ISLAMIC JURISPRUDENCE IN NON-MUSLIM JURISDICTIONS: CLASSICAL AND MODERN PERSPECTIVES

Abstract

This thesis is an examination of Islamic jurisprudence in non-Muslim jurisdictions. While Islamic jurisprudence (fiqh) conventionally addresses Muslims living in Muslim lands, the aim of this thesis is to examine what the juristic tradition presents in regards to the more 'marginal' cases of Muslims in non-Muslim lands. The study begins by providing an overview of debates in Western scholarship about Islamic law in terms of its ability to adapt to new and changing circumstances. I will look at conceptions formed about ijtihad (juristic deduction/reasoning) in the writings of the most important contributors to Islamic law in the last few decades. I will then assess how ijtihad was used as a tool for renewal among modernist Islamic scholars. Next, I provide an overview of how a wide-ranging use of ijtihad allowed Islamic scholars and Muslim nation states to push reforms on a number of levels in the modern period.Chapter two observes the historical precedents in which Muslims found themselves under non-Islamic rule, beginning with migration in early Islam. I will look at what classical Islamic jurists said regarding Muslims travelling to and living in non-Muslim lands. Following on, I observe how Muslim jurists dealt with the practical phenomenon of Muslim traders travelling to Muslim lands and how the law functions in a non-Muslim polity. Issues of jurisdiction were paramount for the jurists in terms of how they would judge and adjudicate on crimes committed outside dar al-islam (the abode of Islam). The chapter also provides details on Muslims adjudicating among themselves by appointing ¬de-facto judges in a non-Muslim legal milieu. Chapter three is a study of two specific historical contexts in which Muslims were under non-Muslim rule, namely Islamic Spain and British India. I will analyse the different genres of fiqh in which the jurists expressed their positions, paying particular attention to fatwas (legal responsa) that were written in reference to specific political and social settings.Chapter four is an analysis of selected fatwas that have been written by contemporary Islamic scholars addressing the issues of Muslims living in non-Muslim lands within a traditional paradigm.Chapters five and six turn to a new and controversial discipline in Islamic jurisprudence that has recently been developed by modern Islamic reformers, called fiqh al-aqalliyat (minority jurisprudence). The study will focus on two jurists well-known in the West and examine the religious and practical basis on which they have constructed their frameworks. I will give particular attention to a fatwa written specifically for Muslim minorities. The fatwa will be used to demonstrate the relationship between theory and practice in fiqh al-aqalliyat. I will aim to locate fiqh al-aqalliyat within the broader trends of Islamic reformism and I will also make comparisons with the classical fiqh tradition on Muslims under non-Muslim rule. This research will shed light on Muslims in non-Muslim lands from a jurisprudential perspective, and in doing so may contribute to the understanding of Islamic jurisprudence as a whole.

Date of Award	1 Aug 2013
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Shuruq Naguib (Supervisor) & Ronald Buckley (Supervisor)