Redefining the Separation of Church & State
__________________________________________
7....Preface by Sheldon Gosline
13...Foreword by Guy Hennebelle
17...Introduction
19...Part I. The Muslim View of Minorities
19...Chapter I. Division inside the Land of Islam
29...Chapter II. Land of Islam & Land of Disbelief
67...Part II. Minorities in Switzerland
67...Chapter I. Minorities in General
70...Chapter II. Linguistic & ethnic minorities
71...Chapter III. Religious minorities
75...Chapter IV. Minorities, individual & state
77...Part III. Muslims in Switzerland
77...Chapter I. Recognition of Islam
93...Chapter II. Freedom of religion and worship
121..Chapter III. School and religion
153..Chapter IV. Family law
187..Chapter V. Food prohibitions
234..Chapter VI. Religious Cemeteries
259..Conclusion
269..Appendices
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Volume Orders
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307..Key Word Index
310..General Index
314..Detailed table of contents
318..Summary
R E V I E W S
A valuable window into the problems faced by Western countries facing large Muslim influxes. - Fall 2004
Wisconsin Lutheran Quarterly, Vol 101, No. 4.
"According to a strict view of Islam, the world is divided into two spheres: Dar al Islam (the territory of Islam) and Dar al Harb (the territory of war). It is the duty of the first sphere to swallow up the second sphere by a battle of boor or sword. ... In each section of the book the author compares and contrasts the requirements of Islamic law with Swiss law and points out the conflicts between them. Though some of the details are specific to Swiss law, the general principles and expected areas of conflict will be similar in most Western countries. ... The stage of this problem in the USA lags considerably behind the situation in some European countries (1% Muslims vs 12% Muslims), but this book brings out one aspect of the looming conflict between Islam and the West." - John F. Brug, reviewer
An original and welcome contribution to Islamic Studies! - October 10, 2002
Midwest Book Review, Oregon, WI USA
"Translated into English by Sheldon Lee Gosline, Muslims In The West: Redefining The Separation Of Church And State is accessibly written by Sami A. Aldeeb Abu-Sahlieh (Director of Islamic Law, Swiss Institute of Comparative Law, Lausanne) who drew upon his more than twenty years of personal and professional experience to examine the cultural, social, and political interactions of Muslims in Switzerland. Individual chapters address everything from conflicts of religion and the right to worship, to issues involving religious cemeteries and burial grounds. A very thoughtful and insightful work offering principles and wisdom that can be generalized to the Western world as a whole, Muslims In The West is an original and welcome contribution to Islamic Studies reference collections and supplemental reading lists."
INTRODUCTION
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I will not speak here of Islam, but of Muslims. Islam, like Christianity or Judaism, is an abstraction that does not exist as a body or entity in itself. The use of the word Islam in titles such as Islam in the Republic and Is Islam Free to be Critical? is wholly erroneous. These titles should rather be Muslims in the Republic and Are Muslims Free to be Critical? In this work, I use the term Islam only in quotes from other sources.
This book, which will also be available in French, published by L'Harmattan, Paris, 2002, is devoted to problems created by the presence of Muslims in a Western country, such as Switzerland. Even though the data concerning these problems differs somewhat from one country to another, Muslims raise nearly identical problems everywhere they settle in the West; where now between fifteen and twenty million Muslims live. The information is just as applicable to the situation found in the United States, which has more than five million Muslims, and most recently has felt tragic effects of this cultural clash.
To understand these problems, the first part of this work describes the classic Muslim view of minorities and current implications. The second section concerns linguistic, ethnic and religious minorities specifically in Switzerland, although there are similar laws in other countries, especially the United States which was the first modern nation to embrace religious freedom. The third part explores several domains of Muslim values, to see what extend these values can be accomodated in Switzerland. By extension, these proposals apply to other modern nations in the West. I list these as follows: recognition, freedom of religion, school, family law, food prohibitions and cemeteries.
The Muslim minority in Switzerland is now the third largest religious community, following Protestants and Catholics. At its present growth rate, in less than twenty years, it will be the largest religious community, and even reach population majority. If the Muslim community is not integrated in time and its value system does not adapt to larger society, they will represent a real risk for the democratic and legal system in both Switzerland, and indeed for every Western country. The endangering of territorial unity is already shown in ex-Yugoslavia; now ravaged by religious factions. This risk must be taken seriously in all Western countries (the United States, France, Germany, Britain and Italy) where increasingly high numbers of Muslims live.
I know this work touches on a very sensitive topic, in this period of tension between the Western world and the Muslim world. A reason for this tension is lack of intention transparency on both sides. Nothing is worse than to pretend all is going well and then to awake one morning, as on September 11th, 2001, with a horror that we could have easily avoided with healthier reports and greater global understanding. Therefore, a reciprocal information work, such as this one, is just as beneficial to the Muslim community as for the West (concerning September 11th, see appendices 1 and 2 at the end of this work). To appreciate problems constitutes a predisposition to find their solution.
Muhammad (d. 632) said, "If the judge provides an effort and gives back a suitable judgment, he has gained two merits, but if he is mistaken in his judgment he has just one merit"1. I do not pretend to have diagnosed all problems, nor propose infallible solutions, but I hope at least to have achieved some merit for my effort. It is incumbent upon other researchers to pursue this effort and, possibly, to correct findings in it. In this regard, I remain open to all suggestions or constructive remarks from my readers.
Before finishing this introduction, I wish to express my deep gratitude to those that corrected and commented on this text. I thank in particular Sheldon Lee Gosline of Shangri-La Publications for translating this work into English. I remain however uniquely responsible for mistakes and opinions herein.
Sami A. Aldeeb Abu-Sahlieh, Ochettaz 17, 1025 St-Sulpice, Switzerland, e-mail: Sami.Aldeeb@isdc-dfjp.unil.ch
CHAPTER II.
LAND OF ISLAM & LAND OF DISBELIEF
1) Classic religious border
Classic Muslim jurists consider all regions under Muslim domination as the Land of Islam (Dar al-Islam), whether or not all inhabitants are Muslim. On the other side of the border is the Land of War (Dar al-harb), often called the Land of Disbelief (Dar al-kufr) that, some day, should pass to Muslim domination, and its inhabitants convert to Islam.
Before the departure of Muhammad from Mecca, the Koran summoned Muslims not to resort to war, even though they were attacked (16:127; 13:22-23). After the departure from Mecca and creation of a Muslim State in Medina, Muslims were allowed to fight those that fought them (2:190-193 and 216; 8:61; 22:39-40). Finally, they were permitted to undertake war (9:3-5). The goal of this war is to spread the Land of Islam and to convert the entire population to Islam. According to the traditionalists, Muhammad wrote messages to the different chiefs of his time demanding that they become Muslim. If they were monotheist and wanted to remain in their religion, they had to submit themselves to the political authority of Muslims and pay a tribute. If they refused both solutions, they had to prepare for war. If they were non-monotheist, they could only choose between conversion and war.
The Land of War can benefit from a treaty of peace (ahd), becoming thus a Land of Treaty (Dar ahd). According to Abu-Yousof (d. 798), High Judge of Baghdad, "It is not permitted, when he has behind him a superiority of forces, that the representative of the Imam make peace with the enemy; but if his purpose was to lead them through mildness to Islam or to become tributaries, it is permitted until an arrangement is reached on their side"3. Here Abu-Yousof merely paraphrases from the Koran, "Never falter and cry for peace when you can have the upperhand"(47:35).
Three centuries later, Mawerdi (d. 1058) mentions among the duties of the chief of State:
To fight those who, after having been invited, refuse to convert to Islam, until they convert or become tributaries, for the purpose of establishing the laws of Allah by making them superior to all other religions.
He states that if the adversaries convert to Islam, "they get the same rights as us, are submitted to the same charges, and remain masters of their own territory and of their own goods". If they demand grace and ask for an armistice, this armistice is not acceptable unless it is very difficult to defeat them and on condition that they accept to pay; the armistice must be as short as possible and not exceed ten years; after ten years, the armistice is no longer valid.
Ibn-Khaldun (d. 1406), three centuries after Mawerdi, distinguishes between a war conducted by Muslims and a war conducted by the followers of other religions. The offensive war of Muslims is legitimate due to the fact that they have a universal mission to lead all populations to join the Islamic religion, either by force or voluntarily. This is not the case with followers of other religions, who do not have a universal mission; they are permitted to make war only for self-defense.
2) Classic religious border and migration To escape persecution, Muhammad, accompanied by some of his Companions, left Mecca, his native city, in September of 622, and went to Yathrib, his mother's home city, later named Medina. That event marks the beginning of the Islamic era, the era of Hegira, era of migration. Those who left for Medina were called muhajirin (the immigrants). Those who gave them good reception were called ansar (the supporters).
Some Muslims, however, remained in Mecca and practiced their faith in secret. Constrained to participate in the fight against the troops of Muhammad, some were killed. Referring to this tragic episode, the following verses urged the Muslims in Mecca to join the Community of believers:
Those whose lives are terminated by the angels, while in a state of wronging their souls, the angels will ask them, "What was the matter with you?" They will answer, "We were oppressed on earth". The angels will say, "Was God's earth not spacious enough for you to emigrate therein?" For these, the final abode is Hell, and a miserable destiny. Exempted are the weak men, women, and children who do not possess the strength, nor the means to find a way out (4:97-98).
These two verses urge each Muslim living in an infidel country to leave it and join the Muslim community, unless unable. Other verses express the same sense (4:100; 9:20).
The purpose of this migration was to protect them from persecution, to weaken the infidel community and to participate in the effort of war of the Muslim community. Therefore the Koran together uses the terms: those who believe, and those who emigrate and strive in the way of Allah (2:218; 8:72, 74 and 75; 8:20; 16:110).
Verse 8:72 establishes an alliance between the immigrants and those who gave them hospitality. It forbids such an alliance with Muslims who remain in the infidel country "as long as they have not emigrated". But if these Muslims remaining outside the community seek help in a "matter of religion", then it is the duty of the Muslim community to help them, except against a people to which the Muslim community is specifically bound by treaty.
Verse 4:89 urges Muslims not to choose friends from infidels "unless they emigrate to the way of God" (4:89).
The Koran displays mistrust toward nomads, these eternal migrants without fixed domicile who, after declaring allegiance to Muhammad, return to the desert (ta'rib) to escape his control in a critical moment when the Muslim community was in need of warriors for defense and expansion interests (see verses 9:97; 9:90, 99, 101, 120 and 49:14).
The Muslim immigrants had abandoned all their goods behind them and they were called to put an end to any link with the infidels, including family bonds (9:23). They had to be taken in charge by other members of the community. The Koran urges those who are rich to help them (24:22). The agreement, established by Muhammad between the immigrants, the ansar and the Jews living in Medina confirms that these three groups constituted one community. The Koran gives a part of the war's spoil to the immigrants and it even places them before the actual residents (59:8-10). It establishes a fraternity between all believers (49:10; 3:103; 9:11) implying inheritance rights, rights reserved thereafter to the next of kin (33:6).
Classic Muslim jurists thought migration toward the Land of Islam would continue as long as there remained a division between the Land of Islam and the Land of Disbelief. They quote a narrative of Muhammad that said, "Migration [to the Muslim community] will never stop as long as the infidels are fought". Any Muslim in the Land of Disbelief must emigrate toward the Land of Islam. He can remain there only if he lives according to Islamic religious norms or if he is not able to emigrate because of illness, weakness or constraint. Ibn-Qudamah (d. 1223) writes that even though a Muslim can accomplish his religious duties, in the Land of Disbelief, it is preferable that he emigrates toward the Land of Islam to be able to make the jihad against unbelievers and to enlarge the number of the Muslim community. If the Muslim living in the Land of Disbelief must emigrate toward the Land of Islam, for a stronger reason classic Muslim jurists regard with an evil eye a Muslim who migrates from the Land of Islam toward the Land of Disbelief. Al-Jurjani (d. 1413) defined migration as "the act of terminating one's sojourn among the infidels and of joining the Land of Islam". It is the only correct migration admitted by classic jurists.
Relying on the authority of Malik (d. 795), Ibn-Rushd (d. 1126), imam of the Great Mosque of Cordoba and grandfather of Averroes, states that the obligation of migration is maintained until the day of resurrection. He quotes Koranic verses 4:97-98 and 8:72 and the sayings of Muhammad, "I consider myself rid of any Muslim who sojourns among polytheists". Those converted to Islam in the Land of Disbelief must immigrate to the Land of Islam so that the Islamic norms could be applied to them. For a stronger reason, a Muslim cannot travel to the Land of Disbelief for trade or other purposes since the laws of Disbelief will be applied to him, unless he wants to ransom a Muslim captive. If he goes to the Land of Disbelief willingly, without constraint, he cannot preside over the prayer and his testimony is rejected. Ibn-Rushd urges the Muslim authority to establish controls on roads so no Muslim can travel to the Land of Disbelief, especially if he is transporting forbidden commodities, which could strengthen the enemy against the Muslims. Ibn-Rushd adds, "God fixed to everybody a fate that he will reach and a wealth that he will obtain".
In application of this migration doctrine, Muslims left countries reconquested by Christians. So in 1091, the Christian reconquest of Sicily was achieved after an Islamic occupation of more than 270 years. A large number of Muslims left the island and found refuge on the other side of the Mediterranean. Imam Al-Mazari, from Mazara (in Sicily; d. 1141, in North Africa) called to Muslims living in Sicily not to remain in the Land of Disbelief. This rule, however, has exceptions:
- Sojourn in an enemy country for an imperative reason.
- Voluntary sojourn in ignorance of the fact that the sojourn is forbidden.
- Sojourn in an enemy territory hoping to snatch it from the occupying force and return it to Muslims, or hoping to lead the infidels on the straight way, or, at least, to divert them from any heresy .
With the capitulation of Toledo in 1085, the great majority of Muslims left the city. Those who remained could safeguard their mode of life and their propriety, their habitual residencies, as well as fiscal regime and religious freedom by paying tribute. Such Muslims were despised by both those who emigrated, and those who had not been conquered. They were called ahl al-dajn, or mudajjan, words used when referring to tamed or domestic animals as opposed to free or wild animals. They became known in Spanish as mudéjar. However, the tolerance of the Christian kings of Spain toward their subjects, Jews as well as Muslims, did not last. Many Muslims converted to Christianity, but continued to live out their faith secretly, exposing themselves to the fury of the Inquisition. They were called Moriscos. This situation ended when it was decided to expel them all, like the Jews before them, in 1492. Expulsion was concluded by 16101. The Moriscos under Christian authority hid their religion by resorting to the dissimulation (al-taqiyyah) as permitted by the Koran:
The believers never ally themselves with the disbelievers, instead of the believers. Whoever does this is exiled from GOD. Exempted are those who are forced to do this to avoid persecution (3:28).
Those who disbelieve in God, after having acquired faith, and become fully content with disbelief, have incurred wrath from God. The only ones to be excused are those who are forced to profess disbelief, while their hearts are full of faith (16:106).
This dissimulation consists in saying or showing the opposite of what one truly believes to save oneself, or others, from eminent danger. The approach is allowed by both Sunnite and Shiite jurists.
Legitimating such an attitude, a fatwa (religious decision) of mufti Ahmad Ibn-Jumaira, dated December 1504, provides precise regulations to fit their hostile milieu. Thus if Christians obliged them to insult the Prophet Muhammad: they should pronounce his name as Hamed, as Christians do, and not think of the Messenger of God, but of Satan or of some Jew called Muhammad. If they are forced to go to Church at the time of Islamic prayer: they will be dispensed from doing the later, and their worship in Church will be considered as the Koranic prescription of prayer toward Mecca. If they are prevented from doing their prayers during the day: they should do them at night. The ritual ablution could also be replaced according to the circumstances: they can plunge in the sea, or rub the body with a clean substance, soil or wood.
If they are obliged to drink wine or to eat pork: they may, but knowing it is an impure act and observe a mental reserve. If they are forced to renounce their faith: they should try to be evasive; if they are pressed: they should inwardly deny what they are obliged to say.
The precedent fatwa concerns Muslims who could not emigrate from their country. Concerning those who were able to leave, Al-Wansharisi (d. 1508) is of the opinion, in two fatwas, that they should not remain, opinion contrasting with that of Al-Mazari, whom he quotes without commentary. He says that emigration from the Land of Disbelief to the Land of Islam remains obligatory until the day of resurrection. The same obligation exists to leave a Land of Revolt (fitnah). He reports that Malik forbids a person to sojourn in a locality where he had to behave with injustice. If he does not find a just country, he should choose a country with less injustice. Al-Wansharisi quotes here verse 4:97. Exception is made for those who cannot move because they are paralyzed, in captivity or very sick or feeble. They must, however, keep in mind that they will emigrate whenever possible. Al-Wansharisi adds that it is forbidden to sojourn among infidels as it is forbidden to eat pork or to kill a person without reason. He who refuses to emigrate abandons the community and denies Islam. He cannot fulfill the prayer without having the infidels laugh at him, a fact condemned by the Koran (5:58), neither can he fulfill the obligatory alms (zakat) due to the imam, an important element of Islam, nor the fast of Ramadan, nor pilgrimage to Mecca, nor jihad. A sojourn in the Land of Disbelief is contrary to the words of Muhammad, "The Muslim should not degrade"; and "The superior hand is better than the inferior one". Such a sojourn exposes the Muslim to perversion in matters of religion. Supposing that adults can avoid perversion, what about children, unable persons and feeble women? In addition, by staying among infidels, the descendants and women of Muslims risk being diverted from their religion by non-Muslims through marriage and by adopting their clothes, bad customs and language. If a Muslim loses the Arabic language, he also loses rituals linked to it. Lastly, Muslims cannot trust infidels who can find pretexts to overwhelm them with taxes and fail in their engagements.
3) Present religious border
Today, national criteria overstep religious criteria. After having undergone colonization, the Muslim world, notably after the end of the Ottoman empire and suppression of the Caliphate in 1924, was divided into Nation States, often at war with each other, with minimal religious links as through the Organization of Islamic Conference which acts as intermediary, without much effect. These modern Muslim States are members of the United Nations. We are currently facing a new geopolitical structure, as modern Muslim authors try to adapt old divisions of Land of Islam and Land of War to this new political reality.
Abu-Zahrah (d. 1974) affirms that the present world is united in one organization (the United Nations) whose members are committed to respecting its laws. Islam requires in this case the respect of all agreements by virtue of the Koran [17:34]. Because of that, countries, which are members of this world organization, can no longer be considered as the Land of War but must be treated as being in a Land of Treaty (Dar ahd).
Mawlawi says that if the Land of Islam is the country where Islamic norms are integrally applied, one may conclude that most Muslim countries no longer can be considered as in the Land of Islam. Is it sufficient that a country applies family law to be considered Muslim? What about Turkey, which does not apply these laws: is it still a Muslim country? If the criteria is the practice of religious rituals, then what about some non-Muslim countries where Muslims practice their rituals more freely than in the so-called Muslim countries? Surely these are not Muslim countries, but there are few differences between them and Muslim countries, which do not apply Islamic laws and allow only Islamic rituals and tradition. Mawlawi is of the opinion that non-Muslim countries which are not in war or which have treaties with Muslim countries must be considered as in the Land of Treaty (Dar ahd) or Land of Mission (Dar da'wah). Conscious of the negative connotation of the term "Land of Mission", Tariq Ramadan, a Swiss Muslim activist, prefers the term "Land of Testimony" (Dar al-shahadah)2, without departing from the classic notion:
Muslims are asked to spread knowledge of Islam among Muslims as well as non-Muslims. The mu'min [believer] is the one who has known and eventually accepts, whereas the kafir [unbeliever] is the one who has known and then refuses, denies. Present law books in Arabic use neutral terms, without religious connotation, but religious books generally replace the term Land of War (Dar al-harb) with Land of Disbelief (Dar al-kufr), and inhabitants of these countries are most often designated not as enemy (harbi), but as unbelieving (kafir), a qualifier given to all non-Muslims, including Christians and Jews, that are Muslim country nationals and occupy ministerial stations sometimes in these countries.
The fundamentalist movements inside Arab and Islamic countries would like to reintroduce the old division between the Land of Islam and Land of War. So the 2nd article of 1984 Constitutional model of Jarishah stipulates:
The Islamic Community constitutes one community. The best entity among those that compose it is the most pious; all barriers: frontiers, nationalities (qawmiyyatasabiyyat), are void.
The 1983 Constitutional Model of the Islamic Council of Europe says that any state adopting this model is "part of the Muslim world, and its Muslim people are an integral part of the Muslim nation" (article 2). It adds, "It is the duty of the state to strive by all possible means to seek unity and solidarity with the Muslim nation" (article 72).
Muhammad sent some of his Companions to Abyssinia to protect them from the persecutions of the inhabitants of Mecca. He gave them a message for the king of Abyssinia asking him to welcome them and to become a Muslim. To call the unbeliever to Islam remains a constant concern of all Muslims. The 1983 Constitutional model of the Islamic Council of Europe says, "The State and society are based on the following principles: [...] obligation to engage in Islamic mission (da'wah islamiyyah)" (article 3). The 1952 Constitutional model of the Liberation Party states, "the appeal to Islam is the principal duty of the State" (article 10). The freedom to change one's religion is, however, uni-directional: conversion of Muslims to another religion is forbidden. In addition, jihad is not excluded as a means of extending the authority of Islam. The Constitutional model of the Liberation Party says, "Jihad is a duty for Muslims" (Art. 90). The commentary specifies that one should begin by calling the infidels to the Islamic faith. If they refuse to convert, then they can be fought. This Constitutional model forbids treaties of absolute neutrality because they reduce the authority of Muslims, as well as treaties of permanent delimitation of frontiers because such delimitation means the non-transmission of the Islamic faith and the end of jihad.
Some countries give their citizenship only to Muslims (for example Saudi Arabia and other Golf countries); in other countries, the adhesion to Islam makes easier the acquisition of its citizenship (for example in Egypt). On the other hand, today too, the Arab countries continue to apply Islamic family law to any Muslim whatever is his country of origin. A French man who converts to Islam is submitted to the Islamic law in Egypt. He can contract a polygamous marriage and repudiate his wife; after his death, his daughter receives as inheritance half of what is received by a son1.
The classic Islamic concept played an important role in creating new Islamic States following Soviet downfall, as well as the emergence of impulses of independence or autonomy demonstrated by Muslim minorities in the Balkans. This is the result of classic Islamic norms, which forbid Muslims from submitting to a non-Muslim judicial, legislative and/or executive power. Whenever Muslims reach a significant percentage of the population in countries such as England, Germany, France, Italy, Switzerland, Holland or the United States, they put themselves into a similar problem as the Balkans. Note here that Muslims in England formed their own parliament in 1992. Already in 1982, they founded an Islamic Shari'ah Council in London, accepting that an Islamic court could make decisions concerning Muslim family law. Such a court dissolves Islamic marriages, but with regard to civil aspects of the contract the couple must address British courts. One who gets a divorce by this Council can get remarried3. Still in London, Imam Omar Al-Bakri preaches holy war against Britain and calls for election and citizen involvement boycotts. He no longer sees the use of a driver's license, as it constitutes divine permission. In the U.S., black Muslims founded the Nation of Islam, in 1930. Its goal is still to create an independent Muslim State.
4) Religious border and present migration
Colonization of Islamic countries by European States raised the same problems as the reconquest of the Iberian Peninsula. Should the Muslim countries occupied by foreign forces be considered as in the Land of Disbelief? If such is the case, should Muslims emigrate from their countries and proceed to a Muslim country? Al-Wazani (d. 1923), Mufti of Fes (Morocco), mentions a fatwa issued by judge Mawlay Abd-al-Hadi forbidding a Muslim from staying under the protection of infidels whenever he may go to a Muslim country.
According to this fatwa, a Muslim who frequents the homes of the infidels loses his faith and his life in this world and disobeys his master because the Malikite school unanimously forbids conclusion of peace with the infidels, except under duress. Such a Muslim cannot preside over prayer and his testimony is rejected because Islam is superior and nothing should be superior to Islam. More serious is the situation of someone who trades with the infidels. Even more to be condemned is someone who trades with them and gives them information against Muslims: he must be considered a spy and sentenced to death. The most culpable is the person who goes to the enemy and indicates a way to occupy Muslims, "To love the infidel, and to wish his domination over Muslims is a sign of infidelity; it constitutes an apostasy".
Al-Wazani mentions also the fatwa of Abu-al-Abbas Ibn-Zaki concerning Muslims
- who stay in their country occupied by the Christians and fight against them;
- who remain in the country after the conclusion of peace, believing that their presence is temporary and that they are not required to pay a tribute. If this is required of them, they escape to the country of Islam;
- who have the intention to live in their country and to pay tribute to the Christians.
The fatwa says that the first group serves his religion; the dust of his feet is a benediction. The second group commits an odious act (makruh). But if he executes his intention to flee whenever he is compelled to pay a tribute, he will be saved if God wishes that. The third group is the worst; such a person has lost his faith and his life in this world. He deserves the extreme punishment: if he spies against Muslims, he deserves the death penalty; if he fights with the Christians, he must be treated the same as the Christians: he can be killed and his goods can be taken. The students and the muezzins who remain under the authority of the Christians are students and muezzins of misfortune: they cannot preside over the prayer and their testimony is rejected. They must repent when they leave these countries dominated by the infidels.
Al-Wazani affirms, as reported by classic Muslim jurists, that emigration from the Land of Disbelief to the Land of Islam is maintained until the day of resurrection. It is also the case from a country dominated by evil and wrong. If a Muslim does not find a just country, he must choose the country which is less bad. Nobody can be dispensed from his obligation to emigrate from his country occupied by the infidels, unless there is impossibility to do it due to sickness or extreme weakness; in these cases, he must keep in mind to leave his country whenever it is possible.
In the early years of colonialism, Muslim jurists and leaders tried to apply the rule of emigration. A considerable number of Muslims emigrated from North Africa to Turkey. In 1920, when India was declared a Land of Disbelief, a great wave of emigrants went to Afghanistan. That migration was catastrophic for them; they eventually returned to India, impoverished and frustrated. Hundreds died on the way.
The majority of Muslims, however, were obliged to stay together with their leaders and religious teachers, to fit the new reality, particularly because colonial regimes were, generally and in their own interest, tolerant concerning religious questions. They permitted Muslims not only to practice their religion freely in the western conception of religion, but also to maintain their own laws with their own courts and judges for many social, civil and economic questions.
After the creation of Pakistan, Muslim Indians had to choose between staying in India or emigration to Pakistan. Mawlana Abul-Kalam Azad declared in 1942 to the Indian National Congress, "I am proud to be Indian. I am an integral part of this united and indivisible nation... I most never renounce this right". After independence, he became Minister of National Education of the Indian government. Addressing Muslim university students, he said that if they dreamt of living in "Medina", it would be better to join Pakistan, but if they chose to live in India they should accept the situation of Mecca, which meant to be a minority community.
Today, with the end of colonization, we have the opposite problem, the emigration of Muslims toward non-Muslim countries that previously had colonized them. Some of these Muslims even acquired the citizenship of these Western countries. There is also the problem of non-Muslim country citizens that converted to Islam and the one of autochthonous Muslim minorities that live in countries with a non-Muslim majority as in the Balkans, Israel and the United States. Is it necessary to ask all Muslims to leave non-Muslim countries (the Land of Disbelief) and to immigrate to Muslim countries (the Land of Islam)? To what extend must classic Islamic norms be maintained in a world where religious border are no longer national border? We saw already that Muslim minorities in countries having a non-Muslim majority obtained political independence, and others hope to obtain such independence in the near future. While waiting for this day, one notes tendencies among different Muslim authors to refer to classic Islamic teachings.
Muslim extremist groups consider their own countries as Land of Disbelief as long as these countries do not apply fully Islamic law. They ask their followers to emigrate and to go in the mountains to prepare the conquest of their countries as Muhammad did with Mecca.
The Egyptian police call these groups: Al-takfir wal-hijrah (anathema and migration). Their real name is however Al-jama'ah al-islamiyyah (the Muslim Brotherhood), which implies that they consider themselves the only Muslims. This group at the present time is responsible for many attacks in Egypt. Its ideologist was Sayyid Qutb, hung by President Jamal Abdel-Nasser, in 1966. He specified in his commentary of verse 8:72 that the emigration was required of Muslims until the day Mecca was conquered. When all Arabia had been submitted to Islam, a Muslim no longer had the obligation to immigrate, as he found himself henceforth in the country of Islam. Today, however, the world has reversed to the jahiliyyah (period of ignorance before Islam) and the authority is no longer that of God but of the Taghout (the tyrant, the devil). It is a new situation for Islam which implies a re-assertion of the division Land of Islam / Land of Migration (Dar al-islam / Dar al-hijrah). This situation will continue until Islam expands anew and then there will be no need for migration1. Muslim movements ask all Muslim countries to open their borders for migration of any Muslim living in non-Muslim countries. The 1984 Constitutional model of Jarishah stipulates that the chief of the State "opens the door of immigration into the Land of Islam to believers" (article 19). The 1983 Constitutional model of the Islamic Council of Europe2 grants, to any Muslim, the right to achieve citizenship in am Muslim State (article 14). The second Islamic Declaration of Human rights published by the Islamic Council of Europe in 19813 says in its article 23(c): The Land of Islam (Dar al-islam) is one. It is a homeland for every Muslim, whose movement within (its domain) cannot be restricted by any geographical impediments nor political boundaries. Every Muslim country must receive any Muslim who emigrates there to, or who enters it, as a brother welcomes his brother, "Those who entered the city and the faith before them love those who flee unto them for refuge, and find in their breasts no need for that which had been given them, but prefer the fugitives above themselves though poverty become their lot. Whoever is saved from his own avarice - such are they who are successful" (59:9). One modern author and professor at the Universities of Jordan, Tripoli (Libya) and, now in Riyadh, considers the question of the occupation of Muslim countries by the colonial infidel who applies his laws. Those who are occupied are in a particular situation, which obliges them, under constraint, to ally with the infidel to avoid his evil by virtue of the principle of dissimulation (taqiyyah) instituted by the Koran (3:28). Dissimulation must however remain exterior, and the Muslim must never trust the enemy. It is however not obligatory: a Muslim can always abandon it and say the truth even when he risks his life4. On the other side, dissimulation is not permitted when confronted with an unjust authority1. Evoking verses 4:97-98, this author adds that if the Muslim fears that his faith will weaken, he must leave this land, even his country and his home. He must leave the Land of Disbelief and go to the Land of Islam where he can follow the norms of Islam. The obligation of immigration is maintained until the day of resurrection and it is an obligation for each Muslim who fears for his religion, regardless of where he stays. Nothing should prevent him from accomplishing this norm: his goods, his interests, his parents, his friends, the suffering he risks to encounter in immigrating, as long as there exists a land where his religion can be safe. This professor, however, forbids an immigrant whose goal is to escape holy war (jihad). Islam requires jihad to transform a country governed by infidelity into a country governed by Islam. If a Muslim can rely on the help of his coreligionists living in his country or on Islamic forces living in proximity to his country, he is obliged to stay because the Koran requires him to fight the neighboring enemy (9:123). In this case, he who remains has merit over one who immigrates. Muhammad said, "O Fadik: Do prayer, give the obligatory alms, emigrate from evil and live in your country wherever you like... and you will be considered as an immigrant". The author refers to two distinct situations: the non-application of Islamic law by Muslim countries and the occupation of Palestine by Israel. In the face of these two situations, one should make recourse sometimes to dissimulation, sometimes to emigration and sometimes to jihad. Concerning the problem created by the occupation of Palestine by Jews, the great Mufti of Jordan, Abd-Allah Al-Qalqili, issued a fatwa forbidding Muslims to leave their country because this will be a defeat worse than occupation itself. These Muslims must stay even if they must suffer. He quotes the Koran, "O you who believe, you shall be steadfast, you shall persevere, you shall be united, you shall observe God, that you may succeed" (3:200) . . .