in the sight of Allah that ye say what ye do not. (Trans. 61:1-2) Those who believed, set out of their homes, and fought for the Faith, with their property and their persons, in the cause of Allah, as well as those who gave (them) asylum and support are protectors of one of another. As to those who believed but set not out of their homes, ye owe no duty of protection to them until they set out of their homes; but if they seek your support in religion, it is your duty to support them, except against a people with whom ye have a treaty. And Allah seeth all that ye do. (Trans. 8:72)

The Prophet Muhammad, peace be upon him, reiterated this principle by describing breaking a pledge as a basic trait of hypocrisy. The Prophet Muhammad, peace be upon him, said: “Whoever harbours four traits is a hypocrite and whoever harbours one of these characteristics has a trait of hypocrisy.” One of these traits is that “if one gives a pledge, he will break it.”42 According to the European Council for Fatwa and Research, if a Muslim enters into a contract and he/she feels that he/she has been badly cheated, he/she has the option of revoking it provided this decision is reached through an arbitrating body.43 8.6.2.2 Muslims Should Hold Fast to Their Islamic Values Cheating is forbidden in Islam. The Prophet Muhammad, peace be upon him, said: “Whoever betrays us is not from the Muslim community.”44 In this hadith the Prophet Muhammad, peace be upon him, states that the one who cheats or betrays is excluded from the Muslim nation. This hadith shows the paramount importance of honesty in Islam. This Islamic value is supported by another Islamic value í truthfulness.

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Lying is a serious sin in Islam. The Prophet Muhammad, peace be upon him, said: “Truthfulness leads to righteousness and righteousness leads to paradise. One keeps telling the truth until he/she is recorded with Allah as a truthful person. Lying leads to lewdness and lewdness leads to hell. One keeps telling lies until he/she is recorded with Allah as a liar.”45 Holding fast to this Islamic value is a duty incumbent on Muslims as they represent Islam and project the Islamic image. According to AlQuradagi, breaking this Islamic law is deemed to be a violation of Allah’s right and the rights of others.46 Al-Quradaghi argues that breaking these rules gives the wrong impression about Islam and it consequently turns non-Muslims away from Islam.47 Al-Qaradaghi’s argument can be supported by the above-mentioned elaboration given on the duty of Da’wah for Muslims. In the Qur’an it is stated: “Our Lord! Make us not a test for the disbelievers” (Trans. 60:05).

8.6.3 The Rights of Muslim Minorities in Their Non-Muslim Countries of Residence There is not much literature on this point. Al-Quradaghi stresses that Muslim minorities are entitled to equality and freedom guaranteed by law.48 He adds that the interests of Muslims should be protected against physical and emotional abuse.49 He also stresses that laws should be enacted to protect Muslims.50 Al-Qaradaghi states that the foremost right for Muslim minorities is to allow Muslims to have legal councils to consider and settle issues pertaining to family affairs.51 Al-Qaradaghi highlights that it is the responsibility of non-Muslim states to protect the identity of Muslim minorities, and it should not endeavour to assimilate them.52

8.7 Islamic Practical Examples of Positive Coexistence In this section the Prophet Joseph and the Muslim migration to Abyssinia offer two accounts of positive coexistence. The first story comes from the Qur’an, while the second comes from the Sunnah.

8.7.1 In the Qur’an: The Prophet Joseph The Qur’an narrates the story of a Muslim, the Prophet Joseph, who lived in Egypt, a non-Muslim land, preserving his Islamic identity and

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holding fast to his Islamic morals, while positively contributing to his nonMuslim society. The Prophet Joseph was purchased as a slave by an Egyptian minister, who said to his wife to let him have an honourable stay in their house as he might have been of avail to them or they could have taken him as a son.53 Ibn Katheer states that the Prophet Joseph was bought by the Egyptian minister of finance, who instructed his wife to treat him in a respectful manner.54 In the Qur’an it is stated: “The man in Egypt who bought him, said to his wife: ‘House him honourably. May be he will be of good to us, or we shall adopt him as a son’” (Trans. 12:21). Joseph grew up in the minister’s place enjoying a luxurious life.55 The minister’s wife exhausted every possible means to seduce the Prophet Joseph.56 She asked him to have illegal sexual intercourse with her. She locked all the doors, dressed up and demanded having sexual intercourse with him.57 Joseph refused, arguing that his Lord honoured him and the lord of the palace, where he lived, had favours on him, so he would not disobey his Lord nor would he betray the lord of the palace.58 In the Qur’an it is stated: “But she in whose house he was, sought to seduce him. She closed the doors, and said: ‘Now come, thou to me’ He said: ‘Allah forbid! Truly (thy husband) is my lord! He made my sojourn agreeable! Truly those who do wrong do no good’” (Trans. 12:23). In this example, the Prophet Joseph is a manifestation of preserving the Muslim identity and holding fast to one’s values and principles. The Prophet Joseph distained to commit a sin. So, Muslims should not be assimilated and should not compromise their religion. Joseph’s adherence to his values motivated him to be faithful to a non-Muslim minister while residing in a non-Muslim land. In his argument, the Prophet Joseph stated that he owed the minister favours. Nevertheless, to protect his honour in front of people, the minister decided to jail the Prophet Joseph.59 Ahmad Bahjat states that in spite of their being sure that the Prophet Joseph was innocent, the minister and his wife, to protect their honour, decided to imprison him for an unlimited period.60 In the Qur’an it is stated: “Then it occurred to them, after they had seen the signs of his innocence to imprison him for a time” (Trans. 12:35). In spite of the oppression he suffered, the Prophet Joseph responded by presenting to non-Muslims the best of his ideas and the divine revelation he received that saved their lives. The Prophet Joseph saved Egypt and its

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neighbouring lands from a famine that could have destroyed them. The Qur’an presents the story as follows: The king (of Egypt) said: “I did see (in a vision) seven fat kine, whom seven lean ones devoured, and seven green ears of corn, and seven (others) seared. O ye courtiers! Expound to me my vision if ye can interpret visions.” They said: “A confused medley of dreams: and we have no knowledge of interpreting dreams.” But the man who had been released, one of the two (who had been in prison) and who now bethought him after so long, said: “I will tell you its interpretation: send ye me (therefore).” “O Joseph! O man of truth! Expound to us (the dream) of seven fat kine whom seven lean ones devoured, and of seven green ears of corn and (seven) others withered: that I may return to the people, and that they may understand.” (Joseph) said: “For seven years shall ye diligently sow as you usually do: and the harvests that ye reap, ye shall leave them in the ear except a little that ye shall eat. Then will come after that seven years of hardship, which will devour what ye shall have laid by in advance for them except a little which ye shall have stored away. Then will come after that period a year in which the people will have abundant water, and in which they will press (the grapes).” (Trans. 12:43-49)

According to these verses, when Joseph’s help was needed he promptly assisted the state, although it was not a Muslim state. Moreover, such a state oppressed him. Not only did Joseph help the non-Muslim state in which he lived but he also did not request any recompense. He did not stipulate releasing him from the oppressive jail so that he might assist the state. In spite of his positive integration into a non-Muslim society, the Prophet Joseph fulfilled his duty of Da’wah. When he was landed in jail he had two companions who had two dreams. They requested that Joseph interpret their dreams. He did and also invited them to Islam. This is how the Qur’an describes it: … with him there came into the prison two young men. Said one of them: “I saw in a dream that I pressed grapes.” Said the other: “I saw in a dream that I carried bread on my head, and birds ate thereof.” “(they said) expound for us the interpretation thereof: for we see that thou art one that doth good (to all)”. He said: “Before any food comes to you, I will surely tell you the interpretation. This is part of the knowledge which my Lord hath taught me. I have abandoned the ways of a people that believe not in Allah and deny the life to come. And I follow the ways of my fathers; Abraham, Isaac, and Jacob; and never could we attribute any partners unto Allah. This is part of the grace of Allah bestowed unto us and mankind, yet most people are not

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grateful. O my two companions of the prison! Are many lords differing among themselves better, or the One Allah, Supreme and Irresistible? ‘If not Him, ye worship nothing but names which ye and thy fathers have named, for which Allah hath sent down no authority. The authority is for none save Allah. He hath commanded that ye worship none but Him. That is the right religion, but most people understand not. O my two companions of the prison! As to one of you, he will pour out the wine for his lord to drink: as for the other, he will be crucified and the birds will eat from his head. Decreed is the matter whereof ye twain do enquire.” (Trans. 12:35-41)

According to these verses the Prophet Joseph was perceived by the two young men who were imprisoned with him as a good man. He must have behaved in a certain way that convinced them that he was a good man. He could not have deceived them since they lived together in one cell. They trusted him and shared their worries with him. They also trusted his knowledge and asked him to interpret their dreams. This gives a clear indication of the high level of mutual trust deemed to be an essential requirement for coexistence. The Prophet Joseph fulfilled his Da’wah duty. It is clear that he addressed his people in gentle words. Moreover, he did not impose his religion on them. He also did not offend them regarding their disbelief. He raised a question to them: “Which is better having one Lord or many lords?” In other words, he asked them to apply their mental faculties. What is really significant here is that he did not answer the question. This confirms the concept of freedom of belief. The Prophet Joseph succeeded in keeping a friendly ground between himself and these two young men who were imprisoned with him. He interpreted their dreams and they did not accept his religious invitation. Assisting them was not dependent on their acceptance of his religion. These two young men recognised his good attributes, though he was an immigrant who had a different belief. In other words, he had a different source of values. The fact that one’s source of values is different does not mean that people should prejudge others. What is good should be perceived as good regardless of its source, and what is evil should be classified as evil regardless of its source. One of the main obstacles in the way of coexistence is duality or double standards. It makes people feel that human beings are divided into different classes and human rights are classified into different ranks. The Prophet Joseph and the two young men give an example of acceptance and integration.

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8.7.2 In the Sunnah: The Muslim Migration to Abyssinia Since the early Muslims suffered severe persecution in Mecca and were subjected to barbaric torture at the hands of the infidels of Mecca, and since the Prophet Muhammad, peace be upon him, was unable to protect them, Allah permitted them to migrate to Abyssinia.61 This migration occurred in the fifth year of the Prophet Muhammad’s Islamic promulgation.62 The Prophet Muhammad, peace be upon him, said to his Companions: “Migrate to Abyssinia. Therein is a king with whom no one suffers oppression. The land of Abyssinia is a land of truthfulness.”63 At this point it should be noted that not only did the Prophet Muhammad, peace be upon him, instruct Muslims to migrate to a Christian country, he also paid tribute to its king who was a Christian. This was a clear declaration of the Islamic concept of coexistence. According to Qutb, the Prophet’s choice of Abyssinia was based on his conviction that such a Christian land would provide Muslims with protection and freedom of expression and belief.64 Qutb argues that nothing can attest to this fact more than the fact that the Muslim migrants to Abyssinia were honourable people in Mecca. Such people came from families that could have provided them with protection in their locality ruled by a tribal system.65 According to Al-Ghazali, when the Muslim migrants to Abyssinia came to know that the infidels of Mecca ceased the persecution they imposed on Muslims, they returned to Mecca.66 Al-Ghazali adds that when Muslims returned to Mecca, however, they came to find that the infidels of Mecca had escalated the punishment to which they subjected Muslims. Hence, the Prophet Muhammad, peace be upon him, instructed them to migrate again to Abyssinia where they enjoyed security and hospitality.67 When the infidels of Mecca realised that the Muslims who had migrated to Abyssinia enjoyed security, hospitality and freedom of belief and religious practices, they plotted a scheme against them. Their objective was to return these migrants back to Mecca.68 The infidels of Mecca commissioned Amr Ibn Al-‘As and ‘Abullah Ibn Abi Rabi’ah to meet the King of Abyssinia69. These two messengers met with the Abyssinian Patriarchs and presented them with wonderful gifts, reaching an agreement that the Patriarchs would help them in their mission.70

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The two Meccan messengers met the king and said to him that a number of their people had abandoned their religion and did not embrace his religion. They added that they had made up a new religion and then came to his land seeking protection. They stated that they were sent by their fathers and uncles requesting their return.71 The Patriarchs supported them, stating that the king should hand them over as their people would know them better.72 The king decided to invite them and listen to them and make his decision on the basis of what he heard from them.73 When the Muslim migrants came to know about the king’s plan they decided to tell him what they believed in.74 When they came to the king he asked them about their religion. In response Ja’far Ibn Abi Talib, one of the Muslim migrants, said that they had worshipped idols, eaten dead animals, committed lewdness, been unkind to their kinsfolk and neighbours. Then the Prophet Muhammad, peace be upon him, who they knew well, invited them to worship Allah and commanded them to be truthful, honest, kind to their relatives and neighbours, to establish prayers and observe fasting and shun lewdness. Consequently they believed in him.75 The king said that had come from the same source out of which the message of Jesus came. Then he refused to hand them over to the Meccan messengers.76 ‘Amr Ibn Al-’As said to his Meccan colleague ‘Abdullah Ibn Abi Rabi’a that following day he would come to them with an issue that would ruin them.77 ‘Abdullah Ibn Abi Rabi’a appealed to him not to do it, arguing that in spite of their belief in a different religion they were their kinsfolk.78 But ‘Amr Ibn Al-‘As persisted with his plan, which he implemented on the following day. He said to the king that the Muslim migrants said serious issues against Jesus.79 So the king summoned the Muslim migrants to ask them about Jesus. In response Ja’far, one of the Muslim migrants, said that they could only say what the Prophet Muhammad, peace be upon him, said about him. He added that Jesus is Allah’s worshipper, messenger and Allah’s word given to Mary, the virgin, the chaste.80 The king approved of what they said and confirmed their security in his land.

8.8 Conclusion In light of the above-mentioned arguments, one may conclude that Islam accepts the term of both us and others. Nevertheless, it does not look at others as foes. It stresses a wide range of commonalities between

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Muslims on the one hand and non-Muslims on the other. On the basis of these arguments one sees that according to Islam to be self-centred or to violate the rights of others is a sin. It leads to committing mistakes that over time impact on all people as individuals and as groups. Such an exclusive approach is divisive and its repercussions can be classified as a crisis. In today’s world, globalisation has turned the entire world into a small village, satellite channels are being transmitted all over the globe, and the internet has created a new online community. This provides opportunities for co-operation between all human beings, despite their race and faith. There emerges an urgent need for a revolution of understanding of the concepts of Us and Them based on the above-mentioned texts and thoughts. This does not mean that the sense of belonging to a religion, race, or group is devalued, nor does it encourage assimilation, but rather it accepts that diversity is Allah’s will. The above-mentioned texts provide foundations to bridge the gap between us and others. Muslimínon-Muslim relations should be based on the firm belief that human beings are brothers and sisters. Brothers and sisters cannot be the same. They have individual and group differences, but these differences do not turn them into enemies. They give platforms for co-operation and integration. Islam recognises that by virtue of being a human being, every individual, regardless of his/her faith and race, is entitled to his/her right to honour and dignity, since he/she carries the soul breathed into him/her by God. This meaning has been reiterated by Qur’anic verses in which it is stated: “We have honoured the children of Adam; provided them with transport on land and sea; given them for sustenance things good and pure; and favoured them over a great part of our creation” (Trans. 17:70). In another verse Allah described human beings as His viceregent on the earth. This honour has been to everyone, including all people transpiring all religious, racial and cultural briers. In the Qur’an it is stated: “I will create a viceregent on earth” (Trans. 2:30). Islam guarantees dignity for human beings during their lifetime and after their death. ‘Abdur-Rahman Ibn Abi Laila reported that while Sa’d Ibn Hunaif and Qais Ibn Sa’d were in Al-Qadisiya a funeral passed them by. So they stood up. It was said to them that the deceased person was not a Muslim. They replied: “When a funeral passed by the Prophet Muhammad, peace be upon him, he stood up. It was said to him that the diseased person was a Jew. He said: ‘It is a soul.’”81

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Although Muslims firmly believe that their religion is the final step in the divine initiative, Islam recognises that divine religions come from one and the same source. Hence, Muslims believe in all the divine revelations. In the Qur’an it is stated: “The Messenger believeth in what hath been revealed to him from his Lord, so do the believers. Each one believeth in Allah, His angels, His books, and His messengers. (They say) “We make no distinction between one and another of His messengers.” And they say: “We hear, and we obey: (We seek) Thy forgiveness, our Lord, and unto Thee is the return” (Trans. 2:285).82 The history of Muslim migration provides a theological argument proving the legality of migrating to a non-Muslim land. This migration was due to the fact that Muslims in Mecca could not practise their religion and suffered severe persecution. The Muslim migration to Abyssinia provides theological proof that Muslims may seek protection from nonMuslims if there is a need. Self-evident is the fact that the Muslim migrants to Abyssinia did not accept this protection in return for compromising their religion. When the king asked them about their belief regarding Jesus, the Muslim migrants told him their true belief. They did not endeavour to please him and they did not try to offend him either. They stated their true faith in a respectful manner in a friendly atmosphere. In the dialogue between Ja’far and the King of Abyssinia, Ja’far highlighted the good attribute of the king expressed by the Prophet Muhammad, peace be upon him, that people did not suffer oppression under his leadership. The good is good regardless of its doer and the evil is evil regardless of its perpetrator. This is a fundamental rule for peaceful coexistence. When the king asked Ja’far to recite some Qur’anic verses, Ja’far recited certain verses from the chapter on Mary. This gives a clear indication that when people consider the issue of coexistence they should focus on commonalities, since they create a friendly atmosphere essential for reciprocal understanding. When the king asked Ja’far about their belief about Jesus, Ja’far did not compromise his faith. Compromising does not help coexistence. The challenge is to be able to coexist in spite of differences. This is viable when coexistence is based on mutual respect.

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Notes 1

Ali Al-Quradaghi, Nahnu Wal’akhar, (Beirut: International Union for Muslim Scholars, 2005), p. 47. 2 Ibid., p. 48. 3 ‘Abd-ul-Haleem Mahmoud, born in Abu Ahmad, Bilbis, Egypt, in 1910 and died in Egypt 1978, was a descendent of a renowned family. He received his bachelor’s degree from Al-Azhar University in 1932. Afterwards he travelled to Paris where he received his PhD degree in 1940. He occupied a number of prominent positions such as the Secretary General of the Islamic Research Academy in Egypt, Minister for Religious Endowments and in 1973 a decision was issued to appoint him as the Grand Sheikh of Al-Azhar. He authored many books including ‘Uropa Wal’Islam, Asrar Al-‘Ibadah Fi Al-Islam and Al-Tafkeer Al-Falsafi Fi Al-Islam. 4 Abd-ul-Haleem Mahmoud, Al-Tarbiyah Al-Khuluqiyah (Cairo: Dar Al-Tauzee’ Wan-Nashr Al-Islamiyah, n. d.), pp. 109í10. 5 Ibid. 6 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 47. This meaning has been reiterated in many Islamic books such as Al-‘Alaqat Al-Hadariyah by Muhammad Idris (Damscus: Dar Al-Qalam, 2003), p. 92; also Taha Jabr Al-‘Ulwani highlights the same concept in his journal entitled “Al-Islam wat-Ta’aush Al-Silmi Ma’ Al-‘Akhr”, published in a book entitled Hiwar Al-Hadarat, (Egypt: Dar Al-Salam Liltiba’ah Wan-Nashr, 2004), p. 241. 7 Muhammad ‘Imarah, born in Qileen, Egypt, in 1931, received his PhD degree from Dar Al-‘Ulum, Cairo University, in 1975. He received a number of awards such as the Award of the Book Friend Association in Lebanon in 1972. He authored many books including Al-Islam Wal-Mustaqbal, Ma’alim Al-Manhaj AlIslami and Al-Islam Wat-Ta’adudiyah. 8 Muhammad ‘Imarah, Islam and Ta’adudiyah (Cairo: Dar Al-Rashad, 1997), pp. 8í9. 9 Chairman of the International Muslim Club for Dialogue, Assistant Secretary General for the Conference of the Islamic World, and Chairman of the MuslimCatholic Communication Committee. 10 Hamid Bin Ahmad Al-Rifa’i, Al-Akhar Wa Ishkaliyat Al-Mustalah wa Al-Hiwar (Jeddah: King Fahd Press, 2006), pp. 15í16. 11 Anna Duzak, Us and Others: Social Identities Across Languages, Discourses and Cultures (Amsterdam: John Benjamins, 2002), pp. 1í5. 12 Muhammad Idris, Al-‘Alaqat Al-Hadariyah (Damascus: Dar Al-Qalam, 2003), p. 98. 13 Muhammad Rashid Rida, Tafseer Al-Manar, v. 12, pp. 19í22, quoting Muhammad ‘Imarah, Islam and Ta’adudiyah, p. 25. 14 Ibid. 15 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), pp. 49í50. 16 Ibid., pp. 50í2.

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A contemporary Saudi author, who has written a number of articles including “Al-Wihda Wa Ham Al-Mutabaqa” (2011), “Kaifa Takhruj Min Al-Dauwamah” (2007), “Al-Am Al-Aljadeed Tahadiat Waamal” (2001). 18 Muhammad Mahfuz, http://www.altasamoh.net/Article.asp?Id=630 (26 November 2010). 19 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 67. 20 In the Qur’an it is stated: “Say: ‘Shall I seek for a Cherisher other than Allah, when He is the Cherisher of all things? Every soul draws the meed of its acts on none but itself: no one can bear the burden of another. Your goal in the end is towards Allah: He will tell you the truth of the things wherein ye disputed” (Trans. 6:164). “Who receiveth guidance, receiveth it for his own benefit: who goeth astray doth so to his own loss: No one who carries a burden bears the burden of another: nor would We punish until We had sent a messenger (to give warning)” (Trans. 17:15). “Nor can a bearer of burdens bear another’s burdens if one heavily laden should call another to (bear) his load. Not the least portion of it can be carried (by the other). Even though he be nearly related. Thou canst but admonish such as fear their Lord unseen and establish regular Prayer. And whoever purifies himself does so for the benefit of his own soul; and the destination (of all) is to Allah ”(Trans. 35:18). “If ye are ungrateful, God is independent of you; but He liketh not ingratitude from His servants: if ye are grateful, He is pleased with you. No bearer of burdens can bear the burden of another. In the end, to your Lord is your Return, when He will tell you the truth of all that ye did (in this life). For He knoweth well all that is in (men’s) hearts” (Trans. 39:07). “Namely, that no bearer of burdens can bear the burden of another” (Trans. 53:38). 21 Muhammad Babili, Al-Shari’ahh Al-Islamiyah Shari’aht Al-‘Adl Wal-Fadl (Mecca: Islamic World League, 1414 HJ), pp. 9í10. 22 Al-Qaradawi, Al-Islam Hadara-tu-Ghad (Cairo: Wahbah Press, 2006), pp. 179í98. 23 Holy hadith refers to a hadith where the words are traced back to the Prophet Muhammad but the meaning is traced back to Allah (Al-Sharif Al-Jurjani, AlTa’rifat, Tunisia: Al-Dar Al-Tunisiya Press, 1971), p. 25; also Ali Al-Qari, AlAhadith Al-Qudsiah Al-Arba’iniyah (Halab: Al-Matba’ah Al-‘Ilmiya, 1927), p. 2. 24 Al-Arba’un Al-Qudsiyah, selected by Ezzeddin Ibrahim and Denys JohnsonDavies (Beirut: The Holy Koran Publishing House, 1980), p. 83. 25 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 59. 26 In the Qur’an it is stated: “O ye who believe! stand out firmly for Allah, as witnesses in all fairness, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is the closest to piety: and fear Allah. For Allah is well-acquainted with all that ye do” (Trans. 5:08). “And come not nigh to the orphan’s property, except to improve it, until he attain the age of full strength; give measure and weight with justice; God does not burden a soul beyond capacity; whenever ye speak, speak justly, even if a near relative is concerned; and fulfil the covenant of Allah: thus doth He command you, that ye may take heed”

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(Trans. 6:152). “Now then, for that (reason), call (them to the Faith), and be costant as thou art commanded, nor follow thou their vain whims; but say: ‘I believe in the Scriptures which Allah has revealed; and I am commanded to judge justly among you. Allah is our Lord and your Lord: for us (is the responsibility for) our deeds, and for you for your deeds. There is no dispute between you and us. Allah will bring us together, and unto Him is (our) return’” (Trans. 42:15). 27 Muhammad Shamah, Al-Islam Kama Yanbaghi An Na’rifuhuh (Cairo: Wahbah Press, 1983), pp. 164í6. 28 Muhammad Babili, Al-Shari’ahh Al-Islamiyah Shari’aht Al-‘Adl Wal-Fadl (Mecca: Islamic World League, 1414 HJ), p. 11. 29 Ibid., p. 53. 30 Al-Qaradawi, Madkhal Lima’rifat Al-Islam (Cairo: Wahbah Press, 2001), p. 273. 31 Ibid. 32 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 99. 33 Ibid., p. 98. 34 Muhammad Al-‘Uthaimeen, Sharh Riyad Al-Saliheen (Cairo: Dar Al-Salam Press, 2002), v. 1, p. 687. He also quotes a number of Ahadith in which the Prophet Muhammad, peace be upon him, said: “O Abu Thar! If you cook soup increase its water and share it with your neighbours.” “By Allah he is not a believer. By Allah! He is not a believer. By Allah! He is not a believer.” The Prophet was asked: “Who is he.” The Prophet said: “The one whose neighbour does not feel safe with him.” 35 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 98. 36 Ibid. 37 Chairman of the Board of the Trustees of the European Gathering for Imams and Islamic Guides. 38 Haitham Rahmah, Mithaq Al-Muslim Al-‘Urubbi (Paris: The Union of the Muslim Organisations in Europe, 2008), p. 233. 39 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 140. 40 Haitham Rahmah, Mithaq Al-Muslim Al-‘Urubbi (The Union of the Muslim Organisations in Europe, 2008), p. 158. 41 The European Council for Fatwa and Research, Fatwas of the European Council for Fatwa and Research (Cairo: Islamic INC Publishing & Distribution, n. d.), p. 155. 42 Al-Bukhari, Sahih Al-Bukhari, v. 1, p. 16; Muslim, Sahih Muslim, v. 1, p. 78. 43 Fatwas of the European Council for Fatwa and Research (Cairo: Islamic INC Publishing & Distribution, n. d.), p. 156. 44 Muslim, Sahih Muslim, v. 1, p. 99. 45 Al-Bukhari, Sahih Al-Bukhari, v. 8, p. 52; Muslim, Sahih Muslim, v. 4, p. 2013. 46 Ali Al-Quradaghi, Nahnu Wal’akhar, International Union for Muslim Scholars (Beirut: Beirut Press, 2005), p. 113. 47 Ibid. 48 Ibid., p. 114.

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Ibid. Ibid. 51 Ibid. 52 Ibid. 53 Ahmad Bahjat, Anbia’ullah (Cairo: Dar Al-Shuruq, 1999), p. 129. 54 Ibn Katheer, Qasas Al-Anbia’ (Beirut: Dar Al-Fikr, 1983), p. 277. 55 Ahmad Bahjat, Anbia’ullah (Cairo: Dar Al-Shuruq, 1999), p. 130. 56 Ibn Katheer, Qasas Al-Anbia’ (Beirut: Dar Al-Fikr, 1983), p. 279. 57 Ibid. 58 Ahmad Bahjat, Anbia’ullah (Cairo: Dar Al-Shuruq, 1999), p. 131. 59 Ibn Katheer, Qasas Al-Anbia’ (Beirut: Dar Al-Fikr, 1983), p. 284. 60 Ahmad Bahjat, Anbia’ullah (Cairo: Dar Al-Shuruq, 1999), p. 138. 61 Mustafa Murad, Sirat-ur-Rasoul (Cairo: Dar Al-Fajr Lilturath, 2005), p. 147. 62 Ibn Katheer, Al-Bidaiah Wan-Nihaiah (Cairo: Dar Abi Haiyan, 1996), v. 3, p. 78. 63 Mahmoud Shakir, Al-Tariekh Al-Islami (Beirut: Al-Maktab Al-Islami, 1991), v. 1, p. 99. 64 Sayyid Qutb, Fe Dhilal Al-Qur’an, v. 1, p. 29. 65 Ibid. In his book entitled Al-Manhaj Al-Haraki, v. 1, pp. 67í8, Al-Ghadban supported the view expressed by Qutb stating that the Muslim migrants to Abyssinia remained there for a number of years, during which many events and battles took place between the early Muslims and the infidels of Mecca. 66 Al-Ghazali, Fiqh Al-Sirah (Damascus: Dar Al-Qalam, 1994), p. 110. 67 Ibid, p. 113. 68 Ali Al-Sallabi, Al-Sirah Al-Nabawiya (Cairo: Dar Al-Tauzee’ Wan-Nashr AlIslamia, 2001), p. 236. 69 Mustafa Murad, Sirat-ur-Rasoul (Cairo: Dar Al-Fajr Lilturath, 2005), p. 152. 70 Al-Ghazali, Fiqh Al-Sirah (Damascus: Dar Al-Qalam, 1994), p. 114. 71 Muhammad Abu Shahbah, Al-Sirah Al-Nabawiya (Damascus: Dar Al-Qalam, 1996), v. 1, p. 376. 72 Ibid. 73 Ibid. 74 Ali Al-Sallabi, Al-Sirah Al-Nabawiya (Cairo: Dar Al-Tauzee’ Wan-Nashr AlIslamia, 2001), p. 238. 75 Ibid. 76 Ibid. 77 Mustafa Murad, Sirat-ur-Rasoul (Cairo: Dar Al-Fajr Lilturath, 2005), p. 153. 78 Ibid. 79 Ibid. 80 Ibid. 81 Al-Bukhari, Sahih Al-Bukhari, v. 2, p. 85; Muslim, Sahih Muslim, v. 2, p. 661. 82 Also in the Qur’an it is stated: “Say ye: ‘We believe in Allah, and the revelation given to us, and to Abraham, Isma’il, Isaac, Jacob, and the Tribes, and that given to Moses and Jesus, and that given to (all) prophets from their Lord: We make no difference between one and another of them: And we submit ourselves to Allah’” 50

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(Trans. 2:136). Also in the Qur’an it is stated: “The same religion has He established for you as that which He enjoined on Noah í the which We have revealed to thee í and that which We enjoined on Abraham, Moses, and Jesus: Namely, that ye should remain steadfast in religion, and make no divisions therein: for those who ascribe partners unto Allah, hard is the (way) to which thou callest them. Allah chooses to Himself those whom He pleases, and guides to Himself those who turn (to Him)” (Trans. 42:13).

CHAPTER NINE CONCLUSIONS AND IMPLICATIONS

The paramount importance of the concept of citizenship is manifested by the fact that a large number of thinkers and scholars throughout history exerted great efforts to define it. Nevertheless, no one has ever stated or purported that their or others’ definition is unanimously accepted. The paramount importance of this concept emanates from the concerns of citizenship, i.e. the rights and responsibilities of human beings. This may explain why people differ on the definition of citizenship. This variation could be due to the fact that people’s perceptions of rights and responsibilities differ from one another. This variation could also be due to the different lifestyles led by individuals, or to the different contexts in which people live. For instance, Birte Siim and Judith Squith perceive citizenship as a combination of rights, obligations and political participation. While political participation is stressed and specified, the rights and obligations are left open for interpretation. Aristotle perceives citizenship as the ability to rule and be ruled. John Patrick states that citizenship means being entitled to certain rights dependent on the fulfilment of given duties. He specifies serving in the country’s armed forces as one these duties. This raises a significant question. Is citizenship social identity or is it a layer of social identity? Although citizenship is meant to organise relations between individuals and state, it cannot be perceived as the social identity, but a layer of social identity. If it is perceived as a layer of social identity, is it harmonious with other layers? Is it dominant? If it is dominant then it contradicts democracy. Heater argues that citizenship is a form of socio-political identity, which sometimes lives in harmony with other forms, sometimes competes with them, becomes dominant, is submerged or subdued by others and sometimes is a distinct form from others. Hearter states that citizenship is not the be-all and end-all of one’s social identity but that citizens should be taught about their multiple identities. This perception allows room for coexistence and respects a primary human right: freedom of choice.

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Muslim scholars tend to think parallel to this. They perceive citizenship as a concept of equality based on rights and responsibilities. This was manifested in the Constitution of Medina (ΔϨϳΪϤϟ΍ ΔϔϴΤλ ), also known as the Charter of Medina, declared by Muhammad, peace be upon him, in 627, constituting the first Islamic multicultural and multi-religious society in history made up of Muslims, Jews and Christians. This document aimed to achieve a number of objectives, including forming a cohesive society based on entitlement to certain rights and fulfilments of certain duties. Bin Bayiah perceives citizenship as an institution that people optionally choose to join. Once they join they enjoy the same rights that long-standing members enjoy. The values of such a group are not based on a common religion, race or history, but rather on the presumption that diversity itself is a great value that allows room for harmony. This happens by integrating various distinctive elements to serve public interests in a way that does not recognise superiority of some strata or impose inferiority on others. Nevertheless, as Maulawi states, the significant Muslim contribution to the concept of citizenship is that it is based on love, which leads to reciprocal rights and responsibilities. John Patrick states that in some countries citizenship is based on the place of birth, in some it is based on parents’ citizenship and in others both are used for granting citizenship. Muslim jurists present broader limits of citizenship than the boundaries of country. They perceive the entire world as being the home of all human beings. It is shared by all human beings. They also state that this right involves certain responsibilities. This common sharing entails exerting efforts by all members of the human family to accomplish prosperity. The jurists founded this theory on their belief that God, the Creator, gave the earth to Adam, Eve and their offspring and appointed them as His viceregents. This concept provides a number of values for shaping social life and clarifies the status of human beings and their position and responsibilities towards the rest of creation. Allah is the real owner of the earth. Human beings are not owners of the earth but rather trustees and stewards. Although the earth is given to all the children of Adam, people gathering in every land share a set of values and are subjected to the ruling authority there. However, within each society there are groups. There are minorities and majorities. The question of living in a country, where the majority is represented by non-Muslims and the ruling authority is in the hands of non-Muslims and the law in effect there is a non-Islamic law, has been an issue of Muslim theological discourse and debates among Muslim

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jurists throughout history. This question is usually raised in parallel to the question of acquiring and holding non-Muslim citizenship. A great number of Muslim scholars classify living in a non-Muslim country and acquiring non-Muslim citizenship as a prohibition, yet they disagree regarding the level of this prohibition and the reason for it. We have seen, for instance, Muhammad Ibn Abdullah Ibn Sabil’s judgement that Muslims who acquire citizenship in a non-Muslim country are classified into one or other of the following categories: x Muslims preferring to live in a non-Muslim country and belonging to non-Muslims and being satisfied with their rule, commit apostasy; x Muslims acquiring non-Muslim citizenship and residing in nonMuslim countries for the sake of worldly benefits, but who fulfil their Islamic obligations, practise their religion freely and reject any rule against it, are committing serious sins and jeopardising their being Muslims; x Muslims whose land has been occupied by non-Muslims compelling them to acquire non-Muslim citizenship, but who abide by their religion, practise it freely, declare enmity against the occupiers and describe them as disbelievers, if they stay in their land, are committing sins and jeopardising their being Muslims. Sayyd Qutb states that residence in a non-Muslim country may affect one’s status as a Muslim. Al-Sarakhsi states that it is forbidden for Muslims to settle in a non-Muslim country or even practise any activity that involves residence there. Al-Buti adds that acquiring non-Muslim citizenship and living in a non-Muslim country are basically forbidden, just as pork is forbidden. Hassan Al-Banna also argues that acquiring nonMuslim citizenship is a major sin that incurs Allah’s wrath and punishment. Other Muslim jurists forbid residing in non-Muslim lands and acquiring non-Muslim citizenship because of reasons pertaining to it. They establish this prohibition on subjection to non-Islamic laws, predominance of non-Muslims over Muslims, assisting non-Muslims, increasing the strength and numbers of non-Muslims, legal permissiveness prevailing in non-Muslim societies, sustainable concern for the religiosity of Muslim children and residence in a non-Muslim environment.

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The above-mentioned are genuine concerns motivated by sincere worries about Muslims and the future of Muslims as both individuals and as a nation. In support of their argument, the Muslim jurists who forbid Muslim residence in non-Muslim countries and acquiring non-Muslim citizenship quote a large number of Islamic scriptural proofs. Nevertheless, in light of the above-mentioned deliberation, one can discern that their Fatawa were right but contextual. The current context of Muslims, however, differs from this. On the basis of the above-mentioned deliberation, it becomes selfevident that the real dilemma can be obliterated by judging the abovementioned Fatawa according to Islamic rule: Tataghair Al-Fatwa Betaghaiur Al-Makan Waz-Zaman ϥΎϣΰϟ΍ϭ ϥΎϜϤϟ΍ ήϴϐΘΑ ϯϮΘϔϟ΍ ήϴϐΘΗ (the Fatwa can be changed if time or place changes). The prohibition on living in non-Muslim countries and acquiring and holding non-Muslim citizenship is countered by Fatawa issued by a great number of other Muslim jurists, who, likewise, support their arguments with scriptural evidence. Some Muslim jurists such as Jad-ul-Haq Ali Jadul-Haq, state that if Muslims are living in countries where they cannot practise their religion or if they are persecuted intolerably, it is incumbent on them to migrate. As for Muslims living in non-Muslim countries where they practise their religion without threat, migration is not an obligation. A number of Muslim thinkers and jurists, such as Ibn ‘Uthaymeen, argue that in an era when there is no caliphate or Islamic state that can accommodate all Muslims living as minorities, the duty of migration cannot be considered a practical option. A number of Muslim jurists, such as Ibn Hajar, state that living in a non-Muslim land is permissible, if it leads to the spread of Islam. Maulawi states that prosperity of the earth is a reciprocal mission, which should be shouldered by all people, both Muslim and non-Muslim. Since they live in one world and enjoy the same facilities, their coexistence and mutual relations have been made their destiny so that they can fulfil their mission. The European Council for Fatwa and Research has taken a step forward in this regard. Not only has it deliberated on the permissibility and the impermissibility of Muslims residing in non-Muslim countries, but it has also considered the rules that organise the affairs of Muslims residing in non-Muslim countries. By and large, on the one hand, three Fiqh Schools – namely Shafi’i, Hanbali and Hanafi – classify residing in non-Muslim land as permissible. On the other hand, the Maliki School and the Dhahiriah described residing in nonMuslim land as a prohibition.

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If living in a non-Muslim land and acquiring non-Muslim citizenship is permissible, then Muslims can coexist with non-Muslims in their nonMuslim land. But this coexistence should be founded on acceptance of others. Hence, the concepts of Wala’ and Bara’ ˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ should be authenticated and illustrated. Love is the source of Wala’ and hatred is the source of Bara’; it is by these that both the heart and the hand are moved to act. Wala’ inspires intimacy, concern and help. Bara’ provokes obstruction, enmity and rejection. According to a number of Muslim jurists, such as Ibn Taymiyya, Wala’ for the sake of Allah means to love Allah and to exhaust every possible means to assist His religion; it is to love those who are obedient to Him and to come to their assistance. Bara’ for the sake of Allah is to struggle against the enemies of Allah. Putting the concepts of Wala’ and Bara’˯΍ήΒϟ΍ϭ ˯ϻϮϟ΍ into practice constitutes an essential requirement of being a good Muslim. This implementation should be conducted by the heart, in terms of love and hatred, and of the entire body, in terms of drawing near to fellow Muslims and steering clear of non-Muslims. Hence, it is forbidden for Muslims to have Wala’ for non-Muslims. This forbidden Wala’ has a number of manifestations, i.e. accepting disbelief; endorsing its validity and not declaring it as disbelief; relying upon disbelievers; taking them as helpers and embracing their religion; sharing some of their disbelief and accepting their judgements and not the Book of Allah; having love and affection for disbelievers; inclination to the disbelievers; flattery and adulation of the disbelievers’ faith; taking disbelievers as Bitanah ΔϧΎτΑ (advisors, consultants, protectors, helpers and intimate friends); obeying orders issued by disbelievers; accompanying disbelievers when ridiculing the Qur’an; appointing non-Muslims to leading positions in a Muslim state; trusting disbelievers; being pleased with the disbelievers’ deeds; imitating them and drawing nearer to them; seeking and giving disbelievers advice; paying tribute to them and spreading their good attributes; colluding with the disbelievers; entering into pacts with them; spying for them and conveying Muslim secrets to them; and being involved in secular political parties. This opinion is not in harmony with the message of Islam. How can this be in conformity with the Islamic message when the Prophet Muhammad, peace be upon him, is categorically classified in the Qur’an as a mercy to all that exists. In the Qur’an it is stated: “We have sent ye not save as a mercy to all that exists” (Trans. 21:107).

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The Qur’an instructs Muslims to treat people with mercy and to show forgiveness. These attributes are deemed a qualification for reaching paradise, which is the ultimate goal for all Muslims. In the Qur’an it is stated: “And obey Allah and the messenger, that ye may find mercy. And vie one with another for forgiveness from your Lord, and for a paradise as wide as are the heavens and the earth, prepared for those who ward off (evil); Those who spend (of that which Allah hath given them) in ease and in adversity, those who control their wrath and are forgiving toward mankind; Allah loveth the good; And those who, when they do an evil thing or wrong themselves, remember Allah and implore forgiveness for their sins – Who forgiveth sins save Allah only? – and will not knowingly repeat (the wrong) they did” (Trans. 3:132-135). Wala’, according to a number of Muslim jurists such as Maulawi, is forbidden for non-Muslims provided that they fight against Muslims and this Wala’ is directed against Muslims. According to Al-Qaradawi, human beings have various layers of Wala’; Wala’ to one’s family, Wala’ to one’s village, Wala’ to one’s city, Wala’ to one’s region, Wala’ to one’s country, Wala’ to one’s continent, Wala’ to one’s religion, Wala’ to one’s nation and Wala’ to the human family. Wala’ and Bara’ are founded on love and hatred. It is permissible for a Muslim man to marry a Christian or a Jewish woman. Love and mercy are due requirements of marriage. Marriage is not just one individual marrying another as always portrayed, but rather a family on one side is marrying another family on the other side. They become in-laws, uncles and aunts. Islam portrays being kind to kinsfolk as an obligation incumbent upon Muslims í it ranks being unkind to kinsfolk as one of the major sins. Muslim children may have a non-Muslim mother. In this regard, in the Qur’an it is stated: “We have enjoined on man kindness to parents; but if they strive to make thee join with Me that of which thou hast no knowledge, then obey them not. Unto Me is your return and I shall tell you what ye used to do” (Trans. 29:8). The Prophet Muhammad, peace be upon him, deeply loved his grandfather, a man who was an idol worshipper. The issue of civic duties in non-Muslim countries is, to a large extent, dependent on the concepts of Wala’ and Bara’. It is also founded on the Islamic code of morality; it is a theological issue. Hence, a Muslim’s fulfilment of national duties of non-Muslim countries where they reside is determined on Islamic foundations.

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Muslims enter a non-Muslim land on the basis of a visa. Islamically this visa is deemed to be a binding contract, and the two parties to it should abide by its conditions. Muslims can also be citizens in a nonMuslim land. The regulations of citizenship are deemed to be a contract between the state on the one hand, and the citizens on the other. Both of them should abide by its conditions. It is a duty incumbent on Muslims to uphold their contracts. This Islamic rule is stressed by many Qur’anic verses and Ahadith. It is unanimously prohibited for Muslims to breach a treaty or a contract. Should there be a point against the rights of Muslims or even their conscience as believers, it should be subject to negotiations. The ECFR stresses that among the most important things Muslims should observe and do is believe that the souls, properties and honour of non-Muslims are protected by Islam by virtue of the pledge according to which they enter these lands. They are to abide by that in their conduct, according to which they are permitted to enter these countries and continue residing in them. Abiding by pledge, covenant and contract is a religious obligation regardless of the faith or race of the parties entering upon it. A just life for a Muslim involves not only performing acts of worship or avoiding sins, but also serving the community of believers in any way requested. Should, then, Muslims serve their communities if it involves taking part in military action? So many Islamic scriptural texts warn Muslims against killing Muslims or even helping someone kill a Muslim. The prohibition on supporting non-Muslims fighting against Muslims is expressed by a number of Muslim scholars such as Ibn Taimiyya. Other Muslim scholars express stricter approaches. For instance, Abdelqader states that it is a duty incumbent on Muslims to preserve their lives and that they should not expose themselves to potential death except in certain circumstances. Helping disbelievers is not legitimate grounds on which to sacrifice one’s own life. Such reservations are not sufficient to demonstrate incompatibility with the theory of civic loyalty. In addition, there are Muslim scholars who express Fatawa countering the abovementioned Fatwa. For instance, Salah Sultan states that every citizen should defend his country against any transgression, even if this involves fighting against a Muslim country. A revolution was conducted against the Negus and the migrant Muslims decided to fight with him against the revolutionists, but he declined. Maulawi states that defending one’s home is a duty. Maulawi states that if military activities transcend defending the land and rights and become an act of trespassing on others’ land and violating their rights, it is impermissible for a Muslim to be involved in

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this transgression, whether it violates the rights of Muslims or nonMuslims. Islamic rule is not dependent on the issue of being involved in military action but rather the reason of this military action. If it involves enjoining justice or forbidding evil then it is a Muslim duty. If it involves aggression or oppression then it is forbidden. One of the Islamic terms that has profound repercussions on the issue of coexistence and subsequently integration is Taqseem Al-Dar (classification of the world). Taqseem Al-Dar is an authentic Islamic term and is not a Bid’ah (innovation). It is a term that emerged in the time of the Prophet Muhammad, peace be upon him. The entire world is classified into Dar Al-Islam (the land of Islam), Dar Al-Kufr (the land of disbelief), Dar Al-Harb (the land of war), Dar Al‘Ahd (the land of treaty) and Addar Al-Murakkabah (the compound land). There is no unanimous definition for these terms. Nevertheless, to classify a land as Dar Al-Islam (the land of Islam) Shari’ahh should prevail there. Moreover, the majority of Muslim jurists take the governor’s religion into consideration to classify a land as Dar Al-Islam (the land of Islam). The terms Dar Al-Harb and Dar Al-Kufr are usually interchangeable in the expressions given by most Muslim scholars. This could be explained by the fact that during the time of these scholars Dar Al-Kufr was called Dar Al-Harb since it was actually involved in or expected to be involved in wars against Muslims. Some Maliki scholars limit applying Dar AlHarb to the battlefield. When Muslims enjoy security it is either Dar AlIslam or Dar Al-Kufr. Dar Al-Harb and Dar Al-Kufr become Dar Al-Islam (the land of Islam) when the conditions are fulfilled. But Dar Al-Islam (the land of Islam) does not turn into Dar Al-Harb and Dar Al-Kufr according to a number of Muslim jurists. Muslim scholars express six opinions on the matter, the most preponderant of which states that Dar Al-Islam remains as Dar Al-Islam provided manifestations of aspects of Islamic, such as public practice of Islamic rituals and Friday prayer, are practised publicly and freely. If the inhabitants there commit apostasy then it turns into Dar-ulKufr or Dar Al-Harb. Muslim scholars apply the term Dar-Murakkabah (the compound land) í which refers to the land where Muslims apply Shari’ahh regarding

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Muslim affairs í in a similar way to the way others organise their affairs according to their laws. Dar-ul-‘Ahd (the land of treaty) refers to a land where the people enter into a security treaty with Muslims. Considering the whole issue of the classification of the world, then, one can come to the conclusion that it aims at securing the rights of Muslims and enabling them to practise their religion freely. These are primary human rights í freedom of religious belief and freedom of religious practices. Is the classification of the world applicable today? The term country, defined as a group of people living permanently in a given place ruled by an authority, is not used in the Qur’an or Sunnah. Other terms are applied such as city, village, etc. Due to the fact that Muslim lands have been occupied for many decades and have been divided up, making them weaker, they now exist in an entirely different context to that in which they existed during their time of power. How can the current situation be ruled by classifications of the world that were formed in a different historical context? Are there countries that can be classified as Dar AlIslam? Muslim scholars have different answers to these questions. Technically there are no Muslim countries simply because so-called Islamic countries are either not entirely ruled by Shari’ahh or Muslims living there do not enjoy safety, or both. Nevertheless, they are still called Dar Al-Islam since the majority living there are Muslims. There are Muslim voices calling for efforts to be made to restore Dar Al-Islam to its original state. Wherever Muslims conquer a land it should be Dar Al-Islam and, if it is currently not, then it should be restored. Those who hold this opinion perceive nonMuslim regimes as equal to the non-Islamic occupation of Muslim land. A counter-opinion states that even though they might have different governments and various regimes, all current Muslim countries constitute Dar Al-Islam. According to this opinion, the fact that these countries do not apply Shari’ahh does not disqualify them from being Dar Al-Islam. Sheikh Abdel-Qader Udah explains that after forming the Arab League, which endeavours to unite policies and trends in all Arab countries, there is no contradiction between Islam and the systems applicable in the Muslim countries. Islamically there is no harm in forming an Islamic league in which all Muslim countries will be represented. This Islamic

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league should unite all Muslim countries and settle all disputes arising among them. A system that serves Islamic objectives does not contradict Islam. Current Muslim countries represent the historical Dar Al-Islam from a geographical point of view. In spite of being ruled by so many political regimes over various eras, current Muslim countries still have four specifications of Dar Al-Islam, namely they belong to Islam according to their constitutions; the state’s religion is Islam; their rulers are Muslims; and the people living there are Muslims. This opinion is supported by the fact that the definition of Dar AlIslam is not a divine or a prophetic one. Instead, it is subject to interpretation and opinions and counter-opinions are raised when it is being applied. Muslim scholars express various definitions of Dar AlIslam by means of describing their respective realities. They also express different opinions when it comes to disqualifying a land from being Dar Al-Islam. As it is permissible for Muslims to live in a non-Muslim land and acquire and hold non-Muslim citizenship, and as Muslims should fulfil their civic duties based on justice according to Islam, there is a need for a particular type of Fiqh to organise the affairs of Muslim minorities. Fiqh Al-Aqalliyat ΕΎϴϠϗϷ΍ ϪϘϓ developed as Muslim minorities live in a context entirely different to the context in which Muslim majorities live. This type of Fiqh is not an innovation, rather it is based on deeply-rooted Islamic foundations. In order to achieve its objectives, Fiqh Al-Aqalliyat should have a number of characteristics so that it might match the respective circumstances of various Muslim minorities, while being in full conformity with Islamic foundations. It aims to work in the interest of Muslims while holding fast to the fixed rules of Islamic law. In order to achieve this, it takes into account the respective distinctiveness of the various localities of different Muslim minorities. In addition, it also takes into consideration the alteration of time, place, needs and circumstances; the capabilities of Muslims; the spread of non-Islamic practices among Muslims; The social, political and economic affairs of Muslims; as well as customs and norms. Da’wah, which means to invite people to Islam, represents the fifteenth characteristic of Fiqh Al-Aqalliyat. Da’wah is related to the story of belief and disbelief, which is as ancient as the creation of Adam. Da’wah is an Islamic obligation. The priorities of Da’wah vary. Hence, Da’wah’s

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priorities when Muslims are the minority are different to Da’wah’s priorities when Muslims are the majority. This is mainly due to the fact that Muslim minorities have more concerns about the Muslim identity of their children. Figh-ul-Aqaliyat emerged since the various contexts in which Muslims live are different. It does not represent a new Islam, but rather represents a thorough understanding of Islam and the circumstances confronting Muslim minorities. Hence, it is a combination of religious and worldly understanding. This can only be conducted through applying one’s mental faculties to form Islamic law in light of certain circumstances. This is not an innovation but rather an application of the Islamic rule of Ijtihad, which is the foundation of Figh-ul-Aqaliyat. This Ijtihad can be used to choose an opinion, apply a different way to reach an opinion or even to form a new opinion. Ijtihad is equivalent to renovation. ‘Ijtihad, which renews Islamic law and reforms the circumstances of Muslims, aims at serving people’s interests in light of the spirit of Shari’ahh, which is, according to Ibn Al-Qaiyym, founded on people’s interests in this life and the life to come. Such Ijtihad should be practised by a Mujtahid, i.e. a Muslim scholar, who has a thorough understanding of Islam and Arabic. In addition, he/she should be well acquainted with the circumstances of the people to whom he/she is issuing Fatwa and also he/she should be well aware of the context of such people. Ijtihad can only be practised to answer a question for which no directly related proof is available. One of the main Islamic concepts is that acts of worship are founded on ritual foundations and that rules organising relations between people are based on reasoning. In other words, acts of worship in Islam should be performed in the way they are stated. Human beings cannot interfere with them. As for the rules organising relations between people, human beings may consider and reconsider them and subject them to reasoning. Figh-ulAqaliyat is also founded on modernity, which, according to this book, is the essence of the Islamic message. People are called to coexist since every society is made up of groups whose members are united on the basis of religious, racial, cultural or linguistic commonalities. Due to the paramount importance of this issue, Islam bases the acceptance of others on a number of common intellectual and ideological foundations, highlighting several natural and religious differences in order to form a sound perception of others. According to Islam, human beings come from one and the same origin í dust. All human beings carry souls breathed by Allah into their bodies. Consequently, all human beings share that honour and dignity bestowed

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upon them by Allah. One of the foremost Islamic social principles is honouring human beings, respecting their rights and prohibiting all types of transgressions against them. All human beings have the same parents í Adam and Eve í so they are brothers and sisters. Nevertheless, there are fundamental differences between them. Every individual has his/her distinctive characteristics such as fingerprints; people speak various languages; they have various intellectual levels and different feelings. These differences form the basis of the concept of Us and Them. Nonetheless, they are not obstacles in the way of coexistence. Islam establishes the theory of coexistence on the basis of justice and equality among all people regardless of their faith and race. In addition, Islam encourages a set of morals that promotes positive coexistence. For instance, Islam promises great reward for showing a cheerful face, speaking well, being tolerant, showing mercy and accepting and forgiving others. As for Muslim minorities, Islam establishes relations between Muslim and non-Muslim countries on the basis of rights and responsibilities. Muslims living in a non-Muslim country avail of the services provided there and also avail of the progress they attained there. Consequently, they have responsibilities towards the non-Muslim countries in which they live. For instance, when Muslims are citizens they should abide by the legislation of citizenship and if they live in non-Muslim countries on the basis of having a visa, they should abide by the immigration regulations. On the other hand, Muslim minorities are entitled to certain rights. For instance, they are entitled to equality and freedom guaranteed by the law. The interests of Muslims should be protected and they should be protected against physical and emotional abuse. The Qur’an and Sunnah provide examples of successful Muslim coexistence in non-Muslim countries. The story of the Prophet Joseph is mentioned in the Qur’an. The story of the migration of Muslims to Abyssinia is well documented in Sunnah books. In these two stories, the Prophet Joseph and the Muslim Abyssinian migrants did not compromise their faith but, instead, positively contributed to their respective nonMuslim countries. The issue of Muslim coexistence in non-Muslim countries is still in need of further research to answer a number of questions. An elaboration is needed on the issue of Muslim political participation in non-Muslim countries. Why is it so limited? How does one activate a career in politics? Who avails if it is activated? Another important area, which is still in need

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of research, is the role of Muslim organisations. I hope in further studies to cover these and other points pertaining to the issue of Muslim coexistence in non-Muslim countries.

APPENDIX 1 AFRICAN CHARTER ON HUMAN RIGHTS

Part I: Rights and Duties Chapter I: Human and Peoples’ Rights Article 1 The Member States of the Organisation of African Unity parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them. Article 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. Article 3 1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law. Article 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5 Every individual shall have the right to the respect of the dignity inherent in a human beings and to the recognition of his legal status. All

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forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruelty, inhuman or degrading punishment and treatment shall be prohibited. Article 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Article 7 1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proven guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender. Article 8 Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms. Article 9 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.

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Article 10 1. Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association. Article 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others. Article 12 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups. Article 13 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

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2. Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law. Article 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. Article 15 Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work. Article 16 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. State parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. Article 17 1. Every individual shall have the right to education. 2. Every individual may freely take part in the cultural life of his community. 3. The promotion and protection of morals and traditional values recognised by the community shall be the duty of the State. Article 18 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.

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2. The State shall have the duty to assist the family which is the custodian or morals and traditional values recognised by the community. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs. Article 19 All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another. Article 20 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonised or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community. 3. All peoples shall have the right to the assistance of the State parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. Article 21 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation, the dispossessed people shall have the right to the lawful recovery of their property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic

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co-operation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources. Article 22 1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development. Article 23 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organisation of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter. Article 24 All peoples shall have the right to a general satisfactory environment favourable to their development.

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Article 25 States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood. Article 26 States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.1

Notes 1

“African (Banjul) Charter on Human and People’s Rights”, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986, published 23 September 2011 on http://www.africa-union. org/official_documents/treaties_%20protocols/banjul%20charter.pdf.

APPENDIX 2

PREAMBLE The States parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognising that these rights derive from the inherent dignity of the human person, Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realising that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the present Covenant, Agree upon the following articles: PART I Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

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2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. PART II Article 2 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals.1

Notes 1

University of Minnesota published “International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976” on http://www1.umn.edu/humanrts/instree/b2esc.htm.

APPENDIX 3

Supreme Court of Canada Morgan et al. v. A.G. (P.E.I.) et al., [1976] 2 S.C.R. 349 Date: 26 June 1975 Richard Alan Morgan and Alan Max Jacobson Appellants; and The Attorney General for the Province of Prince Edward Island and Leo Blacquiere Respondents; and The Attorney General of Canada, The Attorney General of Alberta, The Attorney General of Saskatchewan, The Attorney General of Manitoba, The Attorney General of Ontario, The Attorney General of Quebec, The Attorney General of New Brunswick, The Attorney General of Nova Scotia, The Attorney General of Newfoundland, The Attorney General of British Columbia Intervenants. 1975: February 10, 11, 12, 13; 1975: June 26.

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Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ. ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND IN BANCO Constitutional law í Provincial legislation í Real property í Validity of provincial legislation limiting right of non-residents to hold land in Province í Whether legislation ultra vires í B.N.A. Act, 1867, ss. 91(25), 92(13) í Canadian Citizenship Act, R.S.C. 1970, c. C-19, ss. 22, 24 í The Real Property Act, R.S.P.E.I. 1951, c. 138, s. 3. A declaratory action was taken by two U.S. citizens who were resident in the United States challenging the validity of s. 3 of The Real Property Act, R.S.P.E.I. 1951, c. 138. By order of Bell J. the question of the constitutionality of the provision was referred to the Supreme Court of Prince Edward Island in banco. That Court took the view that s. 3 was legislation in relation to property and civil rights in the Province, did not invade the exclusive authority of Parliament in relation to naturalisation and aliens, did not conflict with s. [Page 350] 24(1) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19, and was not in conflict with the Real and Personal Property Convention, 1899, between Her Majesty and the United States, made applicable to Canada by a convention of October 21, 1921. The action for declaratory judgment and a writ of mandamus was therefore dismissed. Held: The appeal should be dismissed. The challenged legislation limits the rights of non-residents of the Province to take, acquire, hold or receive title to land in Prince Edward Island. The residency requirement affects both aliens and Canadian citizens alike and is related to a competent provincial object, namely, the holding of land in the province and limitations on the size of the holdings of a limited resource. It cannot be regarded as a sterilisation of the general capacity of an alien or non-resident citizen especially where there is no attempt to seal off provincial borders against entry. Section 3 is intra vires the provincial legislature as being in relation to property and civil rights in the Province in terms of s. 92(13) of the British North America Act, 1867.

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The federal power as exercised in ss. 22 and 24 of the Citizenship Act, R.S.C. 1970, c. C-19, or as it may be exercised beyond these provisions, cannot be invoked to give aliens, naturalised persons or natural-born citizens any immunity from provincial regulatory legislation, otherwise within its constitutional competence, simply because it may affect one class more than another or may affect all of them alike by what may be thought of as undue stringency. Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887; Union Colliery Co. of B.C., Ltd. v. Bryden, [1899] A.C. 580; Cunningham v. Tomey Homma, [1903] A.C. 151; Walter et al. v. A.-G. Alta. et al. [1969] S.C.R. 383; Quong-Wing v. The King (1914), 49 S.C.R. 440; Brooks-Bidlake & Whittall Ltd. v. A.-G.B.C., [1923] A.C. 450; A.-G.B.C. et al. v. A.-G. Can. et al, [1924] A.C. 203, referred to. APPEAL from a judgment of the Supreme Court of Prince Edward Island in banco1 dismissing an action for a declaratory judgment and for a [Page 351] writ of mandamus. Appeal dismissed. Bernard Chernos, Q.C., Allan K. Scales, Q.C., and Richard N. Poole, for the appellants. Maurice H. Fyfe, Q.C., and Wendell MacKay, Q.C., for the respondents. G.W. Ainslie, Q.C., and Barbara Reed for the intervenant, the Attorney General of Canada. M. Manning, for the intervenant, the Attorney General of Ontario. Ross Goodwin, for the intervenant, the Attorney General of Quebec. J.W. Kavanagh, Q.C., for the intervenant, the Attorney General of Nova Scotia. David Norman and Richard P. Burns, for the intervenant, the Attorney General of New Brunswick.

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Brian F. Squair, and Robert Houston, for the intervenant, the Attorney General of Manitoba. D.H. Vickers and M.H. Smith, for the intervenant, the Attorney General of British Columbia. K. Lysyk, Q.C., for the intervenant, the Attorney General of Saskatchewan. William Henkel, Q.C., for the intervenant, the Attorney General of Alberta. W.G. Burke-Robertson, Q.C., for the intervenant, the Attorney General of Newfoundland. The judgment of the Court was delivered by THE CHIEF JUSTICE í This appeal arises out of a declaratory action by two citizens of the United States, who are also resident there, challenging the validity of s. 3 of the Real Property Act, R.S.P.E.I. 1951, c. 138, as enacted by 1972 (P.E.I.), c. 40, s. 1. By order of Bell J. the question of the constitutionality of this provision was referred to the Supreme Court of Prince Edward Island in banco, and that Court, in reasons for judgment delivered by Trainor C.J. on November 19, 1973, rejected the attack on the re-enacted s. 3 on all the grounds urged against it. In substance, that Court’s view was that s. 3 was legislation in [Page 352] relation to property and civil rights in the Province, it did not invade the exclusive authority of Parliament in relation to naturalisation and aliens, it did not conflict with s. 24(1) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19, and it was not in conflict with the Real and Personal Property Convention, 1899, between Her Majesty and the United States, made applicable to Canada by a convention of October 21, 1921. This last point was not pressed on the appeal to this Court which proceeded on the other grounds taken by the Court below. On the appeal here the appellants were supported by the Attorney General of Canada as an intervenant, and the respondent Attorney General of Prince Edward Island was supported by the Attorneys General of all the other provinces as intervenants.

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The challenged s. 3 reads as follows: 3. (1) Persons who are not Canadian citizens may take, acquire, hold, convey, transmit, or otherwise dispose of, real property in the Province of Prince Edward Island subject to the provisions of sub-section two (2) here next following. (2) Unless he receives permission so to do from the LieutenantGovernor-in-Council, no person who is not a resident of the Province of Prince Edward Island shall take, acquire, hold or in any other manner receive, either himself, or through a trustee, corporation, or any such the like, title to any real property in the Province of Prince Edward Island the aggregate total of which exceeds ten (10) acres, nor to any real property in the Province of Prince Edward Island the aggregate total of which has a shore frontage in excess of five (5) chains. (3) The grant of any such permission shall be at the discretion of the Lieutenant Governor-in-Council, who shall notify the applicant in writing by means of a certified copy of an Order-in-Council of his decision within a reasonable time. (4) An application for any such permission shall be in the form prescribed, from time to time, by the Lieutenant-Governor-in-Council. (5)(a) For the purposes of this section, “Canadian citizen” means persons defined as Canadian citizens by the Canadian Citizenship Act (R.S.C. 1970, Vol. 1, Cap. C-19).

[Page 353] (b) For the purposes of this section “resident of the Province of Prince Edward Island” means a bona fide resident, animus et factum of the Province of Prince Edward Island. (c) For the purpose of this section “corporation” means any company, corporation or other body corporate and politic, and any association, syndicate or other body, and any such the like, and the heirs, executors, administrators and curators, or other legal representatives of such person, as such is defined and included by The Domiciled Companies Act (Laws of Prince Edward Island 1962).

It replaced pre-confederation legislation of 1859 (P.E.I.), c. 4 under which the common law disability of aliens to hold land was abolished but aliens, or persons holding for them, were limited to a maximum of two

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hundred acres. In 1939, this limitation to two hundred acres was qualified by the words “except with the consent of the Lieutenant Governor in Council”: see 1939 (P.E.I.), c. 44; and by 1964 (P.E.I.), c. 27, s. 1 the limitation to two hundred acres was reduced to ten acres. So the law stood in Prince Edward Island until the enactment in 1972 of the provision now under challenge. Of the earlier legislation to which I have referred, the Supreme Court of Prince Edward Island in banco said this: There can be no doubt that the statute of 1859 and the amendment of 1939 were, in pith and substance, legislation respecting aliens. The former, being a pre-Confederation enactment was unquestionably valid legislation, while the latter as post-Confederation legislation was probably invalid as being beyond the powers of the Province under the British North America Act, 1867. However, its validity was never questioned in the Courts and it remained until 1972. As the national park was developed and numerous provincial parks were set up, the island’s beauty as a tourist resort gained such status that many non-residents were rapidly acquiring large portions of island lands, and so great was the alarm as to the possibility of the island once more falling under the control of absentee owners that in 1972 the Legislature repealed the 1939 legislation and enacted the impugned provisions above set forth.

[Page 354] I take the Court below to have based the distinction between the former legislation and that now under review on the ground that the province had made residence rather than alienage per se the touchstone of the limitation on the holding of land in the province, and it followed in the view of that Court that federal power was not invaded by giving such a preference in the holding of land, as s. 3 provided in favour of residents. Two questions arising out of the construction of s. 3 may be put out of the way before turning to the constitutional issues. Having regard to the definition of “resident of Prince Edward Island” in s. 3(5)(b) as meaning “a bona fide resident, animus et factum”, it was contended that corporations are excluded from the coverage of the legislation, and this was conceded in the argument of counsel for the Attorney General of Prince Edward Island. There was no mortmain legislation in force in the province at the time of action brought, but, in any event, whether the structures of s. 3 can be evaded by purchases of land in the name of a

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corporation, even a non-resident one, is not a question that need be answered here. Nor need an answer be given as to who fall within and who fall outside the definition of “resident of Prince Edward Island”. Certainly, no doubt exists that the appellants herein are non-residents, and whether or not such persons as federal civil servants, members of the military forces and so on are residents can be left for determination when a question as to their residential qualification arises. I view s. 3 as applying to Canadian citizens who reside outside of Prince Edward Island, whether elsewhere in Canada or outside of Canada and to aliens who reside outside of Prince Edward Island, whether elsewhere in Canada or, as here, outside of Canada. This being so, the attack on this provision was based initially on an allegedly unconstitutional discrimination between resident and non-resident Canadian citizens, at least those residing elsewhere in Canada. Citizenship, it was urged, involved being at home in every province, it was a [Page 355] status that was under exclusive federal definition and protection, and it followed that a residential qualification for holding land in any province offended against the equality of status and capacity that arose from citizenship and, indeed, inhered in it. This submission was fortified by reliance on s. 24 of the Canadian Citizenship Act which is in the following terms: 24. (1) Real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born Canadian citizen; and a title to real and personal property of every description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a natural-born Canadian citizen.

(2) This section does not operate so as to (a) qualify an alien for any office or for any municipal, parliamentary or other franchise; (b) qualify an alien to be the owner of a Canadian ship;

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(c) entitle an alien to any right or privilege as a Canadian citizen except such rights and privileges in respect of property as are hereby expressly given to him; or (d) affect an estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition made before the 4th day of July 1883, or in pursuance of any devolution by law on the death of any person dying before that day. R.S., c. 33, s. 24.

Section 3 which is under challenge here does not distinguish between natural-born and naturalised Canadian citizens in making provincial residence the relevant factor for holding land. If it did, a different question would be presented, and account would have to be taken of the effect of s. 22 of the Canadian Citizenship Act which prescribes equality of status and equality of rights and obligations for all citizens, whether natural-born or naturalised. Although citizenship as such is not mentioned in the British North America Act, it was not doubted by anyone on this appeal that, whether by implication from s. 91 (25) thereof or under the opening [Page 356] words thereof, it was for Parliament alone to define citizenship and to define how it may be acquired and lost. How far beyond this Parliament may go in investing citizenship with attributes that carry against provincial legislation has not been much canvassed in this Court; nor, on the other hand, is there any large body of case law dwelling on the limitation on provincial legislative power arising from a grant of citizenship or the recognition thereof in a natural-born citizen or arising from federal power in relation to naturalisation and aliens under s. 91(25) of the British North America Act. The well-known dictum by Rand J. in Winner v. S.M.T. (Eastern) Ltd.,2 at p. 920 that “a province cannot prevent a Canadian from entering it except, conceivably, in temporary circumstances, for some local reason, as for example health”, was preceded by some observations upon which stress was laid by the appellants and by the Attorney General of Canada. These observations engaged the decisions of the Privy Council in Union Colliery Co. v. Bryden,3 and Cunningham v. Tomey Homma,4 and they are as follows (at pp. 918í920):

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Citizenship is membership in a state; and in the citizen inhere those rights and duties, the correlatives of allegiance and protection, which are basic to that status … But incidents of status must be distinguished from elements or attributes necessarily involved in status itself. British subjects have never enjoyed an equality in all civil or political privileges or immunities as is illustrated in Cunningham v. Tomey Homma, in which the Judicial Committee maintained the right of British Columbia to exclude a naturalised person from the electoral franchise. On the other hand, in Bryden’s case, a statute of the same province that forbade the employment of Chinamen, aliens or naturalised, in underground mining operations, was found to be incompetent. As explained in Homma’s case, that decision is to be taken as determining,

[Page 357] “that the regulations there impeached were not really aimed at the regulation of metal mines at all, but were in truth devised to deprive the Chinese, naturalised or not, of the ordinary rights of the inhabitants of British Columbia and, in effect, to prohibit their continued residence in that province, since it prohibited their earning their living in that province.” What this implies is that a province cannot, by depriving a Canadian of the means of working, force him to leave it: it cannot divest him of his right or capacity to remain and to engage in work there: that capacity inhering as a constituent element of his citizenship status is beyond nullification by provincial action. The contrary view would involve the anomaly that although British Columbia could not by mere prohibition deprive a naturalised foreigner of his means of livelihood, it could do so to a nativeborn Canadian. He may, of course, disable himself from exercising his capacity or he may be regulated in it by valid provincial law in other aspects. But that attribute of citizenship lies outside of those civil rights committed to the province, and is analogous to the capacity of a Dominion corporation which the province cannot sterilise.

These passages from the reasons of Rand J. in the Winner case raise, by and large, the issues upon which the parties and the intervenants have made their various submissions, both in respect of the scope of the federal citizenship power and the federal power in relation to aliens. Rand J. recognised that even a native-born citizen (to use his words) “may … disable himself from exercising his capacity or he may be regulated in it by valid provincial law in other aspects.”

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The power of a provincial legislature to regulate the way in which land in the province may be held, how it may be transferred, how it may be used (and this, whether the land be privately-owned or be land held by the Crown in right of the province) is not contested. Nor, as I understand the submissions that were made, is it doubted that the provincial legislature may limit the amount of land that may be held by any person, assuming equal opportunity to anyone to purchase. The contention is, however, that as soon as the province moves to differentiate in this respect between classes of persons the legislation becomes suspect, and if it [Page 358] turns out that some citizens, and indeed some aliens, are disadvantaged as against others, that is as against those who are resident in the province, the legislation must be regarded as in pith and substance in relation to citizenship and in relation to aliens and hence ultra vires. I do not agree with this characterisation, and I do not think it is supportable either in principle or under any case law. No one is prevented by Prince Edward Island legislation from entering the province and from taking up residence there. Absentee ownership of land in a province is a matter of legitimate provincial concern and, in the case of Prince Edward Island, history adds force to this aspect of its authority over its territory. In Walter v. Attorney General of Alberta,5 this Court concluded that it was open to the Province of Alberta to control the extent to which groups of persons could hold land on a communal basis, and the legislation that was unsuccessfully challenged in that case flatly prohibited the acquisition of land in the province by “colonies” outside the province, without the consent of the Lieutenant-Governor-in-Council. It is true that no differentiation was expressly made on the basis of residence or citizenship or alienage, and that all who fell within the regulated groups were treated alike. Yet, it is also clear that the definition of the regulated bodies of persons was for the province and if the province could determine who could hold or the extent to which land could be held according to whether a communal property regime was observed, it is difficult to see why the province could not equally determine the extent of permitted holdings on the basis of residence. In neither case is this Court concerned with the wisdom or utility of the provincial land policy but only with whether the province has transgressed the limits of its legislative authority. I recognise, of course, that there may be cases where the line between wisdom and validity may be difficult to draw, but I find no such difficulty here.

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In the Walter case, Martland J. speaking for the Court put the matter squarely in the following words: [Page 359] It would seem to me to be clear that a provincial legislature can enact laws governing the ownership of land within the province and that legislation enacted in relation to that subject must fall within s. 92(13), and must be valid unless it can be said to be in relation to a class of subject specifically enumerated in s. 91 of the British North America Act or otherwise within exclusive Federal jurisdiction.

There is no suggestion in the present case that the Act relates to any class of subject specifically enumerated in s. 91. In the present case, as I have already observed, there is very much the suggestion that there has been an invasion of federal legislative power. The Naturalisation and Aliens Act, 1881 (Can.), c. 13, s. 4 was the first federal provision removing the common law disability of aliens to hold land. It was preceded however by certain pre-confederation legislation such as that of 1859 in Prince Edward Island, already mentioned, and by earlier legislation such as that of the Province of Canada, being 1849 (Can.), c. 197, s. 12. It appears to me that it was open to a province after Confederation to remove the disability of an alien to hold land in the province without the need of prior or supporting federal legislation unless, of course, the Parliament of Canada, having legislative jurisdiction in relation to aliens, had expressly retained or imposed the disability. Legislation of a province dealing with the capacity of a person, whether alien or infant or other, to hold land in the province is legislation in an aspect open to the province because it is directly concerned with a matter in relation to which the province has competence. Simply because it is for Parliament to legislate in relation to aliens does not mean that it alone can give an alien capacity to buy or hold land in a province or take it by devise or by descent. No doubt, Parliament alone may withhold or deny capacity of an alien to hold land or deny capacity to an alien in any other respect, but if it does not, I see no ground upon which provincial legislation recognising capacity in respect of the holding of land can be held invalid. [Page 360]

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It is urged, here, however, that the qualified recognition given to the capacity of a non-resident alien by s. 3(2) of the challenged legislation is in the teeth of the general and unqualified recognition of the capacity of an alien to hold land given by s. 24(1) of the Canadian Citizenship Act. I think the reference to “capacity” is not particularly apt in assessing the validity of the limitations in s. 3(2), whether it be non-resident aliens who are involved or non-resident Canadian citizens, but I would not decide the issue on purely semantic considerations. Whatever be the proper characterisation of the limitations in s. 3(2) the question is whether s. 24(1) of the Canadian Citizenship Act, as an affirmative exercise of the power of Parliament in relation to aliens, obliges a province to treat non-resident aliens (and citizens can surely be on no worse footing) on a basis of equality with resident aliens. In approaching this question I make nothing of the fact that s. 3(2) speaks in terms of residency and non-residency as if these words carried some connotation that set aliens and citizens apart so that the legislation did not touch them. I am prepared to treat it by extrapolation as referring expressly to resident aliens and citizens and to non-resident aliens and citizens; there are certainly no other classes so distinguishable. On this view of s. 3(2), I turn to a consideration of Union Colliery Co. v. Bryden and of Cunningham v. Tomey Homma to which Rand J. referred in the passages of his reasons in the Winner case that I have quoted. The Union Colliery Co. case involved a preliminary question of the construction of the challenged s. 4 of the British Columbia Coal Mines Regulation Act, 1890 in its reference to “Chinaman” in that provision, which was as follows: No boy under the age of twelve years, and no woman or girl of any age, and no Chinaman, shall be employed in or allowed to be for the purpose of employment in any mine to which the Act applies, below ground.

[Page 361] The Privy Council construed the term “Chinaman”, as embracing Chinese who were aliens or naturalised persons, and it went on from there to assess the scope of the exclusive federal power in relation to “naturalisation and aliens” under s. 91(25) of the British North America Act. It said of this power that (1) “The subject of ‘naturalisation’ seems prima facie to include the power of enacting what shall be the

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consequences of naturalisation; or, in other words, what shall be the rights and privileges pertaining to residents of Canada after they have been naturalised” (at p. 586); and (2) it invested the Parliament of Canada “with exclusive authority in all matters which directly concern the rights, privileges and disabilities of the class of Chinamen who are resident in the provinces of Canada” (at p. 587). In the result, the challenged legislation which, in the words of the Privy Council, consisted in pith and substance “in establishing a statutory prohibition which affects aliens or naturalised subjects” was ultra vires as invading exclusive federal authority. I am bound to say that this result, assessed only according to the words used in reaching it, appears to be very far-reaching, especially when the Privy Council also said in the Union Colliery Co. case that so far as natural-born Canadians were concerned, “it can hardly have been intended to give the Dominion Parliament the exclusive right to legislate for [this] class of persons resident in Canada” (at p. 586). It is plain to me that the Privy Council receded from the literal effect of its language in the Union Colliery Co. case when it decided Cunningham v. Tomey Homma. It was said flatly in this last-mentioned case that “the truth is that the language of [s. 91(25)] does not purport to deal with the consequences of either alienage or naturalisation” (at p. 156), and hence it was open to a province to deny the provincial franchise to Japanese persons, whether naturalised or not, and this notwithstanding that so far as naturalised Japanese persons were concerned federal legislation put them on a basis of equality with natural-born persons. But even natural-born persons of Japanese descent were excluded from the franchise, and this too was held to be within provincial competence. The Privy Council stated [Page 362] that while it was for the Parliament of Canada to determine what constitutes alienage or naturalisation, “the question as to what consequences shall follow from either is not touched. The right of protection and the obligations of allegiance are necessarily involved in the nationality conferred by naturalisation but the privileges attached to it, where these depend upon residence, are quite independent of nationality” (at p. 157). The Privy Council regarded the electoral legislation in Cunningham v. Tomey Homma as validly enacted under s. 92(1) of the British North America Act, which authorises legislation in relation to “the amendment

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from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the office of LieutenantGovernor”. I am not concerned in the present case with the question whether the franchise, the right to vote, has such a special relationship to naturalisation and to natural-born status as to preclude provincial discrimination against certain racial groups. The Privy Council obviously thought not. Its reasons suggested a distinction between a privilege, e.g., the franchise, which the province could grant or withhold from aliens or naturalised or even natural-born citizens, and what appeared to it to be the draconian prohibition involved in the Union Colliery Co. case. Of that case it said this (at p. 157): This Board, dealing with the particular facts of that case, came to the conclusion that the regulations there impeached were not really aimed at the regulation of coal mines at all, but were in truth devised to deprive the Chinese, naturalised or not, of the ordinary rights of the inhabitants of British Columbia and, in effect, to prohibit their continued residence in that Province, since it prohibited their earning their living in that Province. It is obvious that such a decision can have no relation to the question whether any naturalised person has an inherent right to the suffrage within the Province in which he resides.

The view so taken of the Union Colliery Co. case is difficult indeed to discern from the reasons for judgment therein but, taking the interpretation put upon it in Cunningham v. Tomey Homma, it is a far different case from the present one, which [Page 363] does not involve any attempt, direct or indirect, either to exclude aliens from Prince Edward Island or to drive out any aliens now residing there. I would not myself have thought that the mere prohibition against employment of Chinese persons in underground mining could be taken to be a general prohibition against their earning a living in British Columbia and, however distasteful such legislation was, that it was beyond provincial competence. At any rate, what we have in the present case is not any attempt to regulate or control alien residents of Prince Edward Island in what they may do or not do therein, but rather a limitation on landholding by non-residents. I am not, in any event, prepared to read the Union Colliery Co. case in the broad terms supported by the appellants and by the Attorney General of Canada. It is proper to note, on this aspect of the matter, that in Quong-Wing v. The King6 at p. 466 Duff J. declared

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that “in applying Bryden’s case we are not entitled to pass over the authoritative interpretation of that decision which was pronounced some years later by the Judicial Committee itself in Cunningham v. Tomey Homma …”. Duff J. went on to say that the construction of s. 91(25) in the Union Colliery Co. case “was distinctly and categorically rejected in the later case” (at p. 468). It was contended by the Attorney General of Canada that the authority of the Union Colliery Co. case was restored by the Privy Council in Brooks-Bidlake & Whittall Ltd. v. Attorney General of British Columbia,7 where, at p. 457, Lord Cave said that “sect. 91(25) reserves to the Dominion Parliament the general right to legislate as to the rights and disabilities of aliens and naturalised persons.” He went on, however, in the context of the issues before the Privy Council in that case, to add that s. 91(25) did not empower the Dominion to regulate the management of the public property of the Province or to determine whether a grantee or licensee of that property shall or shall not be permitted to employ persons of a particular race. Moreover, Lord Cave took much [Page 364] the same view of the Union Colliery Co. case as did the Privy Council in Cunningham v. Tomey Homma, saying at p. 457 that the legislation in the Union Colliery Co. case was held ultra vires “on the ground that the enactment was not really applicable to coal mines only í still less to coal mines belonging to the Province í but was in truth devised to prevent Chinamen from earning their living in the Province”. I do not regard the reference by Lord Cave to “general right” as going beyond what Lord Haldane in the later case of Attorney General of British Columbia et al. v. Attorney General of Canada et al.,8 at p. 208 referred to as “the general status of aliens”. This last-mentioned case, a follow-up of the Brooks-Bidlake case, turned ultimately on a s. 132 treaty and implementing legislation, and hence in itself is of no assistance on the points at issue here. I do not think that federal power as exercised in ss. 22 and 24 of the Citizenship Act, or as it may be exercised beyond those provisions, may be invoked to give aliens, naturalised persons or natural-born citizens any immunity from provincial regulatory legislation, otherwise within its constitutional competence, simply because it may affect one class more

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than another or may affect all of them alike by what may be thought to be undue stringency. The question that would have to be answered is whether the provincial legislation, though apparently or avowedly related to an object within provincial competence, is not in truth directed to, say, aliens or naturalised persons so as to make it legislation striking at their general capacity or legislation so discriminatory against them as in effect to amount to the same thing. The issue here is not unlike that which has governed the determination of the validity of provincial legislation embracing federally-incorporated companies. The case law, dependent so largely on the judicial appraisal of the thrust of the particular legislation, has established, in my view, that [Page 365] federally-incorporated companies are not constitutionally entitled, by virtue of their federal incorporation, to any advantage, as against provincial regulatory legislation, over provincial corporations or over extra-provincial or foreign corporations, so long as their capacity to establish themselves as viable corporate entities (beyond the mere fact of their incorporation), as by raising capital through issue of shares and debentures, is not precluded by the provincial legislation. Beyond this, they are subject to competent provincial regulations in respect of businesses or activities which fall within provincial legislative power. In the present case, the residency requirement affecting both aliens and citizens alike and related to a competent provincial object, namely, the holding of land in the province and limitations on the size of the holdings (relating as it does to a limited resource), can in no way be regarded as a sterilisation of the general capacity of an alien or citizen who is a non-resident, especially when there is no attempt to seal off provincial borders against entry. Since, in my view, s. 3(2) is valid provincial legislation in its application to aliens or citizens who reside elsewhere in Canada than in Prince Edward Island, and hence is a fortiori valid in respect of persons resident outside of Canada I need not consider whether the appellants would be subject to the limitations of s. 3(2) even if persons resident elsewhere in Canada would constitutionally be free of them. I would dismiss the appeal with costs, and would make no order as to costs by or against the intervenants.

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Appeal dismissed with costs. Solicitors for the appellants: Feigman & Chernos, Toronto. Solicitor for the respondents: Bertrand Plamondon, Charlottetown.

Notes 1

(1973), 5 Nfld. & P.E.I.R. 129. [1951] S.C.R. 887. 3 [1899] A.C. 580. 4 [1903] A.C. 151. 5 [1969] S.C.R. 383. 6 (1914), 49 S.C.R. 440. 7 [1923] A.C. 450. 8 [1924] A.C. 203. 2

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APPENDIX 4

The Constitution of Medina (ΔϨϳΪϤϟ΍ ΔϔϴΤλ :( 1.

This is a document from Muhammad the Prophet (May Allah bless him and grant him peace), governing relations between the Believers i.e. Muslims of Quraysh and Yathrib and those who followed them and worked hard with them. They form one nation í Ummah.

2.

The Quraysh Mohajireen will continue to pay blood money, according to their present custom.

3.

In case of war with anybody they will redeem their prisoners with kindness and justice common among Believers. (Not according to pre-Islamic nations where the rich and the poor were treated differently).

4.

The Bani Awf will decide the blood money, within themselves, according to their existing custom.

5.

In case of war with anybody all parties other than Muslims will redeem their prisoners with kindness and justice according to practice among Believers and not in accordance with pre-Islamic notions.

6.

The Bani Saeeda, the Bani Harith, the Bani Jusham and the Bani Najjar will be governed on the lines of the above (principles).

7.

The Bani Amr, Bani Awf, Bani Al-Nabeet and Bani Al-Aws will be governed in the same manner.

8.

Believers will not fail to redeem their prisoners they will pay blood money on their behalf. It will be a common responsibility of the Ummat and not of the family of the prisoners to pay blood money.

9.

A Believer will not make the freedman of another Believer as his ally against the wishes of the other Believers.

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10. The Believers, who fear Allah, will oppose the rebellious elements and those that encourage injustice or sin, or enmity or corruption among Believers. 11. If anyone is guilty of any such act all the Believers will oppose him even if he be the son of any one of them. 12. A Believer will not kill another Believer, for the sake of an unBeliever. (i.e. even though the un-Believer is his close relative). 13. No Believer will help an un-Believer against a Believer. 14. Protection (when given) in the Name of Allah will be common. The weakest among Believers may give protection (In the Name of Allah) and it will be binding on all Believers. 15. Believers are all friends to each other to the exclusion of all others. 16. Those Jews who follow the Believers will be helped and will be treated with equality. (Social, legal and economic equality is promised to all loyal citizens of the State.) 17. No Jew will be wronged for being a Jew. 18. The enemies of the Jews who follow us will not be helped. 19. The peace of the Believers (of the State of Madinah) cannot be divided. (It is either peace or war for all. It cannot be that a part of the population is at war with the outsiders and a part is at peace.) 20. No separate peace will be made by anyone in Madinah when Believers are fighting in the Path of Allah. 21. Conditions of peace and war and the accompanying ease or hardships must be fair and equitable to all citizens alike. 22. When going out on expeditions a rider must take his fellow member of the Army-share his ride. 23. The Believers must avenge the blood of one another when fighting in the Path of Allah (This clause was to remind those in

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front of whom there may be less severe fighting that the cause was common to all. This also meant that although each battle appeared a separate entity it was in fact a part of the War, which affected all Muslims equally.) 24. The Believers (because they fear Allah) are better in showing steadfastness and as a result receive guidance from Allah in this respect. Others must also aspire to come up to the same standard of steadfastness. 25. No un-Believer will be permitted to take the property of the Quraysh (the enemy) under his protection. Enemy property must be surrendered to the State. 26. No un-Believer will intervene in favour of a Quraysh (because the Quraysh having declared war are the enemy). 27. If any un-believer kills a Believer, without good cause, he shall be killed in return, unless the next of kin are satisfied (as it creates law and order problems and weakens the defence of the State). All Believers shall be against such a wrong-doer. No Believer will be allowed to shelter such a man. 28. When you differ on anything (regarding this Document) the matter shall be referred to Allah and Muhammad (May Allah bless him and grant him peace). 29. The Jews will contribute towards the war when fighting alongside the Believers. 30. The Jews of Bani Awf will be treated as one community with the Believers. The Jews have their religion. This will also apply to their freedmen. The exception will be those who act unjustly and sinfully. By so doing they wrong themselves and their families. 31. The same applies to Jews of Bani Al-Najjar, Bani Al Harith, Bani Saeeda, Bani Jusham, Bani Al Aws, Thaalba, and the Jaffna (a clan of the Bani Thaalba) and the Bani Al Shutayba. 32. Loyalty gives protection against treachery. (Loyal people are protected by their friends against treachery. As long as a person remains loyal to the State he is not likely to succumb to the ideas of being treacherous. He protects himself against weakness.)

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33. The freedmen of Thaalba will be afforded the same status as Thaalba themselves. This status is for fair dealings and full justice as a right and equal responsibility for military service. 34. Those in alliance with the Jews will be given the same treatment as the Jews. 35. No one (no tribe which is party to the Pact) shall go to war except with the permission of Muhammad (May Allah bless him and grant him peace). If any wrong has been done to any person or party it may be avenged. 36. Anyone who kills another without warning (there being no just cause for it) amounts to his slaying himself and his household, unless the killing was done due to a wrong being done to him. 37. The Jews must bear their own expenses (in War) and the Muslims bear their expenses. 38. If anyone attacks anyone who is a party to this Pact the other must come to his help. 39. They (parties to this Pact) must seek mutual advice and consultation. 40. Loyalty gives protection against treachery. Those who avoid mutual consultation do so because of lack of sincerity and loyalty. 41. A man will not be made liable for misdeeds of his ally. 42. Anyone (any individual or party) who is wronged must be helped. 43. The Jews must pay (for war) with the Muslims. (This clause appears to be for occasions when Jews are not taking part in the war. Clause 37 deals with occasions when they are taking part in war.) 44. Yathrib will be Sanctuary for the people of this Pact. 45. A stranger (individual) who has been given protection (by anyone party to this Pact) will be treated as his host (who has given him protection) while (he is) doing no harm and is not committing any

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crime. Those given protection but indulging in anti-state activities will be liable to punishment. 46. A woman will be given protection only with the consent of her family (Guardian). (A good precaution to avoid inter-tribal conflicts.) 47. In case of any dispute or controversy, which may result in trouble the matter must be referred to Allah and Muhammad (may Allah bless him and grant him peace), The Prophet (may Allah bless him and grant him peace) of Allah will accept anything in this document, which is for (bringing about) piety and goodness. 48. Quraysh and their allies will not be given protection. 49. The parties to this Pact are bound to help each other in the event of an attack on Yathrib. 50. If they (the parties to the Pact other than the Muslims) are called upon to make and maintain peace (within the State) they must do so. If a similar demand (of making and maintaining peace) is made on the Muslims, it must be carried out, except when the Muslims are already engaged in a war in the Path of Allah. (So that no secret ally of the enemy can aid the enemy by calling upon Muslims to end hostilities under this clause.) 51. Everyone (individual) will have his share (of treatment) in accordance with what party he belongs to. Individuals must benefit or suffer for the good or bad deed of the group they belong to. Without such a rule party affiliations and discipline cannot be maintained. 52. The Jews of al-Aws, including their freedmen, have the same standing, as other parties to the Pact, as long as they are loyal to the Pact. Loyalty is a protection against treachery. 53. Anyone who acts loyally or otherwise does it for his own good (or loss). 54. Allah approves this Document. 55. This document will not (be employed to) protect one who is unjust or commits a crime (against other parties of the Pact).

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56. Whether an individual goes out to fight (in accordance with the terms of this Pact) or remains in his home, he will be safe unless he has committed a crime or is a sinner (i.e. No one will be punished in his individual capacity for not having gone out to fight in accordance with the terms of this Pact). 57. Allah is the Protector of the good people and those who fear Allah, and Muhammad (May Allah bless him and grant him peace) is the Messenger of Allah (He guarantees protection for those who are good and fear Allah).1

Notes 1

Full text of the Medina Charter published on http://www.constitution.org/ cons/medina /macharter.htm on 8 August 2011.

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