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The Concept of Citizenship in Islam and Muslim Minorities

Dr. Ahmed Akgunduz Professor of Islamic Law at the IUR
Abstract:
It is well-known that Non-Muslims as well as their Muslim neighbors have a desire to live in peace as citizens of the same country. Unfortunately, the situation runs against all expectations. Why? On the one hand, Muslims do not know the rules of Islam, which should be practiced in Western European States. As a result, there are some wrong approaches to non-Muslim communities and their style of life. On the other hand, there are misunderstandings regarding what some people refer to as the conflicting relationship between Islamic rules and domestic laws, regulations and traditions of Europe. Western European states, as felt through the realities of the integration policies involved, generally interpret the integration of Muslims as abandoning their cultures, faith, and the basic principles of their religion in favor of European norms and values. I think the concept of citizenship and the situation of Muslim Minorities are most important controversial points. Some European States are paying attention to these subjects and preparing some academic rapports1. We would like to clarify some subjects relating to the concepts of citizenship and Muslim Minorities: 1) What is the Classical Legal Islam Division of the World and its affects to these concepts? Can we put aside these concepts? Are European Countries dar-al-hab or dar al-kufr or dar al-ahd (dar al-aman)? 2) What is the meaning of Citizenship and Religious Minorities in Muslim Territory? 3) Is that allowed for Muslims to accept staying permit and citizenship in Non-Muslim Countries? 4)Can we name Muslims who live in European Countries minorities or citizens?

1. What is the Classical Legal Islam Division of the World and its affects to these concepts? Can we put aside these concepts? Are European Countries dar-al-hab or dar al-kufr or dar al-ahd (dar al-aman)? Unfortunately there are a lot of mistakes about dividing of the world in Islamic Books. So we should clarify this division. Before that we should say something about this division. a) First of all, there is no explicit sacred text (nass) about this division. But all Muslim scholars form Shii and Sunni Schools have agreed about this division. Only there are some conflicts between Hanafi School and other schools about converting dar al-Islam to dar-al-kufr2.

Prof. Dr. P.L. Meurs- D.W.J. Broeders, Identificatie met Nederland, Amsterdam, WRR (De Wetenschappelijke Raad voor het Regeringsbeleid), 2007; OSI/EU Monitoring and Advocacy Program, Muslims in the UK: Policies for Engaged Citizens, Budapest, OPEN SOCIETY INSTITUTE, 2005.

2 |Page b) As a Muslim State, Ottoman Empire has implemented this division until 1868. At this year a new regulation about citizenship in Ottoman Empire has been accepted under the title of Tabiiyyet-i Osmaniyye Kanunnamesi. We will explain the new concept in Ottoman Empire after this chapter3. c) Some modern scholars are putting aside these concepts and saying that these are old-fashioned terms about classic fiqh including Tariq Ramadan. But this not so easy; because there are some Islamic legal principles which depends on this division. For example the conflict of territories is one of the obstacles for heritage4. After these considerations we can say that Muslim Scholars have divided the world into many territories: 1. 1. Territory of Islam Dar al-Islam It is the whole territory in which the law of Islam prevails. Its unity resides in the community of the faith, the unity of the law and the guarantees assured to members of Dar al-Islam. That depends on Islamic identity5. 1. 2. Territory of Non-Muslims Dar al-Kufr=Non-Muslim Countries Some scholars mention this term as dar-al-harb=territory of Warfare. This is not true. We should be careful about terms. Because if there is war between Muslim State and Non-Muslim State, that is dar-al-harb=territory of Warfare. Otherwise we cant say that is dar-al-harb. Than we should divide Non-MuslimTerritories in two groups: a) Dar-al-harb=territory of Warfare: It is the whole territory where the Muslims have no authority or political power and there is going on war between that and Muslim Territory. For example between Palestine and Israel
Abdulkarim Zaydan, Ahkam al-Dhimmiyyin wal Mustamanin, Baghdad 1963, p. 2021; Ahmad Al-Sarakhsi, Sharh al-Siyar al-Kabir, I-IV, Cairo, Mahad al-Makhtutat, 1971, v, 4. p. 302, 320; Al-Shaybani, Abu Abd Allah, The Islamic Law of Nations: Shaybanis Siyar, Khadduri, Majid (trans.), Maryland: The John Hopkins Press, 1966; Khaled Abou El Fadl, Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries, Brill, Leiden, 1994, Islamic Law and Society, 1,2. Akgunduz, Ahmad, Turk Hukuk Tarihi (Turkish Legal History), Istanbul, OSAV (Ottoman Research Foundation) 2001, v, II, p. 352; Ottoman Ministry of Justice, Rehber-i Muamalat, (Guide to Transactions), Istanbul 1331, pp. 116-125. Jurjani, Sayyid Sharif, Sharh-i Sirajiyyah, Istanbul, Matbaa al-Amirah 1322 H, p. 1214: Akgunduz, Turk Hukuk Tarihi, vol. II, p. 141. Ramadhan al-Buti, Kadhaya Fiqhiyyah Muasirah, Damascus 2001, VOL. I, sh. 181183; Abdulkarim Zaydan, Ahkam al-Dhimmiyyin wal Mustamanin, p. 18-20; Ahmad AlSarakhsi, Sharh al-Siyar al-Kabir, v, 3. P. 81.
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3 |Page there is a war and Israel according to Paltine isa dar-al-harb=territory of Warfare. But according to Turkish Muslim Community, there is not a dar-alharb=territory of Warfare6. b) Dar-al-Ahd=territory of Covenant or Dar al-Aman=Territory of Peace=Land of Peace: It is the whole territory where the Muslims have no authority or political power and there is peace agreement between that and Muslim Territory. Or we can say this territory is considered as intermediate territory between Dar al-Islam and Dar-al-Kufr by Muslim Jurists. Some scholars, among them Al-Mawardi, states that the lands which pass into the hands of the Muslims by agreement, that called Dar al-Ahd. In this meaning it looks like a mutual defense treaty between The Islamic government and the non-Muslim inhabitants. But Ramadhan al-Buti states that if there is no war between Muslim state and non-Muslim State, that is land of peace = Dar alAman It is the whole territory where the Muslims have no authority or political power but there is no going on war between that and Muslim Territory rather there is a treaty between them7. According to this terms, the whole Western Countries including the Netherlands are dar al-aman=Land of Peace or Dar al-Ahd. Because there is no warfare between Muslims and these countries and there are peace treaties between Muslim Countries and European Countries. We can say that the Muslims came to west to work or study according to the international treaties which had been signed by Islamic countries. They got visa so the existence of Muslims in these countries will be a kind of covenant and they are not in territory of Warfare. Because; 1. There is no war between them. 2. There are many treaties between Muslims and them and we must respect it. 3. We enter these countries according those treaties which are not acknowledging it8. Or we can say that according to individual covenant between Muslim and the Western State too, through his obligations which he commits when he gets visa, he must secure the public order which is dissent in Islamic rules. This can be applied over all Muslim communities who live in that country. They commit

Ramadhan al-Buti, Kadhaya Fiqhiyyah, VOL. I, sh. 183; Al-Mawardi, Abu'l-Hasan Ali b. Muhammad, Al-Ahkam Al-Sultaniyyah Wa'l-Walayat Al-Diniyyah, Cairo, 1298, 133, 151, 166: Abdulkarim Zaydan, Ahkam al-Dhimmiyyin wal Mustamanin, p. 18-20. Wansharisi, A.hmad ibn Ya.hy, al-Mi`yar al-Mu`rib wa-al-Jami` al-Mughrib `an Fataw ahl Ifriqiyah wa-al-Andalus wa-al-Maghrib, al-Ribat : Wizarat al-Awqaf wa-al-Shuun al-Islamiyah, 1981-1983; Al-Shafii, Muhammad ibn Idris, al-Umm, Beirut : Dar al-Kutub al`Ilmiyah, 1993; Sahnun, Abu Said, al-Mudawwana al-Kubra, Cairo: Dar al-Fikr, n.d., vol. 3. Modern writer have also followed this line of classification. Zuhaili, Wahbah, Athar al-harb fi l-fiqh al-islami, Damascus: Dar al-fikr, 1962. Mawlawi, Faysal,: Al-Usus al-Shariyyah lil-Alaqat Bayn al-Muslimin wa-Ghayr alMuslimin, Dar al-irshad al-islamiyyah, 1987, p.104-105.
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4 |Page their obligations and stipulations towards even the infidels, according to the Quranic text O you who believe! Fulfill the obligations.9 c) Territory of Proclamation Dar al-Dawah; This concept has been later developed by some scholars in order to formulate a new Islamic form of the relationship between Muslims and the West. But this term indicates to missionary aim and may frighten non-Muslim communities. Yes these relations can be described in peaceful and rational methods. I think there is no difference between dar al-ahd or dar al-aman and this concept10.

2. What is the meaning of Citizenship and Religious Minorities in Muslim Territory? In Islamic Law people are distinguished from each other by their religions. Thats why the term Ummah (community), viz. the followers of the same religion, rose to the agenda in place of the terms country and nation. Raiyyah, which meant citizens during the early periods of the Saljuqid State and the Ottoman State, were divided as Muslims and non-Muslims. That the Anatolian Greeks and Armenians became Christians and Turks totally Muslims was accident and an apparition of faith. Accordingly, in Ottoman Law those who lived in an Islamic country were classified into three groups according to their religions and the states they were subjected to: 1) Muslims; Muslims are natural citizens in Dar al-Islam and Non-Muslim subjects are minorities. 2) Dhimmis (non-Muslim subjects), viz. those people who agreed to living under the sovereignty of an Islamic state, though they were non-Muslims, with a contract of zimmah (duty of tribute and obedience owed to the State by a nonMuslim subject) and who had the right of permanent residence in an Islamic country; 3) Mustamans, who were those foreign non-Muslims that were allowed to enter and dwell in an Islamic country temporarily. Those foreigners titled Musta'mans were like dhimmis. Nonetheless, they were not charged with the liabilities of the privilege of permanent residence, for they merely held the right of temporary residence in an Islamic country.

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Quran, Al-Nisa, 5:1.

W.A.R. Shadid and P. S. van Koningsveld, Religious Freedom and the Position of Islam in Western Europe, Kok Pharos-Kampen-The Netherlands, 1995, p.95; Alwani, Taha Jabir, Towards A Fiqh For Minorities: Some Basic Reflections, International Institute of Islamic Thought, 2003,.p.xv and p.28.

5 |Page Following the brief definition of the term minority here above let us now dwell on the rights granted to the minorities: After making mention of the general principle in this matter we would like to elaborate upon some details thereof: Both in the Saljuqid State and in the Ottoman State those rights and privileges granted to Muslims were also granted to the non-Muslim citizens, called dhimmis, with some exceptions. Such an allegation that rights and freedoms firstly began to be granted with the firmans (imperial edicts) of Tanzimah (Reforms) and Islahah (Improvement) is a sheer calumny of Europeans; whereby some people in our country that are ignorant of history have knowingly or unknowingly - been deceived. In fact, Muslim Turkish States adopted as principle and applied the Hadith (tradition of the Exalted Prophet Muhammad) that says: Those rights granted to us are also granted to them; and those tasks charged upon us are also charged upon them .
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Qanun al-Asasi (the Constitution) dated 1876 nullified the trio of Muslims, Dhimmis and Mustamans in the conception of citizenship and regarded everybody in the Ottoman State as Ottomans equally. In fact, that concept of everybody included Christians and Jews, thus it was given an end to Turks being the dominant element. Now the Nation of Islam was replaced with the Ottoman Nation. After 1868 dated law (Tabiiyyet-i Osmaniyye Kanunnamesi), there are only two concepts: teba means Ottoman citizens and ejnebi mean foreigners. That was followed by the participation of members from the minorities in those councils in cities in 1864; the participation of non-Muslims in Law Councils and Criminal Councils and eventually in 1879 the foundation of the Ministry of Justice and Mazhabs (Schools of Islam). Then, the minorities first renamed jizyah (a token of being subjected to an Islamic State) as price of military service; then attempted to join the army. 12

3. Is that allowed for Muslims to accept staying permit and citizenship in Non-Muslim Countries?

Prime Ministerial Ottoman Archives (PA), YEE, no. 14-1540, p. 23; Code, I. Arrangement I/4, p. 4 et seq.; Kasani, Alauddin Abu Bakr b. Masud, Badayi al-Sanayi fi Tartib al-Sharayi, I-VII, 2nd Edition, Beirut, 1394/ 1974, vol. VII, p. 100; A Guide to Transactions, Paragraph 213 et seq.; Taqwim al-Wakai (Ottoman Official Gazette), (Taqwim al-Waqai, 1247 H.-?, issues 1-4608, 1324-1338), no. 1044; Ahmed Refik, Life in Istanbul in Twelfth Century, A.H., Istanbul 1988, pp. 53-54, 83-84, 157, 105, 227 et seq.; Abdulkarim Zaydan, Ahkam al-Dhimmiyyin wal Mustamanin, p. 10 et seq.; 95 et seq.; Cin-Akgndz, Turk Hukuk Tarihi, vol. II, p. 310 et seq. PA, YEE, no. 14-1540, p. 23; Code, I. Arrangement I/4 et seq.; Fndkolu, Z.F., Social Life during Tanzimat (Reforms), The First Reforms, Istanbul, Turk Tarih Kurumu, 1940, p. 619; Ahmed Jawdat Pasha, Tadhakir I-IV, published by Cavid Baysun, Ankara 1986, vol. 1-12, p. 68 et seq.; Cin-Akgndz, Turk Hukuk Tarihi, vol. II, pp. 336-337.
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6 |Page The main issue is to discuss two terms according to Islamic law: iqamah (staying permit) and istitan or tajannus (citizenship in non-Muslim countries. 3.1. Iqamah (Staying Permit) The first subject is the problem of the permissibility of staying, for the purpose of work, study, commerce, etc., in a land ruled by non-Muslims. According to the Qur'an and the Prophet, Islamic law says that everything on this earth is lawful (permissible, Mubah). That is, it is optional UNLESS it is clearly forbidden (i.e. made or declared haram.) Therefore one could describe Mubah as "neutral" which means that such a thing is neither obligatory nor forbidden. The Shari'ah kept silent about it and did not outline its rule, and whatever Shari'ah kept silent about is Mubah. It has been reported that the Messenger of Allah said: ''Truly Allah has commanded some obligations, hence do not neglect them; and He prohibited certain matters, hence do not violate them; and He determined certain limits, hence do not transgress them and He condoned certain matters out of mercy, not forgetfulness, hence do not search for them.'' In another narration, he said: ''And that which He kept silent about is a condonation (permission).'' Therefore, anything that Shari'ah kept silent about is Mubah. The adoption of rules and laws which have not been mentioned by the Shari'ah and which the Shari'ah did not mention by any prohibition is part of the Mubah. This is since there is no rebuke about them, and since no prohibition was mentioned, and since it was not mentioned by the Shari'ah and because the Shari'ah kept silent about it. So every Muslim can choose any part of the world as a abode unless a prohibition by Shariah. Quran says: 15. It is He Who has made the earth manageable for you, so traverse ye through its tracts and enjoy of the Sustenance which He furnishes: but unto Him is the Resurrection.13 There are other legal reasons for staying in non-Muslims countries like commerce, finding a job, studying at Universities or schools which depend on traveling the whole parts of the world or staying in different places. Some scholars are mentioning preaching Islam in everywhere as a legal reason for this. And the Prophet Muhammad has advised his companions to travel to other parts of the world for commerce, work or study. In seventh Islamic month (Rajab) of 7 BH (614 615 CE)[1] twelve male and twelve female Sahaba, the Muslims who originally converted in Mecca, migrated to Aksumite Ethiopia (in Arabic, al-Habasha, or "Abyssinia"), seeking refuge from persecution and they have stayed there in peace and security. There are only two principles as a obstacle for iqamah: First: Sadd-i Zarayi: Sadd al-dhara'i means, literally, "blocking the means", i.e. to undesirable ends, in other words, forbidding what is likely to lead to the haram. This is thus an extension of the general principle that what leads to the haram is
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Quran, Al-Mulk, 67: 15.

7 |Page haram, just as what leads to the obligatory is obligatory, and what leads to the permitted is permitted. If the staying in non-Mulsim countries causes to undesirable ends in family members or about faith, that should be considered by Muslims14. Second: Dar al-mafasid (Cooruption Prevention): The principle states that whatever leads to unlawful (haram) practices that is unlawful. If staying in nonMuslim countries leads to more unlawful practice than every Muslim should consider this situation. These unlawful things may in faith or deeds or words. God says in the Quran: When angels take the souls of those who die in sin against their souls, they say: "In what (plight) Were ye?" They reply: "Weak and oppressed Were we in the earth." They say: "Was not the earth of Allah spacious enough for you to move yourselves away (From evil)?" Such men will find their abode in Hell,- What an evil refuge! 15 After all these information we can say; Muslim Scholars are divided in two groups: a) Most of scholars (Jumhur) agree with permission of staying in non-Muslim countries I mean for iqamah (staying permit). But that is a provisional acceptance. A Muslim individual should carry out two shariah principles to his life and decide himself. Because According to the Qur'an and the Prophet, Islamic law says that everything on this earth is lawful (permissible, Mubah). b) Ibn Hadhm disagrees with most of Scholars and say that is haram completely except in two situations: first for jihad and second for conveying the letter of Muslim Ruler. But we should consider that Ibn Hadhm uses the term of Dar alHarb not talking about dar al-aman or dar al-ahd16. 3.1. Tajannus=Istitan (Citizenship) in Non-Muslim Countries First of all, the term of tajannus or istitan or others dont exist in classic Islamic books. But fuqaha I mean Muslim jurists have discussed this problem in fiqh books. it is a well established fact that about one third of the total number of Muslims in the world today are living in a minority situation. From this perspective, the very discussion of the acceptability of residing in a non-Muslim country is nothing less than an anachronism and an anomaly17. The main problem about citizenship is muwalat. Tha means supporting non-Muslim state and submitting to their legal
Shawkn, Muhammad bin Ali, Irshd al-Fuhl ila Tahqiq al0haqq min al-Usul, Cairo, Dar al-Salam, 1992, vol. II, p. 279-283. Quran, Al-Nisa, 4:97; Zarkash, Bedruddin Muhammad, Al-Bahr al-Muht F Usl alFiqh, Kuwait, Wazarat al-Awqaf, 1988, vol. V, p. 76-81. Ramadhan al-Buti, Kadhaya Fiqhiyyah, vol. I, sh. 183-198; Mawlawi, Faysal,: AlUsus al-Shariyyah, p. 102-104; Al- Qurtubi, Muhammad bin Ahmed, Al-Jami Li Ahkam AlQuran, Beirut 1965, vol. V, p. 348.
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8 |Page system which is contradictory to Islam.. Quran says: 28. Let not the believers take the disbelievers as Awliya' (supporters, helpers, etc.) instead of the believers, and whoever does that will never be helped by Allah in any way, except if you indeed fear a danger from them. And Allah warns you against Himself (ie. His Punishment), and to Allah is the final return. 29. Say [O Muhammad (s.a.w.)]: "Whether you hide what is in your breasts or reveal it, Allah knows it, and He knows what is in the heavens and what is in the earth. And Allah is Able to do all things"18. The Ayah (verse) was revealed concerning a group of believers who had Jewish friends. Those believers were giving Muwalat (support, help, etc.) to these Jews. Some of the Sahabah (r.a.a.) said to those believers: "Keep away from those Jews and beware of their friendship for they could seduce you away from your religion and guide you astray after you have believed". However this group of believers disobeyed the advice and remained loyal to their Jewish friends; and so Allah (s.w.t.) revealed "Let not the believers take the disbelievers as Awliya'". There are many groups among Muslim scholars about this fatwa. First Group: Some Scholars are against to gain any citizenship form nonMuslim countries except in some obliged situation. Especially Hanbali scholars disagree with the citizenship. As we have mentioned, that Ibn Hadhm too is against the citizenship. For example Imam al-Haram in Mecca Muhammed bin Abdullah bin Sabil has written an article and critics all fatawas about allowance of citizenship. They have mentioned some the historical occurrence of an even more drastic change when Muslim governments were totally replaced (by force) by a non-Muslim government or subjected to it. This was the situation during the Colonial Era. Almost every country with a Muslim majority was affected by it. This new situation resulted in a stream of discussions concerning the relations between Muslim subjects and their respective non-Muslim governments. Some of these historical events, and especially the fate of the Andalusian Muslims, are reflected in discussions of the Colonial Era and even in contemporary discussions of religious scholars regarding the position of Muslim minorities in Western Europe of today. First of all, there was the problem, similar to that of the Andalusian and Bosnian Muslims, whether one was allowed to give up fighting and to remain living under non-Muslim rule, or whether one was obliged to continue the armed resistance and/or to immigrate to an area governed by a Muslim ruler. The historiographer AlW. Shadid & P.S. van Koningsveld, Political Participation and Identities of Muslims in non-Muslim States, Kampen, the Netherlands:Kok Pharos, 1996, pp. 84-115; Ramadan, Tariq, Western Muslims and the Future of Islam Oxford University Press, 2004, p.66 and p.60-69.
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Quran, Al-i Imran, 3: 28-29.

9 |Page Mannn mentions no less than five works written by Moroccan scholars on this subject during the first decades of the 20th century. There are also several fatws from Indonesia discussing the same complex of problems related to the expansion of Dutch colonial rule.24 In Egypt, the Malikite scholar of Al-Azhar, cIllaysh -to be quoted below- also wrote an extensive treatise about this problem. He, among others, referred to fatws of the Moroccan scholar Al-Wanshars about the position of Muslims who had remained in Christian Spain after the fall of Granada in 1492. Al-Wanshars had urged the Andalusian Muslims under Christian rule to immigrate to the "Territory of Islam".19 The close interaction between (non-Muslim) Europeans and the Muslim inhabitants of the colonies induced a long series of discussions among the Islamic religious scholars about the issue of "assimilation to the Infidels". Another problem, closely related to the issue of "assimilation to Infidels", concerned the adoption of citizenship and nationality of the colonizing state. This problem arose in only a few of the colonized countries, especially in countries of the Maghreb colonized by France. The European concept of nationality was alien to the classical Islamic legal tradition. But since the second half of the 19th century, and especially since the Law of Ottoman Nationality of 1869, it was gradually penetrating into the political and legal systems of the Muslim world. Notwithstanding occasional conflicts, this penetration can be seen, initially and to a certain extent at least, as a mere process of translating the existing social and political realities into a new legal terminology31. However, a completely new dimension was added in Tunisia and Algeria, when the French authorities introduced Laws of Naturalization in 1923 and 1927. These laws offered French nationality and the full rights of French citizenship to Tunisian and Algerian Muslims who accepted French civil law instead of Islamic law. This measure met with fierce resistance from the side of many Muslim scholars. The scholars of the Zaytouna in Tunis issued a fatw which qualified the person who adopted French citizenship under the said law as an apostate. Their view was supported by similar fatws issued by scholars of AlAzhar and other scholars in Egypt, among them Shaykh Shkir, the former wakl of Al-Azhar; Rashd Rid, editor of Al-Manr; Shaykh cAl Surr al-Zankaln; and Shaykh Ysuf al-Rajaw20. By virtue of this view a Muslim in the town of Binzert who had accepted French nationality was not buried in the graveyard of the Muslims. His apostasy was confirmed by the local mufti, Shaykh cAl al-Sharf. Consequently, he was buried by
W. Shadid & P.S. van Koningsveld, Political Participation pp. 84-115; Muhammad bin Abdullah, Al-Tajannus bi Jinsiyyah ghayr-i Islamiyyah, Majalla al-Mucamma al-Fiqh alIslami, 2. Year, Number 4, p. 107-175. W. Shadid & P.S. van Koningsveld, Political Participation pp. 84-115; Muhammad bin Abdullah, Al-Tajannus p. 107-175. You can see full text of the fatwa by Rashid Ridha in this article; Ramadan, Tariq, Western Muslims, p.66 and p.69..
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10 | P a g e the French in the section, which was reserved in the graveyard of the Muslims for foreigners and unidentified people. Other scholars, however, merely stated that he had committed a grave sin. The French stipulated the adoption of French citizenship as a condition for anyone who wanted to acquire a position of some importance in the colonial society. This was part of the French assimilation policy.The arguments which were forwarded by the scholars who condemned the acquisition of French nationality during the colonial era as an act of apostasy have been repeated in several recent discussions published in France and the Netherlands concerning the subject of naturalization within the wider context of the integration of Muslim immigrants into Western European societies21. Second Group: Some Muslim Scholars like Ramadhan al-Buti and Abdulkarim Dhaydan, have disagreed and not give fatwa for the sake of citizenship but they have explained that maybe some obligatory situations for Muslim in which they can accept citizenship of non-Muslim States. They have focused on dharurah. Its literal Meaning is Necessity, need, requisite, essential etc. Technical Meaning is something that is essential, especially a basic requirement and circumstances that create a need or an obligation. If any country doesnt give staying permit, than a Muslim may obliged to accept citizenship. Or maybe a Muslim cant use there are some rights and freedoms until he or she become citizen. In these situation they are giving fatwa to accept citizenship22. Third Group: Some Muslim Scholars who allows for citizenship in nonMuslim countries. Among them there are some Shii and Sunni Scholars. According to them Islam permits for Muslims to accept protection of their life, property, and freedom by non-Muslim rulers and their political systems. Muslims who are living in that situation are allowed to pay taxes to a non-Islamic State. They are also obliged to abide by the laws of that state as long as such an obedience does not conflict with their loyalty to Islam and the Ummah. They are adopting an identical attitude. Military duty may result in active service in an armed conflict abroad and/or to the lending of material or moral assistance to those who are engaged in such a struggle for Islam, wherever they may be in the world. Shii Scholar Ayatollah Al al-Sistani sees that the visa implies security aman for the Muslims to enter and it allowed them to reside in those country. They must obey local law. These Muslims live in Territory of Covenant23.

W. Shadid & P.S. van Koningsveld, Political Participation pp. 84-115; Muhammad bin Abdullah, Al-Tajannus, p. 107-175; Zuhaili, Wahbah, Athar al-harb, p.150-155.. Muhammad Shajali al Nayfar, Al-Tajannus bi Jinsiyyah ghayr-i Islamiyyah, Majalla al-Mujamma al-Fiqh al-Islami, 2. Year, Number 4, p. 178-252;. Al-Buti, Kadhaya Fiqhiyyah, vol. I, sh. 198-204; Grand Ayatollah Sayyid Ali Husaini al-Sistani, A Code of Practice for Muslims in the West, Toronto 1999.
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11 | P a g e For instance, when I came into this country, they issued me a visa, and I signed something. In the issuance of the visa and my signing of it, a legally binding contract occurred which was a sulh. It was an agreement that when I came into this country, I would obey the laws and would follow the restrictions that this visa demanded that I follow. This was a contractual agreement that is legally binding according even to the divine laws. In looking at this, we have to understand that the relationship between the Muslims living in this land and the dominant authorities in this land is a relationship of peace and contractual agreement-of a treaty. This is a relationship of dialogue and a relationship of giving and taking. We should explain some points relating to this view. First Point: The verses of Quran relating wala must be rediscussed. Bediuzzaman Said Nursi has opened the door about this verse. Let us mention one verse only. 51. O ye who believe! take not the Jews and the Christians for your friends and protectors: They are but friends and protectors to each other. And he amongst you that turns to them (for friendship) is of them. Verily Allah guideth not a people unjust.24. In the light of this verse, can you say that Muslims and Christians should be friends? We can reply easily. The Quranic proscription is not general but absolute and, as such, can be restricted. Time, is a great interpreter; if it determines its limits, it cannot be gainsaid. That is, when a matter becomes clear in the course of time, one cannot object to it. Moreover, if the judgment is based on derived evidence, the source of the derivation shows the reason for the judgment. In applying this principle to the interpretation of this verse, we can hold that the prohibition from friendship with Jews and Christians is effective only when they reflect Jewishness or Christianity. But, we may conclude, just as not all of the characteristics of an individual Muslim necessarily reflect the teaching of Islam, so also, not all of the qualities of individual Jews or Christians reflect unbelief. If Muslims find in a Jew or Christian qualities that are in agreement with Islamic teaching, they should consider those qualities praiseworthy. It is those good qualities that form the basis for friendship with Jews and Christians. Can a Muslim love a Christian or Jew?, we may ask and in answer we can give as example a man married to a woman of the People of the Book. Of course, he should love her. This argument is based on the very fact that the Quran permits a Muslim man to marry a Jewish or Christian woman presumes that he can and should love her. Many years before in 1910-1911, Said Nursi was questioned concerning his desire to build relations of friendship with Christians. He was confronted with the restrictive interpretation that some Muslims had placed on this Quranic verse25.
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Quran, Al-Maidah, 5: 51.

Bediuzzaman Said Nursi, Munadharat, Risale-i Nur Kulliyati, Istanbul, Nesil Yayinevi 1996, p. 1944.

12 | P a g e Second Point: You know there is a Surah in the Quran under the name of Mumtahinah which is like collection of rules relating Muslim relations with nonMuslims. Let us recite two verses: 7. It may be that Allah will grant love (and friendship) between you and those whom ye (now) hold as enemies. For Allah has power (over all things); And Allah is Oft-Forgiving, Most Merciful. 8. Allah forbids you not, with regard to those who fight you not for (your) Faith nor drive you out of your homes, from dealing kindly and justly with them: for Allah loves those who are just.26 Some scholars claimed that these verses have been replaced (naskh typically involves the replacement (ibdl) of an earlier verse/tradition (and thus its embodied ruling) with successive one). But most of scholars didnt accept that27. We should remember that when the Messenger of Allah, was in Makkah, what he asked for from the Quraish was just that they left him alone to do his da'wa. He said, "Khalu bayni wa baynan naas: Leave me alone to talk to these people. Let me speak to them; let me call them." And they wouldn't let him do that. However, in this country, the ruling people are allowing you to call people to Islam, and this is exactly what the Messenger of Allah, sallallaahu 'alayhi wa sallam, was asking that they allow him to do in Makkah. These people here are allowing you to call people to Islam. They are not prohibiting you. If you go out and proselytize, they don't come and arrest you; they don't punish you; they don't torture you. This idea here should be understood, and the verse from the Quran that we should take as the overriding verse in our relationship with this people is where Allah says concerning those who neither fight you because of your religion nor remove you from your homes that He does not prohibit you from showing them righteousness. "Birr" in the Arabic language is the highest degree of ihsaan-it is the 'aala daraja of ihsan. Allah does not prevent you from showing them excellence-moral excellence-in your transactions with them nor from sharing with them a portion of your wealth. Also, it is necessary for us to show respect to these people. Islam prohibits us from showing aggression towards people who do not show aggression towards us. The Messenger of Allah, said, "Do not enter the houses of the Christians nor eat anything of their fruits except with their permission." Islam prohibits theft; it prohibits fraud; it prohibits cheating; and it prohibits these things in relation to the Muslims and in relation to the non-Muslims. The things that you cannot do to a Muslim, you also cannot do to a non-Muslim. The Messenger of Allah, also said, "None of you truly believes until he wants for his brother what he wants for himself." Imam Shabrakhiti ibn Rajul al-Hanbali and others mentioned that "brother" here not only means your brother Muslim because this is a close brotherhood of Islam that others are not in, but it refers to the greater and broader brotherhood of
26 27

Quran, Al-Mumtahinah, 60: 7-8.

Muhammad Shajali al Nayfar, Al-Tajannus bi Jinsiyyah p. 220-252; Compare with Khadduri, Majid, War and Peace in the Law of Islam, The John Hopkins Press, 1955.

13 | P a g e our Adamic nature. It is a brotherhood in the sense that we are all from Adam, that Adam is the father of all us. Allah, for that reason says, "Call to your Lord with wisdom and with a beautiful admonition, and dispute them in the most excellent of ways." In other words, debate with them and dialogue with them in the most beautiful of ways. Don't be argumentative; don't be cruel; don't be mean; don't humiliate them. Do it ways in which they can listen to the truth, respect the truth, and come to the truth. For this reason, we have to be people who are callers to peace. We also have to be good citizens because an excellent Muslim is also an excellent citizen in the society that he lives in. This does not mean that we lose our distinction, that we become completely immersed in the dominant society to where we no longer have our own identity-that is not what we are calling to. We have to maintain those things that are particular to us as a community, but we also have to recognize that there are other things that are not particular to us but rather general to the human condition that we can partake in; and these things are not things that we should be ignorant and neglectful of but things that we should be engaged in. We have to maintain our roots. We have deep roots in our faith, but at the same time we have to be open to allow others to come into that deep-rootedness. Third Point: Islamic International law has given principal attention to a states jurisdiction to prescribe law in criminal matters. There are numerous theories of jurisdiction to prescribe. The territorial theory allows for jurisdiction over persons, things, or acts that take place within the territorial boundaries of the state. Under the nationality theory, a state may prescribe law over persons or things that share its nationality. Moreover, customary international law, under the nationality theory, permits a state to exercise jurisdiction over its subjects wherever they may be located. The protective principle expands these traditional bases of jurisdiction by emphasizing the effect of an offense committed outside the territory of a state and allows the exercise of jurisdiction where conduct is deemed harmful to the national interests of the forum state. Most European countries have accepted this approach, including Austria, Denmark, Finland, France, Spain, Sweden, and Greece. Thus, any state may impose liability, even among persons who are not its nationals, for conduct outside its borders that has effects and consequences within its borders that the state reprehends. We can summarize that the territorial principle is that allows for the exercise of jurisdiction over acts occurring within a states territory. Sunnites and specially Hanafits have preferred this principle. The second theory is extraterritorial jurisdiction theory which allows for the exercise of jurisdiction over acts occurring with and out of a states territory. The Shi'ite schools of law prefer extraterritorial theory. It means that allows for Islamic law for example towards apostates to be applied in non-Muslim countries. The majority "Sunnites do not believe in extraterritorial jurisdiction."

14 | P a g e So Muslims who live in a non-Muslim Country are not morally responsible from jurisdiction about fornications, apostates etc.

4. Can we name Muslims who live in European Countries minorities or citizens? Is that true to use this title? Because Muslims are not minorities in European states; they are citizens. For that reason we have to divide the subject into two groups; Firstly; According to European Constitutions this term is not true. Because Muslims who have passports from European countries are citizens for those states. There is no difference between citizens. But in European countries although constitutional rules, they have made difference between immigrant population and native population. They labeled immigrant population which is a complex result of migration movements and citizenship legislations, which are part of immigrant life history. They have included in this label the second, third and fourth generations born in European countries and people who obtained the European citizenship. They have called native population autochthon. The term allochtone is used in Netherlands and Belgium (originally in Dutch, but more and more also in French) to designate people or the groups of people of foreign origin, it can cover different definitions, including legal one. The constitutions are saying opposite of this. For example in Article 1 from Dutch Constitution we can read: All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, or sex or on any other grounds whatsoever shall not be permitted. We think all Muslims who obtained citizenship or born as a citizen for a European state are citizens. Unfortunately most of Western States accept Muslim as a religious minority although they are citizens according to Constitution28. Secondly; According to Islamic law, if Muslims accepted to be citizens of a nonMuslim country, they they should be named as citizens not minorities. The political traditions of the Netherlands and Great Britain, unlike that of France, accord respect to particularistic identities and have historically recognized ethnic and religious communities within the public sphere. While France emphasizes the integration of individuals, Great Britain places primacy on processes of collective bargaining and collective integration. Civil society, rather than the state, develops the mechanisms of social solidarity. The political process in Britain is based not on
28

Muslims in the UK: Policies for Engaged Citizens, 2005.

15 | P a g e the absolute equality of individuals, as in France, but on civil ethics, such as mutual respect and fairness. This emphasis favors pragmatic solutions accommodating the concerns of different social groups. At the same time, however, it also implies that British society is more tolerant of inequality among ethnic and religious groups on the national level. In Germany, more diversity is permitted in the public sphere than in France, and more formal organization of religious and ethnic groups is required than in Great Britain. On the one hand, the German political system holds that any group forming part of German society should have a right to representation in public; if particularistic ties are recognized as part of society as a whole, this view contends, all members will maintain a stable identification with society. This, by the way, is one of the reasons for the hesitation of the German public to admit new groups: integration into German society takes usually one to two generations longer than in other European countries. On the other hand, the German system requires more systematic and centralized organization of minority groups, in order to avoid too much heterogeneity and therefore inequality. Muslim minorities are considered citizens of the western countries where they live. They are not second nor are they third class citizens according the law. They have equal rights and obligations towards their nations, countries and humanity at large. All in all, minorities, Muslims or non-Muslims, should have equal rights and obligations and all forms of discrimination based on gender or religion is un-Islamic and fully rejected by the teachings of Islam. Yet, human deeds and behavior should not be a reference to judge Islam or other religions especially when those behaviors and actions are arbitrary and unjust.

5. Conclusion Although some different opinions about accepting of citizenship for a non-Muslim state, there are three things: a- Most of Muslim Scholars have allowed and given fatwa under the conditions accepting of citizenship for a non-Muslim state by Muslims. b- There is a de facto and at least there are 20 million Muslim populations in Western States. c- Islamic Law cant differ from country to another country. In this meaning there is now Fiqh Al-aqalliyyat or Fiqh of minorities. But it can be explained that the Muslim Jurist must relate the general Islamic jurisprudence to the specific circumstances of a specific community, living in specific circumstances where what is suitable for them may not be suitable for others. This jurist must not only have a strong background in Islamic sciences, but must also be well versed in the sociology, economics, politics,

16 | P a g e and international relations relating to that community. The purpose of Fiqh Al-Aqalliyyat in this meaning is not to recreate Islam, rather it is a set of methodologies that govern how a jurist would work within the flexibility of the religion to best apply it to particular circumstances. 6. Islamic law of Minorities covers two types of Muslim minorities in Europe: traditional Muslim population and immigrants from Muslim countries. The autochthonous Muslim minorities are to be found in countries such as Bosnia and Herzegovina, Albania, Bulgaria, the former Soviet Union and the PolishLithuanian-White Russian frontier. The situation of Muslim immigrants differs from country to country. In the first place, they are to be found in Western Europe, and the scope of research there are countries such as Austria, Germany, France, Great Britain, and The Netherlands etc. 7. According to European Constitutions this term is not true. Because Muslims who have passports from European countries are citizens for those states. There is no difference between citizens. But in European countries although constitutional rules, they have made difference between immigrant population and native population. 8. According to Islamic law, if Muslims accepted to be citizens of a non-Muslim country, they should be named as citizens not minorities29.

Compare with Al-Qattan, Manna, Iqamat al-Muslim fi Balad Ghayr Islami, Islamic Foundation for Information, Paris, 1993.

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