I – Introduction
Has the time come to speak of ‘fiqh of minorities’?
This question in itself, suggests that we can make a ‘presumably legitimate’ distinction between fiqh of minorities and a fiqh of majorities. So let us first clarify what we mean by minority/majority.
Firstly, we have the philosophical approach, notably that of the philosopher Kant for example (WAS IST AUFKLÄRUNG ?), for whom minority / majority does not refer to statistical criteria within a given statistical framework. Rather, minority refers to the ability to think for oneself, thus freeing oneself from the tutelage of domination. This needs to be carried out first on the level of mutual understanding, that is to say, on an ideological level.
One could argue that this philosophical perspective was behind the current sociological meaning of the term ‘minority’. Minorities in the sociological sense are not necessarily defined according to criteria internal to these groups, but rather on diminishment and discrimination, or even still, devaluation within a group considered as the majority. Clearly, it isn’t based on statistical ratios. Minorities could, in fact, be a numerical majority, but remain a minority through lack of symbolic or material wealth. When we speak of a society within which the minority or the majority is determined by symbolic or material criteria, the parameters being defined are that of a given civic space referring itself to the concept of ‘the state’ as conceived in modern times (people, territory and government). In terms of the law, the legal debate here, is a consequence stemming from the difficulty to reconcile the concept of ‘the modern nation-state’ with the concept of minorities.
II - The issue of dual membership
The difficult and complex notion of ‘minorities’ within the nation-state, as the predominant model in modern states, is much more apparent with regards to language, than with religion. It is noticeable that since the model of the ‘nation-state’ was born in Western Europe, it developed with the interwoven idea that any other ‘collective body’ other than that of the nation-state, was negative. At the heart of this issue, there is this fear of having a nation within the nation. An alternative religion to that of the majority shouldn’t, in principle, be a cause of worry to a secular state, which supposedly embodies the nation beyond the religious beliefs of its citizens. Religion in this context is a worry from a socio-political perspective. It is believed that a religion which differs from the majority religion, has the potential to generate an entirely different cultural code, including an alternative set of values, or a ‘sense of belonging’ other than to the nation, which is something of a worry, insofar as it relates specifically to a another region of the world where this religion is itself a majority (at least in terms of its cultural code). This last feature heightens a constituent of traditional xenophobia, making it pervasive in the current rise of muslimophobia (more than islamophobia). There is this notion of conspiracy, of dual allegiance and in a way, the idea of a “transnational nation”, in other words, the idea of a nation somehow corrupting nations, corrupting the nation-state.
III - Fiqh and the nation-state: the principle of dual compliance
Fiqh, as a legal system can be considered as one of the most accommodating in relation to minorities, insofar as it operates as a stateless system, whose interpretations vary from one place to the next and from one period to another. Its comprehensive diversity as well as its often non judicial and stateless character is at first glance, one of the elements allowing for it to be integrated into any society and any state system. This can certainly be said of it in our era, seeing it work in almost all of the so-called Muslim countries as a stateless system. Through fiqh, Muslims have acclimatized themselves to applying ‘dual compliance’, even in lands where they are the majority: They are therefore accustomed to making use of schools or interpretations which they consider appropriate to their beliefs and their understanding of Islamic law, while at the same time finding ways to accommodate state law. This practice of applying dual compliance is all the more significant insofar as it was widely promoted during the colonial period, and has now basically been inherited by the post-colonial states.
However, as we know, this duality was experienced in ‘Muslim-majority’ countries rather as an overlap of contradictory systems, one imposed by the state inherited from abroad and the other wanted by the “indigenous population”. Naturally, this duality was not experienced as rational or as legitimate. This is reflected in these countries by the dramatic rise in tension between the state and society. It is even more the case that contemporary Muslims are mentally and unconsciously structured by the idea of the nation-state encompassing the rule of law and the courts, that is to say, the idea of a State merging with both the courts and the law. Rather, they are the unwitting result of modernity, understanding the system of law as being necessarily applied by the State within a uniform system for which the courts and law enforcement systems are only its guardians. The concept itself seems contrary to what has historically been seen in Fiqh.
IV - Fiqh and Europe: state issue or social issue
It is within the cities of the former European powers that the issue of ‘fiqh of minorities’ is raised. The largest Muslim minority in a modern state is that of the Union of India. However, it is not in India that this issue is being raised. Nevertheless, one can question the relevance of this issue in Western Europe insofar as it seems to have already been answered at the time European states were great empires, which included much of what is today called the Muslim world. We can therefore ask ourselves by way of example: Why did Muslims in France and England pose fewer problems in terms of the law when they were considered indigenous elements within one or the other of these two states, than when seen as citizens supposedly in their own right as we see today? One of the possible answers refers to sociology and not to the State and its law. In colonial times, the "socio-geographic" distance separating the so-called indigenous societies from their European counterparts allowed for a "long distance” form of cohabitation, to the extent that one could not speak of ‘a single society’ even if it was considered the same state. The heart of the problem today is not that of the ‘state’ but that of ‘society’. When the headscarf is worn by Muslim women in a French department like the islands of Réunion or Mayotte, it is very unlikely to cause the same uproar that since 1989 has surrounded veiled girls in Paris’ northern suburbs. We speak here about ‘the same state’ and much less about the ‘same society’. One could say that here lies the real issue, which in our opinion is at the heart of non-thought in modern states. Nation--states are supposed to be composed of individual citizens in a legal sense, seeing past ethnicity or faith, whereas in reality they are very much preconceived about ethnicity and faith. These preconceptions remain pervasive as ever, explained in part by the theory of ‘tacit socio-legal assumption’, which consists of seeing within the dominant culture of a state, that culture which is most in line with the spirit of its laws. In short, the dominant culture of the nation-state is still seen as more legitimate than minority cultures within the same state.
V – Three contradictions
It can be said that there are three types of contradiction which are synonymous with what can be called ‘fiqh of minorities’, particularly in Western Europe and comparable nation states.
1 Theoretically, the nation-state as such, should be indifferent to issues regarding minorities. Cultural minorities, ethnic minorities, religious minorities or doctrinal minorities etc., all fall within the parameters of civil society and not that of the state. However, we have already seen the problem this poses to the state, if only because it necessarily adopts, according to the model of the nation-state, one language among others. Deep down religion is part of the same phenomenon, firstly because most countries in Western Europe have an official religion, with three well-known exceptions, and secondly, due to the fact that religion is seen as being identical to ethno-cultural belonging. This is what we might call the contradiction of the ethnic non-thought in nation-states.
2 The second contradiction concerns the fiqh as such and its perception by the Muslims of our time. It is the contradiction between the fiqh as it was historically elaborated and mobilized in the classical age and the preconception by modern Muslims, themselves mentally worked on since colonial times by the model of the nation-state in which the law is necessarily state law and where the state, the law and the courts are inseparable.
3 The third contradiction relates to the manner in which the concepts of dar islam, dar al 'ahd and dar al-harb as they were elaborated by the classical fuqaha, are sometimes called upon. As we know, such a distinction stems more from its development by jurists of the classical period than from normative sources. It was probably justified in the context of classical empires and dynasties. It is less so today, where the concept of the state operates on a radically different paradigm. Obviously the modern state, with its concept of border and sovereignty and where citizens are almost regarded as co-land owners by way of their religious affiliation, is incompatible with such traditional legal reasoning.
VI – By way of conclusion
The work on fiqh of minorities has to a result of three complementary fields of activity.
1. Fiqh and sociology: which pertains less to its relation with the state and more on its relation with society. This first field has hardly begun to flourish in Western Europe over the last thirty years. It comes then, to conceive of fiqh in a sociological environment which is predominantly non-Muslim, or to put it differently, in a sociological environment wherein the Muslim ‘fact’ is felt as exogenous and external, experienced as a ‘social transplant’.
2. The second area of activity has not been initiated so far in Europe, outside of personal initiatives or individual practices. It is far more important from a legal standpoint because fiqh is primarily a legal system. This involves working on the principle of dual conformity, which in principle, Muslims originating from ‘Muslim-majority’ countries are already accustomed to. In other words, the fact of working on marriage, divorce, filiations or succession in Maliki or Hanafi Islamic law in France or England, requires working from a perspective of law, comparing it to French or British laws and considering the potential relationship with the stateless system of law that is Islamic law.
3. The third field of activity is not about socio-geographic adaptation, but is socio-historical, or simply put, Historical. It relates to minorities as well as majorities (or supposed as such). In this field, unlike the previous two, much has already been written, but it has been essentially from a socio-cultural stand-point. Thus, it remains important to emphasize that fiqh is first and foremost, as its etymology indicates, about comprehension, intellection, understanding about place and time, as well as an open system of interpretations and new ijtihad. The strong, conservative, sociological resistance still trapped in the Furu' of times past, wishing to establish the furû’ as usūl, would no doubt explain the need for this emphasis. However, legal and judicial reflection on the status of fiqh is still rare. The relationship between fiqh, the state and jurisdiction in the history of the Empire and dynasties is currently an unexplored field of research. How can we conceive of fiqh in modern states structured within paradigms quite different from those of ancient empires and dynasties? Conversely how to conceive of the state, state law and citizenship from the categories of fiqh and Maqasid or from ratio legis of the law? Here is a field of research and action that has not received the attention it deserves.