Sample

Title Page
I
DECLARATION
II
DEDICATION
III
ACKNOWLEDGEMENTS
IV
PREFACE
V
ABSTRACT
VI
Contents
Transliteration Table....................................................................................... 1
Glossary ......................................................................................................... 2
Research Proposal .......................................................................................... 3
Introduction ................................................................................................ 3
Thesis Statement ......................................................................................... 5
Statement of Problem.................................................................................. 5
Significance of Research............................................................................. 7
Literature Review ....................................................................................... 7
Issues Framed ........................................................................................... 17
Research Methodology ............................................................................. 17
Limitations of Study ................................................................................. 18
Outline of the Thesis ................................................................................. 18
Chapter 1 Harmonization of Private International Law ................................. 20
1.1. Introduction ....................................................................................... 21
1.2. Private International Law: Some Basic Concepts................................ 21
1.3. Harmonization of Private International ............................................... 23
1.3.1. International Organizations ......................................................... 24
1.3.1.1. The Hague Conference ......................................................... 25
1.3.1.2. UNCITRAL ......................................................................... 26
1.3.1.3. UNIDROIT .......................................................................... 27
2.3.1.4. The OAS .............................................................................. 28
1.3.1. European Community: Harmonization at European Level ........... 28
1.3.1.1. Civil Jurisdiction and Judgments .......................................... 32
1.3.1.2. The Law Applicable to Civil Obligations .............................. 34
1.3.1.3. Family Matters ..................................................................... 35
1.3.1.4. Insolvency ............................................................................ 36
VII
1.3.1.5. Procedural Cooperation ........................................................ 37
1.4. Harmonization of Private International Law: Myth or Reality?........... 38
1.5. Conclusion ......................................................................................... 43
Chapter 2 Islamic Law in West: Scope and Limits ........................................ 44
2.1. Introduction ....................................................................................... 45
2.2. Islam in the West ............................................................................... 45
2.1.1. Muslims in West: Some Historical Reflections ............................ 46
2.1.2. What is Shar’iah? ........................................................................ 50
2.1.3. Islamic Norms in Europe ............................................................. 52
2.3. Application of Islamic Law in Europe ................................................ 56
2.3.1. Optional Civil Law ...................................................................... 56
2.3.2. Legal Seggregation...................................................................... 57
2.3.3. Private International Law ............................................................ 59
2.3.3.1. Non-Applicability of Islamic Law in Europe ........................ 60
2.3.4. Islamic Law in Europe: Some Further Prospects .......................... 65
2.4. Conclusion ......................................................................................... 67
Chapter 3 Islamic Law and Muslim Minorities: From Classical to Contemporary

Era................................................................................................................ 69
3.1. Introduction ....................................................................................... 70
3.2. Analysis of Classical Islamic Law Regarding Muslim Minorities ....... 71
3.2.1. Concept of Dar ............................................................................ 72
3.2.2. Question of Residence and Other Secondary Issues ..................... 75
3.2.2.1. Maliki School of Thought ..................................................... 75
3.2.2.2. Hanafi School of Thought ..................................................... 78
3.2.2.3. Shafi School of Thought ....................................................... 80
3.2.2.4. Hanabli School of Thought ................................................... 81
3.3. Contemporary Scholars on The Issue of Muslim Minorities ............... 82
VIII
3.3.1. Tariq Ramadan and European Islam ............................................ 83
3.3.2. Yusuf Al-Qaradawi and Theory of Fiqh Al Aqqalliyyat ........... 86
3.3.3. Taha Jabir Al-‘Alwani and Theory of Fiqh Al Aqqalliyyat .......... 91
3.4. Conclusion ......................................................................................... 95
Conclusion ................................................................................................... 96
Recommendations ...................................................................................... 101
Recommendations to The States Community and International Organizations

............................................................................................................... 101
Recommendations for Muslims Community and Scholars....................... 102
Bibliography............................................................................................... 105
IX
Transliteration Table
1
Glossary
Term Definition
2
Research Proposal
Introduction
Private international law or conflict of laws is the area dealing with the
private issues of individuals which have connections to more than one country.
The problems addressed by the private international law are of three kinds;
jurisdiction, choice of law and foreign judgement.1 The attempts of harmonizing
the private international law are been made from a long time but the issue
remain unsettled due to many obstacles. One of the many issues arises when it
comes to the application of Sharia in the non-Muslim territories.2 The
application of sharia rules in Europe is done at three levels, namely; private
international law, optional civil law, and legal segregation with respect to
religion.3 Muslims being a minority in non-Muslims Lands have various issues
pertaining to their religious laws. Under Private International Law, the
application of Law of Domicile and Law of Nationality creates a huge
difference and hence, uniformity in the decisions cannot be achieved.4
Muslims presence in the non-Muslim lands has obliged the Muslim
scholars to reconsider the Islamic Jurisprudence and develop on a new discourse
known as Fiqh al Aqalliyyat/Muslim Minority Law5. This Jurisprudence for the
Muslim Minorities is based in the Objectives of Sharia (Maqasid e Sharia),
1 Peter Stone, EU Private International Law: Harmonization of Laws (Northampton: Edward

Elgar, 2006), 3.
2 Mathias Rohe, "Application of Shar a Rules in Europe: Scope and Limits," Die Welt des
Islams 44, no. 3 (2004): 336.
3 Ibid., 334-42.
4 Pascale Foumier, "Borders and crossroads: Comparative perspective on Minorities and
Conflict of Laws," Emory International Law Review 25, no. 2 (2011): 987.
5 Fiqh al-aqalliyyat or fiqh of minorities or jurisprudence of minority or Muslim minority law
refer to the same thing. They will be used interchangeably.
3
6
Values, and principle by revising the sources of Islamic Law. The Fiqh ul
Aqqalliyyat is the best response to the view of non-applicability of Islamic
Sharia in Europe.7
It is an outdated statement to be researched that whether Muslims can
reside in a non-Muslim land or not. Rather now the question is how Muslims
should live there?8 The Fiqh ul Aqqalliyyat doctrine was introduced by two
prominent religious scholars Taha Jabir al-Alwani of Virginia and Yusaf al-
Qadawari of Qatar in 1990s.9 Even though the concept of Ummah remains the
10
unify force, but to eliminate the oddness of the Muslims under the non-
Muslim rule the development of the Fiqh ul Aqqalliyyat is necessary. From
integration to the daily routine issues, the need of Fiqh ul Aqqalliyyat has been
felt by the modern scholars.11 The Fiqh ul Aqqalliyyat is the need of the Muslims
residing in the non-Muslim states for their religious issues as it has become
6
Mohamed Rafeek, "Fiqh al-aqalliyy t (Jurisprudence for Minorities) and the Problems of
Contemporary Muslim Minorities of Britain from the Perspective of Islamic Jurisprudence"
(University of Portsmouth, 2012), 2.
7
Said Fares Hasan, Fiqh Al-Aqalliyyat: History, Development and Progress (New York:
Palgrave Macmillan, 2013), 4.
8 H. A. Hellyer, Muslims of Europe: The “Other” Europeans (Edinburgh: Edinburgh
University Press, 2009), 6.
9 S. Fishman, Fiqh al-aqalliyy t: A Legal Theory for Muslim Minorities, Centre on Islam,
Democracy, and the Future of Muslim World (Washington: Hudson Institute, 2006),
1.(WWW. Hudson. Org.)
10 Jocelyne Césari, When Islam and Democracy Meet: Muslims in Europe and in the United
States, First Edition ed. (New York: Palgrave Macmillan, 2004), 91-92.
11 Rafeek, "Fiqh al-aqalliyy t (Jurisprudence for Minorities) and the Problems of Contemporary
Muslim Minorities of Britain from the Perspective of Islamic Jurisprudence," 17.
4
apparent that the traditional Islamic Law rule is unable to adequately address
the contemporary situation of Muslims under the non-Muslim rule. 12
Thesis Statement
There is a need to frame Fiqh al Aqalliyyat (Muslim minority law)
within the context of private international law in order to make it culturally
relevant and yet internally coherent with regard to the Islamic jurisprudence.
This development will led to the harmonization of private international law.
Statement of Problem
A survey of the discourse on the Fiqh ul Aqqalliyyat above leads us to
the conclusion that it is still not fully developed. Most of the studies have been
undertaken within the framework of religious studies or the integration of the
Muslim minorities in the non-Muslim societies. Though the European Council
for Fatwa and Research (ECFR) and Fiqh Council of North America (FCNA)
strive to provide situational solutions to the Muslims in west but they still need
to develop and propose comprehensive and long term solutions for their
problems.13 Since most of the legal issues or Fatawa issued by ECFR and
FCNA address specific and particular issues so their work does not seem to be
culminating into internally coherent and culturally relevant long-lasting
solutions for the Muslims living in the minority situation.14
12 Muhammad Khalid Masud, “Islamic Law and Muslim Minorities”, ISIM Newsletter
(December 2002): 17.
https://openaccess.leidenuniv.nl/bitstream/handle/1887/16826/ISIM_11_Islamic_Law_and
_Muslim_Minorities.pdf?sequence=1 last accessed 19-05-2016.
14
Tariq Ramadan, To be a European Muslim (Leicester: The Islamic Foundation, 2005), 177.
5
The development of Fiqh ul Aqqalliyyat is indeed need of the time. This
branch will help the Muslims residing in the non-Muslims lands and liberal
democracies. The modern challenges and issues Muslims have to face
sometimes do not find adequate solution in the traditional Islamic
Jurisprudence. These issues are to be solved with giving due regard to the
circumstances in which Muslims are living. The matter has been addresses by
the contemporary scholars. The socio-political and legal problems faced by the
Muslim minorities has been discussed by scholars like Sheikh Taha Jabir Al-
Alwani, Yusuf Qaradawi and Tariq Ramadan. Furthermore, the application of
Sharia laws in non-Muslims land in general and in Europe in particular is
problematic. Liberal democracies of West are reluctant in applying the Sharia
law if it is in contradiction with their national laws or public policy. The
European courts have to apply the Sharia law in optional civil law cases and
private international law.
Against this background, the present study looks for prospects of
development of Fiqh ul Aqqalliyyat into a harmonious whole which rests on
generalizable principles. The research attempts to achieve this objective by
grounding the discourse of Fiqh ul Aqqalliyyat within the principles of private
international law. The assumption is that application of sharia rules become
impossible if they are not complying with the public policy of the National law
of the courts which are applying it. To avoid the straight away rejection, the
Fiqh ul Aqqalliyyat can be incorporated in the principles of private international
law, in order to assure the application of sharia. The development and growth
of Fiqh ul Aqqalliyyat under the umbrella of private international law can also
6
enrich the private international law by bringing in new perspective. This study
aims at producing some constructive results in this regard.
Significance of Research
The prime object of this research is to analyse how the Fiqh ul
Aqqalliyyat should developed so that it become internally coherent.
The secondary purpose of this research is to highlight and discuss Fiqh
ul Aqqalliyyat, its historical perspectives and its contemporary
developments.
Research will discuss the application of Shar’i h in west and the issues
its application. The research will describe the relation of Fiqh ul
Aqqalliyyat and Private International Law.
The possibility of developing of Fiqh ul Aqqalliyyat within the rules and
principles of Private International Law will also be focus of this
research.
The research will also discuss the attempts of harmonization of conflict
rules.
Literature Review
Khalid Abou El Fadl discusses the Muslim and Non-Muslims
relationships from the classical perspectives of different schools of
Islamic law in his lengthy article: “Islamic Law and Muslim Minorities:
The Juristic Discourse on Muslim Minorities from the Second/Eighth to
the Eleventh/Seventeenth Centuries”. 15 The author has mainly addressed
15 Khaled Abou El Fadl, "Islamic Law and Muslim Minorities: The Juristic Discourse on
Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries," Islamic
Law and Society 1, no. 2 (1994): 141–87.
7
three issues: a) Whether Muslims can reside in non-Muslim territories
and if so, under what circumstances. b) The relationship of the Muslims
living in non-Muslim lands to the dar al-Islam. c) The rights and duties
these Muslims owe to their religion Islam and to their host state. He has
also discussed the juristic discourse on the doctrines of hijrah
(migration), ismah (legal protection) and aman (safe conduct). The
article is indeed a comprehensive one dealing with the above-mentioned
points. The author has discussed the pre-modern responses to the pre-
modern challenges and has led numerous points to be further explored
and researched. The article gave many references on the topic of Islamic
law for Muslim Minorities. The article has mainly adopted the
descriptive and comparative approach for surveying the available
discourse on the Muslim Minorities. As mentioned by the Muhammad
Mustaq Ahmed, Khaled Abou El Fadl has not discussed the obligations
and duties of the Islamic states towards the Muslims living in non-
Muslim lands when they face persecution.16 This article has been cited
by many scholars who have done research in the area of Fiqh ul
Aqqalliyyat and it provides a large number of references on the topic as
well.17 The article is indeed a good start and have a great academic worth
as it helps in finding many references. This article can help in exploring
the discourse on Fiqh ul Aqqalliyyat and its historical development. But
as the article is a lengthy essay dealing with pre-modern discourse so it
16 Muhammad Mushtaq Ahmad, "The Scope of Self-defence: A Comparative Study of Islamic

and Modern International Law," Islamic Studies 49, no. 2 (2010): 178.
8
is quite distinct and different from the proposed study. The proposed
study aims at exploring not only the discourse but also the modern
developments in this field. Furthermore, the deployment of Fiqh ul
Aqqalliyyat in conflict rules with the objective of creating harmony is
something which is not dealt in this article.
The article Muslim Minorities and Self-Restraint in Liberal
Democracies18 by Khalid Abou El Fadl is dealing with the question of
the participation of the Muslim Minorities in the liberal Democracies in
order to produce justice. The question is discussed particularly with
regard to the United States. The author has dealt with this question in
detail along with discussing the Islamic discourse on the matter. This
article will be availed in the proposed research but it has not addressed
the Fiqh ul Aqqalliyyat and it development. However, the historical
discourse analysis on the question addressed by the author is informative
and well researched. The proposed research aims at exploring the Fiqh
ul Aqqalliyyat development in a way which can produce an internally
coherent Jurisprudence. This particular aspect is not discussed in this
article.
Striking a balance: Islamic Legal Discourses on Muslim Minorities19 by
Khalid Abou El Fadl is one of the well-addressed contribution on the
topic. The rest of the book is also somehow relevant but this chapter is
18 Khaled Abou El Fadl, "Muslim Minorities and Self-Restraint in Liberal Democracies," Loyola
of Los Angeles Law Review 29, no. 4 (1996): 1525.
19 "Striking a Balance: Islamic Legal Discourses on Muslim Minorities," in Muslims on the
Americanization Path?, ed. Yvonne Yazbeck Haddad and John L. Esposito (New York:
Oxford University Press, 2000).
9
specifically related and will be consulted for the proposed research. The
author has focused in this chapter upon the fatawa of Rashid Rida
regarding the Muslim minorities living in the non-Muslim territory. The
author has also relied on his article ‘Islamic Law and Muslim Minorities.
The chapter mainly discusses the arguments of Rashid Rida and other
juristic opinions. Chapter is a good contribution on the topic of Muslim
minorities but it is a discourse analyses. The proposed research will avail
this article during the course of research. But the focus of the proposed
topic is not only to discuss the scholarship produced on the topic rather
it is to highlight the possible areas by which an internally coherent Fiqh
ul Aqqalliyyat can be developed.
Islam and Liberal Citizenship: The Search for an Overlap Consensus20
by Andrew F. March is a significant contribution in the field of
discussing Islam in the modern political scenario. He has introduced the
notion of justificatory comparative political theory which help the reader
to compare political liberalism with other comprehensive doctrines. The
author has compared the doctrines in a detailed analysis having different
stages. The discussions March has made regarding the compatibility of
Islam and Liberal citizenship are significant as they contribute in the
integration of Muslims in non-Muslim lands and liberal democracies.
March addressed the question whether the Muslims can reside and be
loyal to the non-Muslim liberal state. In doing so he examines the
Islamic religious doctrines for answering this question. The author has
20 Andrew F. March, "Reading Tariq ramadan: Political liberalism, Islam, and "overlapping
consensus"," Ethics and International Affairs 21, no. 4 (2007).
10
argued that there exist strong and authentic Islamic arguments in modern
and traditional religious doctrines which cope up with the demands of
liberal citizenship. The book is an excellent work on the topic and
helpful for the researchers and scholars of political science and Law.
The proposed research will focus on the issue which has been discussed
in this book but the main focus will be the laws and Islamic
jurisprudence for the Muslims living in the non-Muslim lands.
Furthermore, the discussion of Fiqh ul Aqqalliyyat from the perspective
of Private International Law will done in the proposed research
By the same author, Andrew F. March, the article Sources of Moral
Obligation to non-Muslims in the “Jurisprudence of Muslim Minorities”
(Fiqh al-aqalliyy t) Discourse21 is reviewed as a part of literature
review. This article surveys four approaches towards moral obligation
to non-Muslims found in Islamic legal thought. The author has discussed
three approaches namely, the “revelatory-deontological,” the
“contractualist-constructivist” and the “consequentialist-utilitarian.”
The author highlighted the limitations of these approaches and then the
come up with the fourth approach that is “comprehensive-qualitative”.
This approach is an attempt to provide an Islamic foundation for a
relatively thick and rich relationship of moral obligation and solidarity
with non-Muslims. This fourth approach emerges most clearly in
discussions of the Islamic legitimacy of “muw h” with non-Muslims
and non-Islamic polities, and especially in discussions of the Islamic
obligation of proselytism (da wa) in non-Islamic environments, which
21
Ibid., 34-94.
11
gures (along with “contract”) as one of the core concepts in Islamic
thought on the minority condition. Although the Fiqh ul Aqqalliyyat has
been discussed from a novel perspective but the proposed research aims
at exploring the development of Fiqh ul Aqqalliyyat and the methods
through which it can be developed in a coherent manner.
Application of Shariah rules in Europe: Scope and Limits22 by Mathias
Rohe discusses in detail the application of Shariah and the situation
where it cannot be applied in Europe. The author discusses what shariah
is and how it becomes relevant in Europe. The article is quite descriptive
and there is no discussion regarding Fiqh ul Aqqalliyyat.
The article Islamic Law in German Courts23 by Mathias Rohe discusses
the levels of application of Islamic law in Germany. This article focused
on the practice of Germany court concerning critical and important
issues of Family law such as the rules on marriage, divorce,
maintenance, guardianship, custody and adoption. The author has
addressed the issues concerning the application of Islamic law in
Germany in private international law and optional civil law. The article
is related to the research topic as it is written in the European context
which is the also the subject of the proposed research. But the author
focused on the practice of the Germany court and discussed their
implementation of the Islamic Law. The proposed research aims at
exploring the application of Islamic Law from the perspective of Islamic
22 Rohe, "Application of Shar a Rules in Europe: Scope and Limits," 323- 49.
23
"Islamic Law in German Courts," Hawwa 1, no. 1 (2003): 46-59.
12
Jurisprudence (Fiqh ul Aqqalliyyat). The research will be addressing the
same question but from the opposite angle.
‘Muslims of Europe: The “Other” Europeans, explores Muslims’ 24 by
H. A. Hellyer is yet another important contribution which discusses and
explains the Muslims presences in Europe. Having discussed the case
study of Britain Muslims, the author asserted the need and requirement
of a fiqh which is in accordance with the European context. Though the
Fiqh ul Aqqalliyyat has been discussed in the book but its study with
relation to private international law is not present which is done in
present research.
Khutbaat-e-Bahawalpur: Islam ka Qanoon Bain-al-Mumaliq25 by
renowned scholar Dr Mahmood Ahmad Ghazi is a compilation of
lectures which are comprehensive and introductory on Islamic
International Law (Siyar). The compilation consists of twelve Kutbaat
(singular Khutbah, hereinafter referred as a chapter) each dealing with
distinct a topic and approach. The book has addressed the major aspects
of Islamic international law and even if not comprehensive, still it can
be easily termed as a good start of the topic. Not only the historical and
comparative issues has been discussed, but also those issues are
highlighted which are important in the modern age. The author has
discussed in each chapter within the confines of brevity basic and
necessary concepts. Out of this compilation, chapter ten and twelve are
24 Hellyer, Muslims of Europe: The “Other” Europeans.

25 Mahmood Ahmad Ghazi, Khutbaat-e-Bahawalpur: Islam k Qanoon Bain-al-Mumaliq
(Islamabad: Shariah Academy, 2014).
13
relevant to the proposed research topic. Chapter ten deals with the
private international law of Islam. The chapter has discussed some
jurisprudential issues related to the citizenship and other related matters.
Chapter twelve deals with Muslim Minorities in the modern secular
societies. This chapter enumerates the major issues and challenges these
minorities are facing and on few points the author has also proposed
some suggestions. Nevertheless, a single chapter devoted to these vast
issues maybe a good introduction and can clarify basic concepts. The
proposed research aims at addressing these topic in detail and
specifically. The two topic which are discussed separately, are suggested
to be helpful if studied and analysed together. Furthermore, the author
has highlighted the issues of these areas and separately discussed these
topics without relating them. The proposed research will be discussing
the highlighted issues and suggesting the way out of these challenges in
both areas. The research will be compare and analyse both Private
international law and Fiqh ul Aqqalliyyat and highlights the possible
way to harmonize the private international law through Fiqh ul
Aqqalliyyat.
Fiqh Al-Aqalliyyat: History, Development and Progress 26 by Said Fares
Hasan is a comprehensive book in the area of Fiqh ul Aqqalliyyat. The
author has discussed the discourse on Fiqh ul Aqqalliyyat and the views
of Prominent Muslim scholars have been highlighted. This book has
enumerated the tensions within the Fiqh ul Aqqalliyyat discourse and
26 Said Fares Hassan, Fiqh Al-Aqalliyy t: History, Development, and Progress (New York:
Palgrave Macmillan, 2013).
14
enshrined the final statements of Jurists without discussing the process
through which they reached that conclusion. The author has described
that the understanding and proving the authoritativeness of the Fiqh ul
Aqqalliyyat needs an engagement in a complex and complicated
discourse. The major three trends in this discourse namely; the puritan-
literalist trend, the traditional trend, and the renewal trend are addressed
by the author. Furthermore, the author has penned down in detail the
views of prominent scholars of Fiqh ul Aqqalliyyat, Sheikh Qaradawi
and Dr. Taha Jabir Al-Alwani. Although this book has encompassed in
detail the discourse on the Fiqh ul Aqqalliyyat, still the thorough
investigation of the scholar’s opinion needs to be addressed. Also, the
author has been focused on the need and authoritativeness of the Fiqh ul
Aqqalliyyat. The proposed study aims at addressing the development of
Fiqh ul Aqqalliyyat which would be more consistent with the legal
system of West and Islam. the incorporation of Fiqh ul Aqqalliyyat
within the rules and principles of private international law would be
dealing the points of convergence and divergence in the Fatawas of the
scholars which are not been highlighted in this book.
Issues in contemporary Islamic thought 27 by Shaykh Taha Jabir Al-
Alwani, is perhaps a master piece for the students and scholars of
Jurisprudence. This book is a collection of studies on the reform-
oriented and goal-oriented intellectual issues. The issues are discussed
in the light of the intellectual approach ‘Islamization of knowledge’
27 Taha Jabir Al-‘Alwani, Issues in Contemporary Islamic Thought (Virginia: Internationals

Institute of Islamic Thought, 2005).
15
which aims at producing awareness among the Muslims to review many
issues related to the Islamic heritage and knowledge. The rebuilding of
the Islamic Knowledge is necessary in this modern time in order to cope
up with the challenges Muslim Ummah is facing. The Book is a rich set
of knowledge and a variety of aspects of Islamic knowledge has been
discussed. The proposed research will rely on this book for analysing
the ideas of Shaykh Taha Jabir Al-Alwani.
To be a European Muslim28 by Tariq Ramadan, is yet another study
which will assist the researcher in the proposed research. The book is a
systematic attempt of exploring the Islamic resources and their
usefulness in the European Context. The book has been divided into two
parts. The first one deals with the theological aspects of Islam. Even
though it is a theoretical part but its close scrutiny will give the Muslims
of Europe in developing practical solutions for the issues they have in
being a European Muslim. The second part is also interesting as it deals
with particular practical issues and states solution and recommendations
for facing those issues. The proposed research will be focused on the
Fiqh ul Aqqalliyyat in European context and in that this book will be
really helpful. But as this Book is not legally researched so this makes it
different from the proposed research.
28
Ramadan, To be a European Muslim.
16
Issues Framed
1. Whether the contributions of the contemporary scholars in the field of Fiqh
ul Aqqalliyyat have practical significance for the Muslim Minorities in the
non-Muslim territories.
2. Whether the distinct and isolative development of the Fiqh ul Aqqalliyyat
discourse will help in achieving contributory results.
3. Whether the scholarship produced on Fiqh ul Aqqalliyyat has addressed
the issues of private international law.
4. Whether the Fiqh ul Aqqalliyyat if developed and adopted fully as a
distinct jurisprudence, will be a further hurdle in the harmonization of the
Private International Law.
5. Whether the incorporation of Fiqh ul Aqqalliyyat into the conflict of law
rules of the Muslim states is possible.
6. Whether the incorporation of Fiqh ul Aqqalliyyat in the conflict of law
rules will facilitate the European States in applying the Sharia rules.
7. Whether the Fiqh ul Aqqalliyyat is compatible with common law of
western countries.
8. Whether the Fiqh ul Aqqalliyyat is compatible with the traditional Islamic
Jurisprudence.
Research Methodology
Qualitative methodology would be used according to the demand of
research. The researcher will collect all the data on the topic. This will include
Islamic legal manuscripts, legal treaties, legal verdicts, and conference papers
on Fiqh ul Aqqalliyyat. The same methodology would be utilized for analysing
attempts made for the harmonization of private international law. Interpretive,
17
exploratory and secondary data analysis would assist in the insurance of
comprehensive study of Fiqh ul Aqqalliyyat and its nuances with respect to
private international law. Contemporary scholarship produced on Fiqh ul
Aqqalliyyat would be analysed by adopting the comparative methodology to
find workable commonalties and their incorporation in the conflict rules. The
correlative and comparative study would be done while surveying the Fiqh ul
Aqqalliyyat discourse in order to understand the Islamic legal verdicts in
different situations and historical context. The comparison and the contrast of
some Fiqh ul Aqqalliyyat and common law of the western countries would be
done as well.
Limitations of Study
1. For the purpose of specification and feasibility, the Fiqh ul Aqqalliyyat will
be analysed from the classical juristic discourse along with some
contemporary Muslim Scholars namely, Yusuf Al-Qaradawi, Taha Jabir Al-
Wani and Tariq Ramadan. Rest of the contemporary Muslim scholarship
produced on the topic may be discussed as well.
2. Again, for the purpose of feasibility, the issues of private international law
will be analysed with focus on the European states only
3. Due to language barriers, the study relies only those sources, cases studies,
and precedents that are available in English language in original or in
translation.
Outline of the Thesis

The whole thesis consists of introduction of research, three chapters and
recommendations.
18
Chapter one deals with harmonization of private international law. The
chapter initially gives introduction of private international law and then
highlights the major attempts made for harmonization of private international
law. The chapter focuses in detail on the efforts made for the harmonization of
laws a European community level. The chapter discusses the importance of
harmonization and its need in the present world.
Chapter two deals with application of shar’iah in Europe. After
discussing the historical developments which lead to the permanent residence
of Muslims in Europe, the chapter briefly explain the Islamic norms in general.
Then the chapter is solely focused on the application of shar’iah, direct and
indirect, and discusses in detail the issues and challenges. The issues of
application of Islamic law under private international law has been discussed in
detail and the chapter highlights how the non-applicability is not only
problematic for Muslims but also undermines the efforts made for the
harmonization of private international law.
Chapter three deals with Islamic law and Muslim minorities in non-
Muslim lands. After discussing the classical point of view of jurists the chapter
focuses on the theories and ideas of contemporary scholars who have addressed
the issues of Muslims living in Europe. Fiqh ul Aqqalliyyat theory has been
discussed in the second part of the chapter and its characteristics and critics have
been discussed.
In end, a conclusion along with recommendations have been discussed
which is based on the material given in all the three chapters.
19
Chapter 1
Harmonization of Private International Law
20
1.1. Introduction
Private international law is an often overlooked but increasingly important
dimension of contemporary legal study and practice. Sometimes viewed
as a rather musty set of doctrinal principles rooted in nineteenth century
European jurisprudence, it is in fact a dynamic and rapidly evolving field
of direct relevance to sophisticated lawyers working in a broad spectrum
of international and transnational contexts. 29
This chapter looks at the basic concepts of private international law and the
efforts made for its harmonization. Initially a descriptive approach has been
adopted and the core attempts to the harmonization of private international law
are analysed. However, it would be important to mention that European
measures for harmonizing the private international law are discussed detail
while the other attempts are discussed with brevity.
The concluding section of this chapter discusses the importance of
harmonization and figure out the areas which needs to be addressed not only
because they are complex but as it helps in the harmonization of private
international law as well.
1.2. Private International Law: Some Basic Concepts

Private international law is a set of rules and principles which comes
into operation when a municipal court has to decide a case having a foreign
element.30 Private international law may also be called as the conflict of laws.
29 David P. Stewart, "Private International Law: A Dynamic and Developing Field," University
of Pennsylvania Journal of International Law 30, no. 4 (2009): 1121.
30
John O’Brien, Smith’s Conflict of Laws (London: Cavendish Publishing Limited, 1999), 3.
21
31
Even both of these terms faced criticism for not exactly identifying their
subject but still both are deployed. 32
The issues addressed in the private international law, or the conflict of
laws, are mainly of three kinds which arise when the case before hand has some
foreign element in it. Rules of private international law are also known as
‘conflict rules’.33
The issues dealt in private international law are due to the foreign
element involved in the case due to any person, act or property. An individual’s
domicile, residence, or nationality; the place of incorporation; or the location of
property; the place of conclusion or performance of a contract; the place where
an accident giving rise to a tort claim occurred are few examples of connections
which can trigger the application of conflict rules.34
Generally, private international law deals with three kinds of problems,
which are namely; jurisdiction, choice of law and foreign judgement. 35 Rules
related to jurisdiction explain the circumstances in which the courts of one
31
The expression, private international law in generally considered to have been first introduced
by Joseph Story. The term conflict of laws was favoured by AV Dicey (1835-1922). For a
discussion on these interchangeable terms see, Pippa Rogerson, Collier’s Conflict of Laws
(Cambridge: Cambridge University Press, 2013), 3-4.
32 O’Brien, Smith’s Conflict of Laws, 4.
33 Stone, EU Private International Law: Harmonization of Laws, 3.
34
These connections are an important concept involved in private international law and also
known as ‘connecting factors’. What is a connecting factor? In many instances, the court is
faced with a number of choices as to be an appropriate law which should be apply to the
dispute in question. Let us consider some examples.
35 These problems are also called components of private international law from an international
systematic perspective, see, Alex Mills, The Confluence of Public and Private International
Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of
Private Law (Cambridge: Cambridge University Press, 2009), 30.
22
country are competent and should be willing to entertain proceedings in respect
of disputes which have some connection with the legal system of another
country. Court having the case involving a foreign element determine their
jurisdiction by these juridical rules before the initiation of proceedings. Rules
on choice of law determine the substantive rules to be applied to the case before
hand out of the laws of the connected countries. Rules on foreign judgments
help a court to determine whether a judgment given by the court of one country
should be recognized or enforced in another country. 36
1.3. Harmonization of Private International

Every country has its own set of conflict rules according to its developed
legal system which form a part of private international law. The difference of
the conflict rules of various countries give raise to the need of harmonization of
domestic laws. The legal system is considered developed and strong by the way
of certainty, predictability and uniformity of results in the cases.37 But the
difference of the conflict rules undermines this purpose. The conflict rules of a
country need to be harmonized with those of the other countries through treaties
and conventions. To serve this purpose the conventions negotiated at the Hague
Conference on Private International Law have played a significant role. Further
Harmonization has been done at European level by the steps and initiatives of
36 O’Brien, Smith’s Conflict of Laws, 16-17. The fact that a foreign judgement can be recognized
and enforced is based upon various theories. Sometimes it is based upon the principle of
reciprocity and comity. See, Rogerson, Collier’s Conflict of Laws, 219-21.
37 Efforts are made to harmonise and unify the private international law. On the issue of
unification of private international law in Europe, see, MND Emira Kazazi and Ervis Çela,
"The Unification of Private International Law," Academic Journal of Business,
Administration, Law and Social Sciences 1, no. 2 (2015): 23-28.
23
European community. 38 Efforts have been made to resolve the divergence
between the conflicts of law rules so that a unified body of law may be applied
and coordination may be made between different legal systems. This work is
focused the attempts of harmonization of Private International Law. 39
In recent years, there have been strong international movements towards
harmonising the various systems of conflict of laws. These attempts have been
framed in two different ways:
a) The first is the unification of the internal laws of the various countries
on a given topic via international conventions, so that no conflict of laws
will arise.
b) The second method attempts to unify the rules of private international
law, so that a case containing a foreign element, wherever tried, will
result in the same outcome.
1.3.1. International Organizations

Overall the efforts of harmonization of private international law are done
at various levels. There are five principal sources which are working on the
harmonization of private international law. Out of these five sources, four are
the international organizations 40 which work for the harmonization but their
38 See Stone, EU Private International Law: Harmonization of Laws, 3-4. However, it is also
argued that the harmonization of private international law cannot occur from top to bottom
but in fact it is also a bottom up process as well.
39 For difference between harmonization and unification of private international law, see,
George A. Zaphiriou, "Harmonization of Private Rules between Civil and Common Law
Jurisdictions," The American Journal of Comparative Law 38(1990): 71.
40 These are also called sometimes international institutions. Both terms are used
interchangeably. See, Malcolm N. Shaw, International Law (Cambridge: Cambridge
24
area of expertise is different. They independently work on harmonization and
unification of rules of private international law in fields which are included in
their mandates, for instance, UNICITRAL works on harmonization of
international trade law while UNIDROIT works on the modernisation and
harmonization of private laws in general. These four organizations have been
discussed briefly and later the fifth venue of harmonization, which is the
European Community, has discussed in detail.
1.3.1.1. The Hague Conference
In the field of Private International Law, the Hague Conference has
emerged as an important organization. It was founded in 1893 and later
established as a permanent organization in 1950. Sixty-nine states from all over
the world including states from Central and Latin America, Europe are now the
members of this conference. Interestingly the European Community itself
became a member of this conference in April 2007. Apart from the Service,
Evidence, and Apostille Conventions, the Conference has produced a number
of essential family law instruments. The instruments adopted by the conference
are namely, the Adoption and Abduction Conventions and the Hague
Convention 2007 on the International Recovery of Child Support and Other
Forms of Family Maintenance, Convention on Choice of Court agreements and
Convention on the Law Applicable to Certain Rights in Respect of Securities
Held with an Intermediary.41 The Conference's Permanent Bureau exerts utmost
41 The situation of private international and efforts to harmonise or unify the conflict laws has
changed over a period of time. The Hague conference followed the method of drafting
conventions for unifying the conflict laws, however, American observers submitted a
memorandum in 1956 suggesting the uniform or models laws as an alternative method. It
was suggested that the use of later method will make the conference work acceptable at large
25
efforts in providing post-Convention services. These services include,
encouraging consistent practices under the signed instruments and their uniform
interpretation. This bureau also offers services in providing training and advice
to States on implementation of its instruments.42
1.3.1.2. UNCITRAL
For serving as a core legal body of U.N system in the field of
international trade law, establishment of the United Nations Commission on
International Trade Law (UNCITRAL)43 took place in 1966.44 The different
laws of the states were considered an obstacle in the flow of trade so
UNCITRAL was established with the mandate to harmonise and unify the trade
laws. The commission consists of sixty members elected by the General
Assembly for six-year terms. The substantive preparatory work on specific
scale. See, Kurt H. Nadelmann and L. M. Reese Willis, "The American Proposal at the
Hague Conference on Private International Law to Use the Method of Uniform Laws," The
American Journal of Comparative Law 7, no. 2 (1958): 239-40. Apart from supranational
legislation, conventions and model laws, non-legislative means were also adopted for
unifying the conflict laws, for detail study on non-legislative means for uniform laws see,
M. J. Bonell, "Unification of Law by Non-Legislative Means: The UNIDROIT Draft
Principles for International Commercial Contracts," ibid.40, no. 3 (1992): 617-33. However,
it is also argued that the harmonization of private international law cannot occur from top to
bottom but in fact it is also a bottom up process as well. It means that the harmonization
cannot be done solely by legislation and administrative and judicial rules but usages and
customs are to be considered as well, see, Boris Kozolchyk, "The UNIDROIT Principles as
a Model for the Unification of the Best Contractual Practices in the Americas," ibid.46, no.
1 (1998): 155.
42 "The UNIDROIT Principles as a Model for the Unification of the Best Contractual Practices
in the Americas," 1124.
43
"Welcome", Uncitral.Org, 2017, http://www.uncitral.org/ (Accessed on 17 May 2017).
44UNCITRAL was established by the General Assembly through the Resolution 2205(XXI) of
17 December 1966, available at https://documents-dds-
ny.un.org/doc/RESOLUTION/GEN/NR0/00508/IMG/NR000508.pdf?OpenElement
(Accessed on 15 May 2017).
26
topics such as procurement, international arbitration and conciliation, transport
law, electronic commerce, insolvency, and security interests, is done by the six
working groups of the commission. The U.N. Convention on the Recognition
and Enforcement of Arbitral Awards (1970), the Convention on the
International Sale of Goods and Services (1980), a Model Law on international
Commercial Arbitration (1985), a Model Law on Cross-Border Insolvency
(1997), and the U.N. Convention on the Use of Electronic Communications in
International Contracts (2005) are the few examples of significant contributions
of UNICITRAL.45
1.3.1.3. UNIDROIT
The International Institute for the Unification of Private Law
(UNIDROIT) is an independent intergovernmental organization established
with the view of achieving modernization, unification and coordination in the
field of private law.46 Headquarter of organization is in Rome and it has sixty-
three member States. The member states represent a great diversity of legal,
economic, and political systems as well as different cultural backgrounds.47 The
adoption of a Convention on a Uniform Law on the Form of an International
Will (1973), the 2001 Cape Town Convention on. International Interests in
Mobile Equipment (together with subsequent protocols on financing aircraft
equipment and railway rolling stock), a Model Law on Franchise Disclosure
45 Stewart, "Private International Law: A Dynamic and Developing Field," 1124-25.

46 UNIDROIT was initially affiliated with Leagues of Nation. For a study of this constituent
instrument, see, Sompong Sucharitkul, "Unification of Private Law and Codification of
International Law," Uniform Law Review 3(1998): 694.
47ÜNIDROIT Overview”, Unidroit.Org, 2017, http://www.unidroit.org/about-
unidroit/overview (Accessed 15 May 2017).
27
(2002), and in 2004 the Principles of Transnational Civil Procedure (in co-
operation with the American Law Institute) are among the contributions of the
UNIDROIT. At present, it is working on a model leasing law and a substantive
convention on securities law.48
2.3.1.4. The OAS
The issues and problems of private international are addressed and
tackled through specialised conferences by the Organization of American
States.49 All thirty-five independent countries of the Americas are members of
OAS. Since its establishment it has produced some twenty-six instruments
which cover various topics. These instruments are designed to help in achieving
an effective legal framework for judicial cooperation between member states.
They also add legal certainty to cross border transactions in civil, family,
commercial, and procedural dealings of individuals in the Inter-American
context.50
1.3.1. European Community: Harmonization at European Level

An increasingly important venue for the articulation of private
international law is the European Community (EC), which continues to create
new rules dealing with substance as well as conflicts of law, jurisdiction, and
48 Stewart, "Private International Law: A Dynamic and Developing Field," 1125.

49 For a study on the structure of the organization, the principle cases which have been dealt by
the organization and description and assessment of the activities carried out by the
organization, see, R. St. J. MacDonald, "The Organization of American States in Action,"
The University of Toronto Law Journal 15, no. 2 (1964): 359-429.
50
Stewart, "Private International Law: A Dynamic and Developing Field," 1125-26.
28
judgments. 51 These activities are part of the ongoing integrative efforts to
harmonize the internal law of the Community. The legal basis of European
private international law has evolved through a number of treaties.52
51 For understanding and study of EU legislature with respect to private international law, see,
Policy Department C – Citizens’ Rights and Constitutional Affairs, A European Framework
For Private International Law: Current Gaps And Future Perspectives, 2012, 70-73.
52 The successive treaty texts below signify that the European Union policy on private
international law has been changed drastically.

a. Treaty establishing the European (Economic) Community: Article 220 EEC,
subsequently Article 293 EC, now repealed
Member States shall, so far as is necessary, enter into negotiations with each other with a view
to securing for the benefit of their nationals:
— the protection of persons and the enjoyment and protection of rights under the same
conditions as those accorded by each State to its own nationals,
— the abolition of double taxation within the Community,
— the mutual recognition of companies or firms within the meaning of the second paragraph of
Article 48, the retention of legal personality in the event of transfer of their seat from one country
to another, and the possibility of mergers between companies or firms governed by the laws of
different countries,
— the simplification of formalities governing the reciprocal recognition and enforcement of
judgments of courts or tribunals and of arbitration awards.
b. Maastricht Treaty
Title VI —provisions on cooperation in the fields of justice and home affairs
ARTICLE K
Cooperation in the fields of justice and home affairs shall be governed by the following
provisions.
ARTICLE K.1
For the purposes of achieving the objectives of the Union, in particular the free movement of
persons, and without prejudice to the powers of the European Community, Member States shall
regard the following areas as matters of common interest:
1. asylum policy;
2. rules governing the crossing by persons of the external borders of the Member States and the
exercise of controls thereon;
3. immigration policy and policy regarding nationals of third countries; (a) conditions of entry
and movement by nationals of third countries on the territory of Member States; (b) conditions
of residence by nationals of third countries on the territory of Member States, including family
reunion and access to employment; (c) combating unauthorized immigration, residence and
work by nationals of third countries on the territory of Member States;
4. combating drug addiction in so far as this is not covered by 7 to 9;
5. combating fraud on an international scale in so far as this is not covered by 7 to 9;
6. judicial cooperation in civil matters;
7. judicial cooperation in criminal matters;
8. customs cooperation;
9. police cooperation for the purposes of preventing and combating terrorism, unlawful drug
trafficking and other serious forms of international crime, including if necessary certain aspects
of customs cooperation, in connection with the organization of a Union-wide system for
exchanging information within a European Police Office (Europol).
c. Treaty of Amsterdam
Article 65
Measures in the field of judicial cooperation in civil matters having cross-border implications,
to be taken in accordance with Article 67 and in so far as necessary for the proper functioning
of the internal market, shall include:
29
(a) improving and simplifying: — the system for cross-border service of judicial and
extrajudicial documents, — cooperation in the taking of evidence, — the recognition and
enforcement of decisions in civil and commercial cases, including decisions in extrajudicial
cases;
(b) promoting the compatibility of the rules applicable in the Member States concerning the
conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting
the compatibility of the rules on civil procedure applicable in the Member States.
Article 67
1. During a transitional period of five years following the entry into force of the Treaty of
Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the
initiative of a Member State and after consulting the European Parliament.
2. After this period of five years:
— the Council shall act on proposals from the Commission; the Commission shall examine any
request made by a Member State that it submit a proposal to the Council, — the Council, acting
unanimously after consulting the European Parliament, shall take a decision with a view to
providing for all or parts of the areas covered by this title to be governed by the procedure
referred to in Article 251 and adapting the provisions relating to the powers of the Court of
Justice.
3. By derogation from paragraphs 1 and 2, measures referred to in Article 62(2)(b) (i) and (iii)
shall, from the entry into force of the Treaty of Amsterdam, be adopted by the Council acting
by a qualified majority on a proposal from the Commission and after consulting the European
Parliament.
4. By derogation from paragraph 2, measures referred to in Article 62(2)(b) (ii) and (iv) shall,
after a period of five years following the entry into force of the Treaty of Amsterdam, be adopted
by the Council acting in accordance with the procedure referred to in Article 251.
5. By derogation from paragraph 1, the Council shall adopt, in accordance with the procedure
referred to in Article 251:
— the measures provided for in Article 63(1) and (2)(a) provided that the Council has
previously adopted, in accordance with paragraph 1 of this article, Community legislation
defining the common rules and basic principles governing these issues, — the measures
provided for in Article 65 with the exception of aspects relating to family law.
Article 68
1. Article 234 shall apply to this title under the following circumstances and conditions: where
a question on the interpretation of this title or on the validity or interpretation of acts of the
institutions of the Community based on this title is raised in a case pending before a court or a
tribunal of a Member State against whose decisions there is no judicial remedy under national
law, that court or tribunal shall, if it considers that a decision on the question is necessary to
enable it to give judgment, request the Court of Justice to give a ruling thereon.
2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision
taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding
of internal security.
3. The Council, the Commission or a Member State may request the Court of Justice to give a
ruling on a question of interpretation of this title or of acts of the institutions of the Community
based on this title. The ruling given by the Court of Justice in response to such a request shall
not apply to judgments of courts or tribunals of the Member States which have become res
judicata.
Article 69
The application of this title shall be subject to the provisions of the Protocol on the position of
the United Kingdom and Ireland and to the Protocol on the position of Denmark and without
prejudice to the Protocol on the application of certain aspects of Article 14 of the Treaty
establishing the European Community to the United Kingdom and to Ireland.
d. Treaty on the functioning of the EU—TFEU
Article 67
(ex-Article 61 TEC and ex Article 29 TEU)
1. The Union shall constitute an area of freedom, security and justice with respect for
fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common
policy on asylum, immigration and external border control, based on solidarity between
30
Brussels Convention 1968, is among the first attempts to harmonise the
European law.53 The second attempt was the Rome Convention in 1980.
However, it may be noted that the Brussels Convention deals with contractual
Member States, which is fair towards third country nationals. For the purpose of this Title,
stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and
combat crime, racism and xenophobia, and through measures for coordination and cooperation
between police and judicial authorities and other competent authorities, as well as through the
mutual recognition of judgments in criminal matters and, if necessary, through the
approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle of mutual
recognition of judicial and extrajudicial decisions in civil matters.
Article 81
(ex-Article 65 TEC)
1. The Union shall develop judicial cooperation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and of decisions in
extrajudicial cases. Such cooperation may include the adoption of measures for the
approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in
accordance with the ordinary legislative procedure, shall adopt measures, particularly when
necessary for the proper functioning of the internal market, aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and of
decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws
and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by
promoting the compatibility of the rules on civil procedure applicable in the Member States; (g)
the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, measures concerning family law with cross-border
implications shall be established by the Council, acting in accordance with a special legislative
procedure. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those
aspects of family law with cross-border implications which may be the subject of acts adopted
by the ordinary legislative procedure. The Council shall act unanimously after consulting the
European Parliament.
The proposal referred to in the second subparagraph shall be notified to the national Parliaments.
If a national Parliament makes known its opposition within six months of the date of such
notification, the decision shall not be adopted. In the absence of opposition, the Council may
adopt the decision. See, Geert van Calster, European Private International Law (Oxford: Hart
Publishing, 2016), 14-15.
53 Though it was a great step at the time of its conclusion (1968) but later few aspects of
convention are also termed as discriminatory and it is criticised to be of narrower scope as

it did not address service of process, choice of law, evidence, remedies, and other aspects of
procedure subject to wide divergence under national law. See, Paul R. Dubinsky, "Human
Rights Law Meets Private Law Harmonization: The Coming Conflict," The Yale Journal of
International Law 30(2005): 240.
31
and non-contractual obligations, whereas, Rome Convention deals with
contractual obligations only. The situation changed with the adaptation of
Amsterdam Treaty 1977, after which European Union got greater law-making
capacity. EC regulations adopted by the Council under Title IV (Articles 61-69)
of the EC Treaty have consequently effected the harmonization of conflict rules
at European level.54
In the preceding pages discussion has been made regarding efforts made
for the harmonization of European Private international law. These measures
whether adopted or in progress can be categorized into five major heads,
namely, civil jurisdiction and judgments, the law applicable to civil obligations,
family matters, insolvency, and procedural co-operation.
1.3.1.1. Civil Jurisdiction and Judgments
54 Under Articles 61(c) and 65, for the proper functioning of the internal market of European
Union, measures can be adopted under Title IV in the field of judicial co-operation in civil
matters having cross-borders effects. The purpose of these measures should be progressive
establishment of an area of freedom, security and justice. By Article 65(a), explains the
measures taken for the establishment of an area of freedom, security and justice. The
measures to simplify procedure for extraterritorial service of judicial documents, improving
cooperation in evidence procedure and steps taken for recognition and enforcement of
decisions in various cases are all examples of measures adopted under Article 65(a).
Promotion of compatible and sustainable application of rules regarding conflict of laws and
jurisdiction is a form of measures taken under Article 65(b). Under article 65(c) the hinderers
to the smooth functioning of civil procedures are eliminated by various measures. All the
measures taken and adopted under Title IV have now taken form of regulations. Overall
these measures have affected the process of harmonization of private international law at
large. Under Article 67, which deals with the legislative procedure, the council may act
unanimously, or on a proposal forwarded by the commission or on the initiative of a member
state and this has to be done after consulting the parliament. Under Article 68, the court of
last resort of any member state can request the European court for the interpretation of the
measures adopted under Tile IV. see, Stone, EU Private International Law: Harmonization
of Laws, 4-5.
32
The Brussels I Regulation is the most important instrument the field of
private international law. It is also known as Regulation 44/2001 on Jurisdiction
and the Recognition and Enforcement of Judgments in Civil and Commercial
Matters.55 The regulation spells out the rules regarding direct jurisdiction and
the rules on the recognition and enforcement of judgements which are delivered
in another state which comes under the ambit of these Regulation. Though it
applies to most of the civil cases but family matters and insolvency proceedings
are not included in its scope. The Brussels I Regulation has replaced the
Brussels Convention of 27th September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters.56 For the
enforcement and recognition of judgements, EC Regulation 805/200457 has
supplemented the Brussels I Regulation by creating a European Enforcement
Order for Uncontested Claims.58
However, now the European Union states are subject to Regulation
1215/2012 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters.59 This immediately succeeded the Brussels I
Regulation.
55
For a detailed analysis of civil jurisdiction and judgements, see, ibid., 13-259.
56 It is also known as ‘The Brussels Convention’, which was based on Article 293 (ex-Article
220) of EC Treaty.
57
This Regulation was adopted by the Parliament and Council on 21st April 2004, and it applies
from 21st October 2005.
58 By this Regulation the court of origin can issue a European enforcement order for the
judgement on uncontested claim. This order consequently renders the judgement
enforceable in all member states of European Union without any further procedure to be
followed.
59 The Regulation is referred to as ‘Brussels I’, or the ‘Judgments Regulation’ as well as the
‘EEX’ Regulation; and, by virtue of this being an amending Regulation, as ‘Brussels I bis’,
33
1.3.1.2. The Law Applicable to Civil Obligations 60
Within the domain of private international law, rules regarding the
choice of law rules for the contracts and agreements are given by the Rome
Convention of 19th June 1980 on the Law Applicable to Contractual
Obligations. 61 This Convention was the continuation of unification of rules in
private international law after the unification done in the field of jurisdiction
and enforcement of judgements.
This convention is not based on any treaty provision rather it is done on
the demand and desire of states.62 Importantly, common law countries joined
European community for this convention. 63 Rome I is applicable to the contracts
concluded after December 2009.64 Specifically, the application of regulation is
limited to contractual obligations in civil and commercial matters. 65 The
regulation has a universal scope which means that any provision contained in
‘Brussels Ibis’, ‘Brussels I Recast’ or ‘Brussels I Recast Regulation’, and finally as Brussels
Ia. See, Calster, European Private International Law, 21.
60
For a detailed study of Choice of law in respect of Obligations see, Stone, EU Private
International Law: Harmonization of Laws, 263-380.
61 It is also known as Rome Convention.
62
Rome Convention entered into force on 1st April 1991. It is currently in force in the first
fifteen Member States. The EC Commission issued a Green Paper on the conversion of the
Rome Convention 1980 into a Community instrument and its modernization on 14th January
2003. Later a Convention on the Accession of the ten new Member States to the Rome
Convention was signed on14th April 2005 at Luxembourg. On signing the Accession
Convention, the Member States requested the Commission to submit a proposal for a
Regulation on the law applicable to contractual obligations. Such a proposal was eventually
presented by the Commission on 15th December 2005.
63 Calster, European Private International Law, 201.
64 Rome I Article 28.
65
Rome I Article 1(1).
34
the regulation shall be applied, regardless of the fact that it is the law of a
member state or not.
A draft for the Regulation on the Law Applicable to Non-contractual
Obligations was presented by the EC Commission on 22nd July 2003.66 The
rules of choice of law related to torts and restitutioanry obligations are covered
under this Regulation. The Rome II Proposal was amended and approved by the
European Parliament on 6th July 2005 (by the way of first reading).
1.3.1.3. Family Matters67
The Brussels IIA Regulation deals with the jurisdiction and judgments
in regard of family matters. 68 The EC Council adopted it on 27th November
2003 and Regulation entered into force on 1st March 2005. The Brussels IIA
Regulation deals with jurisdiction and judgments in respect of matrimonial
proceedings such as, divorce, separation and annulment of marriage, and of
parental responsibility for children, irrespective of the fact that whether a
marriage or divorce is involved. It replaces the Brussels II Regulation.69 The
Brussels IIA Regulations have identical provisions with regard to matrimonial
proceedings as in Brussels II Regulation. However, the Brussels IIA Regulation
is much wider than its predecessor in term of parental responsibility. Under the
66
It is also known as ‘The Rome II Proposal’.
67 For a detailed study of Harmonization of family matters at European level, see, Stone, EU
Private International Law: Harmonization of Laws, 383-436.
68 EC Regulation 2201/2003, concerning Jurisdiction and the Recognition and Enforcement of
Judgments in Matrimonial Matters and the Matters of Parental Responsibility.
69 EC Regulation 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgments
in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both
Spouses.
35
Brussels IIA Regulation the parental responsibility extends to all children,
regardless of whether a marriage or divorce is involved.
Furthermore, on 19th December 2002 the EC Council adopted Decision
2003/93, authorizing the Member States, in the interest of the Community, to
sign the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in respect of Parental Responsibility and
Measures for the Protection of Children. 70
Two Green Papers in the field of family matters have been presented by
the EC Commission. Firstly, a Green Paper on Maintenance Obligations was
presented on 15th April 2004. Secondly, a Green Paper on Succession and Wills
was presented on 15th April 2004.
1.3.1.4. Insolvency
Insolvency proceedings involve additional challenges as compared to
the average one faced in the private international law. The subject of insolvency
proceedings by its nature and content almost always involves a multitude of
stakeholders. The subject-matter of the multitude of claims is much more
70 When signing that Convention, the EC Member States had to make a declaration that, since
the Convention allows Contracting Parties a degree of flexibility in order to apply a simple
and rapid regime for the recognition and enforcement of judgments, and the Community
rules provide for a system of recognition and enforcement which is at least as favourable as
the rules laid down in the Convention, a judgment given in a court of an EU Member State,
in respect of a matter relating to the Convention, will be recognized and enforced in the
signing Member State by application of the relevant internal rules of Community law. On
17th June 2003 the EC Commission presented a proposal for a Council decision authorizing
the Member States in the interest of the Community to ratify or accede to The Hague
Convention 1996, but such a decision has yet to be adopted by the Council.
36
different than in the average private international law scenario. 71 EC Regulation
1346/2000 on Insolvency Proceedings72 was adopted by the Council on 29th
May 2000.73 The ‘Insolvency Regulation’, Regulation 1346/2000 by default has
become a global focal point for attempts to reach a multilateral approach to
jurisdiction and applicable law in insolvency proceedings. 74 This Regulation
replaced a Convention which had been opened for signature on 23rd November
1995, but had not entered into force.75 However this Regulation entered into
force for the fourteen pre-2004 Member States other than Denmark on 31st May
2002, and for the ten additional Member States on 1st May 2004. In near past,
this Regulation was considerably amended in 2015. It will be replaced by
Regulation 2015/848,76 which will apply to insolvency proceedings opened
after 26 June 2017.77
1.3.1.5. Procedural Cooperation
On 29th May 2000, EC Regulation 1348/2000 on the Service in the
Member States of Judicial and Extra-judicial Documents in Civil or
Commercial Matters was adopted by the Council for the procedural co-
operation. It enters into force for the twenty four states in four years.78 Other
than that the Council adopted EC Regulation 1206/2001 on Co-operation

72
For the text of the resolution see, [2000] OJ L160/1.
73 For a detailed study of Insolvency proceedings and its harmonization, see, Stone, EU Private
International Law: Harmonization of Laws, 439-62.
75 That replaced Convention was based on Article 293 (ex-Article 220) of the EC Treaty.
76 For the text of the resolution see, [2015] OJ L141/19.
78
Initially for fourteen states on 31st May 2001 and for further ten states on 1st May 2004.
37
between the Courts of the Member States in the Taking of Evidence in Civil or
Commercial Matters, on 28th May 2001.79 On 28th May 2001 the establishment
of a European judicial network in civil and commercial matters took place when
the EC Council adopted Decision 2001/470.80
1.4. Harmonization of Private International Law: Myth or Reality?

Having discussed the importance of harmonization of private
international law rules and the efforts of harmonization done at various levels,
this section focuses on the future prospects of harmonization. The gaps which
needs to be filled out but prior to that they need to be figured out exactly.
However, this discussion focuses on European context only.
Let us consider the basic notion of uniformity and its importance. As
mentioned earlier the attempts made for the harmonization of private
international law are within two domains. Firstly, the unification of the internal
laws of the various countries on a given topic via international conventions, so
that no conflict of laws will arise. Secondly, there are attempts to unify the rules
of private international law, so that a case containing a foreign element,
wherever tried, will result in the same outcome.
The first method of harmonization is to be considered in detail. How
harmonization of internal law of various countries can be achieved? To be more
precise is it possible to have uniform domestic laws all over the world? Though
initially harmonization of private international was a nearly impossible task but
79 It entered into force for the fourteen pre-2004 Member States other than Denmark on 1st
January 2004, and for the ten additional Member States on 1st May 2004.
80
Stone, EU Private International Law: Harmonization of Laws, 10.
38
with the progressive efforts and achievements it was considered to be a replay
of Hannibal’s crossing of the Alps.81
The issue of uniformity in domestic laws is one of the main problems
being faced by international law and especially private international law these
days.82 Domestic law means the law of a state applicable within its jurisdiction
and with the rise of the international law there emerged a dire need of unification
of domestic laws. The globalization of the world has affected the domestic legal
systems as each legal system is being faced with the issues which are not only
the subject of domestic law of a single state but also touching the domestic laws
of one or more states and vice versa. Moreover, the globalization requires the
international norms to be incorporated in the domestic legal system to curb the
issues of international community.
It is also an undeniable fact that international law is not confined only to
the diplomatic relations these days but it has been extended to the issues
belonging exclusively domestic jurisdiction of states like the issues relating
acquisition or loss of nationality, problems of commercial transactions, issues
81 In 218 BC, the Carthaginian general Hannibal (247-182) achieved a most extraordinary feat:
he crossed both the Pyrenees Mountains and the Alps with an army of about 38.000 soldiers,
8.000 Cavalry and 37 elephants, aiming to win the Second Punic War by a bold invasion of
Italy before the Romans were prepared. Even if his attempts to defeat the Roman legions
failed in the end, common lore1 stills tells the story of the elephants crossing the Col du
Mont Genèvre in deep snow, setting thus an example of a near impossible achievement for
generations to come. See, Eleanor Cashin Ritaine, "Harmonising European Private
International Law: An Replay of Hannibal’s Crossing of the Alps?," International Journal
of Legal Information 34, no. 2 (2006): 419.
82 Harmonization, or the process of bringing about harmony, implies a state of consonance or
accord; the combination or adaptation of parts, elements or related things, so as to form a
consistent and orderly whole. See, Martin Boodman, "The Myth of Harmonization of Laws,"
The American Journal of Comparative Law 39, no. 4 (1991): 700-01.
39
relating penal law and penal procedures, issues related civil law and civil
procedure and questions related religious problems etc. Consequently, the
relation between international and domestic laws is getting intense day by day.
This tension is magnified day by day due to the absence of any law
explaining how international law would be incorporated in domestic law. 83 If
analysed, it will be observed that the constitutions of many countries are
emphasizing greatly upon their sovereignty and giving less primacy to the
international rules.84 Apparently it seems impossible to have uniformity in
83 There are few theories in this regard, for instance, incorporation and transformation. The
doctrine of incorporation suggests that a rule of international law will become a part of the
municipal law without any express adaptation by the national courts or legislation. It is the
sole reason for an international rule to get incorporated because it is an international rule.
The automatic adaptation operates unless some other provision of the municipal law,
repugnant to the international rule, is there. Once an international rule is proved to exist,
according to the incorporation doctrine, it will become a part of municipal law and will be
applied by the national courts. The doctrine of transformation, no rule of international law
is applied by the courts unless that rule is consciously adopted by the state and all necessary
steps are taken to make that rule a part of the municipal law. The international law is not
ispo facto part of municipal law. The national and international law are kept separately and
only after the states willingness and steps to make that rule a pat of national law, the court
can apply that rule as national law. But these doctrines are just theoretical and practically
the approaches adopted by the states for the reception of the international law are not that
much simple and easy. The method which the state will adopt is mentioned in their
constitutions and each state has a different constitution. It is also worth mentioning that the
both doctrines are too absolute in their application and result. The Human Rights Act 1998
of UK brings into local law the substantive rights of the European Convention for the
protection of Human Rights and Fundamental Freedoms 1959. But the way the said Act
adopted the convention is neither incorporation nor transformation. This example makes it
clear that the reception of international law into the municipal law is very complex and
cannot be fully explained by two doctrines only. For details see Martin Dixon, Textbook on
International Law (London: Blackstone Press Limited, 2000), 89-91.
84 Peter Malanczuk, Akehurst’s Modern Introduction to International Law (London: Routledge,
2002), 65.
40
domestic laws but still it can be attained to an extent by the efforts of the
international community. The domestic legal systems must have an awareness
of the issues and need to co-operate as the application of international law by
national courts entirely depends up on the decision of the national legal systems
and it is mandatory requirement for attaining uniformity in domestic laws. 85
However, for the time being drafting conventions with a wider scope and
acceptability can help in harmonizing the internal laws so that no conflict of law
occurs.
The efforts done for the harmonization of conflict rules are either subject
specific or area specific. For instance, the European Union legislation have
contributed a lot in harmonising the laws in European community. However,
these efforts do not help in harmonising the laws at global level due to their area
specific scope and application.
As a matter of fact, private international law may act as a forum where
the uniformity of domestic laws may be achieved. There must be negotiations
between different states and their legal systems relating to the contradicting
points of the legal systems and they must be brought in conformity with the
natural law and internationally set principles of international law through
treaties and conventions. Moreover, the customs being practiced by the
domestic legal systems must be brought in compliance with the international
customs and rules concluded by a unanimous agreement of the international
85 Paveled Kalensky, Stefan Luby, and Otto Kunz Trends of Private International Law (Leiden:
Martinus Nijhoff, 1971), 31-35.
41
community. 86 Apparently it seems impossible for the domestic legal systems to
make compromises over the disputed laws and provisions but the example of
Hannibal’s crossing the Alps must not be forgotten.
Apart from the areas discussed above, the application of Islamic law
under private international law in western countries is not only a challenge but
also sometimes its application is rejected due to the non-compatibility of Islamic
law with the public order of the state in which it has to be applied. Also, an
increasing number of Muslim population in Europe and their permanent
residence over there calls out for considering the reform of Islamic law. These
reforms and context based interpretation should guarantee the applicability
application of Islamic law in Europe and also make them compatible with the
European constitutional laws as well. 87
Though the religion, culture and geographical limitations of different
legal systems hinder the path of the unification and uniformity but still it can be
attained. The example of European community can be followed as a model.
However, it must be important to note that, on one hand, the EC is increasingly
86 To bring about uniformity, one had to 1) make a list of equivalent terms in the countries whose
law was to be made uniform, 2) classify the code and statutory provisions corresponding to
those terms, 3) find the common denominators of the classified rules and 4) formulate new
rules consistent with the common denominators. Along with this customs and usages may
also be used and considered for uniformity in laws. See, Boris Kozolchyk, “The UNIDROIT
Principles as a Model for the Unification of the Best Contractual Practices in the Americas”,.
87 However, while taking any step for making the application of shar’iah possible and feasible
in west, steps having strong juridical bases should be encouraged and adapted. The proposed
efforts must not be taken as an apologetic approach. While arguing Islam as a n al-fitra,
All l al-F (d.1974) presented his theory which had much ambiguities and thus resultantly,
it seems to be an apologetic approach. See, Andrew F. March, "Naturalizing Shar a:
Foundationalist Ambiguities in Modern Islamic Apologetics," Islamic Law and Society
22(2015): 1-37.
42
exerting its influence in creating various private international fora, and while on
the other hand, accommodating this emergent Community law becomes more
of a challenge for other states. The task is to find common ground for agreement
on autonomous principles and interpretations in new instruments at the global
level.88
1.5. Conclusion
This analysis of attempts of harmonization at various levels and at
European community level clearly indicates the importance as well as efforts
made for harmonizing the private law. The harmonization of private law is
indeed the need of time which was felt even decades ago and since that time
steps and initiatives have been taken to harmonize the laws. This harmonization
of private laws is also important to ensure certainty of the decisions and justice
to the parties involved.
Though the efforts have been made in various fields, for instance, family
laws and international trade laws, and at various levels and institutions, but still
there is a lot to do further at large. Having discussed these steps regarding the
harmonization, next chapter will look into the case of application of Islamic law
under private international. Our focus is to determine that how the development
of Islamic law can help to achieve harmonization of private international law.
88
Stewart, "Private International Law: A Dynamic and Developing Field," 1126.
43
Chapter 2
Islamic Law in West: Scope and Limits
44
2.1. Introduction
No longer can it be said that Islam Versus west rather now it is Islam in the
west or Islam and the west.89 After 1990s the situation is that the Muslim
population in Western Europe is between 12-15 million. As many of them have
acquired European nationality and there is a little hope that they will return to
their country of origin, hence, they are now part of European society. 90 The
number of indigenous European Muslims is increasing due conversion and
birth. With this increase, there is revival of Islamic spirituality and the feeling
of belonging to the Muslim ummah has magnified. Also, there is a significant
increase in number of mosques and Islamic organizations.91
This chapter deals with the application of Shar’i h92 in west. Chapter
initially explains the application of Shar’i h in west and the challenges faced in
its application particularly by the European community. Some basic reflections
are also discussed regarding Islam in west and the ongoing debates in that
context. The second section of the chapter specifically addresses the direct and
indirect application of Shar’i h under optional civil law and private
international law respectively.
2.2. Islam in the West

The presence of Muslims in west and particularly in Europe is not new
phenomenon as their presence dates back to the middle ages but now this
89 Hellyer, Muslims of Europe: The “Other” Europeans, 101.

90 Ramadan, To be a European Muslim, 120.
91 Ibid.
92 Though technically there is also a debate on the definition of the terms Islamic law and
Shar’i h but nevertheless these terms will be used interchangeably in this research.
45
presence with a strength of 10-15 million is indeed a new phenomenon93 which
urged academia to address the issues related to Islam and west, application of
Islamic law in west, the identity challenges of Muslim minorities and many
more.94
2.1.1. Muslims in West: Some Historical Reflections

With a population of around 10-15 million, Muslims form a major place
among the religious minorities in Europe. 3 percent population of European
Union consists of Muslims, and they live in high numbers in France, Germany,
Great Britain, the Netherlands, and Greece. Muslims also living in Sweden,
Denmark, and Norway, though they are low in number. The south Europe is
now also becoming the new destination of the Muslim immigrants. As far as the
number of Muslims in the United States is concerned, most current estimates
state it to be approximately 6 million.95
Analysing in more detail this number debate, as far as the ethnicity of
the immigrants is concerned, Arabs are the largest ethnic group, Turkish
ethnicity stands second and third group is of immigrants from India, Pakistan
and Bangladesh. In United States, like Europe, the Muslim minorities are from
various countries and ethnicities. The major ethnic groups of the Muslim
93 Rohe, "Application of Shar a Rules in Europe: Scope and Limits," 323. It is also argued that
this strength is more than 11/12 million and Muslims are the largest religious minority in
Western Europe. For a detailed analysis of number of Muslims present in European
countries and America, see, Césari, When Islam and Democracy Meet: Muslims in Europe
and in the United States, 9-11. Also see, Fishman Shammai, Fiqh al-Aqalliyyat: A Legal
Theory for Muslim Minorities (Washington: Hudson Institute, 2006), 1.
94 It must be noted here that the research is mainly focused on Europe particularly. So American
Muslims and their debate may be mentioned but the due to the limited scope of this research
it could not be analysed in detail.
95
Césari, When Islam and Democracy Meet: Muslims in Europe and in the United States, 9.
46
migrants are from the Asian subcontinent (24.4) Africa (6.2 percent), Iran (3.6
percent), Turkey (2.4 percent) and the Arabs (12.45 percent of all U.S.
Muslims).96
It would be interesting to observe the history of Muslims in Europe and
how the Muslims presence in west and particularly in Europe was considered as
permanent. This permanency of Muslims in Europe contributed to the debate of
European Islam. Immigration of Muslims from the countries which were
formerly colonized by the European countries formulate a European Muslims
community. In France Muslims from North Africa, in United Kingdom Muslims
from Sub-Continent, in Germany Muslims from Turkey and in Netherlands
Muslims from Tunisia, Morocco and Turkey are all resulted from the colonial
period.97
There are three immigration waves which eventually resulted into
explaining the status of Islam in Europe as permanent gradually. 98 From the end
of World War II till the beginning of the 1970s, the first wave of immigration
of worker/labour took place from the third world countries and Eastern Europe
for the reconstruction of European economy. These immigrations took place
after several agreements among European and Muslims state. As these workers
were there for the sole purpose of earning money and they restricted themselves
96 Ibid.
97 Jorgen S Nielsen, Towards A European Islam (Basingstoke: Palgrave Macmillan, 2002), 1-
10.
98 Contemporary Islam can be better understood if analysed along with the historical events,
only then one will be able to get the real picture of whole scenario, see Jamal Malik,
"Integration of Muslim Migrants and the Politics of Dialogue: The Case of Modern
Germany," Journal of Muslim Minority Affairs 33, no. 4 (2013): 496.
47
to this purpose and did not mingle into the society which strengthen the view
that their stay is temporary.99
Even though the reconstruction of European economy was ended as a
result of oil crisis but the process of Muslim immigration continued. This
marked the second phase of immigration which consisted of reunion of formerly
split apart families by immigration. Though the European lands refused the
entry of unskilled labours but the number of children and women from Muslims
countries increased which altogether changed the nature of relationship between
Muslims and Europeans. This was the era in which Muslim migrants felt the
educational and religious needs other than economical. It was hard to consider
them a worker only who is residing there on temporary basis. The sign of
permanency in the stay of immigrants started to appear. In 1990s the number of
mosques and demand to consider them as public buildings and equal status as
given to the worship places of other religions was a new phase even this second
wave of immigration. The European found it hard to accept the Muslims
migrants as permit resident citizens rather than foreigners. There were few
unsuccessful attempts by the European countries to send back these immigrants
to their country of origin though as a result of these attempts many immigrants
were sent back. In United Kingdom, the due to the change in national policy the
immigrants were urged to return their families which also changed their lives.100
The third wave of immigration to Europe begins with the immigration
of refuges and asylum-seekers in the 1980s. One of the major reasons of this
99 Césari, When Islam and Democracy Meet: Muslims in Europe and in the United States, 9-16.
100
Ibid., 14-15.
48
wave of immigration in general and of Muslim immigration in particular was
the severe restrictions on the legal immigration to the Western Europe. Germany
was affected the most during this third wave of immigration. Austria, Italy and
Spain were also affected with this wave as thousands of immigrants headed
towards these countries.101
With these immigrations, also the tensions between Pakistan, Iran, Saudi
Arabia and India, during 1980s, for the domination of Muslim world affected
the European region and it became a target of missionary efforts. This detailed
analysis of immigration waves and population of Muslims in Europe would help
the reader to under the historical aspects of the legal issues arising out later.
How the diversity in ethnicity and culture of the country of origin of these
immigrants have affected the status of Islam in Europe and the challenges it
poses in the identity of these Muslims in Europe is not difficult to ascertain. 102
It would be important to note here that after these immigration waves and
getting settled in European countries Muslims started to get concern about their
religion and its role in their life while living in non-Muslim lands. They
questioned themselves about how they have lived in non-Muslim land and
follow their religion as well. However, this self-assessment thoughts did not rise
in a short period rather gradually it happened over a period of time. The debate
of identity and affiliation with the religion was initially limited to very basic
questions of moon sighting, particularly in Ramadan and Shawwal, and halal
and haram in the life of Muslims. In the beginning, they used to as the Imaam
101 Ibid.
102
Ibid., 16.
49
or Muftis of their localities about these questions who used to give some
necessity based solutions.
In 1970s and 1980s, this self-identity quest got more importance and
immigrants started building institutions and faith schools to address their
religious questions and needs. Through these institutions and schools people
started getting Islamic dimensions in their life. In other words, they started to
lead life according to Islam. In this process, however, Muslim immigrants begin
to desire living a life according to shar’iah rules. This desire lead to so many
questions, for instance, how they can follow Islamic rulings/law and at the same
time observe the law of the land in which they are living. These confusions
attracted these Muslims to ask scholars and Muftis to advise them on these
questions.
2.1.2. What is Shar’iah?

Literally, sharia means a path to fetch water. In religious terms, it is a
path to Allah or a path leading to source. 103 Everything which Allah has revealed
to guide human beings in achieving his closeness can be called Sharia. The
Quranic revelations, which inform the whole religion of Islam, discuss various
topics. These topics include theology, philosophy, morality and legal issues as
well. Hence it can be seen that the Islamic law alone does not constitute shar’ia
rather Islamic law is a part of shar’ia along with other part dealing with theology
and many more.104 However, Islamic law have attained a central importance in

104 Jamal Malik and Misbahur Rehman, "Islamic Law and Mediation," in Rechtskulturen im
Übergang / Legal Cultures in Transition, ed. Werner Gephart, Jenny Hellmann, and Raja
Sakrani (Frankfurt am Main: Klostermann, 2015), 4.
50
the Islamic history and scholarship as well. So commonly shar’ia is considered
as a synonym of Islamic law, which is on strict academic sense not true.
Academically, Islamic law is fiqh which means understanding. 105
This understanding of revelations can be multiple and contradictory
depending upon the concept of objective of shar’iah and methodology adopted
by the Muslim scholar.106 The understanding of revelations leads to derivation
of rulings from Text by the Jurists (Mujtahid). Muslims have agreed on a certain
criterion which needs to be fulfilled in order to be considered as a Mujtahid.107
Those who cannot qualify to be a Mujtahid are supposed to follow the rulings
of any particular school of thought.108 This practise is considered as taql d or
105 It may also be noted that in early centuries, the word fiqh was also used for “theology”. To
distinguish law and theology, the latter was called ‘fiqh al-akbar’. However later theology
came to be known as ‘kalam’.
106 The objective of shar’iah has been explained descriptively in Qur n as, “O mankind, a
direction has come to you from your Lord; it is a healing for the (spiritual) ailments in your
hearts and it is guidance and mercy for the believers” (10:57). For study of objective of
shar’iah see, Muhammad Hashim Kamali, Shar’iah Law: An Introduction (Oxford: One
World Publications, 2008), 142. 27-36.
107 According to Imam Baghawi, Mujtahid is he who possesses knowledge of five sciences,
namely:- (i) Knowledge of Qur n; (ii) Knowledge of the Sunnah ; (iii) Knowledge of the
statements of the Past scholars where they had a consensus and where they had
disagreement; (iv) Knowledge of the Arabic language; (v) knowledge of Qiyas i.e. when
clear text of the Holy Qur’an and Sunnah of the Messenger of Allah and Ijma are not
available on the issue then how to derive a shari`ah value in the light of these three sources.
There are some other detailed requirements for being eligible to do ijtihad, See, Munir
Ahmad Mughal, "Ijtihad and Mujtahid," Minhaj 1, no. 1 (1983): 65-68.
108 In modern discourse on Islamic law there are arguments in favour of following one particular
school while on the other hand there is also a segment in academia in which following any
reasonable and lenient ruling of any school of thought can be followed. This second
approach is also known as talfiq or Eclecticism approach. According to this approach, one
must not be bound to follow a particular school of thought (madhab) rather if he is able to
do ijtihad he must do that. Talfiq can be explained in terms that if on a particular issue there
is probability of experiencing hardship by the opinion of a particular school of thought then
51
emulation. Emulation is defined as following a qualified ruling without
knowing the reason behind it.109
At present, suffice is to say that for legal issues of Muslims in west, scholars
propose that the issues should be understood keeping in view that context as
well.
2.1.3. Islamic Norms in Europe

Prior to the discussion of Islamic norms, it is important to understand
the political and legal scenario of European countries where they Muslim
immigrants came and eventually became a part of these societies. Firstly, each
European country has its own legal framework which is expressed through its
constitution and laws. The constitution and law serve as a backbone of country
through which the status of its citizen and residents is determined. Secondly, the
millions of Muslim immigrants who came to Europe has either impliedly or
expressly accepted to abide by the laws of land. As those who came there on
recourse may be had to the opinion of another school of thought which seems to be more
accommodating. See, Abdul Karim Usman, "Talfiq aur Dosray Madhab par Fatwa: Hadood
o Zawabit," Fikr o Nazr 48, no. 3 (2011): 98. The principle of Talfiq or Eclectic approach,
according to Taha Jabir Al-Alwani, states that one must select a most compatible solution
from traditional thought and a solution from contemporary thought which is considered and
proven to be correct. The merging outcome of these both selection will help in establishing
an intellectual structure to cope up with the contemporary issues. It would be important to
note that Al-Alwani himself is not convinced with the proponents of eclectic approach. See,
Al-‘Alwani, Issues in Contemporary Islamic Thought, 10.
109 The term taql d has been derived from the Arabic word “al-qaladah” which means to put
something in to the neck of someone. Taqlid literally means to follow the opinion of other
person without knowledge of the authority of such opinion. In technical sense, it is defined
as to follow blindly the opinion/ fatwa of a jurist without knowing its reality, source and
evidence upon which the fatwa is based. See, Naseem Razi, "Taqlid A Dilmma for Muslim
Intellect: An Analysis in the Light of Contemporary Issues of Muslim Ummah," Journal of
Asian Development Studies 3, no. 1 (2014): 117.
52
work permit or visa, they have accepted the authority of the laws of host country
completely. Those who have acquired the nationality or citizenship have taken
oath to abide by the laws. For the second and third generations of the
immigrants, they are either by birth bound by the laws of the country or if
resident, their parents have consented to abide by the laws through agreement.
Thirdly, Muslims as a minority face many challenges and issues which all the
minorities faced throughout history and around the globe. While living under
non-Muslim rule, Muslims have to differentiate between their cultural, social
and legal problems as the former needs a specific treatment. This mixing of
issues and challenges is not only done by Muslims but also by the indigenous
community. 110
There is difference between the general application of religion and the
application of legal aspects of Islam. The change of status of the Muslims in
west from sojourners to citizen was gradual which has been discussed in the
proceeding section. But this change had to cope up with many things such as
integration of these Muslims into liberal democracies. Though all the aspects
related to this issues and challenges which surfaced after this permanency of
Muslim immigrants cannot be discussed, a brief discussion is required regarding
Islamic norms before discussing the legal issues.
While applying the norms of Islam, European states have to differentiate
between legal norms and religious norms.111 The religious norms consists of

111 As stated earlier, Islamic law is the fiqh which is a part of Shar’ia. Shar’ia consists of many
areas which include theology, morality and many more. While the application of other parts
of Shar’ia may not be very problematic. However, the application of Islamic law, that is
fiqh, is complicated in west.
53
ib t (relationship between Allah and human beings) and t
(relationship between human beings) are governed by the constitutional
provisions of the European states.112 Article 9 of European Convention on
Human Rights provides that the citizens of a state are free to obey their religious
duties and manifest their religion.113 This manifestation of religion if not limited
to the private sphere of lives but also includes public manifestation. However,
the scope of public limitation is different in various European countries
depending upon their approach towards the separation of religion and state, for
instance, France and Switzerland are the proponents of restrict separation of
religion and state hence it is not allowed to wear religious symbols at public
places after a recent legislation in France. 114 But in Germany this is not the case,
rather the German constitution guarantees the manifestation of religion and
belief without much limitation. 115
112 Mathias Rohe, "Islamic Norms in Germany and Europe," in Islam and Muslims in Germany,
ed. Ala Al-Hamarneh and Jörn Thielmann (Leiden: Koninklijke Brill NV, 2008), 51.
113 See Article 9 of ECHR. “1. Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest his religion or belief,
in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or
beliefs shall be subject only to such limitations as are prescribed by law and are necessary
in a democratic society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of others.” Similar articles
can be found in other human rights instruments, for instance, article 18 of Universal Human
Rights Declaration states that “Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his religion or belief
in teaching, practice, worship and observance”.
114 Rohe, "Islamic Norms in Germany and Europe," 52.
115 Article 4 of German constitution. Wording of the article is as following, “Article 4 (Freedom
of faith and conscience) (1) Freedom of faith and of conscience, and freedom to profess a
religious or philosophical creed, shall be inviolable. (2) The undisturbed practice of religion
54
Discussing the Islamic norms in detail we can highlight the building of
mosques and Islamic schools. Muslims living in west are allowed in general to
build Mosque and Islamic school as this is a privilege they have under the
constitutional freedom of their religion. However, sometimes the design of the
Mosque or the height of minarets is questioned and is usually advised to be built
in accordance with the surrounding of the building.116
Initially Muslims were not allowed to slaughter their animals in
accordance with the Islamic injunction as the method of animal slaughtering
was not in compliance with some laws of Germany. However, Muslims were
given permission by the Federal Constitutional Court to slaughter animals
according to imperative commands of Islam and this was declared to be within
the scope of their freedom of religion.117
Hij b, Naq b, Beard, halal meat and Islamic (faith) schools are all
burning issues related to identity of Muslims living in west.118 However, as
already discussed, it is the approach adopted by the states for the separation of
state and religion which puts limit on the manifestation of religion.119 Religious
freedom though legally incorporated into the legal system of each European
country, however, there are many concepts of justice which are interpreted
varyingly according to the socio-political landscape. France, Germany, United
shall be guaranteed”. This article is read along with article 9 of ECHR while interpreting the
religious freedom and separation of religion and state.
116 Rohe, "Islamic Norms in Germany and Europe," 53-54.
117 Ibid., 55.
118 Rafeek, "Fiqh al-aqalliyy t (Jurisprudence for Minorities) and the Problems of
Contemporary Muslim Minorities of Britain from the Perspective of Islamic Jurisprudence,"
199.
119
Rohe, "Islamic Norms in Germany and Europe," 52.
55
Kingdom, and Netherlands have different stance on the headscarf issue. Also
sometimes states fail to provide halal food (required dietary) and leaves on the
religious occasions.120
2.3. Application of Islamic Law in Europe

This chapter has now paved way for the discussion about the application of
Islamic law in Europe. Analysing how the Muslims entered European territory
and how gradually they become citizens of Europe is important to understand
the later complicate debates regarding application of Shar’i h or to be more
precise the application of Islamic law. The application of Islamic norms has
been differentiated from the application of Islamic legal rules. The governing
laws of the European states regarding application of Islamic norms is different
from the domain in which the application of Islamic legal rules occurs.
The first sub-section of this section deals with the indirect application of Islamic
Law and the second sub-section deals with the direct application of Islamic Law.
However, it would be important to mention that the direct application of Islamic
Law will be more focussed as compared to indirect application keeping in mind
the topic of research.
2.3.1. Optional Civil Law

The optional civil law creates an indirect application of Islamic law in
Europe. It may be noted here that the public and penal laws are not within the
ambit of optional civil law.
120
Hellyer, Muslims of Europe: The “Other” Europeans, 112.
56
The legal relations between two private parties can exclusively be
regulated by civil law of their preference. 121 Any civil law which is not in
contradiction to the constitutional order and furthermore, the private interests of
parties are involved, the parties may opt for any law according to their
preferences. Such rules can be found in contract laws and matrimonial contracts.
In the sphere of matrimonial contracts, the implementation of Islamic
norms as optional civil law is having a great tendency in Europe. However,
provision which is in general contradiction with the public policy of liberal
democracies is not accepted even in optional civil law cases.122
2.3.2. Legal Seggregation

In Europe, there is also a growing trend of application of Islamic
provisions in the family matters of Muslim populations. For instance, in Spain
Muslim follow the Islamic rules in contract of marriages since 1992. Also in
Britain, Muslims can register their marriage contracts concluded according to
Islamic rules. In divorce cases the court requires a dissolution of marriage in
religious terms before declaring a civil divorce.123 There are demands in Europe
by Muslim population for the deployment of religious laws in certain matters
121 For example, see German Constitution Article 2, “Personal freedoms (1). Every person shall
have the right to free development of his personality insofar as he does not violate the rights
of others or offend against the constitutional order or the moral law. (Emphasis) (2) Every
person shall have the right to life and physical integrity. Freedom of the person shall be
inviolable. These rights may be interfered with only pursuant to a law”.
122 Rohe, "Application of Shar a Rules in Europe: Scope and Limits," 339. For an analysis of
Islamic norms as optional civil law in the sphere of contract laws, see, ibid., 337-39.
123 Ibid., 342. Law influenced by Islam is developing in England which is often called as
‘Angrezi Shar’iat’, see, "Islamic Law in German Courts," 49.
57
for the Muslim population. This is, however, quite problematic and the issue
arising out of these demands are following:
1. Adaptation several legal systems based on the ethnic or religious
affiliations does not fit into the European countries.124
2. The inter-religious legal conflicts would arise within a state.
3. The freedom of religion guaranteed in European states also grant the
right not to belong to any religion and also to change one’s religion. A
legal sphere based on religion within the European constitutional law
would place certain limitation on the freedom of religion.125
4. The Muslims following various school of thoughts are living in Europe.
It is ultimately impossible to apply not only Islamic rules but also the
rulings of each school of the Muslim population. It may be noted here
that Islamic law is not monolithic rather it is dynamic, flexible and
adaptive to different cultures and societies. In the beginning of the
development of Islamic studies, there were hundreds of law schools
which had different interpretations of verses and Ahadith which lead to
derivation of divergent rulings. However, at present we find very few of
them which continued to be followed and develop over the period of
time. Four Suni school of thoughts are: Hanafi, Shafii, Maliki and
Hanabli. Ja’fari, Isma’ili and Zaidi are Shia school of thoughts and one
another is Ibadi sect. Hanafi school of thought is majorly followed South
Asia, Central Asia and Turkey. Shafii School is followed in Somalia,
124 "Islamic Law in German Courts," 49.

125 For a detailed analysis of freedom of religion as a human right see, Kristine Kalanges,
Religious Liberty in Western and Islamic Law Toward a World Legal Tradition (Oxford:
Oxford University Press, 2012), 55-81.
58
Indonesia and Malaysia. Maliki School is dominant in North Afria and
Hanabli School is followed in Saudi Arabia. Ja’fari School is dominant
in Iran, Zaidi School in parts of Yemen, Isma’ili School in parts of
Pakistan and Afghanistan while Ibadi School is followed in Oman. 126
2.3.3. Private International Law

Private international law is another area of application of Islamic law in
Europe. This application is direct in nature as no legal system in world can now
claim unlimited and unrestricted sovereignty over its territory. When a person
is maintaining his/her life in accordance with a particular legal system, it is in
the interest of that person to protect his affiliation to that legal system. Even if
a legal question has aroused in another legal system, the legal system of origin
would be considered as an applicable law. However, sometimes it is also
necessary to have uniform laws for all the residents of a country. Hence this is
the private international law which will determine the applicable law to a case
between two private persons having some foreign element.127
For instance, in Germany, the applicable law in cases of personal matters
is determined on the basis of nationality of the person. For example, if a
Pakistani couple got married in Pakistan and later the divorce case is initiated
in Germany the applicable law would be Pakistani Law that is Islamic law.
Islamic law has much influence in family law cases in Europe. However, it must
be noted that an Islamic provision cannot be applied if it is in contradiction with
constitutional law of the European country.
126 Malik and Rehman, "Islamic Law and Mediation," 9.

127
Rohe, "Islamic Law in German Courts," 47-48.
59
In the cases of family law and the law of succession the applicable law is
determined on the basis of nationality in many European states, for instance,
Germany, France and Spain. The idea behind applying the law of country of
origin is to protect the affiliations to a legal system on the basis of which a
person has organized his/her life.128
2.3.3.1. Non-Applicability of Islamic Law in Europe
As earlier discussed that whatever the situation maybe, Islamic law
cannot be applied in European country under private international law if it
contradicts the public policy and constitutional law of that particular country.
The cases will be discussed in which Islamic law cannot be applied in European
countries.
Within the sphere of Family law and the law of succession, there is a
strong position and it is often tried to retain it by the Muslims.129 The main
conflict between European constitutional law and Islamic law in the sphere of
family law is due to many contradictions.130 For instance, the equality of sexes
and freedom of religion. The half share of women in property as compared to
the men cannot be accepted in Europe. Any such will may not be implemented
if it does not give equal shares to both gender in inheritance.
It is problematic to apply Islamic provisions which separate the sexes on the
basis of their responsibilities and duties. For instance, the guardianship of an
128 Andrea Büchler, Islamic Law in Europe? Legal Pluralism and its Limits in European Family
Laws (Surrey: Ashgate Publishing Limited, 2011), 28.
129 Rohe, "Application of Shar a Rules in Europe: Scope and Limits," 335-36.
130 There are many other contradictions as well such as Hadood laws. However, within the scope
and limitations of this research only family law contradictions have been discussed.
60
adult women through a male member of the family. The right of the guardian to
contract marriage on behalf of women is problematic for the European laws as
this undermines the equality of sexes. Though there is difference between
responsibilities and duties of different sexes. However, the view which creates
a picture of woman as a slave in Islam is not correct. The interpretation of verses
sometimes creates a difference of opinion among the jurists but certainly one
needs to understand things in more detail. 131 However, it may be noted here that
sometimes Muslims in Europe opt for a strict application of classical Islamic
law though there are many reforms in the Muslim world itself considering the
demands of modern times.
Freedom of religion in Europe includes the right not to belong to any
religion and right to change religion.132 In Islamic law, if a Muslim changes his
religion it amounts to apostasy (rid h) and he is supposed to be punished with
had.133 Apostasy means that a Muslim wilfully or intentionally abandons his/her
religion.134 After giving the opportunity to repent, the apostate is given the
punishment of death. 135 However, it must be noted here that this contradiction
131 Jamal Malik and Misbahur Rehman, Islamic Law and Mediation, 11-13. Also see,
Muhammad Tahir Mansoori, Family Law in Islam: Theory and Application (Islamabad:
Shariah Academy, 2012), 24-26. The example of interpretations of Qur n 4:34 is out of
many through which one can see that Islamic law is not monolithic system rather it is
dynamic and adoptive.
132 Article 9 of European Convention for Human Rights. Kalanges, Religious Liberty in Western
and Islamic Law Toward a World Legal Tradition 55-81.
133 Anwarullah, The Criminal Law of Islam (Islamabad: Shariah Academy, 2005), 207-08.
134 Ibid., 207.
135
Ibid., 208.
61
exists but cannot arise under private international law as had punishments are
in the ambit of penal laws.
Also, the prohibition of inter-religious marriages in Islam 136 is explicitly
in contradiction with freedom of religion, equality of religions and the
protection of marriages granted in the liberal societies of Europe. Muslim
women are not allowed to marry a non-Muslim whether he is ahl-e-Kit b or
idolater. However, this prohibition is not absolute for Muslim men as they are
allowed to marry women.137
In marriage cases, European countries are reluctant to consider any legal
argument from Islamic law which favours the low age of bride.138 However, it
must be noted here that the minimum age of marriage in Islamic countries is
also not very low and through legislation the minimum age of marriage is now
fifteen years and even in some countries it is eighteen years. For instance, in
Pakistan the minimum age to get married is 16 years for girls and 18 years for
136 This prohibition of marriage between Muslim woman and non-Muslim man is based on the
interpretation of Qur nic Verses 2:221 and 60:10.
137 Though the Islamic state has the right to impose ban on such marriages considering the
interest of Muslim community at large. See, Mansoori, Family Law in Islam: Theory and
Application, 91.
138 Minimum age at which it is legal to get married also varies within the European countries.
For instance, France and Switzerland minimum age to get married is 18 years for both boys
and girls, in Germany, Norway and Italy it is 16 years for both boys and girls. See Caroline
Mortimer, World minimum marriage age: Chart shows the lowest age you can legally get
married around the world, Independent, 25 July 2015, accessed 20 May 2017,
http://www.independent.co.uk/news/world/the-lowest-age-you-can-legally-get-married-
around-the-world-10415517.html
62
boys. 139 The same is the minimum age to get married in Egypt.140 In Bangladesh
it is 18 years for girls and 21 years for boys.141
In marriage cases, yet another important issue is of polygamy. European
countries accepts monogamous marriages only. However, under exceptional
circumstances polygamy is accepted in European Courts.142 For instance, let us
consider the case of Germany:
Monogamy is one of the leading German constitutional principles,
therefore, it is legally impossible to enter into a polygamous
marriage in Germany. Nevertheless, German law treats polygamous
marriages as legally valid provided that the marriage contracts are
valid under the law applicable to the formation of these contracts.
The reason is that it would not help the second wife or further wives
who may have lived in such a marriage for a considerable time to
deprive them of their marital rights such as maintenance etc. Thus
§34 sect. 2 SGB I, which contains provisions on social security
systems, regulates the per capita division of pensions among
widows who were living in a polygamous marriage. However,
German law differentiates between mainly private aspects of
marriage and predominantly public ones, especially those relating
to immigration law. The latter would not provide more than the first
139 Child Marriage Restraint Act 1929 (amended by section 12 of the Muslim Family Law
Ordinance 1961).
140 Article 90 of Egyptian Law No. 78, 1931.
141 Section 2 of Child Marriage Restraint Act 1929.
142
Rohe, "Islamic Law in German Courts," 53.
63
wife with marital privileges within its scope of application, e.g.
concerning residence permits.143
Though according to the traditional interpretation Islam law allows
polygamy but now in the contemporary world there are two positions held by
the Muslim scholars. Between these two positions one is pro-polygamy and one
is anti-polygamy. 144 However, Muslims countries are imposing restrictions on
polygamy through legislation. These restrictions include permission from first
wife, permission from Arbitration Council and financial stability of husband
intending to have another wife. In many Muslim countries, the first wife can
seek dissolution of marriage or divorce if the any of the pre-condition for second
marriage is not fulfilled.145
Also, a unilateral divorce by a Muslim husband is in contradiction with
the European laws in general. For instance, in Germany a unilateral divorce by
the husband without any reason is void as the ability of dissolve marriages
belongs to Family Courts only.146
In the Islamic world, strict rules related to guardianship and custody of
minor children are prevalent. Normally the father is responsible for financial
and social responsibilities of the child and the mother take care of the personal
needs of children (though sometimes father also part in these
responsibilities).147 The rules related to custody of child in case of divorce and
143 Ibid.
144 Mansoori, Family Law in Islam: Theory and Application, 231-32.
145 Ibid., 240-42.
146 Rohe, "Islamic Law in German Courts," 53-54.
147
Mansoori, Family Law in Islam: Theory and Application, 24.
64
second marriage are different from the European laws. If the strict application
of Islamic laws contradicts the public order of European countries then
application of Islamic provisions would not occur. Also, prohibition of child
adoption is in contradiction with the legal order of European countries. 148
2.3.4. Islamic Law in Europe: Some Further Prospects

The status of Muslim minorities living in the West has become the
subject of much controversy in recent weeks. Issues of loyalty and
treachery have dominated the political scene, while the media
constantly questions if Muslim compliance to the shari‘ah prevents
their allegiance to the nation state. So how does the shari‘ah apply
to Muslims living as minorities in non-Muslim countries?149
The demands from the few Muslims communities for recognising
Shar’iah as a binding legal system for British Muslims is neither
acceptable for United Kingdom and any other European country nor such
demand is a wise one. 150 Islamic law cannot be applied or recognised by
the European countries as a binding legal norm within their territorial
jurisdiction. Also within the domain of private international law the
European courts have to apply Islamic Law, which is an example of direct
application of Islamic law, but this is only up to the extent where there is
no contradiction between the public order and policy of the country of
court.
Having discussed the application of Islamic law in Europe and the
issues which cause the non-applicability of Islamic law, now the research
148 Rohe, "Islamic Law in German Courts," 55-56.

150
Ibid., 166.
65
will focus on the future prospects. How it is possible to apply Islamic law
in west particularly in Europe without any rejection seems to be possible
only if a context based interpretation of Islamic norms and rules is
adopted. Also, there is a need to understand that an adoptive approach is
better than altogether rejection of Islamic law in European courts
particularly under private international law.
One needs to understand that Islamic law has the ability to
accommodate according to the social change and requirement. This is not
a baseless claim rather the sources of Islamic law which include consensus
and analogical reasoning along with public interest, juristic preference
and presumption of continuity151 clearly indicates that the human
reasoning and ijitihad helps in interpreting Islamic law keeping in view
the socio-political aspects. Moreover, now the muftis and alims, who
pronounce fatawa for the Muslim minorities, are required to have
awareness of social challenges and circumstances of the Muslims living
under the non-Muslim rule. Any fatwa by a mufti living in Muslim
majority cannot help much the Muslim minorities. Rather it further creates
problems and hence, now the immigrant Muslims do not appreciate this
practice.152
The observations made in the above-mentioned section have lead us
to believe that there is need to accept the challenges and find out the
151 Kamali, Shar’iah Law: An Introduction, 142, 19.

152 Yusuf Talal Delorenzo, "The fiqh Councilor in North America," in Muslims on the
Americanization Path, ed. Yvonne Haddad and John L. Esposito (Oxford: Oxford
66
common grounds through which Muslims can live in non-Muslim lands
while completely complying with the Islamic law. In this context, the
scholars and jurists have introduced the theory of Fiqh al-aqqalliyyat
which rejected the claim that shar’iah cannot be applied in west. There are
two basic cannons of Fiqh al-aqalliyyat: firstly, it contends that Islam is
a global Religion and secondly, the rulings should be derived in the light
of objectives of Shariáh. 153
2.4. Conclusion
How Muslims became resident of European countries and how their
status eventually changed from being an immigrant to a permanent resident
having a distinct identity helped us to understand the situation of both Muslims
and European countries. At one hand, Muslims have identity challenges while
on the other hand, European countries are facing serious challenges in
integrating the Muslim population in their society. Apart from other social and
political issues, the application of Islamic in Europe is problematic and
challenging. Though the European countries apply the Islamic law, directly and
sometimes indirectly, but in case of contradiction between the Islamic norms
and public policy of European countries this application is not possible.
We can easily conclude and accept the need of a fiqh for minorities
keeping in view our discussion in this chapter. However, what are the features
of Fiqh al-aqqalliyyat and how its proponents have argued for its validity is yet
another question to be addressed. Furthermore, though conceptually and
theoretically, Fiqh al-aqqalliyyat seems to be a very simple yet attractive
153
Shammai, Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities, 2.
67
solution but there is need to understand how it will be developed and
incorporated in the major head of Islamic jurisprudence.
68
Chapter 3
Islamic Law and Muslim Minorities: From Classical to Contemporary
Era
69
3.1. Introduction
The discourse produced on Fiqh al-Aqalliyyat154 might be novel but the
issue of Muslim minorities and Islamic law is comprehensively addressed by
the Islamic jurists and it is embodied in the Islamic Jurisprudence. How the
classical jurists have dealt with the question of Muslims living in non-Muslim
land (to be more precise in dar-ul-harb) and the other related issues will be
addressed in this chapter. Since the historical background of Muslim minorities
in context of Islamic law has been discussed quite effectively by many scholars,
the present research only gives an overview. The focus is the analysis of
scholarship produced on the Fiqh al-Aqalliyyat and study of the theories of the
contemporary scholars in this field. The doctrine of Hijra, aman and the legal
obligations Muslim Minorities owe towards the non-Muslim entities where they
are living and towards the Muslim Ummah are also somehow addressed in
between the other issues but certainly they are not the main focus of the
research.
The chapter initially discusses the classical and traditional opinions of the
jurists of various school of thought, may also be called madahab, regarding the
Muslim minorities. In the second section of this chapter, the research discusses
and examines the contemporary discourse of Fiqh al-Aqalliyyat specifically the
ideas and theories of Traiq Ramadan, Yusuf Al-Qaradawi and Taha Jabir Al-
Alwani. The chapter concludes with the findings of analysis done and paves the
154 Fiqh al-Aqalliyyat, Jurisprudence of Minorities, Muslim Minority Law, all these terms are
used interchangeably and for the present research we presume the same meaning for all of
them.
70
way for the next chapters. The development of Fiqh al-Aqalliyyat is discussed
in detail in the last chapter.
3.2. Analysis of Classical Islamic Law Regarding Muslim Minorities

To analyse the Islamic law on the issue of Muslim minorities, one needs to
figure out the possible questions which are addressed in the scholarship
produced. Among many other questions, the most important one is whether the
Muslims can reside in non-Muslim lands? Even though Muslims are living there
in past and present but the juridical bases for such residence need to be explored
and researched.
The Fiqh al-Aqalliyyat’s doctrine was introduced by two prominent
religious scholars Dr. Taha Jabir al-Alwani of Virginia and Yousaf al-Qadawari
of Qatar in 1990s.155 But the issues of Muslim minorities and Islamic law has
been discussed earlier by various classical school of thoughts. These school of
thoughts have a divergent view and it can be suggested that the discourse is
dispersed, complicated and ambivalent.156 The major scholarship produced on
the topic is by the jurists living in Dar-al-Islam. Fatawas and writings of jurists
residing in Dar-al-harb are extinct and not properly preserved.157 Keeping in
mind these two points, the research will examine the classical opinions on the
Muslim minorities.
155 Shammai, Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities, 1.

156 El Fadl, "Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities
from the Second/Eighth to the Eleventh/Seventeenth Centuries," 159.
157 Ibid., 182. Also see, "Striking a Balance: Islamic Legal Discourses on Muslim Minorities,"
49.
71
The most important issue linked with the residence of Muslims in the non-
Muslim lands is the notion of dar-al-Islam and dar-al-Harb.158 How the
classical jurists have identified this division of the world into the dar-al-Islam
and dar-al-Harb (also known as abode of Islam and abode of unbelief) needs to
be clarified. The division is often neglected by the contemporary scholars and
the idea behind this division is misunderstood. The proceeding paragraphs first
discuss the concept of Dar and then the issue of Muslim’s residence in dar-al-
harb. Having examined the opinions of classical jurists, the research highlights
the few secondary issues (primary issue which is discussed by Jurists is of
residence in dar-al-harb.)
3.2.1. Concept of Dar

The concept of Dar is central to many juridical debates. This concept
serves as a base of many other juridical ideas and notions. Even though this
division of the world was something which was proposed by the classical jurists
but still in the contemporary world one needs to rethink and revise the idea
rather than altogether rejecting the notion of dar by declaring it to be of a
temporary nature and presuming that it was only relevant in the era in which it
was deployed. This re-reading may help in understanding many historical and
contemporary issues and challenges which are associated with this dichotomous
division.
158 Dar-al-Islam and Abode of Islam will be used interchangeably. There might be some
technical differences between these term, nevertheless, Dar-ul-kufr/ Dar-u;-harb/Abode of
unbelief will be used interchangeably. For the technical difference in the definitions of these
term see, Muhammad Mushtaq Ahmad, "The Notions of D r Al- arb and D r Al-Isl m in
Islamic Jurisprudence with Special Reference to the anaf School," Islamic Studies 47, no.
1 (2008): 9.
72
The main understanding of this division is misunderstood due to its
connectivity with the nature of relationship between Muslims and non-
Muslims. 159 Usually the scholars relate and discuss three notions in the same
ambit namely; the cause of war, the nature of relation between Muslims and
non-Muslims, and the division of the world into two abodes. According to this
view the nature of relationship between Muslims and non-Muslims is hostile
and this means one accepts that the cause of war is elimination of infidelity. The
acceptance of these two theories give raise to another theory which states the
division of the world into two abodes.160 Now this means that if the nature of
relationship is not hostile and the cause of war is aggression and not elimination
of infidelity then there is no division of world or at least this division is not of a
permanent nature.161
Contrary to this idea, another view regarding this division is that
dichotomy of the world is permanent and it has nothing to do with the nature of
relationship between Muslims and non-Muslims. Instead this division upholds
the principle of territorial jurisdiction by the majority of Jurists specially the
Hanafi Jurists. 162 The issue of Muslim minorities and the Islamic law wherever
discussed has been directly started from the issue of residence in dar-ul-harb
without giving much consideration to the concept of dar.163
159
Muhammad Munir, "Public International law and Islamic International Law: Identical
Expressions of the world Order," Islamabad Law Review 1, no. 3&4 (2003): 372.
160 Ibid., 372,403.
161 Ibid., 409.
162 Ahmad, "The Notions of D r Al- arb and D r Al-Isl m in Islamic Jurisprudence with
Special Reference to the anaf School," 6-7.
163 Most of the western scholars have not studied the original Arabic texts of Islamic Law so
their opinions are very much based on the translations. But the main issue is influence of the
73
Even though the concept of dar itself is controversial for few and it is
often suggested that this concept should be abandoned now.164 But if we refer
to the writings of Hanafi Jurists then the situation is less complicated. According
to this view, the sword verses165, which are quoted as an argument of the opinion
that the reason of war (illa tul Jihad) is elimination of infidelity (kufr), were
time-area specific. The relationship between Muslims and non-Muslims is
rather based upon the Surah Baqra Verses166 according to which the reason of
war (illa tul Jihad) is aggression (Muharbah).167
Now if the relationship between Muslims and non-Muslims are peaceful
and the division of the world into two abodes is just for affirmation of territorial
jurisdiction of Islamic courts, the issue is less complicated. Now the point is that
even if the relationship between Muslims and non-Muslims are peaceful and it
has nothing to do with the dichotomous division of world, is it permissible for
translators on these western scholars. The assumptions and views of the translators are taken
up as an established fact by the western scholars. Most of them believe in the hostile
relationship of Muslims and non-Muslims and they also link up this nature of relationship
with the division of the world into two abodes. "The Scope of Self-defence: A Comparative
Study of Islamic and Modern International Law," 156; El Fadl, "Islamic Law and Muslim
Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the
Eleventh/Seventeenth Centuries," 142.
164 Sheikh Wahbeh Al-Zuhili, "Islam and International Law," International Review of the Red
Cross 87, no. 858 (2005): 278-79. Also see, Munir, "Public International law and Islamic
International Law: Identical Expressions of the world Order," 403-09.
165 Qur’ n 9:5, 9:29, 9: 33. For a detailed analysis of these verses, see, Muhammad Mushtaq
Ahmad, "Revelation of Very First Part of S rah-e-Tobah and its Historical Context: A
Critical Analysis in the Light of Internal and External Evidences," Fikr o Nazar 53, no. 1
(2015): 9-49.
166 Qur’ n 2:256.
167 See for a scholarly analysis of this issue, see, Ahmad, "The Notions of D r Al- arb and D r
Al-Isl m in Islamic Jurisprudence with Special Reference to the anaf School," 23-26.
74
Muslims to reside in dar-ul-harb/ non-Muslim lands? If they are allowed then
what about the obligation of hijra? Also, the purposes of jihad need to be
discussed in this context as well. But a detailed discussion of these two will be
out of scope of this research. However, the analysis of issue of residence outside
dar-ul-Islam will somehow give an idea about the view of each school regarding
hijra.
3.2.2. Question of Residence and Other Secondary Issues

The classical juristic opinions are diverse on this issue of residence in
dar-ul-harb. The issue of Hijra (Migration) is also linked up with the legality
of residing outside dar-ul-Islam. Along with this, let us explore the status of the
Muslims living outside the territory of Islam in the context of Muslim Ummah
and see how jurists have identified (or differentiated) the applicable laws to
these Muslim minorities. These questions are addressed together but the opinion
of each school of thought has been discussed separately for the sake of clarity.
So how a particular school of thought has addressed these questions give us a
boarder picture to understand the juristic discourse.168
3.2.2.1. Maliki School of Thought
168 For an excellent review of historical analysis of juristic opinions on the issue of Muslim
Minorities, see, Kahlid Abou El Fadl, "Islamic Law and Muslim Minorities: The Juristic
Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth
Centuries."; "Muslim Minorities and Self-Restraint in Liberal Democracies."; "Striking a
Balance: Islamic Legal Discourses on Muslim Minorities."; Fadl Khaled Abou El, "Legal
Debates on Muslim Minorities: Between Rejection and Accommodation," The Journal of
Religious Ethics 22, no. 1 (1994).
75
According to the early jurists of Maliki school169 the residence of
Muslims in non-Muslim lands is not allowed as Muslims, in that case, will be
subjected to the laws non-Muslims.170 Imam Malik has disapproved the
entrance of Muslims in non-Muslim lands even for trade purposes.171 The
Maliki position become uncompromising only after the fall of Toledo in 1085.
Before the fall, the Maliki jurist Ibn’Abd al-Barr al-Qurtubi wrote down his
opinion that it is generally not allowed for Muslim to reside in non-Muslim
lands but they may temporarily reside there if they are safe and can protect their
faith.172 But after the fall of Toledo, which resulted in a number of defeats for
Muslims in Al-Andalus, the Maliki school of thought become strict and rigid.
The Maliki Jurist Ibn Rushd173 was of the opinion that Muslims should not
reside in non-Muslims lands and they are not allowed to travel to dar-al-harb
even for trade purposes. He doubted the credibility of the Muslims residing in
the non-Muslims lands, denied their testimony in the courts of law and
according to him such Muslims are not allowed to lead the prayers. 174 But this
is not an agreed upon view of his school as another Maliki Jurist al-Mazari was
of the opinion that the Muslims are not allowed to reside in dar-ul-harb but one
169 The Maliki School is one of the four sunni schools of fiqh. It is named after the famous jurist
Malik ibn Anas (711-795 CE).
170
Abu Bakr Ibn al-Arabi, Ahkam al-Qurán, vol. 1 (al-Qahirah: Dar Ihya’ al-Kutub al-Arabiyya,
1957), 484.
171 Ibn-Anas Malik et al., al- Mudawwana al-Kubra, vol. 3 (Bairut: Dar al-Fikr, 1991), 278.
172 Yusuf Ibn- Abdallah Ibn- Abd-al-Barr, Al- Kaf f fiqh ahl al-Mad na al-malik (Bairut: Dar
al-Kutub al- Ilm ya, 1987), 210.
173 For an introduction of his writings and analysis see, Dominique Urvoy, Ibn Rushd
(Averroes), trans. Olivia Stewart (New York: Routledge, 2016).
174
Ibn Rushd, Al-Muqaddimat, vol. 2 (Bairut: Dar al-Garab al-Islami, 1988), 153.
76
may not question their credibility as the circumstances may justify their
residence.175
The established position of Maliki School after sixth/twelfth century
was uncompromising. This school had formulated the view that Muslims must
not reside in dar-al-harb but their residence may be excused if there is a justified
reason or excuse. But they must immediately leave the territory of war once the
excuse to reside there is removed. Two fatawas issue by Maliki jurist al-
Wansharisi, who condemned the acceptance of Mudejar status by the Muslims,
explains the Maliki position.176 But this view itself is contested within its own
school as sometimes the fatawas were influenced by the historical and
geographical experience of the jurist. 177
Now the Maliki School on the question of relationship between the
Muslims residing in dar-al-harb with the dar-al-Islam and Islamic community
is not very simplified. As far as Muslim minorities in the context of Muslim
Ummah are concerned, all the school of thoughts are agreed upon the fact that
no matter where the Muslims residue, they are a part of Muslim Ummah.178 This
175 Ahmad Al-Wansharisi, Al-Mi y r al-Mu rib wa-l-Jami al-Mughrib an Fat wa Ulama
Ifr qiya wa-l-Andalus wa-l-Maghrib vol. 2 (Bairut: Dar al-Garab al-Islami, 1981), 133-34.
176 See Leonard P. Harvey, Muslims in Spain, 1500 to 1614 (Chicago: University of Chicago
Press, 1990), 56-63.
177
For the different views within the Maliki school, see, Ahmad ibn Muhammad Al S wi,
Bulghat al-Salik li-Aqrab al-Masalik, vol. 1 (Qahirah: Mus afa al-Bab al-Halab , 1952),
361; Al Ibn Ah mad As-S d and Al Ibn Muhammad Al-Manu f , shiyat al-'Adaw
'ala Sharh Ab al-Hasan li-Risalat Ibn Ab Zayd, vol. 2 (Qahirah: Mus afa al-Bab al-Halab ,
1995), 4.
178 See, Césari, When Islam and Democracy Meet: Muslims in Europe and in the United States,
91-92; Muhammad ibn Ahmad Sarakhs , Al-Mabsu , vol. 10 (Bairut: Dar al-Ma'rifah,
1986), 61. For the study of Ummah’s concept in Fiqh al Aqqalliyyat see, Hassan, Fiqh Al-
77
question is more of a theological nature rather than legal. But when one turns
towards the legal dimensions of this issue, the jurists are not unanimous. On the
point that whether the person and property of the Muslim minorities are
protected, jurists of each school of thought come up with a different view while
relying on some text (Nas) and other sources of Islamic law.
The Maliki School is agreed upon the inviolability of the Muslim as
person. But the inviolability of the property of Muslim is protected or not is a
contested view. Al-Wansharisi argued that Malik has agreed with Abu Hanifa’s
territorial protection view in case of property. But according to Ibn Rushd,
Malik differentiated between the inviolability of person and property which
means that Islam protects the person but not the property.179 According to Ibn
al-‘Arabí, Maliki Jurists are divided on this issue and they have not dealt this
unyielding question systematically. 180
While on the question of applicability of Islamic law, Maliki School is
of the view that Islamic law applies universally no matter where a Muslim
lives. 181
3.2.2.2. Hanafi School of Thought 182
Aqalliyy t: History, Development, and Progress, 143-44. For the understanding of concept
of Ummah in European context, see, Ramadan, To be a European Muslim, 153-62,73-75.
180 Ibid., 169.
181 Ibn-Anas Malik et al., al- Mudawwana al-Kubra, vol. 4 (Bairut: Dar al-Fikr, 1991), 425; Ibn
Qudamah, Al-Mughni, vol. 10 (Bairut: Dar al-Kutub al- Ilm ya, n.d), 162.
182 Imam Abu Hanifah Nu’man ibn Thabit (699-767 CE) is the founder of the sunni Hanafi
School of fiqh.
78
Hanafi Jurist, Imam al-Shaybani has conceded that Imam Abu Hanifa
disapproved the residence of Muslims in non-Muslims lands.183 However, there
are reports quoted in Hanafi School that the duty to immigrate was abolished
after the life of Holy Prophet (P.B.U.H). However later the developed position
of Hanafi School was that the residence of a Muslim in non-Muslim land
depends upon the circumstances and situation at that time.184
On the relation between Islamic Polity and Muslims in non-Muslim
lands, Hanafi School argues that theologically Muslims are part of the Ummah
but as far as the inviolability of Muslim is concerned the answer is different.
According to Hanafi School of law the source of inviolability is territory of
Islam. Hence, even though morally inviolable, the Muslims residing outside the
territory of Islam do not afford protection.185
As to the question of application of Islamic law on the Muslims in non-
lands, Hanafi school again categories the situation into legal and moral. So, for
them, the prohibition prescribed by Islam is universally for all Muslims but the
universal application is in the moral sense only. Legally, the Islamic courts do
not have jurisdiction over the crimes committed outside the territory of Islam.
Therefore, if a murder is committed by a Muslim in dar-al-harb, he will be
183 Mu ammad ibn al- asan Shayb and Majid Khadduri, The Islamic Law of Nations:
Shaybani's Siyar (Baltimore: Johns Hopkins University Press, 2001).
from the Second/Eighth to the Eleventh/Seventeenth Centuries," 159, 64.
185 Ahmad, "The Notions of D r Al- arb and D r Al-Isl m in Islamic Jurisprudence with
Special Reference to the anaf School," 9, 12.
79
liable for that in hereafter but cannot be punished by the Islamic courts of dar-
al-Islam.186
3.2.2.3. Shafi School of Thought
Al-Shafi187 has addressed the issue of residence differently. According
to him, the residence of Muslims outside the lands of Islam during the life of
Holy Prophet (P.B.U.H) was with his permission. So a Muslim can reside under
the non-Muslim rule if he does not have fear of getting away from Islam.188 Also
al-Mawardi has marked a distinctive opinion of the Shafi’i School. According
to him, if a Muslim is able to manifest his religion in non-Muslim lands that
land will become dar-al-Islam and Muslims are supposed to stay there rather
than migrating to dar-al-Islam.189 Like Hanafi Jurists, for the Shafi’i jurists the
duty of migration depends upon the circumstances.
On the question of relationship between Muslim minorities and dar-al-
Islam, Shafií jurists hold that the inviolability of person and property of Muslims
are due to Islam and not territory. So, wherever the Muslims are they are
theologically part of Muslim ummah and they are protected.190 Shafi’i school
186
Shayb and Khadduri, The Islamic Law of Nations: Shaybani's Siyar, 171.
187 Imam Abu ‘Abdullah Muhammad ibn Idris al-Shai’I (767-820 CE) is the founder of Shafi’I
school of fiqh.
188
Abu ‘Abd Allah Al-Sh fii, Al-Umm, vol. 4 (Bairut: D r al-Ma’rifa, 1973), 161.
from the Second/Eighth to the Eleventh/Seventeenth Centuries."; "Muslim Minorities and
Self-Restraint in Liberal Democracies."; "Striking a Balance: Islamic Legal Discourses on
Muslim Minorities."; Khaled Abou El, "Legal Debates on Muslim Minorities: Between
Rejection and Accommodation."
190 Ibn Hajar Al-Haytham , Fath al-Jawad bi-Sharh al-Irshad, vol. 2 (Qahirah: Mus afa al-Bab
al-Halab , 1971), 2, 346.
80
holds the opinion of universal application of the Islamic law irrespective of
where a Muslim is.191
3.2.2.4. Hanabli School of Thought
The Hanabli jurists192 have argued that migration is not obligatory if the
Muslims can reside in a non-Muslim land without fear of any loss and harm and
also that they can manifest their religion. However, Muslims are recommended
to migrate so that they may not contribute to the strength of non-Muslims.193
Unlike the other school of thoughts, both of these school of thoughts have not
discussed this issue of residence in detail. They have developed a compromise
situation and it states that the residence may not be considered as a sin and that
Muslim may be considered an ethical and having good moral character.194
Hanabli school have conceded that Muslim minorities as a part of Muslim
Ummah. Also, the inviolability of the Muslim minorities has been accepted by
these jurists. On the application of Islamic law Hanabli school have a similar
argument like that of Maliki school, which states that the Islamic law is
universally applied to all Muslims and if someone is violating it the courts of
dar-al-Islam have jurisdiction over that no matter where it was committed.195
This overview gives a wider picture to the reader about the classical view of
jurists regarding the Muslim minorities. The opinion of jurists is different and
191 Abu ‘Abd Allah Al-Sh fii, Al-Umm, vol. 7 (Bairut: D r al-Ma’rifa, 1973), 354-55.
192 The Hanabli school of thought is one of the four sunni schools which is founded by Imam
Ahmad ibn Hanbal (ca. 762-765 CE).
193 Hanabali opinion: Qudamah, Al-Mughni, 10, 380-82.
195
Ibid., 173.
81
distinct. Even within a school there is diversity and variety of opinions. At few
points, there is ambiguity and perhaps this ambivalent nature of classical juristic
opinions helps the contemporary scholars to explore more and give some
practical solutions to the Muslim minorities in the present era.
3.3. Contemporary Scholars on The Issue of Muslim Minorities

The discussion of classical texts and jurists is always helpful before any
other analysis as it helps to elaborate and examine the ideas with more clarity.
Furthermore, the comparison and contrast between the scholarship on a
particular topic, and in this case on the issue of Muslim minorities can be better
understood.
The Muslims jurists who have identified the Islamic law during the classical
and medieval era faced a very different situation. The contemporary scenario of
Muslims in modern world is a unique situation not happened before in the
history. But nevertheless, this changing of the facts and circumstances not at all
vanishes the importance of Jurists and their derived legal rulings. However,
there is a critical need to look into the Islamic law and the contemporary
challenges Muslim minorities are facing today. Also, the need of Ijtihad and
reform is to be defined again and implemented with due care and diligence.
Islamic modernism and the method of reforms is indeed an interesting area of
research but this would be out of scope of the present research. 196
196 On the topic of reform in Islamic thought see, Mazheruddin Siddiqi, Modern Reformist
Thought in the Muslim World (Islamabad: Islamic Research Institute, 1982). Also for a
scholarly discussion on the topic of Islamic modernism and methods of reforms see, Fazlur
Rahman, "Islamic Modernism: Its Scope, Method and Alternatives," International Journal
of Middle East Studies 1, no. 4 (1970): 317-33.
82
The scholars who has done research on the issue of Muslim minorities in
one way or another cannot be reviewed or analysed in a single research. Even
though the major issues they all addressed maybe same but their method and
conclusion are so distinct that they all need to be discussed separately. The
present research discusses the three prominent scholars in the field of Islamic
law and Muslim minority namely; Yusuf al-Qaradawi, Taha Jabir al-Alwani and
Tariq Ramadan. Their ideas are highlighted and the main characteristics of their
theories are discussed in the following sub-sections.
3.3.1. Tariq Ramadan and European Islam

Tariq Ramadan is not an unfamiliar name to the readers of Islam in the
European context. Tariq Ramadan is Professor of Contemporary Islamic
Studies at the Oxford University (Oriental Institute, St Antony’s College) and
also teaches at the Oxford Faculty of Theology. He has contributed a lot on the
issue of Muslims in the West and the intercultural and interfaith dialogue. 197 His
writings are focused on the issue of Islam in the west and how compatibility can
be found between these two notions often conflicting with one another. He has
come up with the idea of reform and (re)reading the original texts of Islam
which is perhaps an interesting point of scrutiny. Without giving regard to his
background and affiliations, his work is read and reviewed for the purposes of
understanding his point and its authenticity as compared to others.
Tariq Ramadan have a number of books on his credit. Among them, “To
be a European Muslim” The Islamic Foundation UK 2000, and “Western
Muslims and Future of Islam” OUP USA (2008), are mainly consulted for this
197
http://tariqramadan.com/english/biography/ last assessed 30-Jan-17.
83
review of his ideas. But the focus is the discussion of proposed ‘European Islam’
by him.
To be a European Muslim by Tariq Ramadan is a systematic attempt of
exploring the Islamic sources and their usefulness in the European Context. The
book has been divided into two parts. The first one deals with the theological
aspects of Islam. Even though it is a theoretical part but its close scrutiny can
suggest the Muslims of Europe some solutions for the issues they have in being
a European Muslim. The second part is also interesting as it deals with particular
practical issues and states solution and recommendations for facing those issues.
Ramadan has given the concept of European Shar’iah or to be more
precise, European Islam. Whether it is possible to develop such notions into a
practical approach is altogether a different thing. What we are concerned here
is to highlight what he has suggested and to evaluate the authenticity of his
claims. His book ‘To be a European Muslim’ discussed the Islamic law and the
implementation of it in the European context. 198 He has brilliantly elaborated
his point and then also explained the possible ways of application of his view in
the European context.
For him the Islamic law is not rigid and even not dependant on the
sources other than Quraan and Sunnah, which are the primary sources. Islamic
law is compatible to all the situations and give a solution to the challenges faced
by its believers, no matter where and into what they are.199

199
Ibid., 75.
84
The point of scrutiny for us is that whether what he suggested is
something acceptable and compatible for the Muslim community at large.
Perhaps his idea maybe a suggestive one and it shows some compatibility with
the liberalism at some point200 but how much he is going off the route is another
perspective to be discussed. Andrew F. March, has examined Ramadan’s work
comprehensively as a political scientist and concluded that the suggestive idea
of Ramadan gives evidence that there can be an overlap between political
liberalism and Islam. He has analysed and evaluated the ideas of Ramadan by
the yardstick of Political liberalism and found it to be in accordance with it.
However, Ramadan’s suggestion of completely disregarding the
classical jurists, the division of the world into two abodes201 and clearly putting
everything under the head of Zani, except the five pillars of Islam which are
obviously under the head of Thabit, is quite problematic. 202 Even though the
importance of Ijtihad cannot be denied but nevertheless labelling all things open
to reform creates many uncertainties.
Ramadan’s work highlights a degree of over scepticism regarding
practicability of the classical Islamic law and stating it to be out dated in the
contemporary world. The suggested redefining of the sources and reshaping of
the Islamic law is ultimately the rejection of the volumes of work done by the
classical jurists is not only ignorance but also a surprise. How come anyone
200 See, March, "Reading Tariq ramadan: Political liberalism, Islam, and "overlapping
consensus"."
202
Ibid., 43.
85
altogether rejects the classical jurisprudential discourse, read the original texts
again and compile a new Islamic law compatible for the Modern times!
Even though one may not reject the idea of Ijtihad, but certainly
agreement is not possible with the notion of Tariq Ramadan in fullest. The need
is to make constant use of Ijtihad to strive a compatibility between Islamic law
and the altering environments and challenges keeping in view the classical
jurisprudential principles. Ramadan’s approach maybe plausible for some but it
cannot appeal the Muslim community at whole.
Western Muslims and The Future of Islam203 is yet another attempt by
Ramadan to explain its point of view which is enumerated in his previous book
‘to be a European Muslim’. The criticism and the challenges faced by the idea
presented in his previous book is addressed and replied.
3.3.2. Yusuf Al-Qaradawi and Theory of Fiqh Al Aqqalliyyat
Yusuf al-Qaradawi, a prominent contemporary scholar in the academic
circles and a well-known name for Muslims especially living as minorities
around the globe. His authority was considered international after his
involvement in the European Council for Fatawa and Research (ECFR)204 and
International Union of Muslim Scholars (IUMS). 205 Having a strong profile of
being an authority for Muslims, it is hard to categorically call him an alim,
traditionalist, fundamentalist or Reformer.206 However, nothing can refute the
203 Western Muslims and the Future of Islam (New York: Oxford University Press, 2004).
204 http://www.e-cfr.org/ last assessed 02-02-2017
205 http://iumsonline.org/ last assessed 02-02-2017
206
Hassan, Fiqh Al-Aqalliyy t: History, Development, and Progress, 62-65.
86
fact that he is an influential Sunni scholar, having a firmly grounded authority,
and has contributed a lot in the development of Fiqh al aqqalliyyat. 207
The research attempts to explore his theory of Fiqh al aqqalliyyat and its
methodology without discussing his qualifications, affiliations and work done
other than in the field of Fiqh al aqqalliyyat which is our main focus.
Al-Qaradawi have a neutralized stance on the issue of Dar-al-harb and
Dar-al-Islam. For him there is only dar-al-ahd (due to the social contract
between Muslims and their host countries) and he believes in proposing terms
and notions to replace the classical division of the world into two abodes.208
However he not only rejects the prohibition of residence in the non-Muslim
lands but consider it to be obligatory for the purpose of da’wa.209
Fiqh according to al-Qaradawi is a science which deals with providing
the right solutions to Muslims in their lives. For him the protection and firmness
in faith is more important than restricting the legal rulings. The internal aspects
of faith and purification of heart is a primary concern and is more significant as
compared to the external application of Sharí rulings in one’s life.210
The fiqh for minorities is a part of the general fiqh and have the identical
sources, namely, Qur’an, Sunnah, Ijma (consensus) and Qiyas (Analogical
reasoning). 211 However the fiqh for minorities is flexible and due regard is given
207 For his biography and complete list of his Fatawas and publications, see qaradawi.net.
208 Yusuf Qaradawi, Fiqh al-Jihad, Dirasah Muqaranah li-Ahkamih wa-Falafatih fi Dawál
Qurán wa al-Sunnah (Cairo: Wahba Bookstore, 2009), 239.
209 Fi Fiqh al-Aqqaliyyat al-Muslimah (Cairo: Dar Al-Shuruq, 2001), 33.
210 Ibid.
211 Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective
(Hampshire: Macmillan, 1988), 31.
87
to the context and circumstances while drafting a ruling or fatwa. 212 The shar’iah
rules for the Muslim minorities were derived and issued keeping in view their
weakness in the non-Muslim lands. The weakness of Muslims in the non-
Muslim lands is the basic line of argument present in the theory of fiqh al-
aqqalliyyat proposed by al-Qaradawi. 213 The most important base of fiqh al
aqqalliyyat is universality of Islam. Linked with this idea of universality is
gradual application of shar’iah. Both of these are frequently quoted in the
literature of fiqh al aqqalliyyat and are important notions and principles in this
literature.214
According to al-Qaradawi, the fatawa issued by the Muslims scholars
living in the majority areas cannot comply with the situation of Muslim
minorities due to the lack of awareness of Muslims situation in non-Muslim
lands.215 For him a fiqh is required which is based on reality of Muslim
minorities condition, the divine text and the legal rules of jurisprudence.216
The sources of fiqh al aqqalliyyat are identical to the sources of general
fiqh. To state namely, Quraan, Sunnah, Ijma and Qiyas. Then also the contested
sources are included into them which are, Istislah (consideration of public
interest), Istishan (ruling bases on jurists’ discretion without a legal proof), Sadd
al-Dhara’i (ruling based on precaution to block the means for an unlawful act
and Urf (ruling based on custom).217 Now the question is how to highlight the
212 Qaradawi, Fi Fiqh al-Aqqaliyyat al-Muslimah, 35.

213 Ibid., 78.
214 Hassan, Fiqh Al-Aqalliyy t: History, Development, and Progress, 76.
215 Qaradawi, Fi Fiqh al-Aqqaliyyat al-Muslimah, 29.
216 Ibid., 35, 36.
217
Ibid., 37-39.
88
methodology of al-Qaradawi to use these sources in order to make a serve his
general position.
Al-Qaradawi states that whenever an issue arises the solution is to be
sought out from the fiqh manuals. If the solution exists, then an elective ijtihad
will be done by the Jurist so that the best solution for the situation can be
suggested no matter if the solution is not agreed upon rather is of a contested
nature. If the solution does not exist, then a creative ijtihad will be done keeping
in view the jurisprudential principles and maxims only after that a solution can
be achieved for the issue arising out of contemporary situation. 218 But for the
al-Qaradawi ijtihad is not a reform or innovation in religion rather a duty to
comply with the religion and the contemporary situation.219
Along with this al-Qaradawi has adopted the principle taysir for the
Muslim minorities.220 According to this principle, whenever there is any
hardship there will be easiness. 221 Also he is a no-sect proponent, a principle
which is also known as talfiq or eclecticism Talfiq can be explained in terms
that if on a particular issue there is probability of experiencing hardship by the
opinion of a particular school of thought then recourse may be had to the opinion
of another school of thought which seems to be more accommodating.222
According to al-Qaradawi, if one is free from following a particular madhab,
this will help the Muslims minorities to abide by the rules and principles of their
218 Ibid., 40, 41.

219 Ibid., 41.
221 ‘Hardship is to be alleviated’ (al-mashaqqatu tajlib al-taysir), see, Kamali, Shar’iah Law:
An Introduction, 142.
222
Usman, "Talfiq aur Dosray Madhab par Fatwa: Hadood o Zawabit," 98.
89
religion in a better way. Due to this approach, al-Qaradawi selects any opinion
from any sect which he believes to be better corresponding to the issue or
situation at hand.223
Even though the discourse of fiqh al aqqalliyyat was once considered as
undetermined set of rules and principles but now due to the fatawas and
methodology of scholars like al-Qaradawi have heated the debate. However,
still being a developing discipline or better to say jurisprudence, none is
succeeded in giving a flawless methodology. The comprehensive methodology
of al-Qaradawi is also subjected to many criticisms. The use of maxims which
can create easiness is lawful but there are certain limits as well. Also, the no-
sect approach, which is also known as tafliq (eclecticism), is quite problematic
for many.224 Other than that, the creative ijtihad means a number of ijtihad
keeping in view the individual’s needs. Al-Qaradawi has addressed this
criticism by stating that the minorities of west should be considered as
individual in a collective sense. But still this open nature of fiqh proposed by al-
Qaradawi will make the jurisprudence subject to many so-called scholars who
can amend and alter the principles related to ijtihad altogether.
Also, any legal student can easily figure out that how important is
following a particular school of thought is. Whatever school you follow you
have to follow it completely for having a consistency in rules and actions.
223 Yasmin Hanani Safian, "The Contribution of Yusuf Qaradawi to the Development of Fiqh,"
Electronic Journal of Islamic Law and Middle Eastern Law 4, no. 47 (2016): 47.
224 For a detailed scholarly analysis of principle of tafliq see, Usman, "Talfiq aur Dosray Madhab
par Fatwa: Hadood o Zawabit," 91-126.
90
Selecting the favourable opinions from various school of thought is yet another
issue within the theory of al-Qaradawi.
3.3.3. Taha Jabir Al-‘Alwani and Theory of Fiqh Al Aqqalliyyat

Taha Jabir al-‘Alwani is famous for his project Islamization of
knowledge which is presented as a model in the shape of Fiqh al Aqqalliyyat.225
Al-‘Alwani was born in Iraq in 1935 but he groomed as a Scholar and a jurist
in Egypt. He studied in al-Azhar for 20 years from where he did his graduation,
masters and PhD with specialization in Shar’iah and Law. Earlier in his career,
his main focus was teaching and he did not contribute much to research and
writing during the ten years he spent in Saudi Arabia (1975-1985). He wrote
many articles but their circulation was limited.226 However he participated in a
number of international conferences through which he developed interest in
Muslim minorities living in west and the legal issues they were facing. In 1977,
al-‘Alwani get involved in the establishment of International Institute of Islamic
Thought (IIIT) and its main project Islamization of knowledge.
According to al-‘Alwani, Islamization of knowledge is the only solution
for the revival of the Muslim Ummah. Most of his writings, interviews and
lectures are revolving around this concept of Islamization of knowledge which
has been proven to be the mission of his life.227 Under the head of Islamization
of knowledge, al-‘Alwani has introduced his controversial reading of Islamic

226 For a detailed list of his publications, see Al- ‘Alwani’s webpage:
http://www.Alwani.net/cv.php (last accessed 16-2-2017).
227 For a compilation of al- ‘Alwani’s writings on the issue of Islamization of knowledge, see
Al-‘Alwani, Issues in Contemporary Islamic Thought.
91
sources.228 He also established the methodology of knowledge which combined
Religion and social sciences.229
The core concept of Islamization of knowledge is based on the
combination of two factors, namely; Islamic goals and scientific
tools/production processes. According to al-‘Alwani, the Islamization of
knowledge is an output of three elements; Unseen (that is faith), universe (which
symbolizes material and substance) and man (who is an agent and intellect).230
He firmly states that in order to have a balanced life and ease the hardships one
needs to adopt a dual reading approach that is reading the Wahy (Quraan) along
with Wajud (universe). For him if Quraan is to be read in the context of universe
so that the laws and existence can be understood well. An isolative reading of
one can neither produce effective results nor was this intended. 231
But the generalization adopted by al-‘Alwani in his methodology has
received much criticism. Another strong criticism is against his approach
towards Sunnah. He considers Sunnah as a source of illustration of Shariah
rather than source of legislation. 232 Also his ambivalent position on the turath
is been criticised. While he rejects the idea of consulting the asbab al-nuzul and
al-nasikh wa-al-mansukh, he is at the same time advocating the application of
contextual rules of the Quraan and Sunnah. 233

229 Ibid.
230 Al-‘Alwani, Issues in Contemporary Islamic Thought, 5.
231 Ibid., 33-34.
232 Ibid., 39.
233
Ibid., 42.
92
Al-‘Alwani presented his concept of Islamization of knowledge in the
model of fiqh-al-aqqalliyyat after receiving much criticism for the reform in the
knowledge which included Islamic jurisprudence as well. This avoided the
direct criticism and also considering the exceptional situation of Muslim
minorities that Islamization of knowledge received less criticism when
discussed in the context of fiqh-al-aqqalliyyat.
In mid-1980’s, al-‘Alwani compiled a list of questions which he
believed American Muslims frequently ask but there is no consistency between
the fatawas issued for them. He sent that list to Islamic Fiqh Academy in Jeddah
while mentioning the urgency and importance of the matter. The reply to these
questions contained fatawa issued by seven muftis. The fatawas and their
reasoning further convinced al-‘Alwani for the need of fiqh for minorities. 234
Due to a number of reasons al-‘Alwani advocated his theory of fiqh-al-
aqqalliyyat. Firstly, the presence of Muslims in non-Muslim lands in
significantly different from the one which existed in old times. Now they are
not the ‘others’ rather they are part of the non-Muslims lands where they need
to integrate and develop an identity of their own. This situation calls for the need
of fiqh for minorities considering their non-transient presence in non-Muslim
lands unlike the old times.235
234 He has discussed this issue in his work, for example, Taha Jabir Al-Alwani, Fi Fiqh al-
Aqalliyyat al-Muslimah, series of Tanwir al-Islami, no. 52 (Cairo: Nahdat Misr, 2000).
Towards a Fiqh for Minorities: Some Basic Reflections, vol. 10, Occassional Paper Series
(London: The International Institute of Islamic Thought, 2003), xi-xii.
235
Ibid.
93
Secondly, al-‘Alwani states that other than the nature of presence of the
Muslims in non-Muslim lands, the legislation is influenced by the culture and
geography in which it is developed.236 So the jurisprudence and laws created for
the Muslims by the jurists living there are inadequate to meet the needs of
Muslim minorities living under non-Muslim rule. 237
In Nazarat Ta’asisiyya al-Alwani devotes a chapter to what he
calls “the great questions in this fiqh.” Among these questions are:
How should the mufti of a minority answer exactly… these two
questions: Who are we? What do we want? What is the political
regime under which the minority is living: Is it democratic,
monarchic or military? What is the size of the minority for whom a
jurisprudential study is desired, on several levels: Number of
people, culturally, economically and politically? What role do
institutes, organizations or leaders play in the life of the minority?
Do they shed more light on and emphasize their cultural identity?
How will it be possible to develop joint activities between the
majority and the minority? What levels should be taken into account
in these aspects?238
The integral part of al-‘Alwani’s theory of fiqh-al-aqalliyyat is the non-
applicability of the Islamic heritage in the contemporary situation of Muslim
minorities. He is of the opinion to revaluate the sources of fiqh and Quraan
maybe the only source considering that the Sunnah was only an illustration of
236 Ibid., xiv-xv.

237 Ibid.
238
Shammai, Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities, 3.
94
rules and principles of Quraan in the Era of Holy Prophet (P.B.U.H). He further
argues that the Islamic legal heritage is based on the medieval geopolitical map
and also it is based on the dichotomous division of the world. But now there is
need to focus on the universality of Islam and consider the changing factors and
challenges. 239 He is arguing for the need of fiqh of co-existence contrary to the
old times which stressed on the fiqh al-harb.240
3.4. Conclusion
The analysis of Islamic law and Muslim minorities in the first section of the
chapter reveals that classical jurists have dealt the issue pertaining to the legality
of residence in non-Muslim lands and other related issues. However, there are
ambiguities and difference of opinion which can be researched further and
maybe an absence of clear cut rulings helps to come up the solutions which are
compatible to the contemporary world order.
The second section of the chapter has analysed the ideas of three prominent
Muslim scholars of modern times. Having a distinct methodology and approach,
all three have dealt with the issue of Muslim minorities and the challenges they
are facing. We are not analysing their ideas in order to decide or declare the
better approach. Rather this analysis aims at producing a bigger picture for the
reader to understand how the modern scholars perceive the issues of Muslim
minorities and how they propose to resolve them.
239 Al-‘Alwani, Towards a Fiqh for Minorities: Some Basic Reflections, 10, 9-10.
95
Conclusion
The harmonization of private international law is indeed an ideal
situation and the states are trying to achieve it but many challenges exists. The
efforts made by many international organizations, which has been discussed
already, has a significant role in the harmonization of private international law
till date. Out of these many efforts and contributions, the most prominent are
the efforts made by European community. Their progressive development
through which they harmonized their laws at European level is indeed a positive
step in the harmonization of private international law. However, there is need
of effort of harmonization which have wider scope and applicability as
compared to the efforts made yet. The major areas where the efforts have been
made for the harmonization are family laws, contractual and non-contractual
obligations, international trade laws and insolvency proceedings.
Apart from the content focused attempts for the harmonization, there is
need to understand the application of Islamic law in Europe. Certainly, the
public and penal laws are not applicable in Europe, however, under private
international law direct application of Islamic law takes place. In case of
contradiction between the Islamic law and the constitutional law or public
policy of country of the court adjudicating the case prefers the national law
rather than Islamic law. This is not only unfortunate for the Muslims but also
serve as an obstacle in the harmonization of private international law. For
instance, any case in which the application of Islamic law does not ensure the
equality of sexes cannot be applied in European countries. Freedom of religion,
equality of sexes and many other such rights cannot be challenged or abandoned
due to the application of Islamic law.
96
The increased number of Muslim population is west and particularly in
Europe is to be considered from various prospects. How these Muslim
immigrants entered the European territories which eventually resulted into their
permanent residence has given rise to a number debates. Out these many
debates, one is the existence of Islamic law in Europe. How much compatibility
exist between the Islamic law and European law have been thoroughly research
in Chapter 2. Though there are many contradictions which exist between the
two legal systems but the Muslim minority law is the best solution and way out
for that. Fiqh ul-aqqalliyyat is the best response to the claim of the non-
applicability of Islamic law in Europe.
Chapter 1 has highlighted the fact that there are number of attempts at
harmonising the private international law. Out of these many attempts, the
often-quoted example is of European Union which has remarkably through
European legislation harmonised many of its laws. But let us not forget the fact
that at one hand the EC is increasingly exerting its influence in creating various
private international fora, and while on the other hand, accommodating this
emergent Community law becomes more of a challenge for other states.
Furthermore, despite of these efforts the issue of application of Islamic law
under private international law has not been addressed. Keeping in view the
large number of Muslim population living in Europe, it must be addressed at
first.
Chapter 2 has discussed in detail the idea of ‘Islam and Europe’. It is
important to be kept in mind how Muslim’s status changed from being
sojourners to be a citizen and how it was hard for the European countries to
accept the changed scenario. Once Muslims got settle in their new home which
97
was Europe, they started questioning their identity and tried to look for their
spirituality and religion based queries. Due the Muslims presence in Europe,
there is indirect application of Islamic law depending upon the individual laws
of each European country. However, when it comes to the direct application of
Islamic law, which happens under private international law, situation is very
much complicated and complex. The non-applicability of Islamic law is not
only disturbing for the Muslims but also hinders the path of harmonization of
private international law. So, what is the way out? At this point we looked into
the possible answers and we have the one according to which there is a need of
fiqh for minorities.
After the first 2 chapters, we have figured out few issues or problems.
Firstly, that there is a need of harmonization of private international law and for
that attempts have been made at various levels. Secondly, sometimes the
application of Islamic law under private international law is not possible in
European countries which not only restricts the application of Islamic law but
also effect the uniformity and certainty of the decisions. Thirdly, though
scholars have felt the need of a fiqh specifically designed for the Muslims living
under non-Muslim rule but still there is no attempt to address its development
in the particular direction. It would be appropriate to say that even this concept
of Fiqh ul-aqqalliyyat itself is problematic for many let alone the question of its
further development.241
241 Muhammad Khalid Masud, “Islamic Law and Muslim Minorities,” ISIM, 11 (2002): 17.
Available at
https://openaccess.leidenuniv.nl/bitstream/handle/1887/16826/ISIM_11_Islamic_Law_and
_Muslim_Minorities.pdf?sequence=1 , last accessed 10 June 2017.
98
Fiqh ul-aqqalliyyat is indeed an interesting area of scrutiny. It was introduced
in 1990s and since it has been discussed, criticised, highlighted and debated.
None of the scholar who has advocated this theory in one way or another, have
not escaped criticism. This criticism is sometimes either targeted on the
methodology adopted by the scholar or the characteristics of the theory which
he presents. It must be kept in mind that though the need of a fiqh for Muslims
living under non-Muslim rule have been felt and is variously known as fiqh for
minorities, American fiqh, European Islam and Fiqh ul-aqqalliyyat. But how
this fiqh would develop and progress could not be discussed comprehensively
in the academic circles.
However, we are clear with the one thing, that the Fiqh ul-aqqalliyyat is
best response to the claim of non-applicability of Islamic law in west and
Europe. Fiqh ul-aqqalliyyat is a progressive step in the traditional Islamic
thought as it tries to validate its authority by arguing for the context, time and
space related interpretation of Islamic law. The advocates of Fiqh ul-aqqalliyyat
have argued and suggested redefining of various concepts such as dar al-harb,
dar al-Islam, Jihad and obligations of Muslim minorities towards the host non-
Muslim polity. 242
Keeping in view the material and issues discussed in the present
research, we conclude that the theory of Fiqh ul-aqqalliyyat can help the smooth
application of Islamic law in Europe. However, it is important to direct the
development of Fiqh ul-aqqalliyyat within the rules and principles of private
242
Hassan, Fiqh Al-Aqalliyy t: History, Development, and Progress, 153.
99
international law. This will not only harmonise the private international further
but also help us to achieve an internally coherent Fiqh ul-aqqalliyyat.
100
Recommendations
Though an absolute and ideal situation is hard to be achieved but utmost
efforts need to be exerted in order to face the problems and challenges. This
inter-disciplinary research aims at proposing the steps for harmonising private
international law and developing an internally coherent Fiqh ul-aqqalliyyat
regime.in this regard we have following two set of recommendations.
Recommendations to The States Community and International

Organizations
Certain recommendations are presented for the European countries and
international organizations for harmonizing the private international law and
smooth application of Islamic law.
i. There is need to understand the real purpose of European Union
legislation. The confusion between the aims of legislation is a hindrance
in the path of harmonization of private international law. the European
countries need of clarify that whether their legislation is aimed at
coordinating between different legal system or its purpose is to create an
internal system of conflict rules specific to European Union.
ii. Subject specific efforts are worth appreciating but there is need to
understand those areas as well which need to highlighted and studied in
order to achieve harmonization at a wider scale. Out of these many areas,
one is the application of Islamic law in liberal democracies. Research
based studies are required to find solutions for application of Islamic law
under private international law.
iii. An international organization may be made in order to hold conferences
and workshops to discuss all the issues and challenges regarding the
101
application of Islamic law in liberal democracies. Under this
organization, the research may be aimed at formalizing rules and laws
compatible with both the constitutional laws of western democracies and
Islamic law.
iv. Efforts may be made to achieve harmonised rules and principles
through which harmonization is possible at a large level. Unified rules
compatible with western democracies and Islamic law may be drafted
through legislative and non-legislative means.
v. Experts having deep insights of Islamic law may be employed for the
proposed organization who submit reports on the point of contradiction
and the possible way out keeping in view the juridical needs and
requirements of Islamic law.
Recommendations for Muslims Community and Scholars

Though efforts are to be made at various levels for the harmonization of
private international law and application of Islamic law in Europe but the
Muslims have the greatest duty to understand the need of time. They must agree
on some terms which can help not only in fulfilment of their religious duties but
also in playing their role for the development and harmonization of private
international law. in this era of time when states are trying their best to
accommodate the legal and religious pluralism within their territories, Muslim
Ummah needs to respect the various sects and school of thoughts within their
religion and if required accept the rulings of the other school of thought without
being prejudice to the rules of Islamic jurisprudence. Following are few
recommendations for Muslims at large:
102
i. Fiqh for minorities is the need of the time. However, there is need to work
out on the methodology to be adopted for this particular Fiqh which is
agreed by the majority of the jurists.
ii. This Fiqh must be developed under the main head Islamic jurisprudence
rather than in isolation.
iii. Like European Council for Fatwa and Research (ECFR) and Fiqh Council
for North America (FCNA), a council for the Muslims under non-Muslim
rule needs to be established. However, its mandate should be worldwide
and not area specific. Also, the regional organizations and council must
under the major council/organization dealing with the issues and
challenges of Muslim minorities.
iv. In the theory of Fiqh ul-aqqalliyyat, talfiq or no sect approach is a basic
tenet. We have already discussed the criticism of this concept, however, the
rulings from a different school of thought can be adopted in certain cases
and within the defined limits. There is need to highlight the exceptional and
permissible situations in which talfiq is allowed.
v. As Fiqh ul-aqqalliyyat theory is a debatable concept till now, there is need
to work on it in an elaborative way and work on each detail and concept
involved.
vi. The development of Fiqh ul-aqqalliyyat as a distinct subject or discipline
will not only create problem in application of Islamic law even within the
Muslim Ummah but this will also be hard to be accepted at large. Hence, it
is required to develop it which not make it practically significant but also
acceptable for all.
103
vii. Muslim jurists are required to work in the theory of Fiqh ul-aqqalliyyat
within the rules and principles of private international law. So that not only
the application of Islamic law can be secured but also the harmonization of
private international law can be achieved to some extent.
104
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Title Page

Research Proposal .......................................................................................... 3

Thesis Statement ......................................................................................... 5

Literature Review ....................................................................................... 7

Issues Framed ........................................................................................... 17

Research Methodology ............................................................................. 17

Limitations of Study ................................................................................. 18

Outline of the Thesis ................................................................................. 18

Chapter 1 Harmonization of Private International Law ................................. 20

1.1. Introduction ....................................................................................... 21

1.2. Private International Law: Some Basic Concepts................................ 21

1.3. Harmonization of Private International ............................................... 23

1.3.1. International Organizations ......................................................... 24

1.3.1.1. The Hague Conference ......................................................... 25

1.3.1.2. UNCITRAL ......................................................................... 26

1.3.1.3. UNIDROIT .......................................................................... 27

2.3.1.4. The OAS .............................................................................. 28

1.3.1. European Community: Harmonization at European Level ........... 28

1.3.1.1. Civil Jurisdiction and Judgments .......................................... 32

1.3.1.2. The Law Applicable to Civil Obligations .............................. 34

1.3.1.3. Family Matters ..................................................................... 35

1.3.1.4. Insolvency ............................................................................ 36

1.4. Harmonization of Private International Law: Myth or Reality?........... 38

1.5. Conclusion ......................................................................................... 43

Chapter 2 Islamic Law in West: Scope and Limits ........................................ 44

2.1. Introduction ....................................................................................... 45

2.2. Islam in the West ............................................................................... 45

2.1.1. Muslims in West: Some Historical Reflections ............................ 46

2.1.2. What is Shar’iah? ........................................................................ 50

2.1.3. Islamic Norms in Europe ............................................................. 52

2.3. Application of Islamic Law in Europe ................................................ 56

2.3.1. Optional Civil Law ...................................................................... 56

2.3.2. Legal Seggregation...................................................................... 57

2.3.3. Private International Law ............................................................ 59

2.3.3.1. Non-Applicability of Islamic Law in Europe ........................ 60

2.3.4. Islamic Law in Europe: Some Further Prospects .......................... 65

2.4. Conclusion ......................................................................................... 67

Chapter 3 Islamic Law and Muslim Minorities: From Classical to Contemporary

3.1. Introduction ....................................................................................... 70

3.2. Analysis of Classical Islamic Law Regarding Muslim Minorities ....... 71

3.2.1. Concept of Dar ............................................................................ 72

3.2.2. Question of Residence and Other Secondary Issues ..................... 75

3.2.2.1. Maliki School of Thought ..................................................... 75

3.2.2.2. Hanafi School of Thought ..................................................... 78

3.2.2.3. Shafi School of Thought ....................................................... 80

3.2.2.4. Hanabli School of Thought ................................................... 81

3.3. Contemporary Scholars on The Issue of Muslim Minorities ............... 82

3.3.2. Yusuf Al-Qaradawi and Theory of Fiqh Al Aqqalliyyat ........... 86

3.3.3. Taha Jabir Al-‘Alwani and Theory of Fiqh Al Aqqalliyyat .......... 91

3.4. Conclusion ......................................................................................... 95

Recommendations ...................................................................................... 101

Recommendations to The States Community and International Organizations

Recommendations for Muslims Community and Scholars....................... 102

jurisdiction, choice of law and foreign judgement.1 The attempts of harmonizing

comes to the application of Sharia in the non-Muslim territories.2 The

application of sharia rules in Europe is done at three levels, namely; private

religion.3 Muslims being a minority in non-Muslims Lands have various issues

pertaining to their religious laws. Under Private International Law, the

application of Law of Domicile and Law of Nationality creates a huge

difference and hence, uniformity in the decisions cannot be achieved.4

Muslims presence in the non-Muslim lands has obliged the Muslim

scholars to reconsider the Islamic Jurisprudence and develop on a new discourse

known as Fiqh al Aqalliyyat/Muslim Minority Law5. This Jurisprudence for the