A study of the three notions of al-maslaha, ijtihad, and fatwa, though rather technical, is unavoidable if we are to think from the inside about the presence of Muslims in the West, with their legitimate hope of remaining faithful to their religion and its scriptural sources. What emerges first from this presentation is a clear confirmation of what we brought out earlier: we are dealing with codifications and legal instruments thought up and elaborated by human intelligence on the basis of work on the Qur’an and the Sunna. There are numerous differences among scholars, who are sometimes not even in agreement on the existence of some of these tools or how to define and apply them. It nevertheless remains true that, beyond these disagreements, a true frame of reference has been drawn up that has become, over time, the universe through which Muslim ulama have been given the means to think in terms of evolution and faithfulness at the same time.
It is nevertheless appropriate, particularly when we speak of the new realities that face us in the West, to stay within the spirit of the whole landscape at whose core are set the legal principles and instruments referred to earlier. And it is imperative to remember the meaning of these principles, their interactivity, and their hierarchy. There is a great temptation to use these notions incoherently, chaotically, or only selectively, without fully grasping the whole philosophical legal corpus and consequently to become detached from global progress. As a result, we hear in the West of intellectuals and scholars calling for a new ijtihad or for the formulation of innovative fatawa without integrating or even connecting this demand with the more general fundamentals of Islam concerning tawhid, the concept of humanity, and the Sharia (with the universal principles it contains). This approach, which almost naturally tries to resolve the problems of integration faced by Muslims through attempts at legal adaptation that are based on circumstance, could soon prove to have serious limitations. First of all, because it is built on a dualistic vision of two universes that do not mingle and that make compromises at their boundaries, or in the limited area where they intersect, it assumes that it is Muslims, being in the numerical minority, who must adapt by force of circumstances. This approach also implicitly carries the idea (even if the discourse says the complete opposite) that Muslims must think of themselves as a minority, on the margin, in their societies, which will continue to be the societies of “the Other” and in which they will live somewhat as strangers, their belonging at best being confined to symbolic “acts”: expressions of solidarity, voting, for example. And finally, and perhaps most serious, the vision that undergirds this approach is clearly the concern only that Muslims should integrate into their new environment, and not that they should contribute.
It is certainly quite normal that, during the first decades of their new presence in the West, Muslims should have sought principally to protect themselves; they had no choice, and it was as much about the survival of their religious identity as about the preservation of the richness of their culture. This is how all the initial steps toward adaptation undergone by all immigrant populations should be understood. For Muslims, the process went from the building of mosques to the establishment of Islamic associations via the elaboration of a way of thinking, a discourse and, little by little, a legal reference framework in the various continents and countries. The various meetings of ulama in the West (from the 1980s in the United States to the beginning of the 1990s in Europe), which tried to address the new questions faced by Muslims in industrialized societies, were part of this trend. The institutionalization of this dynamic with the establishment of the Fiqh Council (Council of Islamic Law and Jurisprudence) in the United States and the European Council for Research and Fatwas, in 1997, made possible the formulation of a series of legal opinions in step with Western societies and available to the public. There was then talk of a “fiqh al-aqalliyyat” (law and jurisprudence of minorities), which was to allow Muslims in the West to live their faith and religion more peacefully.
These achievements were, without a shadow of doubt, fundamental and particularly necessary; they constituted a new and important stage in the establishment of Muslims in the West. We must nevertheless be aware that it was just a stage and that we should rethink our presence in the West more comprehensively. Indeed, our own sources come to our aid and press us to go beyond three staging posts, which are in the long term to be considered as traps: the dualist approach, minority thinking, and integration thought of only in terms of adaptation. Doubtless the coming generations will be better equipped to understand and take up these challenges, but the need to reformulate from the inside is already being felt. To think of our belonging to Islam in the West in terms of Otherness, adaptation to limitations, and authorized compromise (rukhas) cannot be enough and gives the impression of structural adjustments that make it possible to survive in a sort of imagined borderland but that do not provide the means really to flourish, participate in, and fully engage in our societies. In his book On Law and the Jurisprudence of Muslim Minorities, Yusuf al-Qardawi adds a telling subtitle: The Life of Muslims in Other Societies. In his mind, Western societies are “other societies” because the societies normal for Muslims are Muslim-majority societies. But this is no longer the case, and what were once thought of as some kind of “diasporas” are so no longer. There is no longer a place of origin from which Muslims are “exiled” or “distanced,” and “naturalized,” “converted” Muslims—“Western Muslims”—are at home, and should not only say so but feel so.
It will also be necessary to change the way we look at our societies. As we have been saying, our sources help us in this if we can only try hard to reappropriate for ourselves the universality of the message of Islam, along with its vast horizon. This reappropriation should be of a depth that will enable it to produce a true “intellectual revolution” in the sense intended by Kant when he spoke of the “Copernican revolution.” Well before the tools that allow us to interact with the world, the Only One established a threefold relation with human beings—exactingness, trust, and humility. If the use of reason is essential for the return to self and the confirmation of the original breath, it also holds the key to applying the revealed books. We must engage with the world armed with faith, the scriptural sources, and an active intellect; in the course of the intellectual development of our universe of reference, we have learned to distinguish methodologies, grasp the religious rites (within the strict limits of its codification based on the texts), and observe the universe (with the methodology appropriate to social affairs) with assurance and confidence. In this we know that everything a society or culture produces and accepts that is not in opposition to a clearly stipulated prohibition is in fact integrated and considered part of the Islamic universe of reference.
It is precisely in this that the intellectual revolution for which we long must live. “The way of faithfulness,” “the path to the spring,” the Sharia, teaches us to integrate everything that is not against an established principle and to consider it as our own. This is, after all, the true universality of Islam: it consists in this principle of integrating the good, from wherever it may come, which has made it possible for Muslims to settle in, and make their own, without contradiction, almost all the cultures of the countries in which they have established themselves, from South America to Asia, through West and North Africa. It should not be otherwise in the West. Here, too, it is a matter of integrating all the dimensions of life that are not in opposition to our terms of reference and to consider them completely our own (legally, socially, and culturally). We must clearly overcome the dualistic vision and reject our sense of being eternal foreigners, living in parallel, on the margins or as reclusive minorities, in order to make way for the global vision of universal Islam that integrates and allows the Other to flourish confidently.
Does this mean that this attitude will by itself make it possible for us to overcome all the problems and that there will then be no contradictions in the Islamic consciousness between the need to remain Muslim and the realities of life in the West? Of course not—but this is nevertheless the way to set the terms of the equation, which must change entirely. To begin by distinguishing all the dimensions of Western life that are already “Islamically based” and thus completely appropriated is to be already equipped with the means to understand this universe from the inside and to consider it truly our own. The next stage is to engage in a systematic work of selection, at several levels, in order to delineate from within the West the limits of the public good (maslaha) and to identify the margins available for manoeuvre between the situations in which we are free to act in accordance with our conscience and the more rare situations where we must find possible legal adaptations (through ijtihad and fatwa). These legal instruments must not be used only in the perilous area at the limits but must also find their place in a global vision that integrates and makes the West into an acquired territory, a land for Muslims: it is only this vision that will allow us to avoid the kind of adaptation that resembles a hodgepodge of fatawa thought up like so many accommodations largely in response to arguments from necessity (darura) in order to justify a number of legal exemptions (rukhas) to make life less difficult. It all happens as if Muslims should ghettoize themselves and become spectators in a society where they were once marginalized. The universality of the message of Islam and the principle of integration that is at its heart invite us to integrate everything that is positive, to move forward selectively, and to act from within, as full members in our society, in order to promote what is good, to work against injustices and discrimination, and to develop alternatives that do not restrict fiqh in the West to thinking of itself as on the defensive, moving in a protective fashion, giving the name of “exemptions” (rukhas) to what in the long term could take on the color of surrender.
The intellectual revolution we are referring to here is extremely demanding, as we shall see in part II: it compels us, from within, as free citizens in societies under the rule of law, to strengthen our faith and to use our intelligence to find solutions and alternatives to the problems of our societies—to move from integration to contribution, from adaptation to reform and transformation.