Al-Bouti’s attitude towards Fiqh...
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Al-Bouti’s attitude towards Fiqh al-Aqalliyyât Islamic Jurisprudence for Muslim Minorities in non Islamic Societies Zekeriya Budak Master Islamic Theology S0738514 / [email protected] Islamic Jurisprudence for Muslims in the West Supervisor: Dr. U. Ryad 18 April 2011 / Leiden
Transcript of Al-Bouti’s attitude towards Fiqh...
Al-Bouti’s attitude towards Fiqh al-Aqalliyyât
Islamic Jurisprudence
for
Muslim Minorities in non Islamic Societies
Zekeriya Budak
Master Islamic Theology
S0738514 / [email protected]
Islamic Jurisprudence for Muslims in the West
Supervisor: Dr. U. Ryad
18 April 2011 / Leiden
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ACKNOWLEDGEMENT
I would like to present my sincere thankfulness to my dear father and my deceased beloved
mother, who died last November, for their great role in my life and their numerous sacrifices
for me.
It gives me great pleasure to record my gratitude to those who have helped me in the
recent period so that I could finish this thesis. First of all, I thank my wife, Nuray, for her
patience and supporting in the last couple of years. I would have not finished this thesis
without the support of her and our families who were always been there for me whenever I
needed them, the encouragement they give to keep me going and their love to empower me
that never fails all the time. Thank you.
Special thanks are due to Marianne Vorthoren who helped me with editing the thesis.
Without her assistance it would have been much difficult for me. Thank you.
Zekeriya Budak
18 April 2011
Leiden
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Acknowledgment 2
Contents 3
Introduction 5
Chapter 1
Biography of al-Bouti
1.1 Al-Bouti’s Life 11
1.2 Al-Bouti’s Academic Carrier 12
1.3 Influence 13
1.4 Al-Bouti’s Books 15
1.5 Al-Bouti’s Activities 17
Conclusion 17
Chapter 2
Al-Bouti’s opinion on some Islamic Issues
2.1 Al-Bouti’s Opinion on the West 18
2.1.1 Islam and the West 18
2.1.2 Al-Bouti’s Opinion on the Stay of Muslims in
Dâr al-Harb and Dâr al-Kufr 19
2.2 Al-Bouti’s Understanding of Fiqh 19
2.2.1 Usûl al-Fiqh 19
2.2.2 Al-Lâ-Mazhabiyya 21
2.3 Al-Bouti’s Da’wa Method 22
2.3.1 Al-Bouti and Sufism 22
2.3.2 Al-Bouti and Politics 23
2.3.3 Al-Bouti and Islamist Groups 24
Conclusion 26
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Chapter 3
Al-Bouti and Fiqh al-Aqalliyyât
3.1 Al-Bouti’s Opinion on the West and Fiqh al-Aqalliyyât 27
3.1.1 The West and Islam 27
3.1.2 Relation Between the Secular State and Islam 30
3.2 Al-Bouti’s Understanding of Fiqh and Fiqh al-Aqalliyyât 31
3.3 Al-Bouti’s Da’wa method and Fiqh al-Aqalliyyât 33
3.4 Al-Bouti’s Criticism of the European Council for Fatwa and Research 36
3.5 A Response to al-Bouti’s Criticism 37
Conclusion 38
Conclusion 40
Literature 42
Appendix 1, 2, 3 47
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Introduction
Muslim minorities have been living under non-Islamic rule throughout Islamic history. In last
hundred years, a large number Muslims immigrated to Europe and America, particularly
during the second half of the twentieth century, which has created an unprecedented situation
as a minority group under non-Islamic Western rule and culture.
In order to get answers to new questions about their religion, Muslims therefore
establish contacts with Muslim scholars who live outside the West, especially regarding their
practical problems. Besides, Muslims also formed institutes, unions and fatwa councils to find
answers to their questions. In this way, a whole new branch of fiqh has been created that aims
at re-interpreting the principles of Islam within a secular social, cultural and political context
called fiqh al-aqalliyyât (Religious Jurisprudence of Minorities).1
This concept was introduced in 1990s by two prominent religious figures, Shaykh Dr.
Taha Jabir al-’Alwâni and Shaykh Dr. Yusuf al-Qaradâwi. It asserts that Muslim minorities,
especially in the West, deserve a special new legal discipline for their unique religious needs,
which differs from those of Muslims residing in Islamic countries. Fiqh al-aqalliyyât deals
with the daily problems that arise for millions of Muslim individuals living in the West. It
tries to resolve conflicts with the culture and values of the host societies from within the
framework of Islamic jurisprudence. Its goal is to reshape and reinterpret Islamic concepts,
while not appearing to be a religious reform movement that breaches orthodoxy.2
There are many ideas used to justify the existence of fiqh al-aqalliyyât. These are:
-The claim that the Shari’a has remained silent on new issues, and the existing
methodology of Islam is incapable of dealing with these issues. This understanding holds that
where there is no explicit text than the scholar should study deeply and find opinions in the
interest of Muslims.3
1 About fiqh al-aqalliyyât; see, for example,
Kamrava, M., The New Voices of Islam: Reforming Politics and Modernity, I.B. Tauris, London, 2006. Al-Qardawi, Y., Fi Fiqh al-Aqaliyyât al-Muslima, Dâr al-Shurûq, Caïro, 2001.
March, A, F., Islamic Law and Society, “Sources of Moral Obligation to Non-Moslims in the “Jurisprudence of Muslim Minorities” (Fiqh al-Aqalliyyât) Discourse,” Vol. 16, Number 1, Brill, 2009, pp. 34-94.
2 Fishman, S., Fiqh al-Aqalliyyât: A Legal Theory for Muslim Minorities, Hudson Institute, Washington, 2005, pp.1-2. 3 Khan, A.K., The Fiqh of Minorities-the New Fiqh to Subvert Islam, Khilafah Publications, London, 2004, pp.8-9.
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-The claim that Islam changes from time-to-time and place-to-place. The proponents
of this thought say that because we are now living in the Western modern age, a new
methodology of extracting rules is need.4
-The claim that the “traditional” answers need not to be given, we need to rework the
questions.5
In his book A History of Islamic Legal Theories, Wael B. Hallaq outlines the developments in
Islamic legal methodology throughout the twentieth century. After noting that his study does
not include secularists such as Faraj Fuda, or puritan traditionalists such as those dominating
the Saudi regime, he divides those occupying the middle ground into two main camps:
religious utilitarians and religious liberals.6 Both groups want to reform legal theory in a
manner that successfully synthesizes the basic religious values of Islam with substantive law
able to address the needs of a modern changing society.7 Religious liberals differ from the
utilitarians in that they insist on creating a new methodology rather than merely adding
juristic devices.8 Fiqh al-aqalliyyât squarely belongs to the tradition of the utilitarian camp of
the salafiyya9 movement of the Egyptian jurists Muhammad Abduh (d. 1905) and Rashid
Rida (d. 1935).
Al-‘Alwâni argues that the “fiqh for minorities” cannot be included under fiqh as it is
understood today, i.e. the fiqh of minor issues. It ought to come under the science of fiqh in its
general sense, which covers all theological and practical branches of Islamic law and
jurisprudence. This is a specific discipline which takes into account the relationship between
the religious ruling and the conditions of the community and the location where it exists. It is
a fiqh that applies to a specific group of people living under particular conditions with special
needs that may not be appropriate for other communities. He adds that besides religious
knowledge, practitioners of this fiqh will need a wider acquaintance with several social
sciences disciplines, especially sociology, economics, political science and international
relations. The purpose of this fiqh is not to give minorities privileges or concessions not
available to Muslim majorities, on the contrary, it aims to project minorities as representative
4 Ibid. pp. 13-14. 5 Ibid. p. 15. 6 Hallaq, W. B., A History of Islamic Legal Theories (Cambridge University Press, 1997), p. 213. 7 Ibid., p. 214. 8 Ibid., p. 231. 9 Salafiyya is a neo-orthodox brand of Islamic reformism, originating in the late nineteenth century and centered in Egypt; it aim was to regenerate Islam by returning to the tradition of represented by the “pious forefathers (al-salaf alsalih).” See “Salafiyya” (P. Shinar), Encyclopedia of Islam.
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models or examples of Muslim society in the countries in which they live. It is the fiqh of
model communities.10
Al-‘Alwâni claims the right to idjtihad, interpreting the Koran and the sunna
independently from the prevailing opinions of the jurists of the four madhhabs and is against
taqlîd (imitation) of them. Al-’Alwâni says that a more logical and scientific approach is
required, one that delves deeply into the background of both the query and the inquirer, as
well as paying close attention to the underlying social factors that caused the question to be
raised.11
Al-‘Alwâni explains this by saying that Muslims outside Islamic countries have faced
new situations that raised many issues. These issues are far beyond the limited personal ones
such as halâl food, the sighting of the new moon, or marriage to a non-Muslim women. The
debate has now turned to greater and much more profound issues relating to Muslim identity,
the role of Muslims in their new homeland, their relationship to the world Muslim
community, the future of Islam outside its present borders and how it may go forward to
establish its universality in all parts of the globe.12
According to al-’Alwâni, the problems of Muslim minorities can only be tackled with
a fresh juristic vision, a new methodology for replicating the Prophet’s example in order to
make his way clearer and more accessible to everyone at all times.13
Fiqh al-aqalliyyât does not transform the basic principles of the religion or the pillars
of Islam. al-’Alwâni states that it is important to consider fiqh al-aqalliyyât as a major branch
of jurisprudence. It must be placed within a suitable framework so that it can give guidance to
Muslims living in non-Muslims countries who need rulings not yet clarified in sharia.14
The fiqh al-aqalliyyât of al-’Alwâni is not a simply system for answering personal
questions in jurisprudence, but also a framework for political and social interaction between
the majority and the minority populations in non-Muslim lands, as well as within the Muslim
minority itself. It seeks to provide a systematic way of organizing and defining Islam in the
West that accords with the Muslim Nation’s larger agenda of transforming Western lands into
Islamic ones.15
10 Ibid, pp. 3-4. 11 Ibid. pp. 4. 12 Ibid. p. 6. 13 Ibid. p. 7. 14 Fishman, S., Fiqh al-Aqalliyyât, p. 12. 15 Ibid., p. 3.
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In his book Fî Fiqh al-Aqalliyyât al-Muslima (Regarding the Fiqh of Muslim Minorities), al-
Qaradâwi links the growth of Muslim communities around the world with the general process
of Islamic awakening that, according to his analysis, takes place in seven stages: the stage of
feeling identity, of arousal, of movement, of gathering, of building, of settlement and of
interaction. According him, the stage of interaction with non-Muslim societies has been
reached. He contends that Muslim minorities are now standing on a solid ground, proud of
themselves, able to express their identity, protect their existence, and present their cultural
message to humanity.16
Al-Qaradâwi outlines the foundations that he believes this fiqh should be based upon.
He notes that the foundations of such a fiqh are no different than regular fiqh and are what is
found in the books of legal methodology (usûl al-fiqh).17 He mentions nine characteristics that
should be fundamental to the effort of answering questions that are specific to Muslims in
minority contexts. These nine points are: no fiqh without a strong, modern ijtihâd; ample
consideration of overarching legal maxims; a proper understanding of the lived reality of the
people who are being dealt with; an emphasis on fiqh coming from groups and not
individuals; following the method of facilitation; following the maxim “fatwa changes
according to certain factors;” considering the sunna of gradualism; acknowledging human
necessities and needs; freeing oneself from the obligation to follow any particular madhhab.18
These are what he considers to be the foundations of a minority fiqh and in the rest of the
book he explains his opinions on various issues that are pertinent to Muslims in minority
settings. From these guidelines we can come to an understanding of his approach. It is not
really anything drastically new, but rather founded firmly in the textual and methodological
traditions of Islamic learning. All he has done is to bring extra emphasis on things that
generally should be considered in fatwas. We can also see how through the choice to put
emphasis on these particular principles he is using pre-established concepts to squeeze out
space for context in the fatwa process. In these nine points, about seven of them deal with
issues related to understanding the context of the fatwa. This, on his part, was a good effort
and has led to a useful methodology in giving fatwa that has greatly lessened the harm that
can come from fatwas that do not take these points into consideration. However, the approach
16 Al-Qaradâwi, Y., Fi Fiqh al-Aqalliyyât al-Muslima—Hayat al-Muslimîn Wasat al-Muitama’at al-Ukhra,Cairo: Dar al-Suruq, 2001, p. 23. 17 Ibid., pp. 37-39. 18 Ibid., pp. 40-60.
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is limited to more or less adapting the opinions of previous scholars on all types of issues
rather than truly coming up with new ijtihâds that really deal with the issues at hand.19
Methodology and the Aim of the Study
There are various trends in studying fiqh al-aqalliyyât. These are from a legal, sociological
and political viewpoint. For example, W. Shadid and P.S. van Koningsveld study this branch
from a legal viewpoint by focusing on fiqhî reasoning of fiqh al-aqalliyyât.20
A. Caeiro writes from a sociological viewpoint. When he studies fiqh al-aqalliyyât he
deals with the social issues of minorities in the West, such as bank interest, home purchase
and Islamic norms.21
A. March, who is Associate Professor of Political science, writes from a political
viewpoint when studying fiqh al-aqalliyyât.22
It is observable, there is no comprehensive study so far has studied any Muslim scholar or
group that refuse the idea that as a branch of fiqh under this name. Fiqh al-aqalliyyât receives
two types of criticism from within the Muslim community. Some reject the entire concept of
fiqh al-aqalliyât, that Muslims in the West should have a special system of fiqh; others
condemn specific lenient rulings of institutions that have adopted fiqh al-aqalliyyât.23 Shaykh
Muhammed Said Ramadân Al-Bouti is one of the scholars who reject the entire concept of
fiqh al-aqalliyât.
A. Christmann briefly studies Shaykh M.S.R. Al-Bouti and his views on the West, his
fiqh understanding, and his da’wa (Islamic Mission) method are noticeable.24 In this study I
will attempt to clarify the attitude of al-Bouti against fiqh al-aqalliyyât. I will study his
opinion on the West, his fiqh understanding, and his da’wa method and discuss this in relation
19 http://www.jamaaldiwan.com/blog/files/fatwas_in_america_contemplations.pdf , p. 11, accessed on: 5 February 2011. 20 Shadid, W.A.R. and Koningsveld, P.Sj., Intercultural Relations and Religious Authorities: Muslims in the European Union, Leuven, Peeters, 2002, pp. 149-170. 21 Caiero, A., Die Welt des Islams: International Journal for the Study of Modern Islam; “The Social Construction of Shari’a: Bank Interest, Home Purchase, and Islamic Norms,” Vol. 44, issue 3, Brill, Leiden, 2004. 22 March, A, F, Cardozo Law Review [Symposium Issue on Constitutionalism and Secularism in an Age of Religious Revival: the Challenge of Local & Global Fundamentalism], “Are Secularism and Neutrality Attractive to Religious Minorities? Islamic Discussions of Western Secularism in the ‘Jurisprudence of Muslim Minorities’ (Fiqh al-Aqalliyyât) Discourse,” Vol. 30, No. 6, 2009, pp. 2821-2854. 23 Fishman, S., Fiqh al-Aqalliyyât, p. 12. 24 Christmann, A., “Islamic Scholar and Religious Leader: a Portrait of Shaykh Muhammad Sa’îd Ramadân al-Bûti,” Islam and Christian-Muslims Relations, Volume 9, Issue 2 July 1998.
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to his views on fiqh al-aqalliyyât. After doing this, I will look whether his attitude against fiqh
al-aqalliyyât can be clarified with his political and religious views.
In this study I will also use primary sources such as interviews with al-Bouti, his
books and his website.
The present research tries to clarify the attitude of Shaykh M.S.R. Al-Bouti to fiqh al-
aqalliyyât. In the First chapter, I attempt to give a portrait of Shaykh M.S.R. al-Bouti, his life,
academic carrier and scholars who had influenced his thoughts.
The Second chapter discusses al-Bouti’s attitude towards the West and his view on the
stay of Muslims in the West, his fiqh understanding and his da’wa method. Bouti’s attitudes
have been moulded against the background of his da’wa method and fiqh understanding.
In the Third chapter, I will sum up al-Bouti’s criticism of fiqh al-aqalliyyât, especially
his views regarding the European Council for Fatwa and Research. As we shall see, Bouti’s
criticism has been influenced by his political views. In addition, his religious or legal (usûl)
views are reflected in his analyses.
Zekeriya Budak
18 April 2011
Leiden
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Chapter 1
Biography of Al-Bouti
1.1 Al-Bouti’s Life
Muhammed Sa’îd (al-Bouti) is the son of Mendje and Mullah Ramadan.25 He was born in
1929 in a small Kurdish village Cilka, in the region of Boutan26 in the province of Sirnak in
Turkey.27
Al-Bouti’s father received a traditional education in aqida (religious dogmatics), tafsîr
(exegesis), fiqh (Islamic jurisprudence), usûl al-fiqh (Islamic philosophy of law). He later
started his own madrassa in his own village, where he taught himself.28
After World War I, the fall of the Ottoman Empire and founding of the Turkish
Republic, Mustafa Kemal (Atatürk) introduced a number of laws to break the ties to the
Islamic Ottoman past, such as the abolition of the Caliphate, replacing the Arabic alphabet
with Latin letters, the attempts to replace the Quran in Arabic by a translation in Turkish, the
closing of the madrasas and the law obliging men to wear Western hats instead of the fez (a
felt brimless hat). In the year 1934, all of these laws had been introduced.29
After some of these events, in 1933, Mullah Ramadan decided to leave for Damascus
with his wife, two daughters and his son. Al-Bouti was four years old at the time. In
Damascus the Mullah started teaching in Shafi’ite jurisprudence, and soon gained reputation
in religious sciences. Other scholars endorsed his qualities and referred their students to him
to study the Shafi’ite school of law with him. He taught fiqh, tafsîr, usûl al-fiqh and Arabic
linguistics.30
Al-Bouti’s father was his first teacher. Al-Bouti started going to meetings of scholars
with his father at an early age. They studied legal matters and discussed a range of aspects of
the religion.31 According to his own account, al-Bouti went to primary school, after school
hours his father taught him religious studies and finished memorizing the Quran in six
months.32
25 Mullah is the term used by Kurds and Persians for Imam or Sheikh. 26 His origin from this region is the reason why he is called ‘al-Bouti’. 27 Al-Bouti, M.S.R., Hâdhâ Wâlidi: al-Qissa al-Kâmila li hayât al-Shaykh mullah Ramadân al-Buti min wilâdatihi ilâ wafâtihi, Damascus, Dar Al-Fikr, 8th edition, 2006, p. 13. 28 Ibid., pp. 13-22. 29 Ibid., pp. 29-39. 30 Ibid., pp. 40-44. 31 Ibid. 32 Ibid., pp. 55-61.
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1.2 al-Bouti’s Academic Carrier
From 1940 until early 1953, al-Bouti followed lessons in the Mandjiq mosque in Damascus,
which later became known as the Ma’had Ettewdjieh Al-Islâmi (Institute of Islamic
Orientation). The mosque had a boarding-school founded by Sheikh Hasan Al-Maidani where
al-Bouti also stayed. Every Tuesday al-Bouti visited his family, and received lessons from his
father in nahw (grammar), balâgha (rhetorics), mantiq (logic), usûl al-fiqh and in learning
poems and verses by heart.33
According to al-Bouti, this period laid the fundamental basis for his scientific career.
The most important teachers he had until that time were, next to his father, Sheikh Hasan
Habannak (1908-1978) and Sheikh Mahmud Al-Mardini. Since there was not yet a Sharia
Faculty at the University of Damascus, Bouti had two options: either had to go into the army
to serve or to study at one of the faculties of the Azhar University in Egypt.34 He opted for the
latter and decided to go to Azhar University.35
In 1953-1956, Bouti studied at Azhar University and after graduation he returned to
Syria. In late 1956, the Ministry of Education had called for exams to appoint teachers of
religion in secondary education and lycea. After getting permission of his father, al-Bouti
entered the exams and obtained a diploma allowing him to teach.36
Between 1958-1960, al-Bouti taught at a school in the city of Homs. By the end of
1960, he became an assistant at the Sharia Faculty of the University of Damascus, which had
been founded in 1956. In 1961, he was delegated and went to Azhar University for his
doctorate. He obtained his PhD title in Usūl Al-Shari’a Al-Islâmiyya (philosophy of Islamic
law) and graduated on the topic Dawâbit Al-Maslaha fi Al-Shari’a Al-Islâmiyya (rules for
public interest in Islamic law). In 1965, he started his academic career as a teacher and later,
in 1977, dean of the Sharia Faculty at the University of Damascus. He taught ‘Comparative
Studies of Law’ (al-Fiqh al-Islâmi al-Muqâran) and ‘Religious Studies’ (al-’Aqâ’id wa al-
Adyân). Later, al-Bouti became professor in ‘Comparative Studies of Law’ at the Department
for Islamic Law of this university and became specialised in the area of Usûl al-fiqh and the
Shâfi’ite school of law. 37
33 Ibid. 34 The law excepting only sons from the obligation to serve in the army had not yet been introduced then. Ibid., pp. 62-64. 35 Ibid. 36 Ibid. 37 Ibid., pp. 127, 128.
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1.3 Influences
Hasan Habannakah Al-Midâni (1908-1978)
Besides his father, a second person of importance in Bouti’s life is Hasan Habannakah Al-
Midâni, the director of Ma’had Ettewdjieh Al-Islâmi, which was the head office of Ikhwân Al-
Muslimîn (The Muslim Brotherhood). Bouti calls him his “teacher” and his “guide”.38 Hasan
Habannakah has been elected as the head of the ‘Ulamâ’ League. This was the reason why
al-Bouti tried to attend all lectures and sermons that were organised by this Leage. Al-Midâni
later became the General Mufti of Syria and a leading opponent figure against the Ba’th Party
in 19060-1979s,39 but al-Bouti does not let out much about that in his autobiography Hâdhâ
Wâlidî. He only tell us about the turbulences that Hassan Habannakah experienced and that
his father was concerned about him in this period.40
Mustafa Husni al-Sibâ’i (1915-1964)
Mustafa Husni al-Sibâ’i resisted the French during Syria’s struggle for independence. In
1933, at the age of 18, when he studied in Cairo he met Hasan al-Banna, founder of the
Ikhwân Al-Muslimîn (Muslim Brothers). When he returned to Syria in 1945, he himself
founded the Syrian Brothers. The ‘Youth of Muhammed,’ founded by him in 1941, also
became part of Brothers.41 In 1949, al-Siba’î was voted into the Constitutional Assembly that
drafted a new constitution for Syria and at the same time also served as a member of
parliament until 1951. He was a democrat who aspired to creating an Islamic state in Syria,
through evolution and not revolution.42 He wanted to bring justice and prosperity to society.
He described the Syrian Ikhwân Al-Muslimîn as a ‘spirit’ that was to ‘permeate the Islamic
community, it is a new revolution’.43 In 1956 al-Siba’i founded the Faculty of Shari’a at the
University of Damascus at which Al-Bouti later became his successor as professor. Outside
the Faculty, he also gave lectures and sermons in mosques, wrote books and articles about
religion and society and published the magazine Hadâratul Islâm (Islamic Civilisation), of
which he himself was the editor.44 Andreas Christmann writes that the Bouti and Sibâ’i
38 Ibid., p. 62, see also: Christmann, A., “Islamic Scholar”, p. 152. 39 Ibid., p. 151, 152. 40 Ibid., p. 131, 133. 41 Fondren, B., The Muslim Brotherhood in Egypt, Jordan and Syria: A Comparison, B.A. University of Tennessee, 2009, p. 25. 42 Moubayed. S.M., Steel & Silk: Men and Women who Shaped Syria 1900-2000, Cune Press, Seattle, 2006, p.341 43 Fondren, B., The Muslim, p. 26. 44 Al-Bouti, M.S.R., Shakhsiyyât Istawqafatnî (Personages Caught My Attention), Damascus, Dâr Al-Fikr, 1999, second edition, p. 195.
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families visited each other regularly.45 Al-Bouti only met him personally after he started his
work as assistant at the Sharia Faculty of Damascus by the end of 1960. Al-Bouti left for
Cairo in 1961 for this PhD studies and finished those in 1965.46 Mustafa Al-Sibâ’i died in
1964, when al-Bouti was in Cairo. Later, he wrote a review about al-Sibâ’i’s book Hâkadhâ
‘Allamatnî al-Hayât (And Thus Life Has Taught Me).47
Al-Bouti states that al-Sibâ’i had two sides in which he distinguished himself. He was
a revolutionary that made people move and he was a scientist who taught the laws and rules of
Islâm. He also states that al-Sibâ’i’s book Hâkadhâ ‘Allamatnî al-Hayât does not reflect the
revolutionary sides of al-Sibâ’i. In this book, al-Sibâ’i shows his readers something of his
inner world and of his moments with Allah. Al-Bouti says that he is convinced that al-Sibâ’i
was a knower of God (‘Arif Billâh ).48
Remarkably, al-Bouti does not emphasizes Sibâ’i’s revolutionary side much. By citing
Sibâ’i’s Hâkadhâ ‘Allamatnî al-Hayât al-Bouti gives the impression that Sibâ’i regretted his
political past that was intertwined with the Ikhwân Al-Muslimîn.
Badi’ al-Zamân Sa’id Nursî (1876-1960)
A third person who had great influence on al-Bouti’s thinking was Badî’ al-Zamân Sa’id
Nursî, the famous Turkish scholar of Kurdish origin. Like al-Bouti’s father, he also
participated in World War I, and fought against the Russians. Sa’id Nursî also resisted the
secularisation of Turkey and critisized this. Sa’id Nursî eventually renounced politics, and
dedicated the rest of his life to preaching (da’wa). In his view, a good and firm basis in
religious doctrine was the solution. In 1961, al-Bouti obtained a hand written book of Sa’id
Nursî,49 and immediately got impressed by his analyses to the degree that he finished its 600
pages completely in one occasion. As al-Bouti mastered the Turkish language, he translated
parts from this book into Arabic.50
45 Christmann, A., “Islamic Scholar,” p. 151. 46 Al-Bouti, Shagsiyyât Istawqafatnî, p. 196. 47 Ibid. 48 Ibid., p. 197. 49 Ibid., p. 157. Christmann writes in his article (p. 152) that he received Nursi’s book in 1958. But according to Al-Bouti’s book this was in the year 1961. 50 Christmann writes in his article (p. 152) that Al-Bouti translated it from Kurdish into Arabic, but Al-Bouti indicates in his book that it was translated from Turkish to Arabic. See also Shagsiyyât Istawqafatnî, p. 157.
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Al-Bouti’s attitude towards politics, and Islamist groups engaged in politics, has been strongly
influenced by Sa’id Nursî.51 We can also say that the da’wa method that al-Bouti uses is
similar to Sa’id Nursî’s.
1.4 al-Bouti’s Books
Since 1949, al-Bouti has written more than sixty books. The subjects he has dealt with can be
categorized as following: usûl al-fiqh (Islamic philosophy of law), fiqh (jurisprudence), aqîda
(religious doctrine), philosophy, tafsîr (Quran exegesis), sîrah (the prophet’s biography),
tasawwuf (sufism) and tarbiyyah (upbringing), fikr (Islamic thought), and other social
subjects. Besides, he has also written a love story.
To get insight into the subjects he has written about, I would like to discuss a number
of his books.
“Great Certainties: The Existence of the Creator and the Tasks of the Creatures”52 is a book
in which al-Bouti endeavors to describe the existence of the creator and the tasks of the
creatures. The book consists of four parts: theology, prophethood, cosmology and metafysics.
In the first part, al-Bouti tries to prove the existence of the almighty God in a theological
manner. Subsequently, he talks about the meaning of prophethood and the qualities of
prophets. After this, he moves on to the subject ‘cosmology’, which is about man, angels and
djinns and he discusses the reason for their existence. At the end of the book he explains the
end of times in a chronological order: death, the period in the grave, the resurrection, the Day
of Judgment, the Balance, the Bridge, Paradise or Hell.
Al-Bouti believes that following a madhhab (school of law) is necessary for those who
do not have the level of mujtahid (someone who is qualified to perform idjtihâd, the
independent interpretation of the sources). This subject has been dealt with in his book, Not
Following a Madhhab: The Most Dangerous Innovation Threatening Islamic Law,53 is a book
written as a response to the phenomenon of not following a madhhab, which has been
advocated by the famous Salafi scholar Nâsir al-Dîn al-Albânî.(1914-1999)
51 Ibid., pp. 157-175. His father also warned him not to joing an Islamist group. Joining one group would mean excluding all others. 52 Al-Bouti, M.S.R., Kubrâ al-Yaqînniyyât al-Kawniyya Wujûd al-Khâliq wa Wadhîfat al-Makhlûq, Dâr al-Fikr, Damascus, 2000. 53 Al-Bouti, M.S.R., Al-Lâ Madhabiyya; Aghtary Bid’atin Tuhaddidu al-Shari’ahh al-Islâmiyyah, Dâr al-Farâbi, Damascus, 2008. Look in appendix 1. for a debate between al-Bouti and a leading Salafi Teacher.
16
His book, Not Following a Madhhab, came into existence as a direct response to the book, Is
a Muslim Obligated to Follow a Particular School of the Four Schools?,54 by the Saudi
author al-Khajnadi (1880-1960). According him, following a madhhab is haram (forbidden)
and can lead to kufr (disbelief). He called all Muslims to practice idjtihâd. Al-Albâni who also
advocated al-Khajnadi’s thesis, asked al-Bouti to discuss the issue. Al-Bouti accepted al-
Albani’s request which eventually led to a three-hours meeting between them, which was
recorded on tape. This audio was eventually resulted in a book which al-Bouti named Al-Lâ
Madhhabiyya (Not Following a Madhhab).
In his book Salafism: A Blessed Historic Period, Not an Islamic School of Law,55 al-
Bouti describes the modern Salafist movement as an innovative movement. He even calls
present-day salafism as heresy because it does not abide by usûl al-fiqh and calls everyone
personally to idjtihâd.
Al-Bouti’s book The Understanding of the Prophetic Biography and a Short History
of the Rightly Guided Caliphs,56 treats events in the life of the prophet by drawing lessons
from which Muslims, in his view, could understand their religion. It deals with the situation at
the Arabic Peninsula before the birth of the Prophet, the life of the Prophet, the start of the
revelation, the call to migration, his migration and stay in Medina and the founding of the
Medinan society, the Conquest of Mekka, and the decease of the Prophet. He also briefly
discusses the history of the four rightly guided caliphs.
In his book, Jihâd in Islâm: How to Understand and Apply It?,57 Bouti tries to
understand Jihâd and the freedom of religion. He basically rejects jihad as a violent means of
changing the balance of power and society.
In the book, Rules for the Public Interest in Islamic Law,58 al-Bouti tries to describe
the principles on which maslaha (‘Interests’ or ‘General Welfare’) is based in order to come
to a religious opinion (fatwa) without deviating from the “right path”.
54 Al-Khajnadi, M.S.M., Hal al-Muslim Mulzam Bittibâ’ Madhab Mu’ayyan min al-Madahib al-Arba’a?, Jemiyet Ihya al-Turâs al-Islâmî. (further information not available) 55 Al-Bouti, M.S.R., Al-Salafiyya; Marhala Zamaniyya Mubaraka lâ Madhab Islâmî, Dâr al-Fikr, Damascus, 2006. 56 Al-Bouti, M.S.R., Fiqh al-Sîra al-Nabawiyya m’a Mudjaz li Tarîkh al-Khilafa al-Rashidah, Dâr al-Fikr, Damascus, 1999. 57 Al-Bouti, M.S.R., Al-Jihâd fi al-Islâm kayfa nafhamuhu? Wa kayfa numarisuhu?, Dâr al-Fikr, Damascus, 1999. 58 Al-Bouti, M.S.R., Dawâbit al-Maslaha fi al-Shari’a al-Islâmiyya, Dâr al-Fikr, Damascus, 2005.
17
1.5 al-Bouti’s Activities
Al-Bouti regularly preaches, almost every day of the week in large mosques in Damascus
such as al-Imân and Bani Umayya or on TV stations, such as National TV station, IQRA,
Risala and Satellite station.
He participates in conferences and symposia in Arabic countries, Europe and the
United States. He is also a member of the Royal Society of the Islamic Civilisation Research
in Amman and a member of the Higher Board of Oxford Academy. Al-Bouti knows Turkish,
Kurdish and English. He writes in newspapers, and answers questions about Islamic topics. At
the moment, he is emeritus professor at the Sharia Faculty of Damascus.59
Conclusion
In this chapter, I have briefly described the course of al-Bouti’s life. I have set forth his first
years, his study and how he developed himself. I also have mentioned the most important
persons that have influenced him. Al-Bouti is an usûlî who has specialized in the field of fiqh.
This is apparent when we take a look in his books.
59 http://www.bouti.com/en/about.php?PHPSESSID=suluujc938a4nkpu1madpaif41, accessed on: 11 November 2010, see also: http://www.naseemalsham.com/ar/Pages.php?page=mufty&pg_id=1992, accessed on 11 November 2010.
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Chapter 2
Al-Bouti’s Thoughts on Some Islamic Issues.
To understand al-Bouti’s attitude towards fiqh al-aqalliyyât, I will discuss some views
regarding the West, his fiqh understanding, and his da’wa method, which must have definitely
influenced his position on fiqh al-aqalliyyât.
2.1 Al-Bouti’s Opinion on the West
2.1.1 Islam and the West
Al-Bouti is an Islamic scholar who deals with the concerns of the whole Muslim community
(umma) and the theoretical premises of a modern Islamic civilization (al-hadâra al-islamiyya
al-muâsira). He also debates about Western progress (taqaddum) and Islamic backwardness
(takhalluf). The reason for almost all of the social, cultural and other problems in the Islamic
community, according al-Bouti, is that Muslims felt attracted to Western civilization. During
the first decades of our century Muslims interpreted European progress and superiority as a
result of secularization. Turning away from all religious activities and the focus on a purely
materialistic way of life of Westerners had a tremendous effect on Muslims, who then thought
that progress was only possible without religion. Today, one can recognize the “end of
blindness and a de-mystification of European progress.” Westerners now feel the results of
the total absence of religion. In an interview with Christmann, al-Bouti said: “Young Muslims
react to recent development in the Western world, the collapse of the family, the destruction
of culture, morality and health, through drugs, venereal diseases and neuroses. Muslims who
thought that the Western way of life was the best way to live, are now disappointed and return
to Islam.”60
That is why al-Bouti propagates his interpretations of Islam, mostly in the light of
Western values. For example, cites statistics regarding a high rate of divorce, single families
and violence within European families, are all signs that: “The family in the West has lost its
historical or social function!”61
Besides, al-Bouti thinks that Muslims could also adopt that is of Western civilization
which has proved to be good and useful, and Westerners could adopt from Islam what they
60 Christmann, A., “Islamic Scholar,” p. 159. 61 Ibid. pp. 154 -155.
19
need. This can led to a new insight into the global character of the destruction caused by
civilization and the perception that this sickness can only be healed by religion.62
2.1.2 Al-Bouti’s Opinion on the Stay of Muslims in Dâr al-Harb and Dâr al-Kufr
A permanent residence in non-Muslim countries is not permitted according al-Bouti. Places
where it is impossible to practice the daily religious acts such as praying and fasting must also
be left.63 If the stay of a Muslim in dâr al-kufr does not lead to forbidden acts (mainly acts in
contradiction of Islamic Law) and that it is possible to practice your faith staying in a non-
Muslim country would be then permitted, on the condition that the stay is for temporary
reasons. You must have an important reason for staying, such as working, studying or for
da’wa. Permanent residence is not permitted because of the submission to non-Islamic laws
and systems.64 Al-Bouti makes a difference between dâr al-harb and dâr al-kufr. He argues
that dâr al-harb is always dâr al-kufr, but dâr al-kufr is not always dâr al-harb. A Muslim is
not permitted to stay in dâr al-harb but in dâr al-kufr it is permitted under certain
circumstances. Dâr al-harb is unsafe. Dâr al-kufr can be dâr al-ahd (house of treaty) and dâr
al-amân (house of truce).65
.
2.2 Al-Bouti’s Understanding of Fiqh
2.2.1 Usûl al-Fiqh
Based on his upbringing, academic career and works on fiqh and usûl al-fiqh, al-Bouti is an
advocate of Sunni Islam and Shafi’ite school. Most of his arguments and ideas refer to
qur’anic verses, hadiths and the opinions of the leading classical authorities, such as Imâm al-
Nawawî (1234-1278), Ibn al-‘Arabî (1164-1240), al-Ghazâlî (1058-1111), and al-Shâfi’î
(767-820). Al-Bouti regards Islamic Law as the core of Islam: whenever he speaks of Islam,
he means the principles, injunctions and practical implications of the Shari’a. He is against
any change the existing fiqh, since rearrangement of the law mean to abuse it. In his books
and lectures about comparative jurisprudence (al-fiqh al-muqârin), Bouti defends differences
of juristic opinions (ikhtilâf). In this regard, he offers a balanced treatment of the views and
62 Ibid. p. 159 63 Al-Bouti, M.S.R., Fiqh al-Sîrah al-Nabawiyyah ma’a Mûdjaz li Târîkh al Khiâfatu al-Râshidah, Dâr al-Fikr, Damascus, 10e druk, 1996, p. 191. 64 http://fikr.com/bouti/qsearch.php, accessed on 28 December 2010. 65 Ibid.
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contributions of all the prominent schools, at least from his view in order to give people the
chance to understand the underlying principles of idjtihâd (independent interpretation).66
In his book, Ishkâliyyât Tajdîd Usûl al-Fiqh (Problematics of the Renewal of the
Fundamentals of Jurispudence), Bouti discusses the demands of reformists to renew the
principles of Islamic Law. He agrees with those who attempt to renew their bond with the
basic principles of usûl al-fiqh, and with any effort to rewrite unclear subjects and make them
accessible to contemporary people. But he fears that the call for renewal is a call for change
and replacement, which, in his opinion, would be tampering. Renewal in that sense will
definitely lead to the change and replacement sources of Islam. According to al-Bouti, the
sources of Islam have been the same for 1400 years and change of replacement is
impossible.67 He further argues that scholars, such as al-Shafi’i, had not invented the basic
principles for this branch of Islamic sciences, but had worked hard and intensively to
discover these principles from the existing sources on the basis of specific criteria regarding
linguistics and grammar.68
Al-Bouti states that with al-Qirâ’a al-Mu’âsira (A Contemporary Reading) or al-
Qirâ’a al-Jadîda (A New Reading), reformists envision a new Islam. By coming up with new
methods again and again, they try to break the bonds of contemporary Muslims with the past.
One time it is called al-Qirâ’a al-Mu’âsira, and another time it is named al-Qirâ’a al-Jadîda.
At the moment it is called Tajdîd (Renewal).69
The representatives of this renewal movement also come up with new sources
according to al-Bouti, which they use as basis for new conclusions. Reformists use social and
societal circumstances and new economic political situations as arguments in order to give the
impression that jurists in the past had taken these aspects into consideration in making their
decisions. But classical sources are not new, al-Bouti says, and have already existed for 1400
years, but in those 1400 years they have never been accepted as sources in usûl al-fiqh.
Throughout 1400 years there have been social and societal changes, economic and political
66 Christmann, A., “Islamic Scholar,” p. 155. 67 Al-Marzûqî, A.Y. and al-Bouti, M.S.R., Ishkâliyyat Tadjdîd Usūl al-Fiqh, Dâr al-Fikr, Damascus, 1st edition, 2006, pp. 154-158. 68 Ibid., pp. 159-160. 69 Ibid., pp. 176-177, read also al-Bouti’s perusal; Djoenoen al-Qirâatu al-Mu’âsirah: Min qyna? Wa ila Ayna?, Paris, 19 May 2001, http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=566, accessed on: 10 October 2010, and his perusal; al-Islâm Bayna al-Tadjdîd al-Matloub wa al-Tabdil al-Marfoud, Cairo, 3 May until 3 June 2001, http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=567, accessed on: 10 October 2010.
21
circumstances as well, but the scholars of the past have never felt the need to take these
aspects as a foundation of usûl al-fiqh and to call people for renewal.70
2.2.2 Al-Lâ Madhhabiyya (Abandoning the Madhhabs)
Al-Bouti, as an usuli, attacks in most of his works radical Salafiyya positions of the reform
movement, which tries to simplify the complicated demands of Islamic reasoning. In his
book, Non-Madhhabism: the Greatest Bid’a Threatening the Islamic Shari’a, he responds to
the anti-schoolism of law trend, which promotes a more flexible and less constrained ijtihâd
system, rejects the hair-splitting by the fuqaha’(experts in Islamic jurisprudence), encourages
every individual not to rely on the judgments of religious experts, seeks to merge the different
schools of law into one single school, and finally emphasizes the Qur’an and Sunna over the
consensus of the four schools of law as authoritative sources for beliefs, ritual practices, ethics
and law.71
Al-Bouti beliefs that modern conditions demand a flexible ijtihâd system and that the
gate of ijtihâd should be kept open. He says that there are new conditions and problems in our
time and that values and customs, which are different from what they used to be, must be
studied. He further argues that he would always promote ijtihâd rather than taqlîd (imitation
of the rulings of mujtahids) if Muslims are faced with issues that could not have been dealt
with by previous generations of the Muslim community. In fact, Bouti encourages people to
use their individual opinion (ra’y) by studying the authoritative sources extensively. “If a
person finds a different understanding of a particular issue, conflicting textual proofs or a
divergent hadith to that of his school, then he is bound by the results of his own ijtihâds and
should not follow his Imam.”72
Al-Bouti also supports the idea of the 1984 Conference of Islamic Thought in Istanbul
to establish an independent board of the most prominent ‘ulama of the Islamic world to give
institutionally collective ijtihâds about newly emerging issues. In spite of his support for the
flexibility of pre-classical ijtihâd system, he rejects the belief of some modernists, that ijtihâd
is a kind of “secret recipe to fulfill all their dreams, to open all gates and to pull down all
barriers, a kind of permission to do forbidden things.”73 For al-Bouti, it is unacceptable that
every individual should have the right to exercise his or her own ijtihâd. On the contrary, the
70 Al-Marzûqî, A.Y., and al-Bouti, M.S.R., Ishkâliyyat Tadjdîd Usûl al-Fiqh, pp. 177-178. 71 Christmann, A., “Islamic Scholar,” pp. 155-156. 72 Al-Bouti, M.S.R., Al-Lâ Madhabiyya, p. 85. 73 Christmann, A., “Islamic Scholar,” p.156.
22
process of ijtihâd demands deep knowledge of all the relevant sources and the capability to
apply rules from authoritative texts to modern circumstances. As long as the muqallid
(imitator) does not reach the level of knowledge of the mujtahid, the former has to follow the
latter.74
In his book Al-Salafiyya: a Blessed, Historically Limited Period, not an Islamic
School, al-Bouti revitalizes the classical apparatus of textual analyzes and criticism in order to
correct the salafiyya movement in its “hasty eliminating of all that had slipped into the Islamic
Tradition.” He emphasizes that not all the ahkâm (injunctions) of the Shari’a are equally
important or permanent, and therefore that different interpretations can be permitted.
Hypothetical judgments which deal with transactions, customs, and manners are open to
ijtihâd. But ahkâm dealing with matters of faith, belief and ‘ibadât which are firmly
established in the Qur’an, Sunna and the ijmâ (consensus), which are definitive are not open
to ijtihâd. Al-Bouti criticizes vehemently the classical salafiyya and young modernists today
who have no deep understanding of classical Islam, the methodology of usûl al-fiqh and other
skills in Islamic scholarship, such as the ethics of disagreement (adâb al-khilâf) in Islamic
jurisprudence.75
2.3 Al-Bouti’s Da’wa Method
2.3.1 Al-Bouti and Sufism
According to al-Bouti’s memoires his father was a “pious” man, who did see Islam as an inner
perfection, through Qur’an recitation (tilâwa), night prayers (tahajjud), hundred fold
repetitions of dhikr and wird formulas (invocations of Allah), through unremitting
communion with Allah (munâja), discipline (wara') and asceticism (zuhd). Performing
religious rituals was an important part of al-Bouti’s family life which al-Bouti claims to
continue performing to the present day.76
In al-Bouti’s view, the lack of understanding of the “true meaning of Islam” among
Muslims has also led them to condemn the intrinsic parts of Islam, such as Sufism or specific
types of Islamic worship. Al-Bouti has much less radical views and a more differentiated
picture of valid Islamic practices. He says that some rituals mean true worship of Allah, even
if they were not explicitly ordered or performed by the Prophet Muhammad. As for Sufism,
74 Ibid. 75 Ibid., p. 157. 76 Ibid., p. 150.
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al-Bouti shares the modernist criticism that the establishment of Sufi orders, the sacralization
and blind obedience of Sufi shaykhs by their followers, have led to “the distortion of true
Islam.” This is what he calls “sentimental Sufism” (al-tasawwuf al-wijdanî), which he rejects.
According to al-Bouti, it is true that many Sufis do not follow the aims of the Islamic da'wa,
but only their selfish interests. He says that there are many Sufi shaykhs who do not preach
honestly, but practise da’wa professionally in order to earn money, political influence and
power as spiritual leaders only. At the same time, al-Bouti rejects that Sufism should be
condemned and expelled from Islam. For example, dhikr meetings, which are a part of
Sufism, are important according him. He supports it only if it is ethically oriented Sufism (al-
tasawwuf al-akhlâqî), which consists of activities based on the Qur'an, Sunna and Islamic
law.77
2.3.2 Al-Bouti and Politics
In his twenties and during his early intellectual development, al-Bouti came into contact with
the Syrian Muslim Brotherhood, which has politically moulded his formative years. Its leader
Mustafa al-Sibâ’i had been appointed as Dean of the Faculty of Law and Professor of Islamic
Law at the University of Damascus in 1956, when al-Bouti began to work as an assistant there
in 1960. Both families also exchanged frequent visits. During the early fifties, al-Bouti was
seen as an enthusiastic listener to weekly religious lessons held by the Râbita al-'Ulamâ al-
Dîniyya (League of 'Ulamâ), which at that time had close links with the Syrian Muslim
Brotherhood. However, more influential on al-Bouti's intellectual and personal life was his
teacher, Hasan Habannakah.78
Another intellectual and spiritual guiding figure emerged in al-Bouti's life is Badî’ al-
Zamân Sa’id Nursî. Al-Bouti admires Sa’id Nursi’s da'wa (Islamic mission), but also reflects
his own aspirations at that time:
“When I hold this pen to write down his life on these few pages, I feel an immense emotion
moving within the depth of my being! When I write these words I feel that I am illustrating
how the life of a Muslim who is faithful to his Islamic belief, and of a preacher who is honest
in his mission, and of a scholar who is dedicated in his work ought to be whether that be from
the social, the political, the ethical or other aspects ... However, this is not the only reason
77 Ibid. pp. 157-158. 78 Ibid., pp. 151-152.
24
why I am engulfed with this immense sense of emotion and happiness as I narrate the life of
this great missionary. It could be that I find in his great life, which is characterized by
dedication, pious efforts and selflessness, which we no longer find in the lives of most other
Islamic 'ulamâ' and preachers today. It is not an exaggeration that my happiness when writing
about the life of Badî’ al-Zamân exceeds that of a man dying of dehydration whose liver has
dried up from thirst in a remote desert, when he sees the glimmer of the Euphrates’ water.”79
In his comment, Christmann stresses that “seems that al-Bouti’s sympathy for the cause of a
viable and politically conscious Islamic movement was considerable. Yet sympathy with
some ideals of the Muslim Brotherhood is not the same as collaboration or complicity when it
comes to militant actions.”80
Al-Bouti was shown great respect because of his long dissociation from the state’s
rigid reaction against the Islamic opposition. After accepting President Asad’s offer to
become a regular lecturer on Syrian television he consequently lost much of his credibility by
becoming more and more the President’s recipient of benevolence. Many Sunni Muslims
found him very cautious and diplomatic.81
2.3.3 Al-Bouti and Islamist Groups
In al-Bouti’s view, da’wa (Islamic mission) is only possible by teaching and educating
people. In this way, he thinks that it is possible to create an Islamic society, despite the long
and difficult road one might pass. Islamist groups also claim to perform da’wa, but al-Bouti
does not agree with their methods. Mostly, their attempts are spoiled by their ongoing
discontent about their governments’ and leaders’ attitudes. They subsequently keep speaking
about ways and methods to overthrow their leaders and to gain power instead of improving
the situation of Muslims in this way.82
Al-Bouti is of the opinion that Islamist groups do not perform their tasks properly.
They do not set a good example for youngsters, have no patience in choosing the long road of
79 Ibid. p.152 from, Al-Bouti, Min al-Fikr wa l-Kalb, Fus’ûl an-Naqd fi l-‘Utum wa ‘l-Ijtimâ’ wa l’Adab, 2nd ed., Damascus, 1972, p. 240. 80 Ibid., p. 152. 81 Ibid., p. 153. 82 Al-Bouti, M.S.R., Al-Djihâd fi al-Islâm, pp. 42-43.
25
da’wa, education and upbringing. They aim gaining power quickly to force (ikrâh) people to
accept and apply the norms and values of Islam, while ikrâh in religion is not allowed.83
According to him, Islamist movements mostly “jump to the highest step of the stairs”
by their stress on jihâd, in the form of war, while that form is only a branch of jihâd. In his
view, one should first invite people and tell them about Islam. Allah calls this Al-Amru Bil-
Ma’rouf wa Al-Nahyou ’an Al-Mounkar (commend good and forbid evil). When doing this, it
is not allowed to force or to pressure someone.84
In al-Bouti’s opinion, Islam first finds its place in the hearts and minds of people.
Later, it finds its place in society so that pious people will consequently occupy positions to
defend Islam.85 If Islam comes into power by force, it will also be overthrown by force. But if
Islam comes by means of da’wa, it will remain stable and accepted by the majority of people.
In his view, this was also the method of the prophet.86
When jihâd in the form of war turns out to be the only solution to accomplish justice
and da’wa is no longer possible, then this form of djihâd is allowed. But as long as there is a
possibility to perform peaceful da’wa, one can not rebel against the ruler.87
Al-Bouti argues that Islamist groups do good and necessary work in social areas. But
the Islamic world knows many Islamist groups of which only a few groups are engaged in
da’wa, such as Djamâ’t al-Tablîgh.88
Al-Bouti has a bottom up approach but disapproves of the top down approach followed
most by Islamist movements. He states that a top down approach often leads to strife (fitna)
because Islamist movements get entangled in a power struggle against the rulers which can
lead to nasty consequences. Usually, the people pay the price for the result. He went further
that Islamist groups are used by Western powers to create chaos in Islamic societies. This is
why, in Bouti’s view, some Western countries, such as the United States and some countries
in Europe, had accepted many leaders of Islamist groups as refugees in their lands.89
83 Ibid., p. 47. 84 Ibid., pp. 46-51. 85 Ibid., p. 185. 86 Ibid., p. 222. 87 Ibid., p. 228. 88 Ibid., pp. 44-45, 67. 89 Ibid., p. 82.
26
Al-Bouti’s attitude annoys Islamist activists that envision a progressive Islam. Their protest
also has to do with the fact that al-Bouti does not criticize the violation of human rights, the
prohibition of freedom of expression and the undemocratic situation in Syria.90
Conclusion
Al-Bouti shows a negative attitude towards the West. According him, the cause of the
problems in the Muslim community is that Muslims feel attracted to the Western civilization.
Besides, he is against permanent residence of Muslims in the West. Temporary stay is
permitted if there is an “important” reason.
Al-Bouti is an usûli, whose arguments and ideas are mostly based on Qur’anic verses,
hadiths and the opinions of the leading classical authorities. He is against the demands of
reformists to renew the principles of Islamic Law.
He is also against non-madhhabism of the Salafî movement, which promotes a more
flexible and less constrained ijtihâd system. Al-Bouti believes that the gate of ijtihâd should
kept open. This demands deep knowledge of all relevant sources and the capability to apply
rules from authoritative texts to modern circumstances. If the muqallid has not reach the level
of knowledge than he/she has to follow the mujtahid.91
Al-Bouti is a religious scholar who believes in a “moderate” and “non-violent” Islam.
He is challenged by the modernist view on traditional scholarship and the literalistic
understanding of authoritative scriptures. “He believes that Muslims will lack a proper
methodology for comprehending and developing “the essence of Islam”, which is much more
than merely understanding of the scriptures.”92 To achieve this, a deep understanding of the
Qur’ân and the tradition of the Prophet is needed.
90 Christmann, A., “Islamic Scholar,” p. 153. 91 For more information, see appendix 1. 92 Ibid., p. 163.
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Chapter 3
Al-Bouti and Fiqh al-Aqalliyyât
In this chapter, I will sum up al-Bouti’s criticism and condemnation of Fiqh al-Aqalliyyât and
the Fatwa Council (ECFR). His criticism can be divided into two categories: one part is of a
political nature, while the other is of a more religious or fundamental nature (usûl).
3.1 Al-Bouti’s Opinion on the West and Fiqh al-Aqalliyyât
3.1.1 The West and Islam
In several places in his books, Al-Bouti showed a negative attitude towards the western world.
According to al-Bouti, western political leaders know that western civilization has all kinds of
problems, such as drugs, the collapse of the family, the destruction of culture, and venereal
diseases because of absence of religion. They also see, according to him, that Islam is on the
rise and fills the void that westerners feel in the areas of faith, human relations and
civilization. That is why, he says, they are fighting Islam and trying to drive it back to its own
territory in all kinds of ways. What the West wants is, in his opinion, an Islam that does not
offer any resistance and only occupies itself with religious customs in the personal sphere.93
Al-Bouti thinks that the norms of Islam are already being experienced in the West and that it
is only a matter of time for Islam to spread in those regions.94
Al-Bouti is of the opinion that the growth of Islam in the West is a “thorn in the flesh”
of western leaders. According to him, they feel that Muslims are very hard to assimilate
because they stick to their centuries’ old traditions and rules of Islam. Because foreigners in
general, and Muslims in particular, follow their own customs and traditions, assimilation
becomes difficult which causes a gap between original inhabitants and newcomers in Bouti’s
view. Integration programmes have not brought about the desired effect because most
newcomers do not want to change their habits or ways of belief. He thinks that people in
general and Muslims in particular are not inclined to assimilate and melt into western society,
but instead they are keen on keeping their own identity.95
93 Al-Bouti, M.S.R., Al-Islâm wa al-Gharb, Dâr al-Fikr, Damascus, 2007, pp. 9, 10. 94 Ibid., p. 16. I think this is an emotional statement by al-Bouti that mostly reflects his wish. Islamic scholars in Islamic societies often have the same notion. Al-‘Alwâni and al-Qaradâwi share these wishes as well. 95 Ibid., pp. 181-182.
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For this reason, al-Bouti believes that it is not a coincidence that the call for fiqh al-aqalliyyât
has come at the same time as the plan aimed at dividing Islam.96 According to him, the need
for fiqh al-aqalliyyât has arisen by pressure of western politicians on newcomers. The societal
and political discontent about newcomers’ customs and beliefs has been the reason for the
introduction of all kinds of assimilation and integration programmes, without achieving any
satisfying result. According to al-Bouti, certain people (leaders of Islamic groups) have
yielded to this pressure and invented a fiqh that easily adapts to the western world. He argues
that this is a fiqh that does not present any opposition, resistance or an independent
possession, and that is exactly what western societies and politicians want.97
Al-Bouti sees the claim of al-‘Alwâni about the right to idjtihâd, as a means for the
West, to divide Islam, which he always sees as a whole entity, into little pieces. Western
political leaders attempt to create an European, a American and a Middle Eastern Islam, and
also to divide it into different schools of law, ideologies and philosophies. In this way, they
maximize different contradictions to bring Muslims into conflict among themselves. The
method they use, according to him, is to support ijtihâd without boundaries or rules. They
support people to open wide the doors for interpretations, which lead to the disappearance of
the literal meaning of Islam. Such interpretations include figurative meanings, which in the
long run become literal.98
According al-‘Alwanî, the purpose of fiqh al-aqalliyyât is not to give minorities
privileges or concessions which are not available to Muslim majorities. On the contrary, it
aims to project minorities as representative models of Muslim societies in non-Muslim
countries. The reaction of Al-Bouti to this point is that in Europe and America, “fiqh of
minorities” is used as an Islamic cloak for something else than Islam. This Islam is a different
one from the traditional Islam presented in Islamic countries.99 Because of this, he sees “fiqh
of minorities” as the most recent means of playing with Allah’s religion. He calls online
fatwas that are being issued in the western world, something that frighten the minds of
believers; and can also have serious consequences in this worldly life and in the thereafter.
He, however, does not consider fatwas as a source of change and corruption. But he is worried
that if the matter continues in this way, Muslims will find themselves facing a new Shari’a, 96 Al-Bouti, M.S.R., “Laytha Sudfa Talâqi al-Da’wa ilâ Fiqh al-Aqalliyyât m’a al-Khitta al-Râmiya ilâ Tadjziat al-Islâm,” Monthly Word, 06-2001, http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=336, translated by Mahdi Lock, http://marifah.net/articles/Bouti-MinorityFiqh.pdf, accessed on: 15 October 2010. 97 Al-Bouti, M.S.R., Al-Islâm wa al-Gharb, pp. 152-153. 98 Ibid., p. 162. 99 Al-Bouti, M.S.R., “Laytha Sudfa Talâqi al-Da’wa ilâ Fiqh al-Aqalliyyât m’a al-Khitta al-Râmiya ilâ Tadjziat al-Islâm,” http://marifah.net/articles/Bouti-MinorityFiqh.pdf, accessed on: 15 october 2010.
29
which they will cloak in the excuses of time and place, “environmental factors”, “weather”,
“welfare” and whatever else there is.100
Al-Bouti states that people in Islamic religious uniform, who stand up for the Islamic
cause, are pressed to renew and modernize Islam. Leaders and members of Islamist
organizations in Islamic and western countries are used for this purpose by being made
believe that Islam is rigid and does not adapt itself to the needs of the time. According to al-
Bouti, they are called upon to be more flexible fluid in their treatment with Islamic rules. This
kind of Islamist organizations is supported by politicians, who incited them to go beyond the
rules of jurisprudence and its fundaments, according to al-Bouti. In his view, reformists who
for a long time have been working to renew and/or replace the basic principles of usûl al-fiqh
have seen their chance to realize their objectives. In his opinion, the ideologists of political
Islam use the West to realize their objectives gaining the trust of western powers through
presenting a peace-loving and compliant Islam. This Islam has surrendered to modernity and
is fully working on renewing itself. In this way, they try to gain support in order to come into
power in their countries of origin as well.101
According to al-Bouti, this happens by means of issuing a series of fatwas with
bearing a recognizable title. Such titles may sound Islamic, but the contents are destructive for
Islam and serve the West only. According to him, fundamental principles and concepts are
first emptied and then filled with other meanings and new ideas that have nothing to do with
Islam. In al-Bouti’s view, there will always be people willing to promote and defend these
new ideas under the cloak of renewal.102
Al-Bouti sees the word “minorities/aqalliyyât” as invented by the West to classify the
population. According to this approach, first class citizens are people that constitute the
majority in terms of faith and race, whereas minorities in terms of faith and race follows as
second citizens. This division of majority versus minority has something to do with proximity
and distance, or a high and low position in society, in al-Bouti’s view. For him, the term
“aqalliyyât” has no place in Islamic jurisprudence. Nobody has used this term before. In
Bouti’s assertion, everyone who lives in an Islamic country (dâr al-Islâm) is considered a full-
fledged subject (ra’iyyah). Everyone is therefore deemed as a first class citizen, irrespective
of religion, race or belonging to majority or minority groups. According to al-Bouti, this is
100 Al-Bouti, M.S.R., Fiqh al-Aqallliyyât ahdath wasâil al-Talâ’ub bi-dînillâh, Khutba on 16/06/2003, http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=149, translated by Mahdi Lock, http://www.marifah.net/articles/mawlidkhutba-buti.pdf, accessed on 15 October 2010. 101 Al-Bouti, M.S.R., Al-Islâm wa al-Gharb, pp. 136, 145, 152-153, see also: al-Marzûqî, A.Y. and al-Bouti, M.S.R., Ishkâliyyat Tadjdid Usūl al-Fiqh, p. 145. 102 Al-Bouti, M.S.R., Al-Islâm wa al-Gharb, pp. 146-147.
30
why the state is responsible for all its citizens when it comes to care and protection and
monitoring their well-being. Those who do not believe in Islam are titled “non-Muslims”, but
not “minorities”: a term which he considers reprehensible, because it has a dishonourable
connotation.103 Al-Bouti adds that Islam allows people of other faiths to freely profess their
religion and that Islamic history is filled with many examples of this kind.104
3.1.2 Relation Between the Secular State and Islam
Another reason for al-Bouti’s criticism of fiqh al-aqalliyyât and its representatives might be
related to his stance as a scholar who tries to find a balance between the secular state and the
religious society in modern Syrian history. The tensions between the rulers in Syria and
Islamist movements have been heated, when Sunnite Islamist movements opposed Hâfiz al-
Asad’s Ba’th Party government that came to power in 1971. Islamist movements in Syria
accused Asad of unbelief due to his Alawite background, which led to heavy confrontations in
1979 in Aleppo and in 1982 in Hama, in which the regime violently made an end to rebellious
Islamist movements.105
The biggest threat to the Ba’th Party was the Ikhwân al-Muslimîn movement that has
been followed by a big number of the Sunnite population. That is why this group was closely
monitored, oppressed and persecuted.106 In 1982, the army caused the destruction of the city
of Hama where rebels had hid. It is not clear how many people have died, but different reports
claimed that the number of deaths is estimated between 5,000 and 30,000. Around 100,000
people have fled the country and about 20,000 people are still missing. The regime succeeded
in capturing the leaders of these Muslim groups, some of whom were hanged. Other leaders
fled to Europe, Iraq and Saudi-Arabia.107
According to Hopwood, “Since 1979, Asad has been at pains to prove that he is a good
Muslim.”108 It has been traditional in Islamic society that important religious figures support
the government in power, and Al-Bouti is one of the Islamic scholars who stood on Asad’s
side. These scholars issued legal decisions confirming that Alawis are Muslims and not
103 Ibid., pp. 134 -135. 104 Ibid., p. 137. 105 Salvatore, A. and Eickelman, D.F., Public Islam and the Common Good, Brill, Leiden – Boston, 2004, p. 184. 106 Hopwood, D., Syria 1945-1986 Politics and Society, St. Antony’s College, Oxford, London Unwin Hyman, 2nd edition, 1988, p. 84. 107 Salvatore, A. and Eickelman, D.F., Public Islam and the Common Good, p. 184. 108 Hopwood, D., Syria 1945-1986 Politics and Society, p. 100.
31
heretics, as Islamists always claimed.109 Al-Bouti opposed the militant actions of the Muslim
Brotherhood and considers Islamist groups at fault, because he is convinced that these groups
are used by foreign (western) powers, knowingly or unknowingly, to fight against their own
leaders. According him, western powers try to create chaos in the region between Muslims,
because they do not want that Muslims get strong.110 After the incidents in Hama, al-Bouti
condemned the killing on television as juridical illegitimate, at the request of the Ministry of
Information.111
In the same line of reasoning, al-Bouti believes that Ikhwân Al-Muslimîn is used by
western rulers in Europe to divide Islam. Ikhwân Al-Muslimîn is the most important
representative in the European Fatwa Council that promotes fiqh al-aqalliyyât, which
reinforces al-Bouti’s perception.112 Ikhwân Al-Muslimîn is also, still a forbidden organization
in Syria.113
3.2 Al-Bouti’s Understanding of Fiqh and Fiqh al-Aqalliyyât
Al-Bouti has been keen in his whole life on giving religious advice to people based on his
readings in scholars’ books, and not proclaiming personal opinions. When he is given the
choice between two different opinions by reliable scholars, he would choose the easier option
as he claims to be no advocate of making the rules stricter than necessary.114 The rules of
behaviour that all Muslims should abide by, are the same all over the world, according to al-
Bouti. Personal religious obligations do not change according to the place where Muslims are;
a Muslim in Syria has the same personal religious obligations as a Muslim in the Netherlands.
The only thing, in his view, that can influence this obligation is the possibility for this Muslim
to observe his duty.115 To support his position he refers to verse 286 of chapter 2 in the Quran:
“Allah burdens not a person beyond his scope”, and the fundamental rule “necessity breaks
law”.116
109 Ibid. 110 Al-Bouti, M.S.R., Wa Hâdhihî Mushkilatunâ, Al-Farabi, Damascus, 4th edition, 1995, p. 58. 111 Christmann, A., “Islamic Scholar,” p.152-153. 112 Al-Bouti has told me this in a personal interview on 12 April 2009 at the Islamic University of Rotterdam 113 For more information concerning al-Bouti’s attitude towards politics and Islamist groups, see: Budak, Z., “Een biografische studie van Muhammed Sa’id Ramadân al-Bouti en zijn houding t.o.v. de politiek en islamistische groeperingen,” unpublished paper, Leiden University, 2010. 114 Al-Bouti, M.S.R., Fiqh of Minorities, Islamic University of Rotterdam, 23 March 2007, (28:25), http://www.iurtv.nl/ar/58/Prof.%20Dr.%20Buti.htm, accessed on: 17 October 2010. 115 Al-Bouti, M.S.R., Fiqh of Minorities, IUR, (17:00). 116 La yukallifullahu nafsan illa wus’aha, and Al-Darûrat tubih al-Mahzourat.
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Al-Bouti states that these are the rules on which there is consensus and by which everyone
should abide. The difference in place neither affects nor changes the rule.117 The possibility
for someone to apply the rule may differ. When someone is ‘âdjiz’ (disabled) or when
implementing the rule endangers someone’s life, the possibility arises to adapt the rule or
change it. In cases of narrowing, the possibility of expansion arises (iza daq al-Amru ittas’a),
the boundaries become less strict.118 If someone in a non-Islamic country is forced to trade
with interest, to give interest or to accept it, which is forbidden in Islamic Law, can be
allowed in certain conditions, according to al-Bouti. For example, if he would otherwise be
exposed to a great loss or he and his children would be homeless and if the personal situation
would not allow for return to his own country, or if he fulfills a religious task in the country
where he is staying. Thus, the permission to trade with interest is not because of the place
where someone is staying, but because of the necessity of the situation.119
Advocates of fiqh al-aqalliyyât claim that Islam changes from place to place, because
they say that the famous Hanafite scholar Ibni ‘Âbidîn, also thought, that the rules or
regulations change from place to place. For example, he says that a Muslim in dâr al-harb
(House of War) is allowed to gamble during a war if he is certain he will win and the enemy
will suffer some loss. In his response, al-Bouti states that Ibni ‘Âbidîn’s rule does not apply to
Muslims living in the West nowadays. In al-Bouti’s view, Europe and America are not dâr al-
harb, as Muslims live in peace and are helped by the country they live in, and disagrees with
people who want to employ the rule of ‘Âbidin in the West.
There are also people who are of the opinion that the rule of ‘Âbidin can be applied in the
West as dâr al-kufr, in cases of profit for Muslims. Al-Bouti rejects this with giving an
example of a loan from the bank. According to him, this seems as a profit in the first place
when you need money, but actually you suffer loss, by paying interest.120
Al-Bouti is of opinion that the European Council for Fatwa and Research is a
dangerous institution for Islamic faith. According to al-Bouti, they actually think that just the
presence of Muslims in non-Islamic countries is a reason enough for creating different rules
(fiqh) from those that Muslims in Islamic countries follow.121 If the place where a Muslim
lives would influence the rules, then Allah would not have instructed Muslims to emigrate
117 Ikhtilâf al-Makân laytha âmil fî Ightilâf al-Ahkâm. 118 Ibid., (20:10). 119 Ibid., (31:20). 120 Ibid., (01:38:20). 121 Ibid., (29:15) al Makân La Yatahakkamu Fi Taghiir al-Ahkâm.
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(hidjra) from places where Muslims could not apply the rules of Islam.122 According to al-
Bouti, representatives of fiqh al-aqalliyyât do not take this into consideration and support
assimilation of Muslims in the West.123
Al-Bouti says that some abuse the existing rule al-Hadjiyyât Tunazzalu Manzilat al-
Darûra (needs that are made equal to necessities), which is only rarely applied in specific
situations. To explain this, he refers to the example of Imam Shafi’i who moved to Egypt and
was asked about the permission of the use of certain pots for containing drinking water. These
pots were made from clay containing unclean ashes. Imam Shafi’i allowed it when he found
that the whole country was dealing with this, while knowing that it was no question of
necessity, because they could use different pots than these. The fact that most people
throughout the country did use these pots, was a reason for him to see this need as a necessity.
Al-Bouti compares the example of Imam Shafi’i with using of alcohol by doctors to
clean a wound nowadays, or using of alcohol in perfumes. In his view, Imam Shafi’i did not
adapt his fiqh because of his moving to Egypt. He had discussed this issue with other scholar
in Egypt and the change was set forward as a set of argumentation.124 Al-Bouti says that this
is different from what the representatives of fiqh al-aqalliyât do.125 He states that the
European Fatwa Council has formulated general fatwas for everyone based on individual
questions, while most people do not have the same problem.126
3.3 Al-Bouti’s Da’wa Method and Fiqh al-Aqalliyyât
According to al-Bouti, a Muslim in dâr al-kufr should live in harmony with non-Muslims and
their institutions, first of all by respecting the laws as long as they are not contrary to his daily
religious responsibilities, such as praying, fasting, the prohibition of interest, the prohibition
of eating carrion, the prohibition of adultery and the prohibition of drinking, using
intoxicating substances etc.. He does not include the religious obligations that must be
instructed by the Islamic head of state, because these do not apply in dâr al-kufr.127 According
to al-Bouti, there is only one exception in which rules do change “from place-to-place” or are
dispensed altogether: when it comes to rules that must be applied by the Islamic authority (al-
Ahkâm al-Sultâniyya). For example, rules about criminal law (hudûd), which can only be
122 Ibid., (30:30). 123 Al-Bouti, M.S.R., Fiqh al-Aqalliyyât ahdath wasâil al-Talâ’ub bi-dînillâh, Khutba on 16 May 2003. 124 Al-Bouti, M.S.R., Fiqh of Minorities, IUR, (01:54:20). 125 Ibid., (34:20). 126 Al-Bouti has told me so in a personal interview on 12 April 2009 at the Islamic University of Rotterdam. 127 Al-Bouti, M.S.R., Fiqh of Minorities, IUR, (39:15).
34
applied in Islamic countries by the authorities, al-Bouti states. If one would apply these rules
in non-Islamic countries, it would mean that Islam has authority in non-Islamic territory. He
proposes that when someone commits an offence that should be punished by a had
(punishment), that person could be extradited to an Islamic country to be tried there. If
extradition to an Islamic country is not possible, Muslims should advise the sinner to do the
right thing and try to keep him from bad things and ask him to ask for forgiveness for his sins.
Muslims do not have to confess personal sins. It is better that that kind of things is
concealed.128
The argument he puts forward to support this, is the first emigration of Muslims to
Abyssinia, which was not dâr al-Islâm. In his view, Muslims lived there in harmony for a
considerable period of time, without being rebellious, without challenging the institutions,
without constituting opposition and engaging in a political struggle with the establishment,
but also without assimilating and without melting into the society they lived in by keeping
their identity and by keeping their personal religious obligations. He states that one can have
interaction and can participate without sacrificing one’s identity.129
Regarding the question how a Muslim should interact with others, al-Bouti calls upon
Muslims to perform da’wa by speaking with people on an individual level and informing
them about the religious doctrine of Islam with a sense of mercy and compassion. Sullam al-
Awlawiyyât (stairs of priorities) must be taken into account and nobody should be forced to
believe into Islamic rules. As long as people have not joined Islam, Islamic obligations do not
apply for them. In al-Bouti’s view, one should first perform da’wa and convert the hearts of
people to Islam and then, dâr al-Islâm will come into existence automatically.130
As for the question if the new country of residence takes negative decisions
concerning Muslims, such as the prohibition of wearing a headscarf in state schools, al-Bouti
argues, that one should act with his mind and not with his feelings. You can be angry because
of these decisions, but it is not needed to exaggerate. With his Sufi tendency, al-Bouti
suggests in these situations exerting patience. Muslims must be good examples with their
behaviours in the new countries. If Muslims prove themselves as “good” citizens, the
mistaken ideas of non-Muslims about Muslims can be put away, which is mostly the reason
for taking negative decision concerning Muslims, according al-Bouti. This will lead to the
regret of the leaders for those decisions. To be a “good citizen” does not mean neglecting
128 Ibid., (23:20). 129 Ibid., (41:00). 130 Ibid., (43:40).
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religious obligations, such as praying, fasting, and wearing a headscarf, in order to follow the
rulings of the new country. These obligations must be practiced, in any way. For example,
according al-Bouti, there are alternative possibilities for a Muslima (Muslim women) with a
headscarf if she is not allowed to enter the school or university. In this situation, she can better
choose for a home study, so that no one can tell her to take off her headscarf. In other words,
it is not wise to stir up the fire by emotional actions, for example, by saying that, at all costs
you want to study at the university with a headscarf, which may lead to negative results.131
Concessions can be made when it comes to hâdjiyyât (complementary) and tahsîniyyât (the
enhancing and the perfecting), not when it comes to daruriyyât (necessities). Muslims should
be aware of their situation (fiqh al-waqi’; fiqh of contemporary reality) and should act
according to the sullam al-awlawiyyât.132
Basically, al-Bouti is an advocate of the presence of Muslims in non-Islamic countries
for da’wa. Like many scholars, he hopes that Muslims in the West will become exemplary
citizens who will gradually Islamize the non-Islamic society by their norms and values. He
supports the presence of Muslims in non-Islamic countries under the condition that they
follow the existing, classical fiqh, without changing the fundamentals of it.
Al-Bouti states that the western world advocates true freedom. For that reason, he calls
upon western leaders to cooperate with moderate Muslims who want to live in these countries
in harmony and peace.133 Al-Bouti says that secularism in the West is different from that in
Islamic countries, as it takes care of people’s worldly needs and has no opinion on religion in
principle. Secularism in the West separates state affairs and religious affairs and protects
people’s freedoms. All this is to the benefit of Muslims, in his view. In Syria, Muslims can
practice their religion freely, but there are countries, such as Turkey, where the headscarf is
banned in public sphere. In the latter, secularism is used against Islam, because the supporters
of the ban claim that the headscarf in public sphere is against the principles of secularism. For
that reason, it is wise for a Muslim to behave as a guest in the country that admitted him and
to behave as an exemplary fellow inhabitant, to create an opportunity to get to the worship of
Allah. In this way, one could make it possible to tell others something about Islam.134
131 Al-‘Atifa ta’ty kal-‘Asifa. 132 Al-Bouti, M.S.R., Fiqh of Minorities, IUR, (52:00), see also (01:30:25) and (01:34:00). 133 Ibid., (57:50). 134 Ibid., (59:00).
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3.4 Al-Bouti’s criticism of the European Council for Fatwa and Research
According to al-Bouti, the International Fiqh Council in Jeddah (which acts as central
authority for fiqh councils around the world and is subordinate to the Organisation of the
Islamic Conference (IOC)), the Fatwa Council of the al-Azhar University and other councils
are sufficient to answer all kinds of questions relating to Muslims living in the West. The
councils mentioned constitute consensus for Muslims in this age. Creating a new source, with
new rules for Islamic fiqh is a bad thing, in his view, that can only lead to more discord.135
Like al-Qaradawi and al-Alwâni, al-Bouti is of opinion that a Mufti must have
sufficient knowledge about the West and the situation of Muslims there. Many of the Mufti
members of the Fatwa Council in Jeddah also live in the West, have lived there or often visit
it. He himself has often been to western countries for conferences and lectures, claiming that,
he has developed a “thermometer” (a sense) when it comes to understanding the situation of
Muslims in the West.136
According to al-‘Alwâni, Muslims have to revise their thoughts as a whole and
reassess its methods. He also claims, that the traditional fiqh is not sufficient to solve the
problems of Muslims in general, let stay to solve the problems of Muslims in the West. Al-
Bouti’s reaction to this is that Islamist organizations have founded the ECFR to meet western
interests. It strikes him that many members, a third or even half, of the Fatwa Council do not
have the necessary competencies to issue a fatwa because they do not have knowledge of usûl
al-fiqh. It is strange, he argues, that philosophers, doctors and engineers among them who also
have a vote in accepting or rejecting a fatwa.137 Al-Bouti confirms that in usûl al-fiqh there is
consensus about the characteristics of a mufti and what competencies he should have.
According to usûl, everyone should abide by the rules fixed by earlier mudjtahids unless
someone is a mudjtahid himself, who can express his opinion. As long as someone is no
mudjtahid, he should abide by the rules and boundaries of his school of law, for he is then a
muqallid (imitator, follower).138
The ECFR is dominated by Ikhwân al-Muslimîn. Almost every member of this council
has ties to this movement, al-Bout claims.139 According him, they make fatwas, which are in
135 Ibid., (32:30). 136 Ibid., (01:41:20). 137 Ibid., (01:25:40), and in interview 12 April 2009 at IUR. 138 Al-Bouti, M.S.R., Al-Islâm wa al-Gharb, p. 144. 139 personal interview on 12 April 2009.
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their advantage as a political movement, in order to meet western interests. The fatwas,
mostly, are given in this way.140
Al ‘Alwâni says that the purpose of fiqh al-aaqalliyyât is to project minorities as
representative models or examples of Muslim society in non-Muslim countries. Al-Bouti
rejects this and criticizes the fatwas issued by the Council as political in nature. To count
some, allowing loans from banks that use interest to meet certain needs of people,141 that a
woman converted to Islam can stay within the marriage contract with her unbelieving
husband,142 that someone can work in a store where intoxicating substances and prohibited
food is sold and that it is allowed for a woman not to wear a headscarf if the law dictates it.143
He argues that the Council in Jeddah has never approved the fatwa by the ECFR concerning
the validity of the marriage contract of a converted woman whose husband did not convert.144
Al-Bouti disputes that if the ECFR used only the term ‘al-darurât’, without ‘al-
aqalliyyât’, such as in the time of the Prophet, he would promote it. Fiqh al-Darurât is a
completely elaborated theory.145 The darûra (necessity) arises in al-Bouti’s view in a situation
where a Muslim would suffer a great loss, such as the absence of food to stay alive, the
absence of clothing to cover one’s body or the absence of a home which forces one out on to
the streets. In case of either of these three situations, the possibility arises to apply the rule
‘necessity breaks law’. Every individual can estimate his own situation as long as he keeps to
the principle of darûra, in his view.146
3.5 A Response to al-Bouti’s Criticism
Al-Bouti’s criticism of the Islamic organizations behind the ECFR is rejected by the acting
secretary-general of the Islamic Organization Milli Görüş (ICMG) Oğuz Üçüncü. Despite his
respect to al-Bouti’s knowledge of Islam, he regrets that al-Bouti judges very easily about the
effort and intentions of these Islamic organizations. He is of opinion that al-Bouti does not
know the situation of European Muslims and underestimates or even denies the effort and
struggle by Islamic organizations, accusing them of collaboration with western rulers who
intend to destroy Islam. Üçüncü claims that ICMG, with its more than 500 mosques and
140 Ibid., pp. 152-153. 141 See appendix 2. 142 Ibid. 3. 143 Al-Bouti, M.S.R., Al-Islâm wa al-Gharb, pp. 152-153. 144 Al-Bouti, M.S.R., Fiqh of Minorities, IUR, ibid., (01:26:30). 145 Ibid., (01:40:10). 146 Ibid., (01:35:50).
38
socio-cultural organizations, actually is an advocate for the rights of Muslims in Europe and
the preservation of their identity. The European Fiqh Council was founded, according to him,
with the very aim of warranting the Islamic identity of Muslims. He does not consider
Muslims as minorities and foreigners, but citizens who can be held accountable to existing
laws. Muslims in Europe are dealing with constitutional states and the rule of law. They
should have as many rights and duties as original inhabitants. He argues that ICMG’s
leadership and he himself, as secretary-general, experience many problems and impediments
because they regularly criticize and oppose integration programmes, which aim at
assimilating minorities. According to him, their criticism has led to lawsuits and unjust
accusations in which they are still entangled. Üçüncü claims that all this has been undertaken
to minimise ICMG’s influence on the integration debate. Because of these allegations, his
organization has also been expelled from the ‘Islamrat für die Bundesrepublik Deutschland’
(Islamic Council for the Republic of Germany). But Üçüncü has some self-criticism, too. He
states that the ECFR has not become the institution they had hoped for, because the influence
of scholars living outside Europe dominates the council by numbers and by authority. He
advocates more influence for the scholars living in Europe, because he thinks they have more
understanding of the things that are going on among Muslims in Europe. However, he
confirms that the number of scholars at that level is very small.147
Conclusion
Al-Bouti’s political and religious criticism against fiqh al-aqalliyyât is first of all based on his
skeptical attitude about the West. According to him, the West is almost always behind
“negative” developments in Islamic countries or among Muslims in the West. He even argues
that the West often involves Islamist groups to realize it plans.
The most important Islamist group, in al-Bouti’s view is Ikhwân al-Muslimîn, the co-
founder of ECFR. Due to political pressure on Islamist organizations on these Islamist groups,
they have founded the ECFR with its fiqh al-aqalliyât to make assimilation easier, in his view.
The position of Ikhwân al-Muslimîn in the political history of Syria, is also a reason
for al-Bouti’s opposition to the ECFR, which was formed by them. Those who were hit by the
incidents in Aleppo and Hama were mostly dominated by Ikhwân al-Muslimîn. Up until
147 He has told me so, after a presentation on the situation of Muslims in Europe and ICMG’s role, in an interview on 11 December 2010 at Spijkenisse.
39
today, this is a forbidden organization in Syria. Al-Bouti is against Islamist groups, who
opposes the regime with violence.
Al-Bouti’s religious objection to fiqh al-aqalliyyât is based on his conviction that the
rules of conduct that all Muslims should follow, are the same all over the world. Change of
place has no effect on the rule, but personal circumstances can have, which is known as
darûra. When the situation deteriorates to such extent that the practising of personal religious
obligations comes into play, he says, one should emigrate to a place where they can be
practised.
Al-Bouti argues, that Muslims in dâr al-kufr should live in harmony. They must
respect the laws as long as they are not contrary to their daily religious responsibilities.
Besides, al-Bouti calls upon Muslims to perform da’wa with mercy and compassion.
Al-Bouti criticizes the ECFR of the fact that many members of it does not have the
necessary competencies for issuing fatwas. If someone has not these competencies, he can not
be a mudjtahid. So he should abide by the rules and boundaries of earlier mudjtahids as a
muqallid (imitator, follower). In contradiction of this, supporters of fiqh al aqalliyyât, such as
Üçüncü, are of opinion that al-Bouti does not know the situation of European Muslims. Al-
Bouti disagrees with this, because many of the Mufti members of the Fatwa Council in
Jeddah also live in the West, have lived there or often visit it. He himself has often been to
western countries for conferences and lectures and is of opinion that he is aware of the
situation of Muslims in the West.
40
Conclusion Al-Bouti’s opposition against fiqh al-aqalliyyât, is explainable with his fiqh understanding,
opinion on the West, and da’wa method.
Al-Bouti is en usulî who has specialized in fiqh. His arguments and ideas are referring
to Qur’anic verses, hadiths and the opinions of the leading classical authorities. He is against
non-madhhabism, which promotes a more flexible and less constrained ijtihâd system. Al-
Bouti believes that the gate of ijtihâd should be kept open, but this demands deep knowledge
of all the relevant sources and the capability to apply rules from authoritative texts to modern
circumstances. Therefore, he opposes the ECFR, because most of its members does not have
these competencies, according to him. If the muqallid has not reached the level of knowledge
than he/she has to follow the mujtahid.
Al-Bouti sees the West as the initiator of the problems in Islamic countries. According
him, the ECFR is founded with the support of the West to divide Islam. He permits the stay of
Muslim in non-Muslim countries, which are dâr al-kufr, for temporary, provided that they
have an important reason. When the situation deteriorates to such extent that the practicing of
personal religious obligations comes into play, he says, one should emigrate to a place where
they can be practiced. Al-Bouti further argues that the rules of conduct that all Muslims
should follow, are the same all over the world. Change of place has no effect on the rule, but
personal circumstances can have, which is known as darûra.
For al-Bouti it is important that Muslims perform da’wa in non-Muslim countries. Al-
Bouti has Sufi tendencies, and says that Muslims in these countries must be good examples
during their stay. They must respect the laws as long as they are not contrary to his daily
religious responsibilities. The only thing that Muslims do not have to abide by and get
dispensation for in non-Islamic countries, are the rules of punishment (hudûd) that have been
placed by Allah onto society through its head of state (al-Ahkâm al-Sultâniyya). They also
have to speak with people on an individual level and informing them about the religious
doctrine of Islam with a sense of mercy and compassion, and nobody should be forced to
believe into Islamic rules.
Al-Bouti criticizes the advocates of fiqh al-aqalliyyât that they have a wrong method
in their legal reasoning. According him, the ECFR is mostly formed by the Islamist groups,
especially Ikhwân al-Muslimîn, who try to make its ideals true, through violence or corrupted
fatwas. By making fiqh dependent on region, they are dividing Islam into pieces by means of
creating an Islam for Muslims in the Middle East and an Islam for Muslims in the West.
41
Therefore, al-Bouti believes that fiqh al-aqalliyât is the most recent means of playing with
Allah’s religion, and therefore, dividing Islam. Al-Bouti argues, that Islamists are being made
to believe that Islam is rigid by the West and does not adapt itself to people’s needs in modern
times. That is why, in their view, renewal and modernization are necessary. They try to
achieve this, in his opinion, by bringing the basic principles of usûl al-fiqh into debate and by
opening the doors of idjtihâd wide, in order to make Islamic rules more flexible. Al-Bouti
criticizes this, because this means going beyond the rules of jurisprudence and its fundaments,
according him.
42
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44
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– Boston, 2004.
29. Shadid, W.A.R. and Koningsveld, P.Sj., Intercultural Relations and Religious
Authorities: Muslims in the European Union, Leuven, Peeters, 2002, pp. 149-17
45
Interviews
* A personal interview with Al-Bouti on 12/04/2009 at the Islamic University of
Rotterdam.
* A personal interview with Oguz Üçüncü on 11/12/2010 at Spijkenisse.
From Internet
* www.alwani.net
* www.qaradawi.net
* http://www.e-cfr.org//en/ECFR.pdf
* http://fikr.com/bouti/qsearch.php 28 December 2010.
* http://www.onislam.net/english/ask-about-islam/islam-and-the-
world/worldview/451626-what-does-fiqh-of-minorities-mean.html,
accessed on: 21 March 2011.
* European Council for Fatwa and Research's, Resolution 2/4, the Fourth Ordinary
Session [October 27-31, 1999], http://www.e-cfr.org/eng/article.php?sid=31, accessed
and copied on 24 March 2007, not available anymore.
* http://www.jamaaldiwan.com/blog/files/fatwas_in_america_contemplations.pdf , p.11,
accessed on: 5 February 2011.
* http://www.bouti.com/en/about.php?PHPSESSID=suluujc938a4nkpu1madpaif41,
accessed on: 11 November 2010.
* http://www.naseemalsham.com/ar/Pages.php?page=mufty&pg_id=1992, accessed on
11 November 2010.
46
* http://fikr.com/bouti/qsearch.php, accessed on 28 December 2010.
* Al-Bouti, M.S.R., Djoenoen al-Qirâatu al-Mu’âsirah: Min qyna? Wa ila Ayna?,
article, Paris, 19 May 2001,
http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=566
accessed on: 10 October 2010.
* Al-Bouti, M.S.R., al-Islâm Bayna al-Tadjdîd al-Matloub wa al-Tabdil al-Marfoud,
article, Cairo, 3 May until 3 June 2001,
http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=567
accessed on: 10 October 2010.
* Al-Bouti, M.S.R., “Laytha Sudfa Talâqi al-Da’wa ilâ Fiqh al-Aqalliyyât m’a al-Khitta
al-Râmiya ilâ Tadjziat al-Islâm,” Monthly Word, 06-2001,
http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=336
translated by Mahdi Lock, http://marifah.net/articles/Bouti-MinorityFiqh.pdf, accessed
on: 15 October 2010.
* Al-Bouti, M.S.R., Fiqh al-Aqallliyyât ahdath wasâil al-Talâ’ub bi-dînillâh, Khutba on
16 juni 2003,
http://fikr.com/bouti/article.php?PHPSESSID=1o32dcmq6ft6r7hlobbca1gbv3&id=149
translated by Mahdi Lock, http://www.marifah.net/articles/mawlidkhutba-buti.pdf,
accessed on 15 October 2010.
* Al-Bouti, M.S.R., Fiqh of Minorities, Islamic University of Rotterdam, 23 March
2007, http://www.iurtv.nl/ar/58/Prof.%20Dr.%20Buti.htm, accessed on: 17 October
2010.
* Al-Bouti, M.S.R., Why Does One Have to Follow a Madhhab? In Al-Lâ Madhabiyya;
Aghtary Bid’atin Tuhaddidu al-Shari’ahh al-Islâmiyyah, Damascus, Dâr Al-Farâbi,
2008. pp. 114 – 125, translated by: Keller, N. H. M., 1995, see
http://www.masud.co.uk/ISLAM/nuh/buti.htm, accessed on: 2 November 2010.
47
Appendix 1
Why Does One Have to Follow a Madhhab?148
Debate Between Shari‘a professor Muhammad Sa‘id al-Buti, and a Leading Salafi Teacher
that took place in Damascus.
Buti asked him: “What is your method for understanding the rulings of Allah? Do you take
them from the Qur’an and sunna, or from the Imams of ijtihad?”
Salafi: “I examine the positions of the Imams and their evidences for them, and then
take the closest of them to the evidence of the Qur’an and Sunna.”
Buti: “You have five thousand Syrian pounds that you have saved for six months. You then
buy merchandise and begin trading with it. When do you pay zakat on the merchandise, after
six months, or after one year?”
Salafi: [He thought, and said,] “Your question implies you believe zakat should be
paid on business capital.”
Buti: “I am just asking. You should answer in your own way. Here in front of you is a library
containing books of Qur’anic exegesis, hadith, and the works of the mujtahid Imams.”
Salafi: [He reflected for a moment, then said,] “Brother, this is din, and not simple
matter. One could answer from the top of one’s head, but it would require thought, research,
and study; all of which take time. And we have come to discuss something else.”
Buti: I dropped the question and said, “All right. Is it obligatory for every Muslim to examine
the evidences for the positions of the Imams, and adopt the closest of them to the Qur’an and
Sunna?”
Salafi: “Yes.”
Buti: “This means that all people possess the same capacity for ijtihad that the Imams of the
madhhabs have; or even greater, since without a doubt, anyone who can judge the positions of
the Imams and evaluate them according to the measure of the Qur’an and sunna must know
more than all of them.”
Salafi: He said, “In reality, people are of three categories: the muqallid or ‘follower of
qualified scholarship without knowing the primary textual evidence (of Qur’an and hadith)’;
the muttabi‘, or ‘follower of primary textual evidence’; and the mujtahid, or scholar who can
148 Al-Bouti, M.S.R., Why Does One Have to Follow a Madhhab? In Al-Lâ Madhabiyya; Aghtary Bid’atin Tuhaddidu al-Shari’ahh al-Islâmiyyah, Damascus, Dâr Al-Farâbi, 2008. pp. 114 – 125, translated by: Keller, N. H. M., 1995, see http://www.masud.co.uk/ISLAM/nuh/buti.htm, accessed on: 2 November 2010.
48
deduce rulings directly from the primary textual evidence (ijtihad). He who compares
between madhhabs and chooses the closest of them to the Qur’an is a muttabi‘, a follower of
primary textual evidence, which is an intermediate degree between following scholarship
(taqlid) and deducing rulings from primary texts (ijtihad).”
Buti: “Then what is the follower of scholarship (muqallid) obliged to do?”
Salafi: “To follow the mujtahid he agrees with.”
Buti: “Is there any difficulty in his following one of them, adhering to him, and not
changing?”
Salafi: “Yes there is. It is unlawful (haram).”
Buti: “What is the proof that it is unlawful?”
Salafi: “The proof is that he is obliging himself to do something Allah Mighty and
Majestic has not obligated him to.”
Buti: I said, “Which of the seven canonical readings (qira’at) do you recite the Qur’an in?”
Salafi: “That of Hafs.”
Buti: “Do you recite only in it, or in a different canonical reading each day.”
Salafi: “No, I recite only in it.”
Buti: “Why do you read only it when Allah Mighty and Majestic has not obliged you to do
anything except to recite the Qur’an as it has been conveyed—with the total certainty of
tawatur (being conveyed by witnesses so numerous at every stage of transmission that their
sheer numbers obviate the possibility of forgery or alteration), from the Prophet (Allah bless
him and give him peace)?”
Salafi: “Because I have not had a opportunity to study other canonical readings, or
recite the Qur’an except in this way.”
Buti: “But the individual who learns the fiqh of the Shafi‘i school—he too has not been able
to study other madhhabs or had the opportunity to understand the rules of his religion except
from this Imam. So if you say that he must know all the ijtihads of the Imams so as to go by
all of them, it follows that you too must learn all the canonical readings so as to recite in all of
them. And if you excuse yourself because you cannot, you should excuse him also. In any
case, what I say is: where did you get that it is obligatory for a follower of scholarship
(muqallid) to keep changing from one madhhab to another, when Allah has not obliged him
to? That is, just as he is not obliged to adhere to a particular madhhab, neither is he obliged to
keep changing.”
Salafi: “What is unlawful for him is adhering to one while believing that Allah has
commanded him to do so.”
49
Buti: “That is something else, and is true without a doubt and without any disagreement
among scholars. But is there any problem with his following a particular mujtahid, knowing
that Allah has not obliged him to do that?”
Salafi: “There is no problem.”
Buti: [Al-Khajnadi’s] al-Karras, which you teach from, contradicts you. It says this is
unlawful, in some places actually asserting that someone who adheres to a particular Imam
and no other is an unbeliever (kafir).”
Salafi: He said, “Where?” and then began looking at the Karras, considering its texts
and expressions, reflecting on the words of the author “Whoever follows one of them in
particular in all questions is a blind, imitating, mistaken bigot, and is “among those who have
divided their religion and are parties” [Qur’an 30:32]. He said, “By follows, he means
someone who believes it legally obligatory for him to do so. The wording is a little
incomplete.”
Buti: I said, “What evidence is there that that’s what he meant? Why don’t you just say the
author was mistaken?”
Salafi: He insisted that the expression was correct, that it should be understood as
containing an unexpressed condition [i.e. “provided one believes it is legally obligatory”], and
he exonerated the writer from any mistake in it.
Buti: I said, “But interpreted in this fashion, the expression does not address any opponent or
have any significance. Not a single Muslim is unaware that following such and such a
particular Imam is not legally obligatory. No Muslim does so except from his own free will
and choice.”
Salafi: “How should this be, when I hear from many common people and some
scholars that it is legally obligatory to follow one particular school, and that a person may not
change to another?”
Buti: “Name one person from the ordinary people or scholars who said that to you.”
He said nothing, and seemed surprised that what I said could be true, and kept repeating that
he had thought that many people considered it unlawful to change from one madhhab to
another.
I said, “You won’t find anyone today who believes this misconception, though it is related
from the latter times of the Ottoman period that they considered a Hanafi changing from his
own school to another to be an enormity. And without a doubt, if true, this was something that
was complete nonsense from them; a blind, hateful bigotry.”
50
I then said, “Where did you get this distinction between the muqallid “follower of
scholarship” and the muttabi‘ “follower of evidence”: Is there a original, lexical distinction [in
the Arabic language], or is it merely terminological?”
Salafi: “There is a lexical difference.”
Buti: I brought him lexicons with which to establish the lexical difference between the two
words, and he could not find anything. I then said: “Abu Bakr (Allah be well pleased with
him) said to a desert Arab who had objected to the alotment for him agreed upon by the
Muslims, ‘If the Emigrants accept, you are but followers’—using the word "followers" (tabi‘)
to mean ‘without any prerogative to consider, question, or discuss.’” (Similar to this is the
word of Allah Most High, “When those who were followed (uttubi‘u) disown those those who
followed (attaba‘u) upon seeing the torment, and their relations are sundered” (Qur’an 2:166),
which uses follow (ittiba‘ ) for the most basic blind imitation).
Salafi: He said, “Then let it be a technical difference: don’t I have a right to establish a
terminological usage?”
Buti: “Of course. But this term of yours does not alter the facts. This person you term
a muttabi‘ (follower of scholarly evidence) will either be an expert in evidences and the
means of textual deduction from them, in which case he is a mujtahid. Or, if not an expert or
unable to deduce rulings from them, then he is muqallid (follower of scholarly conclusions).
And if he is one of these on some questions, and the other on others, then he is a muqallid for
some and a mujtahid for others. In any case, it is an either-or distinction, and the ruling for
each is clear and plain.”
Salafi: He said, “The muttabi‘ is someone able to distinguish between scholarly
positions and the evidences for them, and to judge one to be stronger than others. This is a
level different to merely accepting scholarly conclusions.
Buti: “If you mean,” I said, “by distinguishing between positions differentiating them
according to the strength or weakness of the evidence, this is the highest level of ijtihad. Are
you personally able to do this?”
Salafi: “I do so as much as I can.”
Buti: “I am aware,” I said, “that you give as a fatwas that a three fold pronouncement of
divorce on a single occasion only counts as one time. Did you check, before this fatwa of
yours, the positions of the Imams and their evidences on this, then differentiate between them,
so to give the fatwa accordingly? Now, ‘Uwaymir al-‘Ajlani pronounced a three fold divorce
at one time in the presence of the Prophet (Allah bless him and give him peace) after he had
made public imprecation against her for adultery (li‘an ), saying, ‘If I retain her, O Messenger
51
of Allah, I will have lied against her: she is [hereby] thrice divorced.’ What do you know
about this hadith and its relation to this question, and its bearing as evidence for the position
of the scholarly majority [that a threefold divorce pronounced on a single occasion is legally
finalized and binding] as opposed to the position of Ibn Taymiya [that a threefold divorce on a
single occasion only counts as once]?”
Salafi: “I did not know this hadith.”
Buti: “Then how could you give a fatwa on this question that contradicts what the four
madhhabs unanimously concur upon, without even knowing their evidence, or how strong or
weak it was? Here you are, discarding the principle you say you have enjoined on yourself
and mean to enjoin on us, the principle of “following scholarly evidence (ittiba‘ )” in the
meaning you have terminologically adopted.”
Salafi: “At the time I didn’t own enough books to review the positions of the Imams
and their evidence.”
Buti: “Then what made you rush into giving a fatwa contravening the vast majority of
Muslims, when you hadn’t even seen any of their evidences?”
Salafi: “What else could I do? I asked and I only had a limited amount of scholarly
resources.”
Buti: “You could have done what all scholars and Imams have done; namely, say “I didn’t
know,” or told the questioner the postition of both the four madhhabs and the postion of those
who contravene them; without givng a fatwa for either side. You could have done this, or
rather, this was what was obligatory for you, especially since the poblem was not personally
yours so as to force you to reach some solution or another. As for your giving a fatwa
contradicting the consensus (ijma‘) of the four Imams without knowing—by your own
admission—their evidences, sufficing yourself with the agreement in your heart for the
evidences of the opposition, this is the very utmost of the kind of bigotry you accuse us of.”
Salafi: “I read the Imams’ opinions in [Nayl al-awtar, by] Shawkani, Subul al-
salam [by al-Amir al-San‘ani], and Fiqh al-sunna by Sayyid Sabiq.”
Buti: These are the books of the opponents of the four Imams on this question. All of them
speak from one side of the question, mentioning the proofs that buttress their side. Would you
be willing to judge one litigant on the basis of his words alone, and that of his witnesses and
relatives?”
Salafi: I see nothing blameworthy in what I have done. I was obliged to give the
questioner an answer, and this was as much as I was able to reach with my understanding.”
52
Buti: “You say you are a “follower of scholarly evidence (muttabi‘)” and we should all be
likewise. You have explained “following evidence” as reviewing the positions of all
madhhabs, studying their evidences, and adopting the closest of them to the correct
evidence—while in doing what you have done, you have discarded the principle completely.
You know that the unanimous consensus of the four madhhabs is that a threefold
pronouncement of divorce on one occasion counts as a three fold, finalized divorce, and you
know that they have evidences for this that you arae unaware of, despite which you turn from
their consensus to the opinion that your personal preference desires. Were you certain
beforehand that the evidence of the four Imams deserved to be rejected?”
Salafi: No; but I wasn’t aware of them, since I didn’t have any reference works on
them.”
Buti: “Then why didn’t you wait? Why rush into it, when Allah never obligated you to do
anything of the sort? Was your not knowing the evidences of the scholarly majority a proof
tht Ibn Taymiya was right? Is the bigotry you wrongly accuse us of anything besides this?”
Salafi: “I read evidences in the books available to me that convinced me. Allah has not
enjoined me to do more than that.”
Buti: “If a Muslim sees a proof for something in a the books he reads, is that a sufficient
reason to disregard the madhhabs that contradict his understanding, even if he doesn’t know
their evidences?”
Salafi: “It is sufficient.”
Buti: “A young man, newly religious, without any Islamic education, reads the word of Allah
Most High “To Allah belongs the place where the sun rises and where it sets: wherever you
turn, there is the countenance of Allah. Verily, Allah is the All-encompassing, the All-
knowing (Qur’an 2:115), and gathers from it that a Muslim may face any direction he wishes
in his prescribed prayers, as the ostensive purport of the verse implies. But he has heard that
the four Imams unanimously concur upon the necessity of his facing towards the Kaaba, and
he knows they have evidences for it that he is unaware of. What should he do when he wants
to pray? Should he follow his conviction from the evidence available to him, or follow the
Imam who unanimously concur on the contrary of what he has understood?”
Salafi: “He should follow his conviction.”
Buti: “And pray towards the east for example. And his prayer would be legally valid?”
Salafi: “Yes. He is morally responsible for following his personal conviction.”
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Buti: “What if his personal conviction leads him to believe there is no harm in making love to
his neighbor’s wife, or to fill his belly with wine, or wrongfully take others’ property: will all
this be mitigated in Allah’s reckoning by “personal conviction”?
Salafi: [He was silent for a moment, then said,] “Anyway, the examples you ask about
are all fantasies that do not occur.”
Buti: “They are not fantasies; how often the like of them occurs, or even stranger. A young
man without any knowledge of Islam, its Book, its sunna, who happens to hear or read this
verse by chance, and understands from it what any Arab would from its owtward purport, that
there is no harm in someone praying facing any direction he wants—despite seeing people’s
facing towards the Kaaba rather than any other direction. This is an ordinary matter,
theoretically and practically, as long as there are those among Muslims who don’t know a
thing about Islam. In any event, you have pronounced upon this example—imaginary or
real—a judgement that is not imaginary, and have judged “personal conviction” to be the
decisive criterion in any event. This contradicts your differentiating people into three groups:
followers of scholars without knowing their evidence (muqallidin), followers of scholars’
evidence (muttabi‘in), and mujtahids.”
Salafi: “Such a person is obliged to investigate. Didn’t he read any hadith, or any other
Qur’anic verse?”
Buti: He didn’t have any reference works available to him, just as you didn’t have any when
you gave your fatwa on the question of [threefold] divorce. And he was unable to read
anything other than this verse connected with facing the qibla and its obligatory character. Do
you still insist that he must follow his personal conviction and disregard the Imams’
consensus?”
Salafi: “Yes. If he is unable to evaluate and investigate further, he is excused, and it is
enough for him to rely on the conclusions his evaluation and investigation lead him to.”
Buti: “I intend to publish these remarks as yours. They are dangerous, and strange.”
Salafi: “Publish whatever you want. I’m not afraid.”
Buti: “How should you be afraid of me, when you are not afraid of Allah Mighty and
Majestic, utterly discarding by these words the word of Allah Mighty and Majestic [in Sura
al-Nahl] ‘Ask those who recall if you know not’ (Qur’an 16:43).”
Salafi: “My brother,” he said, “These Imams are not divinely protected from error
(ma‘sum). As for the Quranic verse that this person followed [in praying any direction], it is
the word of Him Who Is Protected from All Error, may His glory be exalted. How should he
leave the divinely protected and attach himself to the tail of the non-divinely-protected?”
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Buti: “Good man, what is divinely protected from error is the true meaning that Allah
intended by saying, “To Allah belongs the place where the sun rises and where it sets . . .”—
not the understanding of the young man who is as far as can be from knowing Islam, its
rulings, and the nature of its Qur’an. That is to say, the comparison I am asking you to make
is between two understandings: the understanding of this ignorant youth, and the
understanding of the mujtahid Imams, neither of which is divinely protected from error, but
one of which is rooted in ignorance and superficiality, and the other of which is rooted in
investigation, knowledge, and accuracy.”
Salafi: “Allah does not make him responsible for more than his effort can do.”
Buti: “Then answer me this question. A man has a child who suffers from some infections,
and is under the care of all the doctors in town, who agree he should have a certain medicine,
and warn his father against giving him an injection of penicillin, and that if he does, he will be
exposing the child’s life to destruction. Now, the father knows from having read a medical
publication that penicillin helps in cases of infection. So he relies on his own knowledge
about it, disregards the advice of the doctors since he doesn’t know the proof for what they
say, and employing instead his own personal conviction, treats the child with a penicillin
injection, and thereafter the child dies. Should such a person be tried, and is he guilty of a
wrong for what he did, or not?”
Salafi: [He thought for a moment and then said,] “This is not the same as that.”
Buti: “It is exactly the same. The father has heard the unanimous judgement of the doctors,
just as the young man has heard the unanimous judgement of the Imams. One has followed a
single text he read in a medical publication, the other has followed a single text he has read in
the Book of Allah Mighty and and Majestic. This one has gone by personal conviction, and so
has that.”
Salafi: “Brother, the Qur’an is light. Light. In its clarity as evidence, is light like any
other words?”
Buti: “And the light of the Qur’an is reflected by anyone who looks into it or recites it, such
that he understands it as light, as Allah meant it? Then what is the difference between those
who recall [Qur’an 16:43] and anyone else, as long as all partake of this light? Rather, the two
above examples are comparable, there is no difference between them at all; you must answer
me: does the person investigating—in each of the two examples—follow his personal
conviction, or does he follow and imitate specialists?”
Salafi: “Personal conviction is the basis.”
55
Buti: “He used personal conviction, and it resulted in the death of the child. Does this entail
any responsibility, moral or legal?”
Salafi: “It doesn’t entail any responsibility at all.”
Buti: I said, “Then let us end the investigation and discussion on this last remark of yours,
since it closes the way to any common ground between you and me on which we can base a
discussion. It is sufficient that with this bizarre answer of yours, you have departed from the
consensus of the entire Islamic religion. By Allah, there is no meaning on the face of the earth
for disgusting bigotry if it is not what you people have”.
Buti: I do not know then, why these people don’t just let us be, to use our own “personal
conviction” that someone ignorant of the rules of religion and the proofs for them must adhere
to one of the mujtahid Imams, imitating him because of the latter’s being more aware than
himself of the Book of Allah and sunna of His messenger. Whatever the mistake in this
opinion in their view let it be given the general amnesty of “personal conviction.” like the
example of him who turns his back to the qibla and is his prayer is valid, or him who kills a
child and the killing is “ijtihad” and “medical treatment”.
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Appendix 2.
Fatwa149
Purchasing houses with an usurious loan for Muslims living in non-Muslim countries, i.e. taking up a mortgage to buy a house
The Council discussed in detail several papers concerning the purchasing of mortgaged
houses and came to the following conclusion:
• The Council stresses what had been agreed upon by the Muslim Umma that usury is
forbidden. It is a major sin and is one the seven gravest ones. Those who commit it are
considered as being waging war against Allah (swt) and His Prophet (ppbuh). In this
vein, the Council supports what has been decided by Fiqh Councils throughout the
Muslim World that bank interests are usury.
• The Council, therefore, invites the Muslim community to do its utmost to seek Islamic
alternatives such as Murabaha (sale at a profit), which is practiced by Islamic Banks.
They should avoid doubtful matters to the furthest extent possible. It encourages them
to establish their own construction companies that can build houses and sell them to
Muslims with relaxed, less strict lawful ways of payments.
• The Council calls upon Islamic organisations throughout Europe to enter into
negotiations with European banks to find formulas that are acceptable to the Muslim
buyer. Formulas like Bei Al-Taqsit, (sale for deferred payment), where the buyer is
required to pay more money due to the fact that payment is not immediate. This
formula will help both banks as well as the Muslim community. This formula is in
operation in some European banks. In addition to this, some European banks opened
branches in some Muslim countries, where transactions are run according to the
Shari'a as in Bahrain. In this regard, the Council would send appeals to European bank
to observe the needs of the Muslim community .
If all the above suggestions are un-available, the Council, in the light of evidence and
juristic considerations, see no harm in buying mortgaged houses if the following
restrictions are strictly observed:
a) The house to be bought must be for the buyer and his household.
b) The buyer must not have another house .
149 European Council for Fatwa and Research's, Resolution 2/4, the Fourth Ordinary Session [October 27-31,
1999], http://www.e-cfr.org/eng/article.php?sid=31, accessed and copied on 24 March 2007, not available
anymore.
57
c) The buyer must not have any surplus of assets that can help him buy a house by means
other than mortgage.
This Fatwa is based on the following two major juristic considerations:
First: The agreed upon Juristic Rule which states that extreme necessities turn unlawful
matters lawful. This Rule is derived from five Quranic texts, amongst them: “He (Allah) has
explained to you in detail what is forbidden to you, except under compulsion or necessity"
(6:119), and “But whosoever is forced by necessity without willful disobedience, nor
transgressing due limits; (for him) certainly, your Lord is oft-Forgiving, most merciful”
(6:145) .
Moreover, Jurists have established that Hajah, i.e. need or necessity, whether for an
individual or a group, can be treated in equal terms like Darûra, i.e. extreme necessity. Hajah
or need is defined as those things which put the Muslim in a difficulty, if not fulfilled, even if
he or she can do without. Darûra or extreme necessity, on the other hand, is that which the
Muslim cannot manage without. Allah (swt) has lifted difficulty as stated in Sura Al-Hajj and
Al-Ma'idah: “And He has not laid upon you in religion any hardship" (22:78), and “Allah
does not want to place you in difficulty, but He wants to purify you, and to complete His
Favour to you that you may be thankful" (5:6).
The house that can satisfy the criteria set up by the definitions of Hajah i.e. need and Darûra
i.e. extreme necessity above is the one that is suitable for the Muslim family in terms of size,
location, locality and amenities.
But as the fatwa is built on the Rule of Darûra i.e. extreme necessity or hajah, i.e. the need
(which is treated in a similar manner like Darûra), the Council stresses that there is another
Rule which governs and complements the rule of extreme necessity and need. This rule reads
what has been made permissible due to extreme necessity must be dealt with great care and
taken in measure. It should be restricted to those who are in real need for a house. However,
the fatwa does not cover taking up mortgage to buy a house for commercial reasons or for
purposes other than buying an own house for those who do not have one.
Undoubtedly, accommodation is necessary for individuals as well as families. Allah (swt) has
granted His favours upon His servants and showed them His bounties, amongst these is their
houses: "And Allah has made for you in your home an abode" (16:80). The Prophet (ppbuh)
has explained that a spacious house is one element of three or four elements that constitute the
concept of happiness. Rented houses do not fulfill all that the Muslim normally needs. They
do not give him the sense of security, as he or she keeps paying towards rent for long periods
58
of time. The tenant might be asked to evacuate their rented accommodation for reasons like
size of the family, or the number of guests whom visit. When getting older or have his or her
benefit suspended they might even be thrown out of the house. Buying one's own house
discharges Muslims from all these discomforts and helps them settle closer to mosques,
Islamic centres or schools as it helps them build up their smaller Muslim community within
host countries where families get to know each other and work to establish their cultural
identity .
Buying an own house also helps the Muslim family to modify it to accommodate their social
and religious needs. Besides all these individual benefits, it helps the Muslim community,
being a minority, to free themselves from the financial pressure that renting accommodation
often causes, and focus their attention to the call to Islam and help the host community
wherever possible and permissible. This cannot in fact be possible if the Muslim family works
all the time just to pay towards the costs of their rented accommodations as well as their living
costs .
Second: The juristic verdict which claims that it is permissible for Muslims to trade with
usury and other invalid contracts in countries other than Islamic countries. This opinion is
held by a number of renowned scholars such Abu-Hanifah, his colleague Muhammad Al-
Shaybani, Sufayn Al-Thawri, Ibrahim Al-Nakha'i, and according to one opinion of Ahmad
Ibn Hanbal which was declared as true by Ibn Taymiah, according to some Hanbalite sources.
It is also the declared opinion of the Hanafi school of jurisprudence. What makes this last
criterion accommodate our fatwa is a number of considerations, amongst which are the
following:
1) According to Sharia, Muslims are not obliged to establish the civil, financial and
political status of Shari'a in non-Muslim countries, as these lie beyond their
capabilities. Allah (swt) does not require people to do things that are beyond their
capacity.
2) Prohibiting usury is a matter that concerns the host non-Muslim countries, and which
Muslim communities can do nothing about. It has many things to do with the socio-
economic philosophies of the host countries. However, in these counties what is
required of the Muslim is to establish the Shari'a rulings in matters that concerns him
in person such as the rules that govern acts of worship, food, drink and clothes,
marriage, divorce, inheritance and so on. If Muslims choose not to deal with these
invalid contracts, including contracts involving usury in non-Muslim countries, this
would weaken them financially. Islam is, however, supposed to strengthen Muslims
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not weaken them, increase rather than diminish them, benefit and not to harm them.
Some Salafi scholars claimed that Muslims could inherit non-Muslims as this goes in
line with the hadith which says: "Islam increases and does not decrease"150, i.e.
increases Muslims in power, wealth, etc. Similar in content is the other hadith which
states: "Islam is superior and none can excel it"151. Therefore, if Muslims are not to
trade with these invalid contracts and transactions (where extreme necessity and
urgent need is involved), then they will end up paying what is required from them (in
transactions that involve usury) without receiving any benefit in return. They will be
losers as they will be obliged to honour these transactions, and in return they will get
nothing. This way Muslims will be financially deprived and suppressed. Islam never
punishes Muslims for their Islam nor abandons them in countries other than their own
Muslim countries. Islam never means to let unbelievers abuse Muslims financially or
otherwise, at a time where it prohibits them from getting any benefit in return.
Concerning the claim that the Hanafi Madhhab allows usury in cases where the Muslim is the
recipient, i.e. the beneficiary, and that the Madhhab permits invalid contracts only if two
conditions are satisfied :
First: Where the Muslim is the beneficiary, and
Second: Where deception -involving non-Muslims- is not involved .
Arguing against this claim, first we would maintain that in our case, the benefit has not been
realised. The second is the claim has not been authenticated as this has been affirmed by
Muhammad Al-Shaibani; one the chief scholars of the Hanafi Madhhab and a student of Abu-
Hanifah, in his book “Al-Siyar Al-Kabir”. Moreover, earlier scholars of the Madhhab did not
set up any conditions (regarding trading with usurious contracts in non-Muslim lands).
150
Abu Dawood narrated (No.2912) as did Al-Bayhaqi, through the same channel (6/205, 254-255) from Abdullah ibn Burayda, “That two brothers; a Jew and Muslim, fell into a conflict and asked Yehia ibn Ma’een to arbitrate between them, whom went on to award the Muslim the inheritance. He, i.e. Yehia, said: Abul Aswad informed me that a man told him that Mu’ath had told him: “I heard the Prophet Mohammed (ppbuh) say: “Islam increases and does not decrease”, and upon this he awarded the inheritance to the Muslim. The chain of narraition to Abul Aswad is correct, however this chain is disconnected between Muath and Abul Aswad, as the narrator who made the narrated connection is unknown, however it is linked to the hadith of A’ith ibn Amr, with which it becomes a Good narration. 151
A Good Hadith due to another. Narrated by Al-Rawyani in his 'Musnad” (No.783), Abu Nu’aym in “Akhbar Asbahan” (1/65) and Al-Bayhaqi (6/205), where two narrators are unknown. However, the previously mentioned hadith of Mu’ath ibn Jabal testifies to its authenticity, in addition to the fact that this hadith also came with a correct chain of narration that links it to Ibn Abbas, and which is relayed by Al-Tahawi in “Sharh Ma’ani Al-Athar” (3/257) and which Al-Bukhari considered as suspended (1/454) in “Kitab Al-Jana’iz” and authenticated by Ibn Hajar in “Al-Fath” (9/421). This Hadith and the one previously mentioned are both supported by the Quranic verse: “It is He Who sent His Messenger with Guidance and the True Religion to make it prevail over all religions” (**:33) and (**:9).
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However, in our case even if the Muslim is the giver (of usury) he or she is still the
beneficiary as he or she will gain an owned house after a number of years.
Furthermore, statements forwarded by Muslims living in Europe to the Council through
correspondence and/or direct contacts inform that payments made towards a mortgage are
equal, and sometimes lower, than those paid as mere rent mortgage. It follows that if we are to
forbid usurious transactions, Muslims will be impeded from securing their own house, despite
it being one of Al-Hajat Al-Asliyyah i.e. the essential and basic necessities, according to
jurists’ terminology. Hence, Muslims will end up paying towards rents for a number of years
without owning their houses, while they can own them if these payments are to be made
towards mortgages .
Finally, even if this transaction is declared as invalid by the Hanafi School of jurisprudence,
and those who hold a similar view, it will certainly be permitted where Hajah (i.e. the need
that is treated by jurists on similar grounds like Darûra, i.e. extreme necessity, which makes
impermissible things permissible) comes into consideration .
What makes our argument sound and valid is that Muslims are compelled to take usury, i.e.
they do not deal with it on purpose or by their free choice. The prime criterion for forbidding
usury, according to a number of Quranic verses, revolves essentially around taking usury (not
giving it). However, giving usury was forbidden only to obstruct pretext, i.e. ways leading to
usury, which is termed by jurists as ‘Sad Athara'i’. On similar grounds, notaries and
witnessing usurious transactions was prohibited. They were made as such to check the means
that lead to usury .
While taking usurious loan is categorically forbidden, paying interest towards a loan is
permitted if there is Hajah i.e., an urgent need as maintained by a number of jurists. It has
also been maintained that taking a usurious loan is permitted if there is no other way
available. A famous rule that we could put forward in this regard is what has been made
forbidden for an essential reason within the transaction can only be made permissible for
cases where Darûra i.e. extreme necessity, is involved, and what has been made forbidden to
obstruct further ways that lead to usury can be made permissible for Hajah, i.e. need.
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Appendix 3.
The Eighth Session, in Valencia, Spain between 18-22 July 2001.
Resolution 8/3152: The case of marriage being established prior to the female entering the fold
of Islam, the Council has decided the following:
First: If both husband and wife revert to Islam and there is no Shari`ah objection to their
marriage in the first place, such as blood or foster relations, which deem the very
establishment of marriage unlawful, the marriage shall be deemed valid and correct.
Second: Assuming that the marriage is properly contracted in the beginning, if the husband
reverts to Islam alone, while his wife remains a Jew or a Christian, then the marriage shall
maintain its validity, i.e. it will not be affected by the husband’s conversion to Islam.
Third: If the wife reverts to Islam while her husband remains on his religion, the Council sees
the following:
1) If her reversion to Islam occurs before the consummation of marriage, then they must
immediately separate.
2) If her reversion to Islam occurs after the consummation of marriage, and the husband also
embraced Islam before the expiry of her period of waiting (‘Idda), then the marriage is
deemed valid and correct.
3) If her reversion to Islam occurs after the consummation of marriage, and the period of
waiting expires, she is allowed to wait for him to embrace Islam even if that period happens to
be a lengthy one. Once he does so and reverts to Islam, then their marriage is deemed valid
and correct.
4) If the wife chooses to marry another man after the expiration of the period of waiting, she
must first request a dissolution of marriage through legal channels.
152 From; http://www.onislam.net/english/ask-about-islam/islam-and-the-world/worldview/451626-what-does-fiqh-of-minorities-mean.html, accessed on: 21 March 2011.
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Fourth: According to the four main schools of jurisprudence, it is forbidden for the wife to
remain with her husband, or indeed to allow him conjugal rights, once her period of waiting
has expired. However, some scholars see that it is for her to remain with him, allowing him to
enjoy full conjugal rights, if he does not prevent her from exercising her religion and she has
hope in him to revert to Islam. The reason for this is to consider the case of women who
would find it difficult to embrace Islam with the condition of being separated from their
husbands and deserting their families. Those scholars based their view upon the ruling of
`Umar ibn Al-Khattab, may Allah be pleased with him, in the case of the woman from Al-
Heera who reverted to Islam while her husband remained on his religion. According to the
authentic narration of Yazeed ibn ‘Abdullah Al-Khatmi, ‘Umar ibn Al-Khattab made it
optional for the woman to leave her husband or to stay with him. They also cite, in supporting
their view, the opinion of `Ali ibn Abi Talib concerning the Christian woman who embraced
Islam while still married to a Christian or a Jew. Ali said that her husband’s conjugal right
was still inalienable, as he had a contract. This is also an authentic narration. It is also known
that Ibrahim Al-Nakha’i, Ash-Shi’bi and Hammad ibn Abi Sulayman had the same view.”
