Mufti of Australia Sheikh Fehmi Naji Imam
Sheikh Mohamadu Saleem
Sheikh Isse Abdo Musse
Sheikh Abdel Aziem
Mr Hyder Gulam FRCNA, ICV Executive
Mr Tehseen Mian
Jenny Black, Mobility and OT Manager GDV
Bashir Ebrahim OAM, GDQ Rehab Services Manager
Dr Graeme White, CEO GDV

Part 2 of the 'Commercial Contracts: Common terms in the sale of a business' article from Crescent Times Jan 2010.

The status of Western citizens of the Muslim faith is a matter widely debated by contemporary Muslim scholars and activists who are attempting to extend and adapt Islamic law to contemporary realities - that is, Western realities. However, the debate about how Muslims can and should live as citizens of non-Muslim lands is by no means a new one; in fact, it has been discussed for centuries. Some aspects of this historic issue will be mentioned in this article.

Muslim jurists of early times have divided the world between DarulIslam and Darul Harb or Darul Kufr - meaning respectively, the Abode of Islam and the Abode of War or Unbelief -- which suited a time when Muslim communities were often small and located in very different environments. Some Muslim jurists of those times decreed that Muslims must migrate to Muslim-ruled lands and should not settle permanently in non-Muslim lands (see Lewis, 1994; Shadid and Koningsveld, 1996).

And they were not alone, for jurists and spiritual leaders of other faith groups have often held the same views. The ancient Israelites underwent a forced migration to the land of their Babylonian conquerors and stayed there for several generations, until Cyrus of Persia re-conquered the area and freed them to return home. But arguments arose among Israelite leaders,as many of the former slaves and captives wanted to stay on in Babylonia, where they were used to the culture and were freely allowed to worship according to their faith.

Today, when Muslims living outside the so-called "Muslim world" make up more than 30% of the world’s followers of Islam, it is just as unrealistic to ask Muslims to immigrate to exclusively Muslim lands as it was back in ancient times to expect all the Babylonian Israelites to return to Judea. My questions - then and now - might be: "Where would I go?" and "Why would I sacrifice the freedom and opportunities that I, my family, and my community enjoy in this new land (Canada)?" Thus, the ancient division of the world between two abodes of life is shown to be unrealistic and irrelevant to Western Muslims, for in most Western societies they live their faith unhindered and enjoy all the freedoms and opportunities of fellow non-Muslim citizens.

Muslim scholars of more recent times have re-examined the historic two-abode concept and developed an innovative and ethically sound compromise by adopting a third category, variously described as Darul Aman, Darul Ahd, or Darul Sulh - meaning respectively, the Abode of Security, Contract, or Peace. This third kind of environment was originally formulated as a guideline for Muslim travelers or traders living temporarily in lands friendly to Islam and Muslims, or to accommodate other non-threatening circumstances (Shahid and van Koningsveld, 1996; Lewis, 1994). The condition for remaining in such lands was that Muslims must be allowed to practice their religion freely.

So while the debate among contemporary Muslim scholars about Muslims living in the West continues, the theme of its current discourse is not about the old Darul Islam and Darul Harb divisions, but about the complexities and challenges of living in a Darul Aman, Darul Ahd or Darul Sulh environment.

It is obvious, for example, that Canada cannot be called Darul Islam (the Abode of Islam) and it certainly cannot be classed as Darul Harb (The Abode of War). These two concepts are wholly irrelevant in the context of Canada and its citizens of Muslim faith. Rather, Canada embraces all of Darul Aman,Darul ‘Ahd and Darul Sulh: it is literally an abode of Security, Contract and Peace. Ironically perhaps, all the qualities of the above-mentioned third category make this great country - although not a religious state -- one that, for me personally, makes it also an Abode of Islam. Why? Because I find in Canada so many ideals (including social justice, freedom,and human rights) that are more Islamic in concrete practice here, than in many so-called Muslim countries.

The Abode of Contract is the most timely and comprehensive concept in the current context of Canadian Muslims. The social contract stipulates that those who sign it respect the laws of the host country, learn its language and culture, participate in societal activities and invest in the country’s present and long-term well-being. In return, all those who fulfill their social contract are able to practice their religion freely while participating in mainstream society as full-fledged citizens with equal rights and responsibilities.

Muslims who immigrated into Western countries, as well as those who were born in these countries, are all qualified to be citizens, sharing with all other Canadians the same social obligations. In fact, Islam commands its followers to obey the laws of the land they live in, even if its rulers and dominant powers are from other religious traditions. Muslim jurists consider citizenship (or the granting of visa rights) to be a covenant (Ahd) held between the citizen (or visa holder) and the state; one which guarantees security (Aman) and peace (Sulh) in exchange for certain obligations, such as obeying the laws of the land. From this one can conclude that covenants and/or contracts between Canada and its citizens of the Muslim faith are considered sacred and binding in Islam.

Why this is so? Firstly, without the mutual fulfillment of our shared rights and obligations, society would dissolve into chaos, and rampant injustices would destroy the fabric of peaceful human co-existence, making it impossible for people to live together as contributing members of society.Secondly, Islamic formative principles demand from Muslims that they faithfully abide by the contracts (promises) they make.

The Qur’an commands the following in regard to contracts: "And fulfill every covenant. Verily, you will be held accountable with regard to the covenants." (Qur’an, 17:34)

And Almighty God instructs believers: "O you who believe! Fully discharge (the obligations arising through) contracts." (Qur’an, 5:1) And those who are blessed in God’s sight are "...those who truly care for their trusts (left by others in their care) and their covenants." (Qur’an, 23:8).

Moreover, the Qur’an condemns those who break covenants, describing them as untrue to their faith: "It is not the case that every time they make a covenant, some party among them throws it aside. Nay! The truth is most of them believe not." (Qur’an, 2:100)

The prophet Muhammad (S) described such hypocrites as follows: "When he/she enters into a covenant, he/she proves treacherous." (Bukhari)

Citizenship and visa rights are described in Islamic legal parlance as a "covenant of security" (ahd/aqd al-aman) and for more than a thousand years, Muslim scholars have rigorously affirmed the binding nature of such covenants. A covenant of security can be one of two types: (i) a contractual agreement, or (ii) a customary understanding.

Naturalized citizens of Canada enter into a contractual agreement (the first type) with the Federal Government when they declare our nation’s oath of allegiance, as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.

Muslims are obliged to keep their word as a religious principle; therefore the above oath becomes religiously binding upon them.

Canadian-born citizens, on the other hand, do not declare any such oath, so they fall under the second category describe in Islamic law. The covenant of security for Canadian-born citizens is considered a customary understanding, in the sense that even though they did not physically affirm an oath or sign a document of loyalty, it is understood that there exists between the citizen and the government a covenant of security. This customary understanding of the "social contract" is considered by Islamic law to be just as binding as the contractual agreement. For all practical and religious intent, there is no difference between them.

In their contemporary research, Shahid and van Koningsveld (1996) present a comprehensive review of the ongoing Muslim scholarly debate, in which we find current and prior discussions concerning the status, duties and responsibilities of Muslims residing in the West. Among the several approaches explored, two stand out as key to understanding the issue:

First is the "pragmatic" approach, which argues that religious freedom in the democratic West - including the right of Muslims to practice and defend their moral values publicly -- makes Western society an Abode of Contract (rather than of War), and thus classifies Western democracies as lands of permissible settlement and naturalization, in which Muslims can and should participate actively in political life, respect the contact they have agreed upon, and accept the prevailing laws of their host country. As a universal religion, Islam can and should be practiced anywhere.

Second is the "modernist" approach, which rejects the historic tension or opposition between the Abode of Islam and Abode of War as being inapplicable to present-day conditions of Muslims in the non-Muslim countries (specifically in the West), and which attempts to replace it with a new, more relevant terminology. Consequently, most of the Western world is part of the third option -- Darul Aman, Darul Ahd or Darul Sulh. Some Muslim scholars in the West emphasize that Western societies (most of them) practice basic Islamic principles of freedom and human rights much more openly and justly than is the case in so-called Muslim countries.

Not surprisingly, those who continue to advocate for the dual Abode of Islam-versus-Abode of War/Kufr and who call for the creation of homogenous Muslim communities (enclaves, or ghettos) within Western societies occupy an increasingly marginal position among Western Muslims.

The above two approaches - pragmatic and modernist -- are constructive as they help Muslims engage with and adapt to Western democratic values within the framework of Islamic law. Rather than focusing on conflict and cultural differences, both concepts look for ways to reinterpret Islamic law within contemporary contexts of time and place. In this way, they support and encourage Muslims adapt to the realities of everyday life in their new societies and to embrace a vast range of opportunities in areas such as education, societal issues, political participation, and multi-faith dialogue.

(...to be continued...)

(This article was edited for the Canadian Islamic Congress Friday Magazine.)
Source: http://www.canadianislamiccongress.com/fb/friday_bulletin.php?fbdate=2009-12-25#2