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Synthesizing the Ethos of Islam and Modernity
Fiqh of minorities is a concept borne out of the needs of Western Muslims who want to ensure that they can apply the rules of shari’ah (Islamic law) in a predominately non-Muslim society. The notion itself underscores the new realization by an increasing number of Muslims that they cannot adhere to the same fiqh rules adopted by their co-religionists in Muslim societies. As such the “fiqh of minorities” reflects reformist views, aspiring to transcend traditional conceptions and practices.
Yet the needs to transcend historical interpretations of Islamic law are not specifically minorities needs, but reflect a general need to transcend both traditional Islamic ethos and modern ethos. The latter are, though sharing many of Islam’s ideals and values, are in conflict with certain Islamic principles. This means that Muslim minorities in the West are forced by their peculiar experience and positioning to rethink both Islam and modernity, and to evaluate each by the means of the other. The search for a fiqh of minorities represents a great opportunity to enrich modern conditions by recalling the rich Islamic experience, and to enrich Islamic thought and practices by incorporating the modern into Islam.
If the above evaluation of the conditions underlying the quest for the fiqh of minorities is correct, then the exercise goes far beyond concerns and needs of minority groups to encompass those of modern humanity. This would immediately make the notion of the “fiqh of minorities” a misnomer. What the Muslim minorities in the West are confronting is no less than an attempt to apply Islamic values to solve problems emanating from the inadequacy of traditional Islam and modern thought to deal with emerging challenges.
Fiqh and Shari’ah
Fiqh has been defined by classical scholars as “the field of knowledge that is concern with the actions of the faithful,” and is understood to represent the outcome of human endeavor to apply the rule of Shari‘ah (Islamic law) in a given social milieu. Shari’ah is, on the other hand, denotes the precepts embodied in the Islamic revelation It is not simply a legal system, but rather a composite system of law and morality. That is, Islamic law aspires to inform various aspects of human activities, not only those that may entail legal consequences.
Historically, actions and relationships are evaluated in accordance with a scale of five moral standards. According to shari’ah, an act may be classified as obligatory (wajib), recommended (mandub), permissible (mubah), reprehensible (makruh), or prohibited (haram).’ These five categories reflect the varying levels of moral demand placed on human acts by the divine will. Actions that fall in the first and fifth categories are strictly demanded, whereas acts falling in the second and the fourth categories, around the neutral center of the scale, are not as solemnly demanded, and hence their violation, though discouraged, is not condemned. Put it differently, while the individual is obligated morally to follow the commands of the first and last categories — i.e., the obligatory and prohibited —he or she is only encouraged to observe the commands of the second and fourth— i.e., the recommended and reprehensible.
It should be emphasized, however, that even the absolute commands of the law have essentially moral, or more accurately religious, implications, and thus are not necessarily under state sanction. For instance, the pilgrimage to Makkah once in a lifetime is obligatory (wajib) for every Muslim who is physically and financially capable of performing this duty. Yet the state, according to shari’ah, may claim no authority to compel the individual to fulfill this personal obligation.
Notwithstanding the inextricable association between law and morality in Shari’ah, Muslim jurists conveniently differentiate between private and public morality—or, using Islamic-law vocabulary, haq Allah (rights of God) and huquq al ‘ibad (rights of humans) — and hold that only the latter may be subject to legal sanctions. Private morality includes purely religious activities pertaining directly to the spiritual relationship between a human being and God, labeled as ‘ibadat (services). Since ‘ibadat, or services, do not have, for the most part, any social consequences, the individual is answerable to God for fulfilling them, not to society. Public morality, on the other hand, encompasses those patterns of behavior that have social consequences, appropriately labeled mu‘amalat (transactions). Because of the direct implications mu‘amalat activities have on society’s ability to maintain public peace and order, their regulation may be legally enforced by the state. The division of individual obligations and duties into categories of public and private is, nonetheless, more apparent than real; for, according to Islamic theory, all human activities, regardless of whether they are public or private, are subject to ethical judgment, because all human beings are ultimately accountable to God for their actions.
Shari‘ah law was historically developed by Muslim jurists by applying human reasoning to revealed texts with the aim to develop a normative system capable of regulating individual actions and social interactions. Early jurists relied primarily on the Qur’an and the practices of the Prophet to elaborate the rules of shari‘ah, and referred to the process through which shari`a rules were elaborated by the term ijtihad (intellectual exercise). Recognizing the imperative of rational mediation for understanding the rules of shari`a, early jurists exerted a great deal of time and energy to define the grammar of interpreting the divine texts and the logic of reasoning about their implications. The differences in Methodological approaches led to the differentiation of the various schools of jurisprudence. Because the Qur’anic texts were given in a concrete form, whereby the Qur’an commented on the actions and interactions of the early Muslim community, and directed early Muslims in concrete situations, the jurists applied legal analogy (qiyas) to expand the application of the Qur’anic precepts to new cases. The qiyas technique, widely accepted by the schools of jurisprudence, requires the jurists to identify the efficient reason (‘illa) of a specific Qur’anic statement, and to use this reason as the basis for extending the application of the Qur’anic precept to new cases. For example, early jurists extended the prohibition of wine to all intoxicating substance on the ground that intoxication was the reason for the Qur’anic prohibition of wine. Early jurists also utilized the statements and actions of the Prophet and his companions as a means to arrive at better understanding of the revealed texts. The practices of the Prophet and his companions became known as the Sunna and were captured in the hadith narrations. Early jurists did not feel that the Sunna has an authority independent from the Qur’an, and hence did not hesitate to reject a hadith narration whenever it was in a clear contradiction with a Qur’anic statement.