We have shown how the idea of belonging to the umma is formed and structured at various levels and how, through the notion of contract, the apparent opposition between the umma and the state should disappear. Moreover, the foregoing analysis has clearly indicated that it is permissible for Muslims to live in non-Muslim countries as long as they able to protect their identity and practice their religion and the fact of residence is bound to a tacit or explicit agreement which, in the light of the teaching of Islam, must be respected. As residents or citizens, Muslims are required to respect the terms of the constitution of the country in which they live. This is clear when Muslim immigrants have to make a declaration if they want to be naturalized, after residing for several years in a Western country: the oath (qasam) they must pronounce means that they will respect both the country and its constitution. They are not required to accept or like each law and regulation in force in the country or to do everything that is permitted by the legislation. Rather, what is expected of them is both to recognize (ya’tarif) the legislation and to act within the framework of the law (yaltazim bil-qawanin). These are the conditions of the oath, and once the oath is taken Muslims must respect it, as the well-known Islamic rule stipulates: al-muslimun inda shurutihim (Muslims are bound by the conditions they accept).
So Muslims, as citizens, must make choices and find their way in the Western environment. Within the vast range of what is permitted in these societies, they must decide, as Muslims, what they may do in conscience and what they should avoid. With regard to the latter, things are sometimes very clear, as when things forbidden in Islam are permitted in Western legislation—for example, alcohol and sometimes what are called soft drugs, interest derived from financial dealings, and extramarital sexual relations. They have the choice and should develop the will to keep away from everything that is not consistent with their identity and the correct practice of Islam. But on many points the appropriate behavior is not obvious and requires analysis and clarification, for some questions (e.g., education, culture, leisure activities, economics) need specific responses, to which we shall return in Part II. These admittedly real problems must nevertheless be distinguished from the primary issue, the legislation within whose framework Muslims have to act.
In other words, what is allowed by the latitude of the national constitution is one thing, but what Muslims should choose within the options permitted by this latitude, in order to live in accordance with their faith, is another. Muslims are brought back to taking responsibility for their involvement in social, educational, and cultural activities in the West, with the aim of working out better ways of behaving and finding answers (even adapted institutions) appropriate to their reality. So the question is not strictly legal, for it is more generally a matter of thinking through how to undertake a specific and participatory engagement that will allow us to live peacefully in the West, with all its demands and approaches.
Once this distinction has been formulated and understood, it becomes clear that Muslim citizens in the West bear an immense responsibility. Not only should they be citizens who take their duties seriously, but they should also decide what should be the basis and content of their “Western-Islamic identity,” which will make it possible for them to develop an integrated personality from childhood to adulthood in this environment. This is certainly a challenge and a difficult task, but it is unavoidable, for it seems to be the only way by which Muslim communities themselves can take control of and prepare for their future in such a seemingly troubling context. It in fact means that in each Western country Muslims should increase their efforts, in partnership with official organizations, to provide their respective communities with all the institutions, organizations, and places of worship necessary for them to fulfill their task well. There is absolutely no contradiction in this area between their citizenship and the fact that they are Muslims; the law permits them to act in this way, and their faith commands it.
In Western legislation, more is permitted than is imposed. Nevertheless, it may happen that citizenship leads some to come up against, or feel, a serious tension between their faith or conscience and the requirements attached to their national status. In such situations, they should be able to refer to the legal notion of a “conscience clause” that allows them to state that certain actions or behaviors are against their faith.
These cases arise only rarely as far as the law is concerned, but it is still necessary to study them, because they complete the picture we are trying to give of the Muslim European, American, or Canadian citizen. Three things should first be noted: the first two introduce the notion of the “conscience clause,” while the last is connected with recognition of “necessity,” which sometimes implies the development of Islamic fiqh within the Western context.
We have said that, for Muslims, the principle of justice constitutes the fundamental criterion, after their faith in the oneness of God, for their social, economics and political activities. This principle takes precedence over their own interest, their relatives, the rich, the poor, and so on, as far as the umma itself. The same applies to citizenship. If, for example, Muslims are called to participate in a war that is unjust or based solely on the desire for power or control (of territory, interests, or other people), they should not, in conscience, take part. They are not allowed to fight or to kill for money, land, or power, and they should absolutely avoid being implicated in a colonial or oppressive war. In this case, they should, under the “conscience clause,” plead “conscientious objection,” for their Muslim faith and conscience cannot bear to be torn away from the principle of justice before God. This principle should be upheld by individuals in every situation where it is clear that the motive for war has nothing to do with the defense of justice, whatever the identity and religion of the enemy. Many people have pleaded conscientious objection through history, and the cases of the boxer Muhammad Ali (Cassius Clay) and many Christians during the Vietnam War are memorable. They accepted, as objectors, being sentenced to imprisonment for refusing to obey the state and military orders. This is how Muslims should act in similar circumstances. Prison is preferable to committing injustice, as Joseph said when he was urged to act unjustly: “Lord, I prefer prison. . . .”
There is a general Islamic rule that forbids Muslims from fighting or killing another Muslim, and such behavior should be avoided. Some people put this argument forward without any kind of analysis, but it must be remembered that it is the principle that is decisive when it comes to entering into conflict with a Muslim, as with a non-Muslim. It might well happen that the attitude of the Muslim leader of an enemy country is unjust and that he is clearly in the wrong. In this case, a specific decision must be made after a serious study of the whole context, and it would be up to the ulama to formulate an opinion, in the light of both the teaching of Islam and the context, as to whether Muslims were permitted to be involved in such a conflict. The prohibition on killing Muslims remains the general rule, but it is the principle of justice that must first be taken into consideration. (Debates between ulama on this subject have been intense and sometimes passionate throughout history, but it seems to me that the view we are developing here is the one that should be taken and preferred [tarjih], particularly in the light of our context.) In a case where two unjust causes confront each other, conscientious objection is also the way of wisdom and is to be preferred. Muslim citizens of Western countries should therefore develop the maturity to analyze and take responsibility for their choices—alone, before God, in conscience, and after consulting competent legal authorities.
It sometimes happens that the residents or citizens of Western countries find themselves obliged to take part in transactions forbidden by their religion. We have already said that the “range of the possible” is very wide and that, when they have the choice, Muslims should avoid anything that does not conform to the requirements of Islam. However, a number of regulations are compulsory (e.g., with regard to some kinds of insurance, banking, slaughter of animals, burial), and these need specific examination. Muslims living in a country whose laws they have decided to accept therefore have to find a way, between the sometimes constraining nature of those laws and their Islamic sources, of living at peace with their conscience. A very pointed evaluation of each of these sample cases should be carried out (by ordinary Muslims as well as by ulama) in order to determine the extent of the relative obligation (and consequently the degree of “necessity”). This should take into account the nature and substance of the constraint, the degree of difficulty, the possible existence and nature of a possible maslaha (if there really is one), and the scope and means available for acting more or less in accordance with Islamic requirements. It is only after the work of analysis, evaluation, and consideration that an adaptive fatwa should be formulated. This is a case of fiqh, law and Islamic jurisprudence being explicitly developed on the principle of adaptation to the environment. This mechanism can only be dynamic, ongoing, refined, and constantly elaborate over the years. It is a far-reaching process of legal integration in that these legal opinions, put together with each other, will give rise to a corpus of adapted law, a fiqh for the West. It can be seen that this has taken place in Western countries over the past twenty years, and numerous fatawa have been given, for example, about prayers during working hours, exclusion of Muslim girls from educational institutions, relationships with banks, insurance. In recent years, Muslims have felt more strongly the need to reflect and adjust, and initiatives of this kind have become more numerous, as we have already seen. It must be noted that these fatawa are very specific and sometimes even temporary, because they provide Muslims with responses in a precise context. Western systems of legislation are neither absolute nor eternal, and it is appropriate to think of fiqh as being responsive to evolution and change. The laws of Western countries have been thought out and elaborated for a society from which Muslims were absent; basically, it should be emphasized that they do not present a major barrier to the legal and social integration of Muslims (if, as we have said, they are applied according to the intention of the texts and not through the distorting prism of currently held views of Islam).
However, we should not deny that, in very specific and narrow situations, one may occasionally have to arrive at an arrangement with regard to the law and its application (perhaps only at the level of case law) in order to reach a greater legal equity for a population recognized as being religiously diverse. It is neither realistic nor wise to oppose the very idea of such arrangements: the evolution of individual laws is the very essence of the law, and one would be ill advised to press, in the name of the diffuse fear of a “new presence of Muslim colonizers,” to press for for a very dogmatic reading of legislation on the pretext of combating the resurgence of religious dogma. This does not at all mean that, by looking at things from this angle, we are trying to undermine the foundations of the nation or demand “special laws for Muslims,” as has been rumored here and there. The contrary is true. Muslim citizens really are citizens, and they too have the right, within the framework of the national legislation, to be respected as Muslims. The landscape of Western societies has undergone major evolution during the past forty years, and it is simply a matter of being just and consistent and having the wisdom to take these changes into account. As part of Western societies, Muslims now have the responsibility, in accord with the teachings of Islam, to honor their commitment to the laws [of their adopted countries], to protect their identity, and, within the extensive limits of the liberty open to them, to work and act in all the various areas (social, legal, economic, and political) and to think through as far as possible the dimensions of an improved harmony between the Muslim personality and the Western landscape.
In fact, apart from the two considerations referred to, I do not think it is possible to invoke the conscience clause. There are some limited cases that must be closely considered. Many Muslims state that they cannot accept the way marriages are officially conducted in the West or Western educational programs, or other similar practices, because they are not consistent with their faith and therefore are “in conflict with their conscience.” We must here be very clear and precise, for these statements are of a quite different significance. There are some questions that arise from the essence of Islamic faith and that therefore have priority and must be taken into account wherever a Muslim lives. Freedom of worship, respect for the principle of justice, and the prohibition on killing for power or money are of this nature: lack of respect for these requirements undermines the foundations of Muslim identity. These constitute, as we have said, a limited number of cases, which is why we have referred to the “conscience clause.” As far as the other matters are concerned (school, education, marriage, cemeteries), they do not demand the same level of consideration in the light of Islamic teachings. They are certainly of primary importance, but it is still possible to find solutions within the framework of legislation, that is to say, in accordance with the terms of the agreement tacitly or explicitly entered into with the country. Consequently, these issues do not fall within the reach of a conscience clause but rather require Muslims to make a genuine effort to find appropriate solutions, and this is what we shall try to study in part II.
