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The Religious Law of Muslim Minorities (Fiqh al-Aqalliyyat al-Muslima): Ideology and methodology

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Theology and Migration between Tradition, Modernity and Post-Modernity (Van Leer)

Fourth meeting, 18 April 2012

Summary of presentations by Qadi Iyad Zahalka and Teresa Harings

The Religious Law of Muslim Minorities (Fiqh al-Aqalliyyat al-Muslima): Ideology and methodology

Iyad Zahalka, Chief Qadi of Jerusalem and PhD Candidate, Hebrew University

Fiqh al-Aqalliyyat al-Muslima is “the religious law of Muslim minorities,” that is, Muslims living as minorities in non-Muslim countries. Qadi Iyad argued that this new Fiqh category was developed by Muslim jurists after Muslims had already established themselves in non-Muslim, or “Western,” countries. In response to the new situations faced by these Muslims in the West, the Muslim jurists ruled that Islam should not cause difficulties for Muslims. The new fatwas (religious opinions) that they issued, and continue to issue, according to this concept are meant to allow Muslims to live as Muslims in non-Muslim countries.
The idea that Muslims immigrated in order to promote Islam (i.e., to practice da’wa) is historically inaccurate. Muslims immigrated to non-Muslim countries for economic, political, and other practical reasons. Following the beginning of a revival of Islam in the middle of the 20th century, Muslims living in the West, much like their compatriots in the Middle East and North Africa, began to revive their Muslim identity. Contradictions between the revived Muslim identity, with its emphasis on following shari’a (Islamic law), and the civil law of Western countries forced Muslim jurists to acknowledge the new reality that a large number of Muslims were now living, and would remain living, outside of Muslim majority countries.
Qadi Iyad argued that there are three general ideological streams among jurists creating this fiqh: the liberal and salafi, which fall at two ends of the spectrum, and the wasati, or middle-ground, stream.
Liberals hold that Islam is a private, personal affair; it is something within one’s mind and spirit. From the liberal point of view, when in the public sphere, the individual lives as a citizen of his or her country and follows that country’s laws.
Salafis maintain that a Muslim should be and act Muslim everywhere, at all times, and that one’s Muslim identity is one’s main, if not only, identity. Thus, one should try to live mostly within the Muslim community. A good Muslim does not need to worry about being seen as “good” in the eyes of non-Muslims and thus does not need to make accommodations in order to live among non-Muslims.
Wasatis, who strike a more middle-ground approach to Muslim life in the West, tread a more problematic path. They believe that while one should be Muslim in all ways, one should also understand the practices of Islam in reference to the society in which one lives. The Muslim should not experience conflict between his or her Muslim identity and the public sphere. This causes them to allow some accommodations, or changes, to shari’a based on particular situations.
To justify making accommodations for Muslims living in non-Muslim countries, Wasatis utilize the concept of maslaha, or public interest. In practice, this allows some flexibility in Islamic law. Wasatis categorize situations based on whether or not they are considered a “necessity” in the greater interests of the Muslim people. If the situation is serious enough, it “necessarily” requires a bending of the rules, i.e., an accommodation.
There are a few classic examples of such accommodations, such as that regarding the Qur’anic injunction against drinking alcohol. The accommodation specifies that if an individual is dying of thirst but has only wine to drink, he or she is allowed to drink the wine, even though it is forbidden. Drinking alcohol thus becomes a necessity for survival.
A more contemporary example is the accommodation of riba, the taking of financial interest, which is also prohibited in the Qur’an. Wasatis have ruled that taking a mortgage can be a “necessity” in the West. They argue that if one wants stability in one’s life, one needs a private home. Thus, Muslims in the West are allowed to take a mortgage if they have no other way to afford a private home. In contrast, Salafis consider the taking of riba to be forbidden and non-negotiable. It is not allowed in any situation.
Qadi Iyad noted that it is difficult to divide the majority of Muslims, i.e. non-jurists, into categories. Most Muslims do not make a distinction between salafi, wasati, and liberal fatwas; a Muslim might follow one fatwa from a certain scholarly standpoint and a different fatwa from another standpoint.
The main result of this new fiqh has been that it has dramatically liberalized Islamic law, enabling flexibility and the integration of Muslims into non-Muslim countries.
Regarding the debate as to who is more qualified to issue fatwas to Muslims living in the West, imams living in the West or imams living in Muslim countries:
Qadi Iyad explained that here we see another distinction between Salafi and Wasati opinion. Salafis believe Islam is the same and valid everywhere in the world at all times. Thus, fatwas can be taken from jurists in any country, as they should be valid everywhere. Wasatis say that jurists should not issue fatwas if they do not live among or have not experienced the situations of certain Muslim communities, such as Muslims in the West. They believe the actual practice of Islam is changing from time to time and place to place. Thus, an imam in Saudi Arabia should not issue a fatwa for a community with which he is not familiar, as that community operates under different conditions.

Changes in Islamic Belief and Practice in the West: A Case Study of Somali Migrants in Minneapolis and St. Paul, Minnesota

Teresa Harings, Master’s degree candidate, Tel Aviv University

Somalis began arriving in the U.S. in the early 1990s following the collapse of General Siyad Barre’s military regime in 1991. They fled instability, war, and famine. Most were processed as refugees or asylum seekers. Once accepted into the U.S., many Somalis were settled in Minnesota due to the high job availability in the state at the time and the capacity of social service groups to assist refugees. Today, there are at least 32,000 individuals of Somali origin living in the Minneapolis/St. Paul metro area, but the number could be significantly higher, as the U.S. Census tracks statistics on race and not ethnicity or national origin. The Somali diaspora community in Minnesota is the largest in the U.S. and one of the largest in the world.
Somalis are, by a vast majority, Sunni Muslims, and comprise over 60 percent of Minnesota’s Muslim community. In Minneapolis and St. Paul, there are today at least 38 mosques and 41 Islamic institutions, approximately half of which are Somali-run.
Traditional Islamic practice in Somalia seems to have focused more on mystical-spiritual relationships with God (i.e., forms of Sufism), and to have included some level of ancestor or saint veneration. Today, Islamic reform and revival in the Somali community appears to have brought the idea of textual authority to the forefront. The instability following the outbreak of civil war seems to have accelerated this trend, particularly in favor of more conservative and literal interpretations of scripture. In the diaspora, Sufism is on the wane, while orthodox Sunnism the dominant practice.
Within the Somali diaspora, debates are starting to arise regarding who is qualified to interpret religious scripture. Can any imam interpret scripture and issue fatwas? Do all imams come to the same conclusions—e.g., are they “all the same”—or are there different interpretations, and if so, to whom do we listen? Can I, as the simple, less-educated individual (who does not speak or read Arabic), possibly interpret scripture correctly on my own? And so on.
We can see the influence of religious authority figures on the community—and Somalis’ various responses to these figures—in the following cases:

  1. The relatively new phenomenon of most Somali women wearing hijab, particularly a certain type of hijab, and the trend of putting hijab on pre-adolescent girls. Somali girls traditionally did not wear hijab and only covered their hair upon marriage. Participants in the study revealed that since the mid-1990s, religious leaders and, through them, community members have been putting a great amount of pressure on young girls to wear a certain type of “big hijab.” But some Somali women are choosing to wear a different, less enveloping type of hijab as a sign of their freedom to interpret the Qur’anic injunction as they wish. Not wearing a hijab at all, however, seems not to be an option if a Somali woman wishes to be considered a good Muslim and to be accepted in her community.

  1. Islamic teleconferences, most in the Somali language, in which Somali imams from the global diaspora issue fatwas specifically for the Somali diaspora. The teleconferences work to spread certain imams’ interpretations of religious scripture on a large scale. The conferences are said to be popular among the older Somali generation as well as stay-at-home mothers.

  1. The 2006 Minneapolis cab driver fatwa, issued by the Muslim American Society of Minnesota, which declared that Muslim cab drivers (most of whom, in the Twin Cities, are Somali) may not transport passengers carrying alcohol as this involves “cooperating in sin according to Islam.” Many Muslim cab drivers refused to transport passengers due to this and similar earlier fatwas.

In response to customer complaints, the Airports Commission in charge of the drivers began debating an increase in penalties for refusal of passenger fares, leading to a showdown between the cab drivers and the Commission. Once the issue became public, another Islamic institute in Minnesota issued a counter-fatwa on the grounds of maslaha (public interest). Eventually, cab drivers either quit their jobs or found an excuse (possibly maslaha) to continue driving.

This case demonstrates, first, that there is a group of extremely conservative, Salafi-like imams in the community (the cab driver fatwa has not been issued in other U.S. cities); second, that there are also Wasati imams; and third, that it is possible, even in a country that prizes itself on religious freedom, to challenge the rulings of Islamic scholars within the context of Western businesses and social norms.

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