Friday, August 03, 2007

The Dar Paradigm and Identity

Muslim residence in a non-Muslim land is not a new phenomenon to Islamic Law. Indeed one finds mention of laws pertaining to such domicile scattered unevenly within the pages of classical juristic works. However, such treatment was brief and circumstantially limited and understandably since Muslim migration to the West from the 1980’s onwards is different in respect to its magnitude, scope and perhaps even in nature from what historians have recorded in past eras and centuries. In the past Muslim presence in dar al-harb was either due to sojourns for the purpose of trade, conversion of non-Muslim residents of dar al-harb or a Muslim land was conquered by non-Muslims and these categories have been dealt with by the jurists. However today we have Muslims making the West their home. Bernard Lewis described the situation as, ‘a mass migration – a reverse hijrah – of ordinary people seeking a new life among the unbelievers is an entirely new phenomenon which poses new and major problems. The debate on these problems has only just begun.’[1]

In recognition of this new dimension and even anticipation of what was to come some Muslim scholars have sought developed a new branch of law, termed Minority fiqh, which deals with the myriad of issues and problems faced by Muslims residing in non-Muslim populated countries. The have sought to bring the miscellany of past juristic discussions and modern contributions together into a branch of law in its own right. The proponents of this new discipline like Dr Yusuf al-Qaradawi, Dr, Taha Jabir Alwani, Faysal Mawlawi and others have been highly influential in setting the ball rolling in this new legal discourse. The ideas set out by the above scholars have then been adopted and refined by a new generation of contributors to the subject like Tariq Ramadan, Dilwar Hussain and Nadeem Malik from connected in one way or another with the Islamic Foundation.[2]

As we mentioned before the issues touched upon by Minority fiqh are rather eclectic in nature, spanning the full ambit of normal jurisprudential discussions with some new additions as well. So in one page you might find a discussion on the ruling on women leading the prayer in another the ruling on cloning and use of synthetic alcohols. However, the most salient of these topics, which represents the ethos and provides direction to the diverse legal problems discussed under the rubric of Minority fiqh, is the question of identity and citizenship. How are Muslims to define their residence in the West in terms of their self perception and identity? What does it mean to be a Muslim living in say Britain, France or America whilst also being a member of the ‘ummah’? Is there a contradiction or is co-existence possible without a price to be paid in religious terms? In tackling the question of identity and citizenship- or the nature of Muslim belonging in the West in general - Muslims scholars have had to cover within their discourse many topics. Old terms have been scrutinised such as the concept of dar al-islam and dar al-kufr, while new terms have been introduced to replace the old juristic discourse. Also new ideas have had to be appraised in light of current scriptural and juristic thinking; ideas such as nationalism and the concept of citizenship. They have also tried to tackle the thorny and sensitive issues such as loyalty and identity from a contextual and pragmatic perspective. The result has been a modern neo-ijtihadic conception of Muslim inhabitancy in the West.

The Dar Paradigm

The dar paradigm is the traditional model employed by classical scholars to define the relationship between Muslims and non-Muslim political sovereign entities and as such it falls under the Muslim Law of international relations.[3] This is perhaps best illustrated by the fact that the most ubiquitous mention of the terms dar al-islam and dar al-harb are to be found in what are known as the siyar or maghazi literature or under the section of jihad in fiqh books.[4] The term jihad is understood by some modern day writers in the limited sense of war only but jurists classified under it the wider rules of international relations, hence they included the rules regarding treaties, ceasefire, asylum and international trade under this heading. Part of these is the rules of the dar al-harb, dar al-islam, dar ‘ahd etc, i.e. the different entities between which there will be different relationship based on a judgement of their reality. One aspect which comes under this whole framework of international relations is the question of whether a Muslim citizen of dar al-islam can reside in non-Muslim countries i.e. dar al-kufr or dar al-harb. It is worth adding that some Muslims scholars either discouraged or even forbade Muslims living in non-Muslim lands[5] whilst others were more relaxed about the matter.

This division of the world into Muslim and non-Muslim and the disfavour of scholars upon those who reside in dar al-harb meant that Muslims viewed dar al-islam as their lands whilst dar al-harb was viewed as the land of foreigners or the even the enemy. Naturally in the pre-ottoman era and to an extent during and post World War One colonial period such a view was not questioned as it accorded with the reality where Muslim had their own homelands. However, after the Second World War as Muslims began to migrate to countries in the West seeking economic betterment and gaining citizenship, this idea seemed to clash with old ruling restricting Muslim residence in non-Muslim lands. Muslims increasing were beginning to feel at home in these countries and links back home was were gradually diminishing in quantity and intensity especially with the second and third generation Muslims. Given this reality how are Muslims residing in the West to view the laws and principles laid down by preceding generations? Clearly the seemed to be a contradiction between the old vision of Muslims countries as being home and now the countries in the west were Muslims had establish new roots.

Perhaps the first minority fiqh scholar to address a revision of the dar paradigm was Faysal Mawlawi. In his Al-Usus al-Shar'iyyah lil-‘Alaqat Bayn al-Muslimin wa-Ghayr al-Muslimin, he argued that the notion of a dar al-harb is an ancronistic concept in this day and age. He argue that the conditions used by jurists to define dar al-harb cannot be applied to a situation where there is greater secuity for Muslims in non-Mulims countries than Muslim popolauted countries.[6] As an alternative he suggested that such countries be known as dar da’wa ie the ‘land of inivatitaion’.The above idea was further echoed by Manna’ al-Qattan who suggested that non Muslim countries should be designated as dar ‘ahd due to their treaties and relations with Muslim countries.[7] Yusuf al-Qaradawi has also given his approval of the use of the term dar ‘ahd for countries in the West.[8] Thereafter Taha Jabir al-Alwani affirmed the above views and considered dar al-harb and dar al-islam as ‘superflous’ and counter productive to integration and nature of Muslim residence in the West.[9] Finally the Tariq Ramadan, absorbing all that has come before, went one step further by arguing that even the term dar ahd is misplaced since it is premised on the dar paradigm.[10] The notion of the dar he contends is of dubious legal provenance, an irrelevant geographic description that belongs in the past and impedes social cohesion because it gives a confrontational vision. For these reasons he dismisses the paradigm altogether. Instead he has offered his own term, dar shahada, or the world of testimony, to describe the ‘West’.

One might summerise their reasons for rejecting the dar paradigm under the follwoing points :

The terms dar al-islam and dar al-harb are legal conventions, the product of jurists, and not authentically attributable to the sources.[11]

The dar paradigm is an antiquated idea, a geopolitical term relevant to the time in which it was formulated.[12]

Below is an analysis of each of these points to what extent they are congruent with the context, maintain their asala in respect to following the sources and to what extent such ideas are likely to further the aim of integration.

A. Legal Provenance of the Dar

It has been asserted by the Minority fiqh scholars that the dar paradigm is a product of jurists and has no textual basis. Dr. Sultan Salih, the head of the American Centre for Islamic Research states: ‘This term did not exist in the Islamic fiqh in beginning of Islam, rather it came much late. It is a late juristic convention, not a shariah term, which should no be followed and is unsupported by any explicit texts or authentic hadiths.[13]

Here he raises the following points:

i. The dar is a legal convention and not a Shariah term.
ii. There are no explicit mention of the term in the sources.
iii. The term was later introduction to Islamic law.

These objections seem somewhat disingenuous since they would equally apply to Minority fiqh, or any branch of fiqh, whether classical or modern and would not establish any substantial point other than to say the terms are subject to new ijtihad if proven to be weak. There is a case for arguing that the dar is not shariah term, like salah and zakah, however that does not mean that as a legal convention it is unattributable to the sources. There are many terms coined by jurists to give description to a reality found in the text. For example the words mukallaf, mandub, aqeedah, fasid, jam’ taqdim, jam’ ta’khir, qiyas,’illah, ijma etc are all legal conventions, not mentioned explicitly anywhere in the sources but their meanings are well rooted in the text. Also, lack of explicit mention in the text means very little to the student of law given that fiqh is distinguished from Sharia’h precisely because it is generally not mentioned in the explicit meaning (mantuq) of the text but in its implicit meaning (mafhum). Minority fiqh is fiqh because it is based on speculative inference (dalalah zanniyyah), otherwise no such fiqh would have the room to arise. It is the speculative nature of the texts which give rise to the proliferation of fiqh. In the same vein the assertion that the term came late in the history Islamic law only serves to indicate that one might not be bound to follow it if disproved but that in itself does not disqualify it, just as Minority fiqh cannot be disqualified for being a 21ist century innovation in Islamic law.

Despite the usual refrain that no evidence exists, there seems to be no appetite to actually directly address the evidences which the jurists relied upon to establish their case. One hadith in question is the oft cited hadith narrated by Sulayman al-Buraydah:

‘When the Messenger of Allah appointed anyone as leader of an army or detachment he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He would say: Fight in the name of Allah and in the cause of Allah. Fight against those who do not believe in Allah. Fight but do not embezzle the spoils, do not break your pledge, do not mutilate (the dead) bodies and do not kill the children. When you meet enemies who are polytheists, invite them to three courses of action. If they respond to any one of these, you also accept it and restrain yourself from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then invite them to migrate from their dar to the dar of Muhajirs and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajirs. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims and will be subjected to the Commands of Allah like other Muslims….’[14]

The above hadith implicitly make the point that Madinah, described as dar of the Muhajirs, is different from other dars. It affords its inhabitants, due to its rule, the rights and privileges given by Islam to the Muhajirs. This hadith does not state dar al-muhjijrin is a requirement[15] but that it is legitimate, i.e. en entity which is governed by Muslim rule affording its citizens, whether Muslims or non-Muslims certain rights and privileges. Those who live outside it, whether Muslims or non-Muslim will not enjoy the rights and privileges afforded by the state but will still be subject to the command of God by virtue of being Muslims. It also implicitly mentions the issue of security, as affording right and privileges to residents of a polity is to ensure their security.

In a similar vein we can understand the letter Khalid b. Walid wrote to the people of Hira which states: I have granted (the people of Hira) that any of their elderly who is unable to work, afflicted by a plague, or became poor such that his co-religionists give him alms, then his jizyah will be waived and he and his family will be provided for from the Bayt al-Mal of the Muslims as long as he lives in the dar al-hijrah and dar al-islam. If they leave the dar of the Muhajirs, the dar al-islam, then the Muslims are not obliged to maintain his family.’[16] The dar al-islam is where its inhabitants are looked after by the laws of that land. This is a Muslim land, as opposed to the non-Muslim land where the laws of Islam are absent (dar al-kufr or dar al-harb). Hence the author of Badai al-Sana’i states: ‘There is no disagreement amongst our scholars (ie the Ahnaf) that dar al-kufr becomes dar al-islam by the dominance of the laws of Islam.’[17]
In fact there are many other evidences one can cite which presupposes the existence of a rudimentary dar al-islam and dar al-harb without which such texts make no sense and remain of devoid any application. This is because these verses are not addressed to individuals but state entities. For example,

‘And if they incline towards peace, you also incline towards it.’[18]

This verse in not addressing individuals, but the Prophet Mohammed as the leader of the community for Muslims in Madinah, that he should make peace with those powers who wish peace, as the Prophet did when he concluded the treaty of Hudaybiyyah with Quraysh. In fact most of the rules pertaining to international law presumes the existence of a sovereign Muslim entity, i.e. dar al-islam, which has relationship with nations and states which are dar al-kufr i.e. non-Muslim states.

Finally, that there were, and will be, different types of sovereign political entities, irrespective of the designation one prefers, is a fact of human history. That religion should describe such entities from its own perspective is not a surprising development.

B. An Antiquated Concept?

Minority fiqh has dismissed the dar paradigm as an antiquated idea. This assertion is made based on two reasons:

Firstly: It was a geographical or geopolitical term relevant to the time in which it was formulated. Ramadan states: ‘The concepts of dar al-islam, dar al-harb, and dar al-‘ahd were not described in the Qur’an or in the Sunna. In fact they constituted a human attempt, at a moment in history, to describe the world and to provide the Muslim community with a geopolitical scheme that appropriate to the reality of the time. This reality has completely changed.’[19]

Second: The conditions of the dar are out of date and inapplicable. For example the condition of security (aman) does not make sense today because Muslims have more security in the West than even in some Muslim countries. If living by Islam is to be the criteria then surely the countries in the West should be described as Muslim, which would be an absurd suggestion as would be the suggestion that Muslim countries now should be described as dar al-harb because they do not exhibit the perfect form of the legal system required by the Islamic religion.[20]

With regards to the first point we need to understand that the dar paradigm as a legal term maybe applied in certain time in history but its principles are valid whether or not they apply to certain reality. Law seems to have been confused with international geopolitics. The dar paradigm should not be equated with the paradigms of political scientists who talk of unipolar, bipolar or statist paradigms. The dar paradigm is a legal paradigm with its own logic i.e. it is law, and not political analysis, and informs on how things should be and how they are not. It is prescriptive whilst paradigms of political scientists deal with how things are and how they will be i.e. its observational and predictive. The two should not be confused. The dar paradigm, whether, one agrees with the use of the terms or not, refer to types of state entities in relation to the Muslims. Those states with whom Muslims have a treaty are called dar al-‘ahd and those states with whom the Muslims may be potentially at war are called dar al-harb hukman. As for states which are in occupation of Muslim countries or are invading a Muslim country they are called dar al-harb fi’lan. Where the Muslims are at war with an usurping entity and they make a temporary truce or ceasefire, that known as dar hudna or sulh. One look at the Middle East today indicates that all of the above realities exist. War, peace, treaties and ceasefires are the facts of international relations whether in the past, present and will be so in the foreseeable future. Therefore, the Islamic law of international relations, of which dar al-islam and dar al-harb, is a part, continues to have relevance.

As for the inconsistency of the conditions, these arise due to misunderstanding of what the jurists have said. Let us analyse the views of the Hanafi school which is referred to as the source of this confusion.

The Hanafi school is unanimously agreed as to what makes a land dar al-islam: al-Kasani states: ‘There is no disagreement amongst our scholars (i.e. the Hanafis) that dar al-kufr becomes dar al-islam by the dominance of the laws of Islam.’[21] In this respect they would be agreed that the West is not dar al-islam due to the obvious absence of the Islamic legal system. The dispute however was in respect to when dar al-islam becomes dar al-kufr. According to Abu Hanifah a dar al-islam will become dar al-kufr when three conditions exist:

1. Non-Muslim laws are applied.
2. The conquered land borders the non-Muslim lands.
3. There remains no Muslim or zimmi who has enjoys security (aman) from the original security i.e. security of the Muslims.

However, Abu Yusuf and Muhammad differed and said: that the land becomes dar al-kufr by the application of non-Muslim laws.[22] We note from this discussion that they are not talking of lands which were never Muslim in the first place, such as the West. Hence the presence of security in a non-Muslim land which was never dar al-islam will not come under the above conditions. Thus, no confusion exists with regards to the application of the condition of aman with regards to the West; they are not dar al-islam by virtue of the security provided to Muslims because they were never originally dar al-islam in the first place.

As for the lands which were once dar al-islam and then came under non-Muslim rule or occupation. Such countries would become dar al-kufr when the laws become non Muslim according to Abu Yusuf and Muhammed al-Shaybani. As for Abu Hanifah, what did he mean by security? It seems that the expression ‘the original security i.e. security of the Muslims,’ indicates he was referring to authority and not just individual safety. He was reluctant to pronounce, a former dar al-islam, as dar al-kufr without setting more stringent conditions for what would be necessary to become dar al-islam. In any case later Hanafis argued that lands conquered by non-Muslims, as we saw in the past by Christians or the Mongols, would remain dar al-islam as long as Muslims were able to practise their religion.[23] This however was in respect to conquered lands and not lands which were never dar al-islam.[24]

The point is also made that following the classical definition the Muslim populated countries would be considered dar al-harb due to the absence of the Islamic rule. This is presumes that the dar paradigm is monolithic. In fact the dar paradigm is made of independent and interrelated parts. The absence of one part does not mean the absence or irrelevance of the other. Also the fact that it does not exist does not make it any less relevant if the law prescribes it. So the absence of dar al-baghi[25], an area of dar al-islam where a section of the population have rebelled against the legitimate ruler, does not make this discussion irrelevant just as the study of hudud and penal system is not irrelevant simply because they does not exist. Admittedly, Islamic law is not concerned with hypothesising, but situations which are expected or required by law are always clarified.

Kamal Abu Zahra

[1] Lewis, Bernard, Legal and Historical Reflections on the Position of Populations under Non-Muslim Rule, Journal Institute of Muslim Minority Affaires, vol. 13:1 January 1992 p.13. For example of early thinking on this issue see Abdur Rehman Doi’s Duties and responsibilities of Muslims in Non-Muslim States: A point of View.’ Or Kalim Siddiqi’s view A Muslim Agenda for Britain: some reflections’, New Community,17,3, 1991, pp.467-75.
[2] Ramadan is on record as saying that he disagrees with the whole idea of ‘Minority fiqh’ because it depicts Muslims as a Minority when in fact they share majoritarian values. However, I have included him and others as part of the Minority fiqh discourse because they share the same legal philosophy and approach as the original Minority fiqh scholars. Therefore, Ramadan’s disagreement is only a semantic difference which cannot separate him from the Minority fiqh legal tradition he follows in his writing.
[3] Al-Shaybani, Abu ‘Abd Allah, The Islamic Law of Nations: Shaybani's Siyar, Khadduri, Majid (trans.), (Maryland: The John Hopkins Press, 1966).idem, al-Radd ‘ala Siyar al-Awza’i, ed. Abu al-Wafa al-Afghani (Beirut: Dar al-Kutub al-‘Ilmiyya, n.d.) Abu Bakr al-Sarakhsi, Sharh al-siyar al-kabir, {Cairo:Ma’had al-Makhtutat) Wansharisi, A.hmad ibn Ya.hyá, al-Mi`yar al-Mu`rib wa-al-Jami` al-Mughrib `an Fatawá ahl Ifriqiyah wa-al-Andalus wa-al-Maghrib, (al-Ribat : Wizarat al-Awqaf wa-al-Shu'un al-Islamiyah, 1981-1983). Al-Shafi’i, Muhammad ibn Idris, al-Umm, (Beirut : Dar al-Kutub al-`Ilmiyah, 1993). Sahnun, Abu Sa’id, al-Mudawwana al-Kubra, (Cairo: Dar al-Fikr, n.d.), vol. 3. Modern writer have also followed this line of classification. Zuhaili, Wahbah, Athar al-harb fi l-fiqh al-islami, (Damascus: Dar al-fikr, 1962). Khadduri, Majid, War and Peace in the Law of Islam, (The John Hopkins Press, 1955), and the Phd thesis by Mohammed Khair Haykal, Al-jihad wal qital fi siyasa al-shar’iyyah, (Beirut, 1993).
[4] However, the terms dar al-islam and dar al-kufr are also used in a theological context but it enjoys limited usage. See Ash`ari, `Ali ibn Isma`il, Maqalat al-Islamiyin, ed. Muhammad ‘Abd Hamid (Beirut: al-Maktaba al-‘Asriyya, 1990).p.154.
[5] The Maliki position was the most prohibitive. See Wansharisi, A.hmad ibn Ya.hyá, al-Mi`yar al-Mu`rib wa-al-Jami` al-Mughrib `an Fatawá ahl Ifriqiyah wa-al-Andalus wa-al-Maghrib, (al-Ribat : Wizarat al-Awqaf wa-al-Shu'un al-Islamiyah, 1981-1983). Whilst some of the Shafi’is were on the other side of the spectrum where they preferred Muslim residence in dar al-harb as long as they served the Muslim interest. See Nawawi’s citation of al-Mawardi’s view in al-Majmu’ sharh al-muhadhdhab, (Beirut: dar al-fikr)
19/246.
[6] Mawlawi, Faysal,: Al-Usus al-Shar'iyyah lil-‘Alaqat Bayn al-Muslimin wa-Ghayr al-Muslimin, (Dar al-irshad al-islamiyyah, 1987).p.104-105.
[7] Al-Qattan, Manna’, Iqamat al-Muslim fi Balad Ghayr Islami (Islamic Foundation for Information, Paris, 1993).
[8] Shadid, W & Koningsveld, P.S. Van (eds.), Political Participation and Identities of Muslims in non-Muslim States, (Kampen, the Netherlands: Kok Pharos,1996).p.95.
[9] Alwani, Taha Jabir, Towards A Fiqh For Minorities: Some Basic Reflections’ (International Institute of Islamic Thought, 2003).p.xv and p.28.
[10] Ramadan, Tariq, Western Muslims and the Future of Islam (Oxford University Press, 2004).p.67.
[11] Ramadan, Tariq, Western Muslims and the Future of Islam (Oxford University Press, 2004).p.63. Sultan Salih, Radd ‘ala mufti Misr, where he states ‘it is a late juristic, no shariah term, which should no be followed and is unsupported by any explicit texts or authentic hadiths.’p.2
[12] Ramadan, Tariq, Western Muslims and the Future of Islam (Oxford University Press, 2004).p.66 and p.69.
[13] Sultan, Salih, Hiwar wa tarhih wa radd ‘ala mufti Misr. p.2

[14] Sahih Muslim, 18/4294.
[15] Minority fiqh scholars have cited many other evidences which indicate that ruling and governance should follow the shariah. See Yusuf al-Qaradawis work entitled: ……….
[16] Abu Yusuf, Kitab al-Kharaj, p.155-156.
[17] Al-Kasani, Badai al-sanai, vol 7, p.130.
[18] [8:61]
[19] Ramadan, Tariq, Western Muslims and the Future of Islam (Oxford University Press, 2004) p.69.
[20] Mawlawi, Faysal,: Al-Usus al-Shar'iyyah lil-‘Alaqat Bayn al-Muslimin wa-Ghayr al-Muslimin, (Dar al-irshad al-islamiyyah, 1987).p.104.
[21] Al-Kasani, Badai al-sanai, vol 7, p.130
[22] Al-Kasani, Badai al-sanai, vol 7, p.130
[23] Ibn Abidin, Hashiyah Radd al-Mukhtar, 4/75.
[24] As for the off-the-wall views of Ibn Abidin and Mawardi, that being allowed to practice Islam makes a land dar al-islam, these views are rejected by Minority fiqh scholars anyway, hence it is unnecessary to go into these in any detail. See Sultan, Salih, Hiwar wa tarhih wa radd ‘ala mufti Misr. p.3.
[25] Zuhaili, Wahbah, Athar al-harb fi l-fiqh al-islami, (Damascus: Dar al-fikr, 1962).p.153.

3 comments:

Optimist said...

salams


In relation to kufr buwah, as narrated by ubaddad ibn Sammit - it is mentioned that the kufr buwah must be explicit kufr- what would be explicit kufr and what would constitute implicit kufr?

second- if there is explicit kufr does one immediately raise arms under an islamic system or is there an islamic procedure?

jk

Abu Ismael al-Beirawi said...

The following article explains:

http://abuismael.blogspot.com/2007/08/when-is-rebellion-against-khalifah.html

Anonymous said...

For more questions & answers on this topic check:

http://abuismael.blogspot.com/2007/08/twisting-of-ahadith-to-justify.html