by MMM Rafeek · 2012 · Cited by 2 — guide contemporary fiqh scholars to deal with such issues effectively and how wokingmuslim/work/islamic-review/1930/jul30.pdf on 22nd

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Fiqh al – Aqalliyy t (Jurisprudence for Minorities) and the Problems of Contemporar y Muslim Minorities of Britain f rom the Perspective of Islamic Jurisprudence This thesis is submitted in partial fulfilment of the requirements for the award of the degree of Doctor of P hilosophy of the University of Portsmouth & Mar kfield Institute of Higher Educa tion M.M.M. Rafeek 2012

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2 Abstract This study seeks to explore some of the main problems contemporary British Muslims encounter from the perspe ctive of Islamic jurisprudence. In so doing, it mainly aims to shed light on the extent Muslims in Britain face problems and what impact they might have on their religious identity as well as relationship, belonging, and contribution to the wider society. In so doing, the study will strive to examine whether existing fiqh ( Isalmic jurisprudence) literature is adequate to guide contemporary fiqh scholars to deal with such issues effectively and how some contemporary answers to such issues are inappropriate. If that is the case, what would be the way forward jurists should take to find appropriate solutions? Hence, this study will use qualitative methodology to investigate such issues and questions and it will lead the study to emphasise the necessity to find answers to such problems and a mechanism to handle them, which this study would seek to suggest as a jurisprudential approach called fiqh al – aqalliyy t al – Muslimah (Islamic Jurisprudence for Muslim Minorities) based on values, principles, universalities, a nd higher objectives of Islamic law: maq sid al – Shar ah (Purposes of Islamic ) presented by revisiting textual sources of Islamic law as well as lived examples of early generations of Islam. It will also make some suggestions about further studies needed as regards to fiqh for Muslim minorities.

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4 Dedication This thesis is dedicated to three important people in my life. First ly , to the memory of my late grandparent Pakeer Tambi Mahmood whose pious life mostly stimulated me for the pursuit of Qur n and Islamic studies. Secondly, to the memory of my beloved father who is not with me any more to enjoy the f ruit of my achievement. Thirdly, to the lifetime president of the Jamiah N aleemiah Institute, Sri – Lanka, A l – Haj Naleem whose institute enhanced my k nowledge of Arabic and Islamic s tudies. May Almighty Allah blesss all of them.

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6 Acknowledgments : First and foremost, I thank God Almightly who implanted in me the academic skills and talent to successfully complete this research. Without the divine guidance on me, this work would not have been po ssible within the time limits. I should like to express my profound th anks and gratitude to Dr Fareed El – Shayyal, my supervisor, for his continual support and advice throughout the research of this work. I have been fortunate enough to have Dr Shayyal as my supervisor whose academic advice and comments improved my research s kills and writings. Moreover, without his moral and academic support, which sometimes extended beyond the official hours, this thesis would not have possible. Along side Dr Shayyal, Dr Mike Nash, my Portsmouth university supervisor, was also of help in eve ry way possible. His unconditional help and support coming sincerely from the heart was of great importance to my research. Moreover his much valued academic imput helped me to form the thesis as it is now. For that I am ever grateful to him. I should als o like to express m y gratefulness and thanks to Dr Ataullah Siddiqui for all the encouragement and support he afforded me during this study. I am also very much thankful to Dr R ifai Sulaiman for his constant encouragement, support, and invaluable suggestio ns to complete my studies and for being a close friend for me and my family . I am very much grateful to Br. Badruzzaman for taking his time in amongst his busy schedule to read my thesis and provide me with his indispensable suggestions and opinions . I als o should not fail to thank Br. Nizam Mohamed, the former r egistrar of Markfield Institutite o f Higher Education for his sincere encouragement and support. I also thank Dr. Manazir Ahsan and Mr.

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8 unconditional love to complete this work in time and without her moral support, this study would not have been possible. I should also like to express my thanks to my loving, daughters Sameeha, Shahama and Umama whose leisure time was immensely taken away by my workloads. Morevoer, my siblings, b rother in law s Shaikh M.J.M Mansoor and Br Nowfan who genuinely encouraged me to complete this research and I thank them for their encouragemen t. I shou ld also thank Brs: Ma zoomy , Mo hamed, Hamzath, Mishkat, Nizam and Jawzi, who consistently persuaded me to successfully complete this work. Finally, many members of my extended family and many of my friends supported me in many ways , even those whom I have n ot mentioned here ; all of them deserve my sincere thanks for their good wishes and prayers.

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9 Chapter 1: Introduction Primary objective of this research is to examine definitions, themes , and contents of the legal theories of Muslim minority law i n Britain: to examine arguments for and against the development of particular Muslim minority law in addition to the corpus of Islamic laws are applicable in Muslim and Non – Muslim countries. Do Muslim communities live under Non – Muslim political authoritie s need a separ ate set of Muslim minority law? W hy do the Muslim communities in Europe in general and pa rticularly in British context need for such guidance ? What is the scope and limitation of this minority Muslim law? What are the rationales and justifi cation for t he development of Muslim minority law within European contexts? Why do Muslim jurist consultants ( fuqah ) cannot utilize the primary and supplementary sources of Islamic law to solve the challenges and problems faced by Muslim minorities in Br itain in particu lar and in Europe in general? How do es th is Minority fiqh differ from traditional fiqhi approach of main four schools of Islamic law? Unlike traditional Muslim minorities, who l ive hundreds of years under non – Muslim lands, Muslim s in wester n nations face some modern social problems and challenges which are different from those of traditional Muslim minorities. Social, religious, cultural , and political problems and challenges of people in Europe are unique which considerably differ from the problems faced b y people in other countries, p articularly in Muslim countries. There are ever increasing socio – religious, cultural , and legal problems encountered by Muslims living in European nations in general and in Britain in particular. In traditiona l Muslim minority countries, Muslim communities have identical Islamic judiciary system that helps Muslim communities to come to

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10 terms with some religious and legal problems . They have their own marriage and divorces laws, laws of inheritance , and some cus tomary laws that help Muslim communities in those traditional Muslim minority countries to solve t heir religious issues legally . Muslims in India and Sri Lanka are unique in that sense where Muslims have been accommodated with the provision of Muslim perso nal law for centuries, which is a fresh area of Muslim minority law studies. Muslim minority communities in Britain and European countries do not have a parallel legal system with Englis h laws to solve problems faced by Muslims . Moreover, four Islamic leg al school s of thought do not always provide compatible solutions for the modern problems of Muslim communities in these countries. Traditional Islamic scholars, Jurist consult ant s , and Muslim clerics who live in these countries are trained in trad itional I slamic teachings with a part icular school of legal thought. S ometimes their le gal verdicts and announcement are not compatible with notions of human right concepts in European nations . 1 M ost of these imams and Islamic clerics do not have a comprehensive i n ter cultural knowledge of the European communities. They do not have enough skills, knowledge , and experience to gauge socio – cultural and legal issues of Muslim communities living in European context which has its own legal frameworks. Moreover, the gene ral philosophy of Islamic law is instituted to protect and preserve some basic rights of Muslim community whether they live in Muslim count ries or Non – Muslim countries. The Muslim minority law should be developed to preserve and protect religious and legal rights of Muslim 1 Some case studies show that in certai n cases brought to Sharia councils operating in Britain, Muslim women seeking divorce were wrongly advised by some Official Muslim Advisers in complete opposite to the legal provisions provided by British legal system in relation to domestic violence: Moor e, K.M. The Unfamiliar Abode: Islamic law in the United States and Britain , Oxford University Press, 2010, p. 125

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11 communities in Britain. Sometimes , there appears to be some contradict ions between notions of W estern human rights concepts and Islamic concept of Human rights or Isl amic legal verdicts. T herefore, it is i mperative that Islamic scholars /M uslim clerics thoroughly understand these human right s issues comparatively before passing r eligious verdicts on any issues. In this perspective, the development of Muslim minority law become s very much imperative in European contexts. The developing of this branch of study will largely help to enhance social harmony and co – existence among Muslims and Non – Muslim s in this multicultural society of Britain. This does not mean that Muslim have their own parallel legal system in the UK; rather Muslim minority law should be a supplementary legal concession for Muslim s to resolve thei r religious problems and issues. Muslim minority community is legal ly obliged to follow rules of the land. T hey should also have their own legal provision s to solve their religious p roblems within their community. Apart from this, the prospective corpus of law should inform Muslims the right way to be part of the host country. This enta ils the relationship between Muslims and non – Muslims, which has become a major concern for not only B ri tain but also whole of Europe and North America . The above mentioned rationales and justification would support the argument to systematically develop the Muslim minority law in European countri es. T his is a timely needed intellectual endeavour and aca demic task, which Muslim scholars and legal experts should eagerly eng age to protect basic religious rights of Muslim minority comm unities in Britain and Europe. That is why I have chosen this subject for my research to examine some areas of Muslim minorit y law in British contexts.

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