Usool al Fiqh

Hijrah: Hijrah to non-Muslim Lands

2012 Summer Session (August 26 to October 21 2012)

Class taught by Shaikh Jamaal Zarabozo

Required or Recommended Reading:

There is actually a great deal of related literature available on in English that could be classified as “interesting.” One book that Sh Jamaal will plan on referring to a great deal is:”Islam and Liberal Citizenship: The Search for an Overlapping Consensus by Andrew March”.

The following books all contain material that we may wish to benefit from or comment on:

To be a European Muslim by Tariq Ramadan

Western Muslims and the Future of Islam by Tariq Ramadan

The Unfamiliar Abode: Islamic Law in the United States and Britain by Kathleen Moore

Citizenship and Accountability of Government: An Islamic Perspective by M. Hashim Kamali

Muslim and American? Straddling Islamic Law and U.S. Justice by Mark Hanshaw

Course Outline:

This class will discuss some of the issues of living in non-Muslim lands, including the permissibility of residence in non-Muslim lands, the fiqh of Muslim minorities, citizenship, loyalty, liberal democracy and Islam ...

Basic Outline of the Quarter

I. Hijrah in Contemporary Times

II. Hijrah to non-Muslim Lands, Muslim Minorities and the Brain Drain

III. The Fiqh of Muslim Minorities

a. Is there a basis for such a concept?

IV. Liberal Democracies, Citizenship and Muslim Loyalties

a. Islamic Identity, al-Walaa, Imitation

The following items may be left for next quarter or some may be covered this quarter:

V. Particular Fiqh Issues

a. Taking Citizenship

b. Participation in Military

c. Participation in Political Process

d. Issues of Marriage, Divorce, Child Custody, etc.

VI. From the Theoretical to the Real: Islamophobia

a. Islam in Western Media

2012-08-26 Class Notes

One of the books written by a non-Muslim is the best book which is the first book on the list by Andrew E. March (Islam and Liberal Citizenship: The Search for an Overlapping Consensus). The author more of less presents the material in an unbiased manner. The US, Australia and Europe are called liberal democracies (even though in reality it is not true). Questions are how can a Muslim fit in liberal democracy; what about loyalty and what about fighting for a liberal democracy?

One thing we will also have to critique liberal democracies because there are some Muslim writers today who are accepting liberal democracies as the ultimate model for Muslims.

The second book is by Tariq Ramadan (To be a European Muslim). Shaykh mentions that if he did not know who the author is then he would have concluded that the book is written by a secular-humanist-deist. There are very few references to the Quran.

The book “The Unfamiliar Abode” is a play on the concept of Daar al Harb and Daar Al Kufr. Kamali’s book gets a poor recommendation. Another book is titled “Prophet Muhammad (): a role model for Muslim minorities” by Muhammad Yaseen Mazhar Siddiqui (this book is not on the list but Shaykh thought it is an interesting title).  

Questions that we have to think about are the following: Taking the oath of the Citizenship, Participation in the Military, Participation in the Political Process, Marriage Divorce and other laws that conflict with Islam, and Islamophobia.

Hijrah is basically about improving your Islamic state, your state of Islam. It is only one aspect of it, albeit an important one. Being Muslim isn’t just about you as an individual -- you have obligations towards others -- family members, community, the ummah as a whole. In addition you have obligations to future generations.

If the question was just about you, then it would be an easy question. But we can’t ignore the relationship of loyalty to the Muslim ummah and your obligation to the deen as a whole. It is really this multiple levels of responsibility that makes this issue difficult. One of the things is for certain: at no point should a person’s land take precedence over his religion and what his religion demands of him.

There is a movement which says “I am an American -- there’s no reason for me to change anything”. Imagine if the Sahabah had said “I’m a Makkan”-- it’s a farming town. They loved Makkah, but despite this, they realized they might have to make sacrifices and move. We might not have had islam today if they had that attitude. They understood the concept of sacrifice for the deen and we must understand that “I may have to make a sacrifice for the deen at some point which may include making Hijrah and leaving the land which I am established in”. This responsibility should always be an open possibility in the mind of a muslim.

Example: At one time, Al-Andalus was a place leading the Muslim world for a while, and then became a place that Islam was not at all welcome. Door to Hijrah should ALWAYS be there. It (Hijrah) may be for the sake of the deen, or for the sake of the deen and Muslim Ummah as a whole.

What would the ultimate Islamic state look like?

Let us try to describe the ultimate Islamic State (a state not entirely Utopian so score is between 90 and 100):

How do these compare to the “Muslim nations” nowadays?

How do they compare to Secular Liberal Democracies?

The Theory of the Second Best tells you that sometimes that if you need too many assumptions is that you might get a scenario where 9 out of 10 of the assumptions are met, but another scenario where 3 out of the 10 assumptions are met. Sometimes the one with 9 assumptions is not as good as the one with 3 assumptions. Because that one criteria -- that one assumption -- might be far more important than all the other assumptions.

So if you evaluated “Muslim Nations” Nowadays, you might give a score of 50. But if you scored Secular Liberal democracies -- especially in terms of freedoms, legal rights and mutual respect, it might be that because of these two things it turns out that Muslims can apply their religion more freely they might score 70. Even though they don’t have all of those, they might have some components that help the Muslims.

So here the liberal democracy is scoring as the second best to the ideal compared to the “Muslim world” nowadays. These are the reasons that some Muslims make Hijrah to the non-Muslim lands.

There is one very big problem and it cannot be overcome. The score of 70 is true only at the individual level or at the community level but at the Ummah level the score will be much much less than 70. For example the “brain drain” of the Muslim Ummah. With brain drain you get into a viscious circle that the people who are most qualified to contribute to the society move to the society where they get better jobs and then the next generation also faces the same situation. Example: It is estimated that India loses $1.2 billion a year due to brain drain.

If someone is making Hijrah just for the Dunya and you do not care for the deen or the deen of your family then this is sinful and all Ulema agree upon this. This is not what we are discussing. We are discussing the situation of a Muslim who is sincere to the Deen but is having difficulties in a certain setting.

In this class we will start with theoretical issues related to Aqeedah and fiqh of living in the non-Muslim lands. We will look at different models. We are living at times where the contrast of shade between the Muslim and the non-Muslim lands is too blurry and it is not as clear cut as in the past but still it does not mean that Islamic paradigm cannot come back. So the question to think for next week is that is there such a thing as “fiqh of minority”.

2012-09-02 Class Notes

We are getting ready to discuss the fiqh of Muslim minorities. We take it as a given that the status quo will continue, maybe the ramifications of the events of 9/11 that might wake some of us up.

Germany passed a law in the province of Kiel. A Muslim family had circumcision of their son and he had some complications, the family was taken to court where it ruled that non medical circumcision of minor is a criminal act. As a consequence of this law, a rabbi was arrested for harming minors while practicing circumcision in the past.

Last week in Berlin, some Germans demonstrated in front of the mosque and brought caricatures of the Prophet () as published in the Danish newspapers, they explained their behavior and wanted to see if they could bait the muslims into violent behaviour. They contend that Muslims are incapable of residing in secular liberal societies.

First time in Muslim history, we have Muslims living in Western society residing by choice as a minority. There are now millions of Muslims living as minority in the West and that reality is not going to change in the near future.

Last week we discussed that even if we have Muslim lands with majority it is not better than the non Muslim lands with Muslims in the minority.

Are all of the Muslims living as minorities in the west are they living in halaal or haraam ????

We enumerated some of the reasons why Muslims migrated to the West,

1) Muslims move to non-Muslim land for economic betterment.

2) Sometimes it is for practising Islam better as there may be more freedom.

3) Educational purposes

4) Security for political reasons

5) Dawah of Islam

6) Move to get married

Any of these are haraam reasons? #2 and #5 reads OK. For the betterment of the Deen the Hijrah can be Obligation, Mustahab or Permissible. As for other reasons, they may be conditionally haraam or halaal. If the rest of the numbers are being done where one has to compromise upon the Deen (i.e. harming the Deen) then such a Hijrah will be not allowed.

In the past, when we had the proper Islamic State, the vast majority of the Ulema said that even if you are able to practise your Islam, you should make Hijrah to the Islamic State. Now we are in a different situation for which we studied the 2nd best last lecture.  

In the light of the reality today there are halaal Hijrah and haraam Hijrah. Lets first discuss those who made Hijrah in the haraam state. On the side note, the term fiqh of minority has been used saying that the fiqh changes with time and place so we need to find new fiqh for the lands where the Muslims are minority.

Lets look at a Muslim, who is in a haraam state  i.e. he is living in the non-Muslim land  in such a way that he is living only for dunya and not caring for the Deen at all. There is a fiqh maxim, which says that: “Exemptions are not implied as a result of sinful acts”. There is a second maxim is: “Sin cannot be a cause for some blessing”.

Lets say one person journeys to Las Vegas for purpose of gambling, then he should not be getting the  exemptions of wiping on socks, combining and shortening the prayers etc. All 3 schools agree on this except the Hanafis. Shaykh things strong opinion is that one is not allowed the Shariah exemptions if the purpose of travel is for Haraam purposes. Let’s look at few ayahs of the Quran:


إِنَّ الَّذِينَ آمَنُوا وَهَاجَرُوا وَجَاهَدُوا بِأَمْوَالِهِمْ وَأَنفُسِهِمْ فِي سَبِيلِ اللَّهِ وَالَّذِينَ آوَوا وَّنَصَرُوا أُولَٰئِكَ بَعْضُهُمْ أَوْلِيَاءُ بَعْضٍ ۚ وَالَّذِينَ آمَنُوا وَلَمْ يُهَاجِرُوا مَا لَكُم مِّن وَلَايَتِهِم مِّن شَيْءٍ حَتَّىٰ يُهَاجِرُوا ۚ وَإِنِ اسْتَنصَرُوكُمْ فِي الدِّينِ فَعَلَيْكُمُ النَّصْرُ إِلَّا عَلَىٰ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ ۗ وَاللَّهُ بِمَا تَعْمَلُونَ بَصِيرٌ

Sahih International

Indeed, those who have believed and emigrated and fought with their wealth and lives in the cause of Allah and those who gave shelter and aided - they are allies of one another. But those who believed and did not emigrate - for you there is no guardianship of them until they emigrate. And if they seek help of you for the religion, then you must help, except against a people between yourselves and whom is a treaty. And Allah is Seeing of what you do.


وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا ۚ فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا

Sahih International

And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise.


وَمَن يَقْتُلْ مُؤْمِنًا مُّتَعَمِّدًا فَجَزَاؤُهُ جَهَنَّمُ خَالِدًا فِيهَا وَغَضِبَ اللَّهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا

Sahih International

But whoever kills a believer intentionally - his recompense is Hell, wherein he will abide eternally, and Allah has become angry with him and has cursed him and has prepared for him a great punishment

Here we say that if someone is outside the Islamic State then these verses show that the Hukm Sharii can be different for the situation of inside the Islamic state and outside the Islamic state.  

All the laws of Shariah apply to those Muslims who are living as a minority in the non-Muslim lands. Just because you are minority, that does not give you the license to violate the Shariah. If something due to Maslaha, one is not able to practise that is a different case. However, one should not feel that one is free to ignore the Shariah. All 3 schools agree on this and from Hanafi abu Yusuf agrees with it. Imam abu Hanifa and Imam Shaibani disagree, e.g. they think that in non-Muslim lands a Muslim may accept riba payment and it is not sinful (this is due to confusion upon a weak hadith on this topic as we discussed in Riba lectures earlier).  They also say that one can get into a transaction which may be haraam otherwise like selling alcohol etc., but it is sinful, so if such a Muslim comes to the Islamic State then he can be punished.

Because of this there are some fiqh ramifications, and there are few Ph.D. thesis on this. Shafi say that difference on the domicile does not have any effect on the law. For example, if you are living in an Islamic State where the ruler is not pious or people have revolted and there is anarchy, the ultimate rule is for Allah (swt). So for Shafii a thief is a thief whether in Darul-Islam or Darul-Kufr so Hadd must be applied whenever he is under the authority of Islamic State.

Another example is that a husband and a wife in Darul Kufr and wife makes Hijrah to the Darul-Islam and the husband stays behind, while both are remaining a Muslim. For the Shafii the marriage will continue since the difference in domicile does not affect the Hukm. For Hanafi, the marriage has ended.

Another example is Muslim making Hijrah from Darul Harb and makes Hijrah to Darul Islam and leave his wealth back in Darul Harb. Then Muslims take over that land so is the wealth of this Muslim spoil of war or is it just his wealth. For Shafii it remains property of that individual but for Hanafis it is spoil of the war.

Just to stress again, one has to follow the ruling of Allah (swt) even if in non-Muslim lands. For a Muslim, it should never happen that he or she makes Hijrah with the intention of living in the non-Muslim lands forever. For example, escaping Syrian situation may require Hijrah right now, but lets say in future the Muslim world (inshaAllah) becomes an Islamic State calling the Muslims back (or situation improves), then we need to make Hijrah back.

2012-09-09 Class Notes

Last week the purpose of the lecture was to establish the fact that wherever a Muslim may be (whether in an Islamic State or a non-Muslim state) then Shariah applies to him/her in all totality and one has to abide by the Shariah.

Today we will discuss a concept which has become popular and is called “Fiqh of Muslim Minorities”. Do we talk about fiqh of Saudi Arabia, fiqh of Pakistan or fiqh of Egypt. Actually in the same country, from one city to another city the situation can change. So does that mean that the fiqh changes? Should you apply a different methodology if you are from one country or the other? Keep in mind we are not talking about different interpretation or few differences of opinion in fiqh but we are talking about change of methodology. Never in the history of the Muslims, did we see the fiqh of Baghdad different from fiqh of Medina. Fiqh results may be different but the methodology cannot be different.

Fiqh of Muslim Minorities

The term “Fiqh of Muslim Minorities” is a rather recent term. The ECFR (European Council of Fatawa and Research) resolution 12-5 and a non-Muslim author claims that Muslims adapted Fiqh of Muslim Minorities as adaption for ECFR. They say that they met on a particular day to discuss this issue of fiqh of Muslim Minorities and how important it is and then he gives list of six papers and mentions the following points:  

1. The Majlis agrees that the terminology fiqh al aqalliyaat  فقه الأقليّات  is acceptable since it’s just terminology.

2. The term refers to the rulings of Muslims living outside the lands of Islam.

But in that resolution it does not say anything about it becoming official resolution.

The term Fiqh of Muslim Minorities was introduced around 1994, mostly by two scholars, Sh Taha Jaabir Al-Alwaani (living in Virginia at that time, member of IIIT and Fiqh Council of North America),  and Sh Yusuf Al-Qaradawi. They use these terms to say that those living in the west need a new discipline to address their needs.

The first time it was used was as the basis for a fatwa was a fatwa allowing American Muslims to vote in American elections.  ... wrote a book about the topic. Amongst the things he mentions are things that are well-known and established. The faqeeh should be familiar with the specific circumstances of the community and what is appropriate for them and what is not appropriate for them. The faqih should be familiar with the political situation of the current time as well. It then goes on to seek a reform with two premises:

1. Islam is a global (edit: universal) religion and it is meant to apply everywhere in the world.

2. The laws related to Muslim minorities must be based on the juristic principles of maqaasid al shareeah.  By doing so, the jurist can adapt the law of necessity for the Muslim communities in the West; allowing them legal leniencies so these Muslim communities can develop.

What the author ...  is envisioning, is a new way of looking at the fiqh and the goal of looking at the fiqh at this new way is accommodating the Muslim minorities and the specific circumstances they are facing. He goes on to say; “All things have to be looked at anew” -- food, dates of holidays, marrying non-Muslim women, making allegiance and getting citizenship in non-Muslim lands, the right to vote. All of these must be looked at afresh in light of the fact that these Muslims are facing special circumstances.

Yusuf al Qardawi develops this idea of fiqh of minorities even to the Dawah. He says for the Muslim minorities has to grow they have to develop and make dawah to the whole world. So there is dar ul Islam and there is Dar ul Dawah. This idea of Dar ul Islam and Dar ul Dawah can be traced back to a Shafi scholar from Tashkent (Mishash Ifafi??).

When Taha Jaabi Al-Alwaani was interviewed by an Arabic newspaper, he argued that daar al islaam is wherever Muslims can worship freely. He says, a place is considered Dar ul Islam as long as Muslims can practice Islam. This is an interesting statement, as it takes away the need for fiqh of minorities. However, he has not been very consistent with this reasoning in his other interviews. Yusuf Al Qaradawi has a book on fiqh of Muslim Minorities and it is translated into English. He discusses the objectives of the new fiqh. These goals are noble which include: to preserve their identity; to deal with their specific problems, to make Islam strong, etc.

Some of the characteristics of this fiqh is we are not going to ignore 1400 years of the Islamic Jurisprudence. We will try to keep a balance between the text of the Shari’ah and the collection objectives; never letting the specific texts overruling the goals of the Shari’ah. Keep in mind that rulings vary from time, place and custom.  

Sources of law according to Qardawi

When it comes to the Sources of law, according to Y. Al-Qaradawi:

- Qur’an comes first -- all principles must be referred to the Qur’an.

- We have to look at Sunnah in the light of the Quran.

- Some of his actions are fatwa from Prophet (), some were decisions as leaders of the state, weak hadith cannot be source of legislation.

- He says that there are other authentic hadith which can literally contradict the Quran, for example the hadith that do not greet the Jews and Christians before they greet you first.

He claims that this hadith contradicts the ayah which says that when you greet then greet with equal greeting. This claim is wrong since the verse is talking about the returning of greeting to the Muslim. Even the Ulema say that it is not obligatory to greet even another Muslim but it is obligatory to respond to a greeting. If this rule was not there then during Hajj an average Muslim will go nuts just giving salaams to every Muslim.

Shaykh Jamaal raises the question, that it would have made more sense for Qardawi to have made Takhsees of the ayah. The hadith is talking about the initiating of Salam in the first place.

- After the Quran and Sunnah the Ijma (consensus of the scholars) is the next source.

The Ijma has to be looked at critically since it is hard to prove it. He is actually right here. There are many issues where Ijma is claimed but when one looks into this then there is no proof established for Ijma.

- Also mentions that there are controversial sources such as maslaha (making ease), juristic preference, urf (customs), reducing evil  and these sources are available to the jurist when making his ruling. But this is a problem; this seems to be putting the ruling first and religious backing second.

So what are the methodologies that should be applied?

1. Ijtihaad

2. Maslaha

3. Tayseer (making things easy for people)

4. Urf

Taha Jaabir Al-Alwaani says that Maslah should be given priority.  A jurist from eight centuries ago, Al Tufi said that Maslaha comes above Quran and Sunnah. Taha Jabir is going down the same road.  Also includes: Muhammad Mukhtar Al-Shinqeeti.

Here it becomes clear that these people are looking for a new Madhab and not dealing with just problems of the Muslims in the West.

Footnote: On the Salam issue, consider the following ayahs of the Quran. Keep in mind the Salaam is meant as Duaa in relation to Allah (swt). There is a difference of opinion among Ulema whether any greetings (Hi or Hello) is part of this salaam. However, the following verses make it clear that those who are not fighting you then one can be righteous/kind and just towards them.

Qur’an Surah 60:8

لَّا يَنْهَاكُمُ اللَّهُ عَنِ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينِ وَلَمْ يُخْرِجُوكُم مِّن دِيَارِكُمْ أَن تَبَرُّوهُمْ وَتُقْسِطُوا إِلَيْهِمْ ۚ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ

Sahih International

Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes - from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly.

Qur’an Surah 60:9

إِنَّمَا يَنْهَاكُمُ اللَّهُ عَنِ الَّذِينَ قَاتَلُوكُمْ فِي الدِّينِ وَأَخْرَجُوكُم مِّن دِيَارِكُمْ وَظَاهَرُوا عَلَىٰ إِخْرَاجِكُمْ أَن تَوَلَّوْهُمْ ۚ وَمَن يَتَوَلَّهُمْ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ

Sahih International

Allah only forbids you from those who fight you because of religion and expel you from your homes and aid in your expulsion - [forbids] that you make allies of them. And whoever makes allies of them, then it is those who are the wrongdoers.

Yusuf Qardawi meant by Tayseer partly to make it easy for people to read the fiqh books. As far as Urf is used, an example is from Europe with a question. If a woman converts to Islam, and her husband is still non-Muslim. What is the ruling on this case? From Ahmed ar Rawi (from an org which is pro-minority fiqh) claims that the Maslaha takes over here. Here it is ok for non-Muslim woman to live with her husband indefinitely due to the European Urf. This is only possible in the West where woman is respected. The argument given is very shaky and keep in mind this is being offered for all such cases in Europe. We will continue next week on this.  

2012-09-16 Class Notes

Four foundations upon which the movement of fiqh of minorities sits upon:

1. Ijtihaad (juristic reasoning)  اجتهاد

2. Maslaha (public welfare) مصلحة

3. Tayseer (Ease for people) تيسير

4. Urf (custom) عرف

Keep in mind that Quran and Sunnah are implied (at least we are assuming it).

They’re using terms and concepts that are non-controversial topics. Should we have any issue with them? Even if concepts are non-controversial but to make this basis of your fiqh, that sounds not ideal.

The problem with the aspects is not the aspects but how you use them, what do you mean by them.

Many times they are presenting straw man arguments. For example, is there a relationship between the Muslim minorities and the artificial insemination? Is the ruling on artificial insemination going to be different between New York or Cairo? So this movement gives the impression that the problem somehow is unique to Muslims in the West and they do not have to apply the Shariah.

Example of Ijtihad by Mohammad Mukhtar Shanqeeti and Tariq Ramadan:

The question is it allowed for Muslims to hold governmental positions in non-Muslim countries. The answer of Shanqeeti is, yes they are allowed and the supposed proof is from Quran 12:55. Is this argument sound?


قَالَ اجْعَلْنِي عَلَىٰ خَزَائِنِ الْأَرْضِ ۖ إِنِّي حَفِيظٌ عَلِيمٌ

Sahih International

[Joseph] said, "Appoint me over the storehouses of the land. Indeed, I will be a knowing guardian."

However, the Shariah min Qablana does not apply to us completely and some things are not allowed for us. For example, the same surah mentions the Sajdah that brothers of Yusuf () did to him, which is not allowed in the Shariah of Muhammad ().

More obvious is the issue of the Maslaha. They argue that this is needed for the benefit of the Muslims e.g. the one house allowed in Europe and US based on riba due to Maslaha. Taha Jabir alwani is overemphasizing the role of the Maslaha. For example, we have Tufi who is also overemphasizing the Maslaha, and hence in this approach we do not look at the rulings from Quran and Sunnah but we are looking more at the Maslaha and what will benefit us. So this idea looks at the Shariah in a very different way.

They also bring the idea of Darurah (necessity) very often. The classical Ulema looked at it as something which if not fulfilled then your life or functioning as a human being is jeopardized. For example, the Western styled adoption, where the adopted child is considered an actual child (which is pratice from Jahilliyah). The fatwa by Shanqeeti is that call the adopted child by the original name of the father however, this makes legal difficulties for the parents of adopted child so some contemporary Muslim scholars allow this due to the darurah. Shariah makes it clear this is not allowed, so what is the darurah here? So here the darurah is overriding the Quran, which does not allow adaption if original name cannot be kept and the child becomes like a blood relative in the Western law which goes against the shariah.

Next is idea of Tayseer in fiqh. Qaradawi in his book, tayseer al fiqh, says we should simplify fiqh and we should remove what does not belong in it (this statement has some merit). He also calls for taking rukhsah where the shariah gives the rukhsah. He invokes using of the leniencies of the shariah. However, the concept of the leniencies is abused many times and we often see this abuse in such kind of fatwas coming from tayseer. So in this view the Muslims in the West are “sick” compared to the “healthy” life of Muslims in the Muslim world. So the downtrodden Muslims need to be given extra leniency according to this new view. These people are against making the Hijrah and wants to be established here.

With the concept of the Urf comes their point, they claim that fiqh changes according to time and place. They quote statement of ibn al Qayyim: “Fatwa can change according to the time and place”. Fatwa is the legal opinion, so no Muslim disagrees with this maxim. However, Quran and Sunnah do not change according to the time and place and the Shariah does not change according to the time and place. For example, they quote Urf and Maslah to allow Muslim revert woman with her non-Muslim husband. So he is basically saying that the verse which says that: “Men are Qawamun over the women” is showing disrespect to women.   


الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاءِ بِمَا فَضَّلَ اللَّهُ بَعْضَهُمْ عَلَىٰ بَعْضٍ وَبِمَا أَنفَقُوا مِنْ أَمْوَالِهِمْ ۚ فَالصَّالِحَاتُ قَانِتَاتٌ حَافِظَاتٌ لِّلْغَيْبِ بِمَا حَفِظَ اللَّهُ ۚ وَاللَّاتِي تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَاهْجُرُوهُنَّ فِي الْمَضَاجِعِ وَاضْرِبُوهُنَّ ۖ فَإِنْ أَطَعْنَكُمْ فَلَا تَبْغُوا عَلَيْهِنَّ سَبِيلًا ۗ إِنَّ اللَّهَ كَانَ عَلِيًّا كَبِيرًا

Sahih International

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.

Wael Hallaq (who is Lebanese Christian) says that they are making mockery of the Shariah and it is all pure subjectivism. With time as more changes come, then the Maslaha will just put an end to the Shariah. For example, the fatwa from Taqi Usmani says clearly that “...given the circumstances of Muslims in US this is considered permissible”. However, even that fatwa lead some to think that it is actually permissible and these people did not want to get into any haram. In the light of this, imagine the magnitude of the approach of these people of the fiqh of minorities, where pretty much by some changing of parameters they are changing the Shariah completely.

These people of the fiqh of minorities, start with the conclusion, and then try to find out a way which can make the end result halal. Now this is coming from knowledgeable people and not the masses. On June 2nd 2007 there was a 2 day conference in Denver, Colorado (Masjid al-Nur) with M. Mukhtar Shanqeeti as the speaker. He mentioned that the role of the woman in the society is sanctioned, and gave an example of a Sahabi woman (Shifa bint Abdullah), but there is an obscure statement made about her by some scholars (e.g. ibn Hajr mentioned it as a fact that it is possible Umar (ra) may have appointed her over some affair in the market place and according to many Shuyukh it is weak isnaad). The speaker mentions this incident, then later that day he mentions about the book Ahkam ul Ahl a Dhimma by ibn al Qayyim as the worst book ever written. A big portion of this book is a commentary on “Ahkaam Umariyyah” --which lays down the rules regarding the ahl ul Dhimma based on authentic isnaads, if it is a commentary that he refers to Umar as a hujjah, how can it be that in one case it is hujjah and in the other case it is to be ignored?

2012-09-23 Class Notes

We discuss the four pillars of the fiqh of minority issues just like last week. These are four good concepts but we should keep in mind the following

1)  these pillars should not be abused.

2) The way the fiqh of minority is being presented, it is important that they be honest and straightforward with Muslims, i.e. they need to be telling the people that they are compromising with Shariah.

Many Muslims are given fatwa and they think that it is the actual ruling of Islam even though the fatwa had a compromise in it. For example, with respect to Guidance Residential Mortgage, many people have come to the conclusion that they felt something wrong. And Shaykh informs them that there are some issues, and when indeed you do go into their fatwa, it makes it clear that the thing that they are approving is not necessarily 100% correct according to the Shari’ah. At the end of the fatwa from the SSB: “given the prevailing circumstances in the USA, this arrangement conforms to the rules and principles of the Shari’ah.”

So this recognizes that some compromising is going on when issuing the fatwa. Most people don’t read it or realize what’s going on. So they are not making an informed choice. What the Shaykh is suggesting that these organizations should be more transparent: they should know that there are compromises going on.

Suppose someone has $500,000 cash and the house is $400,000. And the person says: I want to keep it liquid. And the person says “here’s a shariah compliant thing for buying the house over time.” Had he known that this is an option that is intended for people in need, then he would realize that maybe he isn’t in need. Because it’s not made clear.

It’s not for the scholar to decide whether he is in a state of need, it is for the person to decide that if he is in the state of need. But he needs to be informed.

3) In your approach as a scholar, make sure that you are honest and sincere to Allah (SWT).

For example, Yusuf Al-Qaradawi, insisting that hadith be authentic in Fiqh of Muslim Minorities, when in his Lawful and Prohibited, he uses weak hadith. Then when there are some ahadith about hijrah that he has an issue with, then he has no issue requiring it to be authentic.

Similarly Shanqeeti uses Umar (ra) for the issue of woman judge but then he uses books from Umar (ra) which is not accepted by the scholars of hadith due to its weak nature.

As a result, these scholars lose credibility, then it appears that they are “scripture-twisting” -- why is the person being so inconsistent? Sooner or later, people do see these kinds of issues. The modernist movement had some momentum in the Arab world, but when these inconsistencies came to light, their perspectives were rebutted.

It’s one thing to come to different fiqh conclusions, but we can see their reasoning and can get into a discussion of reasoning. But when they are inconsistent, you can’t refute them. Because you can’t hold them to a sound and truthful methodology.

By having an agenda here, Shaykh means starting with the conclusion and working back through fiqh for sources that support that perspective.

Sh’s opinion: when you “tweak” the Shari’ah like this, ultimately it serves no benefit.

“You can’t have your cake and eat it too.”

When you tell people that it’s halal, then there is no need to motivate people to make things better. There has to be an incentive to move from point A to point B. If they say this is fine and dandy, then people will not have the incentive to move at all.

Fatwa from Shaykh “Class”: Request is as follows from the person.

“I want your ruling as in a Neverland where we are minority. We are financially secure and we are free and we can believe whatever we want to and we are getting people into Islam as well. So we are well established and even more free compared to the Muslim world.

“At the same time, we resort to buying houses through interest, or so-called Shariah compliant loans. To help our children get ahead we take out student loans.

“The reality is that every job we have to take is going to have some un-Islamic aspect to it.

“Things difficult to avoid: shaking hands with opposite sex, media with fahisha. In addition there are times when we are forced to contradict the Shari’ah, shaving beards to get accepted in the corporate world. As a sign of loyalty to this land, we may join the armed forces and sometimes fight muslims. We often have to submit to Western laws for marriage, inheritance.

“We don’t celebrate holidays which are all secular, but we look forward to them. We have Islamic schools but we are still losing our new generation. Every now and then, the kuffar and disbelievers the people put us in some kind of fitnah. Some Muslims claim that our government has demonstrated anti-Islamic attitudes killing muslim civilians.  

“What do you think of our status here in this country?“

At what point do the compromises become too much? After Umar’s Islam, they had the political strength to pray in the Ka’bah. Even if you apply the theory of the second best, but there is a key point that the fiqh of Muslim minorities is ignoring that is very important point:

The hadith is “

Sunan an-Nasa'i > Book Of Faith and its Signs > Hadith permalink

... Abu Sa'eed said: "I heard the Messenger of Allah [] say: 'Whoever among you sees an evil, let him change it with his hand; if he cannot, then with his tongue; if he cannot, then with his heart- and that is the weakest of Faith.'" (Sahih) ...

أَخْبَرَنَا مُحَمَّدُ بْنُ بَشَّارٍ، قَالَ حَدَّثَنَا عَبْدُ الرَّحْمَنِ، قَالَ حَدَّثَنَا سُفْيَانُ، عَنْ قَيْسِ بْنِ مُسْلِمٍ، عَنْ طَارِقِ بْنِ شِهَابٍ، قَالَ قَالَ أَبُو سَعِيدٍ سَمِعْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏"‏ مَنْ رَأَى مُنْكَرًا فَلْيُغَيِّرْهُ بِيَدِهِ فَإِنْ لَمْ يَسْتَطِعْ فَبِلِسَانِهِ فَإِنْ لَمْ يَسْتَطِعْ فَبِقَلْبِهِ وَذَلِكَ أَضْعَفُ الإِيمَانِ ‏"‏ ‏.‏

So this is making them build and entrenching the situation even more. This last part about changing it with our heart is not a passive stance -- this last point has lots of ramifications to it. The first of them is that evil is never to be accepted. We cannot be pleased with it. Accepting it in our hearts and saying it’s OK, a Muslim cannot get to that state. If they get to that state, they should realize that there is a not good situation to be in.

This will make you alert to the fact that you may be compromising. And when you get the opportunity to find something better, you will pounce on it. If you think everything is cool, then this is wrong. Once the opportunity comes up to go somewhere better, your heart will be dead to it. So this is not passive.

That is the danger of the fiqh of Muslim minorities. If we are compromising, it is because it is wrong -- not because it is a good thing. We should be ready and working to see how we can get out of it. Such that if we ever find a way out of this, we will do that. This is the missing component. Even all of those conclusions all of them have to be understood that they have been reached that these are exceptional circumstances and that our first duty is extract ourselves from those exceptional circumstances.

This is the Sh’s biggest concern with the fiqh of Muslim Minorities movements. They facilitate the Muslim living in the West losing that dislike of the munkar.

Hadith of the Prophet () that the person is far away from sin but likes it, it is as if he is a witness, and the witness is present but hates it, it is as if he is absent.

2012-09-30 Class Notes

“You can’t have your cake and eat it.” Basically you cannot call yourself a special case and then consider it to be the norm by calling for a new and special fiqh.

Picture 1: On the board we have a one-dimensional double headed arrow

If you have to make more and more of compromises on the deen (even if you can pray and do dawah) but if you are compromising on every other aspect of the deen then one should make hijrah. The more you are forced to make compromises then it is a sign that you should leave. One can avoid buying a house through Riba, Army Service is voluntary (USA), one does not have to vote (USA), etc.   

Exemptions are not general things and they are not for groups but are only for individual cases. If one has to make compromises then one should make hijrah and if one is able to practice, then one does not need a new fiqh for minorities (“you cannot have your cake and eat it too”). These scholars are telling those people who can leave “...not to leave” and it can have long term harms for them.

Pillars of fiqh of Muslim Minority

Ijtihad, Maslaha, Tayseer and Urf. All of these have authenticity to them. They say about Shaitan, for coming to an individual Shaitan has to add some form of truth and cannot tell a person to come to evil and enter Hell-fire directly. So he has to put the evil in some sort of the veil of the truth so the person can be deceived.

Footnote: Every century had some sort of Fitnah for Muslims which are hard to understand once you are looking at them in the past. So we have to deal with the Fitnah that we are facing. The people leading in the home countries don’t seem to know what they are doing. Those in the West who are most qualified are living in the West. There’s no question that there’s a lot of ramifications to the fact that the qualified intelligent people are all abroad.

Footnote: One of the signs of Hijrah is that one is not willing to sacrifice one’s deen for the sake of the dunya. With Hijrah there are two goals: One is to personally grow spiritually and to strengthen the Ummah politically.

Ijtihad: The extrapolation from the known Islamic Rulings for a situation which is new.  

Basic pillars and components to ijtihaad:

1. Ijtihaad has to be done by someone who is qualified:

 a. By someone who understands Islamic law and

 b. Understands the circumstances surrounding the issue on which they are making a judgement.

2. There can be no ijtihaad in the presence of Nass -- nass does not mean text -- it means that it is a definitive clear text that touches upon the issue for which you are trying to make ijtihaad.

3. Conclusion derived from the ijtihaad cannot contradict the definitive rulings of Islam.

4. There should be no vested interest in the ruling for the mujtahid (person making ijtihaad).

When you study the ijtihaad, you see that the one issue is that they find something to be beneficial, and then it should be halal.

يَسْأَلُونَكَ عَنِ الْخَمْرِ وَالْمَيْسِرِ ۖ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِن نَّفْعِهِمَا ۗ وَيَسْأَلُونَكَ مَاذَا يُنفِقُونَ قُلِ الْعَفْوَ ۗ كَذَٰلِكَ يُبَيِّنُ اللَّهُ لَكُمُ الْآيَاتِ لَعَلَّكُمْ تَتَفَكَّرُونَ

Sahih International

They ask you about wine and gambling. Say, "In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit." And they ask you what they should spend. Say, "The excess [beyond needs]." Thus Allah makes clear to you the verses [of revelation] that you might give thought.

They sometimes try to give benefit but there are other things that are more important than these benefits. Like when Umar b. Khattab saw the the marks on the side of the Prophet (SAWS) from sleeping on the hard mat. Umar was upset, but the Prophet (SAWS) said: Are you not pleased that for them is the dunya, and for us is the hereafter?

We cannot look after this world at the expense of the hereafter. You are making a mockery of the Shari’ah if you bend things in the interest of maslaha.

One of the trends we see is that you see some benefit, and your fatwa is about how to get that benefit. So you end up justifying.

Hadith: When Muslims just follow tails of the cows, get involved in al-Ina and leave Jihad then Allah (swt) will put humiliation over them and will not remove it until they return to their deen.

Al-Ina is one example. Al-Ina is to sell a commodity for one price in a meeting (say $80 for rice) and then the buyer sells back in the same sitting the rice to the seller for $120. This is called Al-Ina.

Another example is the Malaysian scholars invoking Maslaha for Al-Tawaraq (i.e. Ribawi transaction in which say a bank and the salesperson sell a $8k car for $10k to the buyer by selling over time).

Paper on Al-Tawaraq:

Both above examples have the issue of the double contract on top of Riba.

2012-10-07 Class Notes

The most of people behind fiqh of Muslim minorities are also the same people who are behind the modernity movement in the Muslim world. So this is what makes it look like a fasad. Shaykh is just criticizing their pillars which can be abused. All bidah start with something small. Just like the Shia it started with the place of Ali (ra) but then later it got so bad that now they even have their own Aqeedah. Similarly with the fiqh of Muslim minorities things start to slip. There are very strange fatawa which says that one can sell pork and alcohol if there is some need to do so in the non-Muslim land. It is not clear what does need mean in this fatwa. So we are going to get into Maslaha and what they mean by it?

The Maqasidi trend of ijtihad in the Muslim Ummah these days. Maqasid al Shariah is that the law from Allah (swt) has wisdom behind it and Shariah as a whole is trying to establish 5 necessities: Deen, Nafs, Aql, Nasl, and Maal. The fiqh of minority scholars say that certain laws of Shariah need to overlooked to make them in accordance to the Maqasid al Shariah. However, their tweaking is always on the side of opening the door by making laws less stricter. Sud-al-Darrai is something in Islam which is to block the means to something which can be harmful. Ibn Taymiyyah provides 92 proofs that it is a genuine concept in Shariah. For example, do not curse the gods of the mushrikeen so they do not curse Allah (swt). These people are opening the doors of things which can be harmful. For example, two more Maqasid are being opened up of Shariah which is Freedom and Justice. How do they define these terms? Sometimes Shariah may accept a form of injustice for example, if an unjust ruler is ruling over Muslims while Shariah is still being upheld, then we do not fight to remove him since trying to remove him will cause too much bloodshed and might harm deen and wealth and therefore you do not do it even if you have the means. This is despite the fact that Adl is a word used often in the Quran. There is no doubt that Shariah itself establishes justice but the Shariah cannot be modified for some vague concept of Western justice.

Regarding the word Freedom, it can be very vague, and the rest of Shariah cannot be overruled for a vague concept. On the other hand Sunnah is very precise and lacks abstract statements which can be interpreted in an abstract way.

Example by Yusuf Al Qaradawi: Seeing the moon with the naked eye. Qaradaawi argues that though the hadith refers to eye sighting, the Prophet (SAWS) referred to the easiest means of the time, by the eyes. Now we have technology to calculate things, why put aside the objective of the hadith?

Recall the Qaeda: “ Certainty is not removed by a doubt”. So if Quran and Sunnah give us something that we know by yaqeen then we cannot allow certainty to be removed when scholars of this movement fall into doubt. A ton of proof is needed for someone to go against clear statement of Quran and Sunnah.

Litmus test: take these fatawa and try to see if they can be applied during the time of the Prophet saas.  The early times of Islam were far more precarious than the situation in contemporary times. For example the following ayah was revealed in the context of Muslims in state of war with the Quraysh. This was the time when they needed financial strength for buying weapons but this hadith made it clear that it is haram to deal in Riba (see the verse below). Mufasireen argue that this was to make it clear that it is not allowed to fall in haram for even military and financial strength. Tafseer ar-Razi and shafi scholar, Kaffal makes this point about the reason of revelation for this ayah.

Qur’an 3:130

Sahih International

O you who have believed, do not consume usury, doubled and multiplied, but fear Allah that you may be successful

Some people voice the matter of collective ijtihad. Basically we get together Ulema of Shariah, Economists, and other professionals who can sit together and give their agreed opinion on different matters to unite the Ummah. OIC, Majma al Fiqhi, AMJA etc are doing these. What happens that such organizations allow people who have no idea what is Shariah, giving opinions on Islam. Shaykh mention that from the experience he knows that the leaders or seniors of the group who have the most influence (not necessarily a scholar or knowledgeable brother) is able to influence the opinion and the final opinion comes out from his influence and not the Quran and Sunnah. Non-Shariah people are given more weight for some reasons. Many times the final verdict is sold as a group decision but it is not the case. While the opinion is being sold as from the group, there is always a people who disagreed but still the opinion is sold as from the group.  

2012-10-14 Class Notes

Footnote: Here is an example of how our culture, our western education skews our understanding of Islam. While at UC Davis Shaykh had Palestinian Christian Adviser, with 4 to 5 Islamically oriented students. When discussing Islamic Economics for the world and these students could not see the interest free economy even though they were active in the mosques. These brothers could not accept the possibility of a contemporary Islamic economy without interest. Shaykh was the lone voice arguing for a no-interest economy.

Sh could not shake their belief in interest. How is it possible to put people like this in the same board with Shari’ah scholars on equal footing? Most likely there will be an impasse. Or there will have to be compromise from the Muslim scholars.


Tariq Ramadan and Yusuf Alqaradawi do speak about how the concept of Maslahah has been abused. E.g. in his book to be a European Muslim.

The word Maslaha in itself is derived from the word Salaah, which means good, in the right condition. It is the opposite of al Fasad, which is something corrupted and depraved. So maslahah and mafsadah are opposites.

Maslaha is a verbal noun of place (مصدر المكان) you are emphasizing how entrenched the goodness is in that thing. Used in a few different ways: the thing itself that is beneficial or the thing that leads to it. For example, business is a kind of maslaha because it leads to profits, sustenance, etc.

Abuse of Maslahah

From very early on scholars recognized that the concepts of maslahah, istihsaan and istishlaah could be a dangerous tool open to abuse. Even Imam Shafi’i he said it was being abused during his lifetime. When he went to Egypt and he saw Maliki scholars giving fatawa based on Maslaha, he said that they should not be giving fatawa.

This is why the shafi’is are so vehemently anti-Maslahah, and it’s use for making fatwa showed up very late in Shafi madhab.

Conditions for invoking Maslahah

Imaam Al-Ghazaali said that “in order to invoke Maslaha, one must meet 3 elements:

The three elements: there has to be necessity, absolute certainty and universality. It has to be geared towards protecting the Maqasid al Shariah. If it is failing to preserve these conditions then it is Mafsada. He argues that Shariah points to us what is Maslaha and Maliki scholar Shatibi later developed it further.

Categorization of Maslahah

Maslahah can be categorized into three subdivisions:

1. المصلحة المعتبرة -- Accepted Maslaha.

A Maslahah we know from Quran and Sunnah and that  we know is good and beneficial. Some scholars describe the role of the Shari’ah is achieving maslaha in this world and the next.

2. المصلحة الملغاة -- Rejected Maslaha

Even if some people think that it is beneficial but if Shariah says it is not beneficial (bad), then it is rejected. For example, the khamr and maysar has some benefits but harm is far larger than the benefit.

يَسْأَلُونَكَ عَنِ الْخَمْرِ وَالْمَيْسِرِ ۖ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِن نَّفْعِهِمَا ۗ وَيَسْأَلُونَكَ مَاذَا يُنفِقُونَ قُلِ الْعَفْوَ ۗ كَذَٰلِكَ يُبَيِّنُ اللَّهُ لَكُمُ الْآيَاتِ لَعَلَّكُمْ تَتَفَكَّرُونَ

Sahih International

They ask you about wine and gambling. Say, "In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit." And they ask you what they should spend. Say, "The excess [beyond needs]." Thus Allah makes clear to you the verses [of revelation] that you might give thought

That is the problem when you look at things from a microscopic perspective -- you lose sight of the bigger picture. Riba (interest) has some maslahah, but macroeconomically, it may have massive impact. We should never forget the fact that if Allah (SWT) has prohibited, the more harm in it than benefit.

3. المصلحة المرسلة -- “Silent” Maslaha

This is something that the Shari’ah has not touched upon. The Shari’ah has not explicitly accepted or explicitly rejected it. Some scholars don’t accept this third category -- it would have been mentioned. But most scholars think it is important as new things come up; and the acceptance of it given some conditions. No Scholar accepts this Silent Maslaha unconditionally.

For example, combining the Mushaf into one volume. Prophet did not compile it into one volume. Can we do it? In the time of Abu Bakr (ra) Qur’an was brought together as one Mushaf. However, Qur’an calls it a book, so it is some indication that there is nothing wrong with putting it into one volume book. This example is brought by people who argue for Silent Maslaha.

Shatibi’s conditions for Maslahah

Imam Shatibi describes conditions for applying maslahah.

1. Whatever is claimed to be a Maslaha must be compatible with the purposes (goals) of Islamic Law (maqaasid) such that it does not contradict any recognized Qa’idah nor oppose any accepted rule.

Maslahah cannot contradict any kind of Nass nor Asl. You can’t invoke Maslahah to override Qur’an and Sunnah.

Al-Toofi (Hanbali with very strong Shia leanings) came to the conclusion that Maslahah overrides anything. He wrote this while commenting on the hadith of no harm nor reciprocating harm, he said this. Al-Toofi’s argument laid dormant for 700 years, until modern times when it has been republished because of this extreme approach to Maslahah.

2. The Maslaha must be rational (عقلي)

This is to avoid bidah. One cannot come and say that I saw benefit for praying on this grave so it is beneficial. So asking for rational basis removes such innovations.

3. There must be some need for what is claimed to be a maslahah.

It must either pertain to the preservation of some necessity, or it should relate to the elimination of some hardship or the preservation of a means to a necessity.

Maslahah must be rooted or originated with the Qur’an and Sunnah

The way of classical scholars is that the Texts of Quran and Sunnah define the Maslahah. What Quran and Sunnah reject something then that is Mafsadah. They recognize the fact that there are some issues that are not touch upon by the texts. For this last category, one has to analyze them in the light of the text. If they are consistent with Quran and Sunnah then it is Maslaha and if not then it is called either false Maslaha or Mafsada. The key is to start at the level of the text of Quran and Sunnah. If someone does not start at that point then you will be in trouble.

Secular approach to Maslahah

The secular approach of today is to start with the premise that there is a Maslaha out there and we can determine that Maslaha.

Let’s start with concept of human rights, the problem comes who decides what are the human rights. By virtue of saying that humans by birth have human rights is not sufficient since question is about what are those rights. Without reference to religion it is not possible to define the human rights.

First they define Maslaha and then try to find some way to find their defined Maslaha in the Quran and Sunnah. So they argue then in the name of human rights that the Islamic laws of apostasy and inheritance of women has to go.

Another example is concept of al-Qawama, i.e. husband having the responsibility to guide the family in the best possible Islamic manner. These secular people say that this is not maslaha and try to say al Qawama has to do away with. One such secular person even wrote that it goes against the Maqasid al Shariah.    

الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاءِ بِمَا فَضَّلَ اللَّهُ بَعْضَهُمْ عَلَىٰ بَعْضٍ وَبِمَا أَنفَقُوا مِنْ أَمْوَالِهِمْ ۚ فَالصَّالِحَاتُ قَانِتَاتٌ حَافِظَاتٌ لِّلْغَيْبِ بِمَا حَفِظَ اللَّهُ ۚ وَاللَّاتِي تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَاهْجُرُوهُنَّ فِي الْمَضَاجِعِ وَاضْرِبُوهُنَّ ۖ فَإِنْ أَطَعْنَكُمْ فَلَا تَبْغُوا عَلَيْهِنَّ سَبِيلًا ۗ إِنَّ اللَّهَ كَانَ عَلِيًّا كَبِيرًا

Sahih International

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.

2012-10-21 Class Notes

InshaAllah today we try to finish fiqh of Muslim minorities. Today we discuss Tayseer (making things easy). It is considered one of the founding pillars of this movement of the fiqh of new minorities. The concept of Tayseer is based on Quran and Sunnah. See for example 2:185:

شَهْرُ رَمَضَانَ الَّذِي أُنزِلَ فِيهِ الْقُرْآنُ هُدًى لِّلنَّاسِ وَبَيِّنَاتٍ مِّنَ الْهُدَىٰ وَالْفُرْقَانِ ۚ فَمَن شَهِدَ مِنكُمُ الشَّهْرَ فَلْيَصُمْهُ ۖ وَمَن كَانَ مَرِيضًا أَوْ عَلَىٰ سَفَرٍ فَعِدَّةٌ مِّنْ أَيَّامٍ أُخَرَ ۗ يُرِيدُ اللَّهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ وَلِتُكْمِلُوا الْعِدَّةَ وَلِتُكَبِّرُوا اللَّهَ عَلَىٰ مَا هَدَاكُمْ وَلَعَلَّكُمْ تَشْكُرُونَ

Sahih International

The month of Ramadhan [is that] in which was revealed the Qur'an, a guidance for the people and clear proofs of guidance and criterion. So whoever sights [the new moon of] the month, let him fast it; and whoever is ill or on a journey - then an equal number of other days. Allah intends for you ease and does not intend for you hardship and [wants] for you to complete the period and to glorify Allah for that [to] which He has guided you; and perhaps you will be grateful.

وجاهدوا في الله حق جهاده هو اجتباكم وما جعل عليكم في الدين من حرج ملة أبيكم إبراهيم هو سماكم المسلمين من قبل وفي هذا ليكون الرسول شهيدا عليكم وتكونوا شهداء على الناس فأقيموا الصلاة وآتوا الزكاة واعتصموا بالله هو مولاكم فنعم المولى ونعم النصير

Sahih International

And strive for Allah with the striving due to Him. He has chosen you and has not placed upon you in the religion any difficulty. [It is] the religion of your father, Abraham. Allah named you "Muslims" before [in former scriptures] and in this [revelation] that the Messenger may be a witness over you and you may be witnesses over the people. So establish prayer and give zakah and hold fast to Allah . He is your protector; and excellent is the protector, and excellent is the helper.

Similarly many other verses can be quoted and in class verses were quoted from Surah al Nisa and Surah al Hajj. However these ayat are talking about hardship from Shariah perspective, i.e. Shariah has concept of Tayseer and Hardship into it. Tayseer does not mean that one can fall into haram.

عن عائشة رضي الله عنها قالت ما خير النبي صلى الله عليه وسلم بين أمرين إلا اختار أيسرهما ما لم يأثم فإذا كان الإثم كان أبعدهما منه

This movement also quotes a narration of Aisha (RA) which mentions that Prophet (pbuh) would chose easy path from the two however, they many times do not quote the ending of the narration which mentions that Prophet (pbuh) will stay away from the sinful i.e. haram.

In Shariah we have concept of Rukhsah (ease) e.g. one can combine the prayers and shorten while travelling, praying while sitting if injured, being allowed not to fast while travelling or being sick etc. Laws that have come in Shairah are do able by average humans. There may be exceptional cases of some particular human, in general Shariah is easy to follow. What is Rukhsah, and what is considered necessity (Darura) has to come from Shariah. So the exemption has to come from Allah (swt). There is actually a book (1000 pages) of Qawaid related to Tayseer

In relation to Tayseer and fiqh of minorities we discuss 4 things. The understanding of Tayseer of this movement conflicts with the classical scholars. This movement approaches Tayseer in a certain way as made clear from the 4 points below:

1. They stress Maqasid al Shariah rather than the texts (nusoos). Classical scholars say that the Shariah laws bring us the Maqasid al Shariah, e.g, Rashid Ghanouchi (philosophical leader of Nahda party in Tunisia) believes in Tatweer al Shariah (i.e. evolution of Shariah according to the present time), even if this evolution requires us to go beyond the texts of the Shariah to fulfil the Maqasid. This is true for them even for the Qatai (definitive) laws of the Shariah. They also increase the maqasid by adding things like freedom, equality etc. He is specifically saying that even if it violates nusoos al-qat’eyyah. But any traditional scholar would say that this is obviously a flawed perspective: if the text is clear, then that is the implementation of the maqsad of the Shari’ah.

2. Seeking (الرخص) al Rukhsah: What we mean here is that Shariah gives certain Rukhsah as discussed above. No one can reject these Rukhus. What is meant by Rukhus, is that sometimes differences of opinion between madhab shows up where one madhab may consider something halal which others consider haram. In this context Rukhsa means something permitted in one madhab, but not necessarily in others. This is like shopping for fatawa within the fiqh madhabs. For example, go around for music and find someone who says that it is halal and then one starts to think that playing musical instruments is halal. Similarly, regarding Riba, Alcohol etc. Then Qaradawi may be quoted that the things have to made easier to people and then haram of Islam can become halal. Classical scholars would call such a person Zindeeq since if one starts to find the slips in the opinions of the Ulema then he can fall out of the fold of Islam and not know it. The spirit of Tayseer has to be within the boundaries of the Shariah. For one to have proper iman, one has to follow the Azeema (hardship in action or an action which requires strong and firm will to follow) and Rukhsah in the balance that Shariah provides.

3. Al Talfeeq (التلفيق): It means combine madhabs in such a way to reach a conclusion that no madhab will accept. Ulema in the past have discussed whether it is permissible. Some have said it is permissible and others say it is not permissible. For example, Hanafi and Shafi differ on many issues. One can take point a from Hanafi and b from Shafi and reach a conclusion which neither madhab will accept. The Ulema say impermissible part of al Talfeeq is that you reach a conclusion which is unacceptable to both parties. Here mostly these people have a conclusion in mind and then go around to find some way of justifying their conclusion. There is a statement that there is no inkar  (refutation) in matters of ijtihad. Not every act of ijtihad is considered respected, unless it has some respectable evidence behind it. Acceptable difference of opinion is that both sides have proper daleel behind their position. If ijtihad has no proper basis in Shariah, then it is part of nahu anil munkar to stop such ijtihad.

Ibn al Qayyim: If the statement goes against the Ijma (of Ulema) then it is obligatory to reject it. One must reject it and explain it by an explanation based on Shariah. Everyone understands that even Ulema can make mistake, so one does not want to follow the Ulema in their mistakes. The problem with taking the easiest of each madhab is then one is not seeking the truth.  

4. Making difference of opinion a daleel: These people find these differences and then they quote these as daleel in Islamic rulings. No one in the history of the Islam has ever said that. Even if one claims he is Muqallid then one has to stick to all from one’s madhab.

These people many times drop the meaning of the clear text for very clouded and unclear conclusions. For example, for woman to travel without a mahrem, there are very clear texts which do not allow woman to travel without a mahrem. These texts are Muhkam (i.e not open to taweel of any sort). One contemporary scholar says that women can travel without mahrem. The hadith is quoted from sahih Bukhari ?....? which is mutashabih to conclude (by these people) that it is allowed for woman to travel without mahrem.

Relevant Ahadeeth on the topic:

1 – The hadith that forbiddens the woman traveling without her mahram for one day and one night lasting trip:

Abu Huraira narrates that the Messenger of Allah said:

“It is unlawful for a woman who believes in Allah and the last day that she travels the distance of one day and one night without a Mahram accompanying her”. (Sahih al-Bukhari, no. 1038).

2. The hadith that forbiddens the woman traveling without her mahrem for two days and two nights lasting trip:

Abu Said al-Hudri narrates that the Messenger of Allah said:

“Let no woman travel for more than two days unless her husband or a Mahram is with her.” (Sahih Muslim).

3. The hadith that forbiddens the woman traveling without her mahrem for three days and three nights lasting trip:

According to the Abd Allah ibn Umar narration, the Messenger of Allah said:

“A woman can not travel for three days except with a Mahram (Sahih al-Bukhari, no. 1036 & Sahih Muslim)