Which of the four orthodox madhhabs has the most developed fiqh

for Muslims living as minorities?

Nuh Ha Mim Keller

My first acquaintance with fiqh al-aqalliyyat or the jurisprudence of [Muslim]

minorities was in a discussion last year with Dr. Taha Jabir al-Alwani at the
International Institute of Islamic Thought in Herndon, Virginia. I understand
from him that it is a new area of Islamic jurisprudence, or rather a new name for
an old area of jurisprudence, that used to be called fiqh al-nawazil, or
"jurisprudence of momentous events". The Maliki madhhab (school of
jurisprudence) has among the most well-known literature for this, perhaps
because of the experience of the predominantly Maliki populace of the Muslim
West in losing Andalus (Islamic Spain) to the Christians. There were works, for
example, on nawazil ahl al-Qurtuba, or the "momentous events of the people of
Cordova", the nawazil of Such-and-such a city, and so forth. Their scholars gave
fatwa, the formal Islamic legal opinion of a mufti, about what Muslims could
legally do in such circumstances, fatwas found in such works as the Maliki
scholar Ahmad al-Wanshirisis twelve-volume al-Miyar al-mughrib an fatawa
ulama Ifriqiya wa al-Andalus wa al-Maghrib [The standard, expressing the fatwas
of the scholars of Tunisia, Andalus, and Morocco], and other works.

We find similar types of fatwas, in the Hanafi school, in works such as Ibn
Abidin's famous Hashiya [Commentary] on Haskafi's al-Durr al-mukhtar [The
choice pearls], or the al-Fatawa al-Hindiyya [Fatwas of India], under the juristic
rubric of ma taummu bihi al-balwa, or that which is of widespread affliction,
meaning circumstances that do not accord with the shari'a but necessarily affect
so many people that allowance has to be made for them, for reasons to be
mentioned below. The Hanafi school is particularly rich in such legal applications
out of necessity, for it governed the majority of Muslims for the greater part of
Islamic history, including the Abbasid and Ottoman periods, and its muftis dealt
with many many situations in many different lands.

How is it possible that the ruling of Allah could vary from place to place?
One scholarly answer is found in the Islamic legal concept of darura or "vital
interest" that sometimes affects the shari'a rulings otherwise normally in force.
Although the fundamental basis of Islamic law is that it is valid for all times and
places, Allah Most High, in His divine wisdom, stipulates in Surat al-Hajj that
"He has not placed any hardship upon you in religion" (Qur'an 22:78).

Now, the beginning of this verse is an exhortation to fight as hard as one should
in jihad, which will normally result in the death of some of the combatants, a
considerable hardship, but necessary to protect the religion and interests of the
community as a whole. So the verse does not mean there will be no hardship in
the religion at all, but rather lifts the hardship of things which are beyond the
Muslims strength, which, if they were continually to bear them, would result in
harm to vital interests such as their religion, persons, or property.
This means that for Muslims living as minorities, as well as for others,
exceptional shari'a rulings may sometimes be effected when not to effect such
exceptions from the normal rulings would vitiate a darura or "vital interest".
Among the interests usually enumerated as vital in the science of usul al-fiqh or
"bases of jurisprudence" are five: one's religion (din), person (nafs), having
offspring (nasl), property (mal), or reason (aql). The effect of shari'a rulings upon
these vital interests in particular circumstances could conceivably differ in lands
of Muslim minorities from those of Muslim majorities.

What has been attempted in the modern jurisprudence of minorities, is to

examine past fatwas given in such exceptional circumstances, identify the
interests in which they were given, the methodological principles of Islamic
jurisprudence (al-qawaid al-fiqhiyya) used, the Qur'an and hadith primary texts
cited as evidence--and draw conclusions relevant today. In this particular, it is
worth noting again that fatwas may vary with time, place, and those to whom
they are given, in view of the human advantages and disadvantages that the
shari'a must take into consideration because of being universally applicable to
every place and time.

For example, in reference to whether Muslims can live in Western countries, I

pointed out to Dr. Taha that al-Wanshirisi mentions in his Miyar al-mughrib a
fatwa given by a Moroccan scholar after the fall of Andalus that it is not
permissible for a Muslim to remain in a non-Muslim land where shari'a does not
rule "for even a single hour of a single day". Dr. Taha replied that such fatwas
were given in view of the need of the Muslim polity to sever all ties and ways of
compromise with the non-Muslim occupiers. This was also the main interest, he
said, in fatwas given by Maliki scholars at the beginning of this century of the
unlawfulness of North-African Muslims taking French citizenship, at a time when
France wanted to buttress its hegemony over the area by offering citizenship and
passports to Muslims; whereas today, North Africans living in France and
elsewhere may very well have a valid need for taking such a foreign nationality.

We should remember, among the other points mentioned above, that issuing a
fatwa on the exceptional rulings we have mentioned (or interpreting the present
relevance of past fatwas given under such exceptional circumstances) requires a
mufti qualified to do ijtihad--I have mentioned elsewhere the qualifications
needed by such scholars, and in consequence, how rare they are--and is a path to
hell for anyone else. Secondly, an exception made to protect a "vital interest"
(darura) cannot exceed the minimum necessary to obviate harm to that interest.