This is one of a series of articles which were either written in collaboration with Uthman Ibrahim-Morrison or were carefully edited by him, in which it is no longer possible to see who wrote what
A body of fiqh scholarship has grown up called the Fiqh of Minorities (fiqh al-aqalliyat) professing to redefine fiqh for people living in the West. Its most substantial basis on which it draws is what is called the Fiqh of Momentous Events (fiqh an-nawazil) which is a chapter of Maliki fiqh that draws on the experience gained in Sicily and Andalus where the Muslims were defeated and remained behind in these two lands living under non-Muslim governance.
There are very real differences between living in lands in which the majority are Muslims and in which Islam has been established for some generations, and living in Europe or the US, for example, as Muslim minorities under non-Muslim governance. Fatally, contemporary scholars who aspire to address this matter have founded their endeavours on the fiqh of defeat, something which would be entirely appropriate for Palestinians to draw upon, but which is not applicable by analogy to the brand new appearance of Islam in Europe and the Americas, which often includes a significant presence of new Muslims who are indigenous to the West and who have embraced the Deen with a view to living not only by its basic tenets, but within the complete range of its social and economic modalities WHERE THEY ARE.
What these modernist scholars have rightly intuited is the need for a different approach in the West, but what they have not thought through is the substantial difference there is between an existing Muslim community that is overwhelmed and defeated by non-Muslims, and the situation in which Muslims have immigrated to non-Muslim lands (usually for economic reasons) where there is also a parallel spread of Islam as a result of the indigenous people embracing Islam in ever increasing numbers.
This task remains for the Muftis of today to address properly, so that the Muftis of tomorrow will inherit and add to the accumulating body of fatwas that arise from their responding to everyday problems confronting the Muslims in these settings. For these times and these places, we suggest that the Maliki madhhab, whilst sharing with other schools the transmission of strong opinions, also provides a range of the most flexible and effective tools, which, in the hands of the most dynamic fuqaha, would allow for the application of an ijtihad in these situations based on public welfare (maslahah mursalah), existing custom (‘urf) and blocking the means of access (sadd adh-dhara‘i) to things that are harmful or haram.
It is impossible to predict what the results of such ijtihad will give rise to in terms of the kinds of Muslim communities that will arise and the nature of the dynamic between them and the surrounding non-Muslim society; this can only be discovered by setting out on the journey of implementation itself. However, what is clear is that it represents the prospect of a positive, self-determined transcendence of the discourse founded upon the rights of beleaguered minorities or the closed dialectic of extremism versus moderation.