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Roughly speaking, there are one billion Muslims in the whole world, living in more than fifty Muslim countries. A fifth of these Muslims are Arab. In the Muslim countries also live non-Muslim minorities. On the other side, in many non-Muslim countries, there are Muslim minorities. Muslims in Western Europe number between 15 and 20 million. Exact figures are unknown because census takers in most European countries do not collect data on religious persuasion.

The purpose of my text is to show the difference between the Islamic and Western concept of law and the impact of this difference on non-Muslim minorities in the Muslim countries and on Muslim minorities in non-Muslim countries[2].

Chapter I. Concept of the law

1) Islamic concept of the law

There are three concepts of the law. The first one considers the law as emanating of God. The second considers it as emanating from the social contract through democracy; law in this case is the expression of the sovereignty of the people. The third considers it as a donation from the chief of the state as the sole sovereign; here the law is the result of dictatorship; nobody has the right to change it and those who disobey are beheaded. Generally speaking the first and the third concept of law are similar and have the same consequences. We have them among Jews and Muslims.

For the Jewish believer, the Bible imposes itself as a legal code to follow at all times and in all places. One reads:

-   You must diligently observe everything that I command you; do not add to it or take anything from it (Deuteronomy 13:1).

-   The revealed things belong to us and to our children forever, to observe all the words of this law (Deuteronomy 29:28).

-   It is a statute forever throughout your generations in all your settlements (Leviticus 23:14).

Quoting these verses, Maimonides (died 1204) writes, “It is clearly stated in the Torah that it contains the Law which stands for ever, that may not be changed, and nothing may be taken from it or added to it”. According to Maimonides, if one pretends the opposite, “he shall die by hanging”[3]. This punishment is also foreseen for anyone who “uproots any of our verbal traditions or says that God had charged him to interpret the Law in such and such a way, he is a false prophet and is to be hanged even though he give a sign”[4].

One finds this same concept among Muslims for whom the Quran, - literal word of God -, and the Tradition of Muhammad (Sunnah) - gathered in different compilations - constitute the first two sources of all law. From these two sources, classic Muslim jurists developed a legal system called shari’ah (literally: the way). All Muslims must submit. The Quran says in this respect:

Those who do not rule in accordance with God’s revelations are disbelievers ... unjust, ... wicked (5:44, 45, 47).

No believing man or believing woman, if God and His messenger issue any command, has any choice regarding that command. Anyone who disobeys God and His messenger has gone far astray (33:36).

Muhammad Mitwalli Al-Sha’rawi (died 1998), religious leader and Egyptian politician, explained that revelation is called upon to decide equivocal questions, thus freeing the mankind of the anguish of solving a difficult case by discussion, or by exhaustive repetition of experiences. The Muslim does not have to look outside Islam for solutions to any problem, since Islam offers absolute eternal and good solutions[5]. He adds:

If I were the person responsible of this country or the person charged to apply God’s law, I would give a delay of one year to anyone who rejects Islam, granting him the right to say that he is no longer a Muslim. Then I would dispense him of the application of Islamic law, condemning him to death as apostate[6].

This thread is not rhetoric. As we will see in the last chapter, those who reject the Islamic law or try to present a liberal interpretation of its sources, are persecuted and some of them are killed. The obligation to apply Islamic law, with the fatal consequence in case of refusal, may cover unlimited fields, even those very controversial. To give an unexpected example, Jad-al-Haq, the Sheikh of Al-Azhar (died 1996) declared in a fatwa (religious decision) issued en 1994:

If a region stops, of common agreement, to practice male and female circumcision, the chief of the state declares war against that region because circumcision is a part of the ritual of Islam and its specificities. This means that male and female circumcision are obligatory[7].

This fatwa indicates clearly that even a group has no right to decide differently that what the Islamic law decides.

To be a Muslim implies the acceptance of the application of the Islamic law. There is a link between religion and law. If you refuse the application of the Islamic law, you stop being Muslim. And the more norms you have in a religion, the less the individual and the group are free to choose their way of life. The Quran was aware of the difficulty it is creating by introducing new norms. We read in 5:101:

O you who believe, do not ask about matters which, if revealed to you prematurely, would hurt you. If you ask about them in light of the Quran, they will become obvious to you. God has deliberately overlooked them. God is Forgiver, Clement.

This concept of the law as a result of revelation is reflected in different Islamic declarations on human rights[8]. Thus, one promulgated in 1981, by the Islamic Council of Europe (whose seat is in London), affirmed repeatedly that human rights are founded on divine will. The first passage of the preamble states, “Since fourteen centuries, Islam defined, by divine law, human rights, in their entirety as well as in their implications”. The preamble adds:

-   Strong of our faith in the fact that God is the sovereign master of all things in this immediate life as in the ultimate life...

-   Strong of our conviction that human intelligence is incapable to elaborate a better way in view to assure service of life without God’s guidance and revelation:

We, Muslims, ... we proclaim this Declaration of human rights made in the name of Islam, as one can understand them of the very noble Quran and the very pure prophetic Tradition (Sunnah).

Therefore, these rights present themselves as eternal rights that cannot be suppressed or rectified, abrogated or invalidated. These rights have been defined by the Creator -to him the praise! - and no human creature has the right to either invalidate or attack them.

The Judeo-Muslim concept could not resist time and modernization. Indeed, nearly all Constitutions of Arab countries affirm that Islam is the religion of the State and that Islamic law is a main source, or even the main source of the law. Nevertheless, Islamic law now concerns only family law and inheritance, and penal law in some countries such as Saudi Arabia and Iran. Laws imported mainly from the West, to start with the Constitution itself, the judicial system, the civil law, the commercial law and the penal law, govern other legal domains. In this regard, the Muslim world lives today in a situation of schizophrenia, between religious ideals and a desire to acquire an independence from divinity. This situation creates internal violent conflict between three main trends:

-       There are those that extol a return to Islamic law as part of their faith, with some adaptation to the present situation through a circumstantial interpretation to save appearances.

-       The second trend is constituted by those who, guided by a sense of realities, prefer the status quo, considering Islamic law unable to manage a modern society.

-       The third trend would like to evacuate the remaining Islamic norms applied today, which are contrary to a modern perspective of human rights, notably with regard to women’s and non-Muslims’ rights.

2) Western Concept of the law

The Judea-Islamic concept of the law as emanating from God, supreme sovereign legislator, is different from the concept of the law in the Christianised Western countries, concept based on the idea of the people’s sovereignty that decides the laws that govern it, in the public interest (res publica). These laws are voted and amended by the people. People vote according to their material interest and their moral values, perhaps religious. But these interests and values can change and they have to submit to the verdict of the majority. This concept is the result of a fierce struggle to separate the church from the state. But it has also its seeds in Christ’s attitude towards law. Contrary to the Ancient Testament and to the Quran, the Gospel remains mainly a moral book. Jesus was not a jurist; he never exercised a political function. He refused to deal with the law even when it is prescribed in the Torah. Two events illustrate this attitude:

-   Someone in the crowd said to Jesus: “Teacher, tell my brother to divide the family inheritance with me”. Jesus answered him: “Friend, who set me to be a judge or arbitrator over you?” And he said to them: “Take care! Be on your guard against all kinds of greed; for one’s life does not consist in the abundance of possessions” (Luke 12:13-15).

-   The scribes and the Pharisees brought a woman who had been caught in adultery; and making her stand before all of them, they said to him: “Teacher, this woman was caught in the very act of committing adultery. Now in the law Moses commanded us to stone such women. Now what do you say?” Jesus said to them: “Let anyone among you who is without sin be the first to throw a stone at her”. When they heard it, they went away, one by one, beginning with the elders; and Jesus was left alone with the woman standing before him. Jesus said to her: “Woman, where are they? Has no one condemned you?” She said: “No one sir”. And Jesus said: “Neither do I condemn you. Go your way, and from now on do not sin again” (John 8:3-11).

We can here compare the attitude of Jesus with that of Muhammad. Concerning inheritance, Jesus refused to give a decision, preferring moral to arithmetic. His attitude is completely different of that adopted by the Quran which goes in details fixing the quotas of every person in the family. Concerning adultery, Muhammad was confronted to a similar case. Jews brought to him a man and a woman who committed adultery. He asked them what the Bible provides for such an act. They said, “Stoning” (Leviticus 20:10; Deuteronomy 22:22-24), adding that as they could not apply this norm against the rich, they changed it by blacking the faces of the sinners with coal and beating them. Muhammad refused the changing of the norm decided by the Jewish community and stoned the man and the woman as provided by the Bible. To justify his decision, he recited the Quranic verse: "Those who do not rule in accordance with God's revelations are the wicked" (5:47)[9]. Jesus in this case is a moralist, Muhammad is a zealot.

As there are no legal norms in the Gospel, it was easy for the Christianised countries to create their own laws, first as a decision of a dictator, and later as a popular, democratic decision. It is interesting here to mention the definition of the law given in the 2^nd century by the Roman Jurisconsult Gaius: "Law is what people prescribes and establishes" (Lex est quod populus iubet atque constituit)[10]. This definition sounds modern.

The Western concept of the law is now reflected in the international human rights instruments. If we take the Universal Declaration of Human Rights, we notice that it is proclaimed by the General Assembly. No mention of God in it. He was intentionally excluded.

From what we exposed, we can conclude that, on the legal level, it is wrong to speak about “Judeo-Christian culture”. We have rather to say: “Judeo-Islamic culture”, as opposed to the “Romano-Christian culture”.

Chapter II. Islamic law and non-Muslim minorities

Muslims consider that the law emanates from God, but God may have promulgated different laws for different groups in various periods.

According to the Quranic perception, before Muhammad, God sent different prophets to transmit his law to humanity. Muhammad is the last of these prophets and his message constitutes the achievement of the previous messages. All the humanity must therefore rally to his message and must follow it.

Muhammad endeavoured in his life to achieve this project. He entered into discussions with Jews and Christians so that they recognize him, invoking the fact that their sacred books foresee a saviour’s arrival. But these two groups refused, saying that their books do not mention the name of Muhammad. This one retorted then that they had falsified their books to make his name disappear[11] and accused them to have been unfaithful to their prophets: the Jews believing in the Gibts and the Taghouts and adoring Moses, their high priests and Ozayr[12], and Christians adoring God, Jesus and Mary[13]. Muhammad had in the end to accept that his spiritual mission was not shared by the other faith communities, attributing their rejection to divine will:

Had God willed, He could have made you one community. But He thus puts you to the test through the revelations He has given each of you. You shall compete in righteousness. To God is your final destiny - all of you. Then He will inform you of everything you had disputed (5:48; to also see 2:145; 11:118; 16:93 and 42:8).

He recommends to his Companions to adopt a correct attitude with the People of the Book, urging this group to reach a common understanding with the Muslims:

Do not argue with the people of the scripture (Jews, Christians, and Muslims) except in the nicest possible manner - unless they transgress - and say, “We believe in what was revealed to us and in what was revealed to you, and our god and your god is one and the same; to Him we are submitters” (29:46; also see 3:64; 16:125).

This theological debate determines non-Muslim legal status, mainly controlled by four verses:

You shall fight back against those who do not believe in God, nor in the Last Day, nor do they prohibit what God and His messenger have prohibited, nor do they abide by the religion of truth-among those who received the scripture - until they pay the due tax, willingly or unwillingly (9:29).

Surely, those who believe, those who are Jewish, the Christians, and the Sabians; anyone who believes in God, and believes in the Last Day, and leads a righteous life, will receive their recompense from their Lord. They have nothing to fear, nor will they grieve. Covenant with Israel (2:62).

Surely, those who believe, those who are Jewish, the Sabians, and the Christians; any of them who believe in God and believe in the Last Day, and lead a righteous life, have nothing to fear, nor will they grieve (5:69).

Those who believe, those who are Jewish, the Sabians, the Christians, the Zoroastrians, and the idol worshipers, God is the One who will judge among them on the Day of Resurrection. God witnesses all things (22:17).

The classic jurists understood from these verses that the People of the Book (Jews, Christians, Sabians, and Zoroastrians, to whom one could add Samaritans) have the right to live within the Land of Islam in spite of theological divergences that separate them from Muslims. Certainly, the hope was to one day see them become Muslim, but the Quran rejects recourse to force to convert them: “There shall be no compulsion in religion” (2:256). The cohabitation between Muslims and People of the Book is not on equal terms, but of dominant to dominated. The People of the Book have to pay a tribute, in a state of humiliation (9:29), and to submit to discriminatory norms, notably concerning family law. So for example Muslims may take women of the People of the Book, but these are not allowed to take Muslim women (2:221; 5:5; 60:10). The People of the Book are called dhimmis, protected of Muslims, but these people should be closely observed because of their faith and regarded with constant distrust, even though they may have strong relationship ties:

O you who believe, do not take Jews and Christians as allies; these are allies of one another. Those among you who ally themselves with these belong with them. God does not guide the transgressors (5:51; to also see 3:28, 9:8 and 23).

One must not exclude reports based on justice, except for a case of hostility:

God does not enjoin you from befriending those who do not fight you because of religion, and do not evict you from your homes. You may befriend them and be equitable toward them. God loves the equitable. God enjoins you only from befriending those who fight you because of religion, evict you from your homes, and band together with others to banish you. You shall not befriend them. Those who befriend them are the transgressors (60:8-9).

To solve contradictions that exist between the tolerant verses and those less tolerant, classic jurists resort to the theory of abrogation: a verse on a particular topic is abrogated by a later verse concerning the same topic[14]. However, classic jurists could not resolve conflicting passages by context or date. Some considered all tolerant verses of Quran concerning the non-Muslims abrogated by the so-called verse of the sword:

Once the Sacred Months are past, you may kill the idol worshipers when you encounter them, punish them, and resist every move they make. If they repent and observe the prayers and give the obligatory alms, you shall let them go. God is Forgiver, Most Merciful (9:5)[15].

Whatever the relation between Muslims and other religious communities, numerous persons converted to Islam over time. Those that remained faithful to their faith could benefit by certain legislative and judicial autonomy, notably concerning family law. The Muslim State was then more a collector of tax than an administrator of society, with Jews and Christians involved in administration more than the less trained Bedouin who come to occupy their countries. This is why Muslim authorities retained both Christians and Jews as government officials during the course of their administration. The Quran states in this respect:

We have sent down the Torah, containing guidance and light. Ruling in accordance with it were the Jewish prophets, as well as the rabbis and the priests, as dictated to them in God’s scripture, and as witnessed by them. Therefore, do not reverence human beings; you shall reverence me instead. And do not trade away my revelations for a cheap price. Those who do not rule in accordance with God’s revelations are the disbelievers … Subsequent to them, we sent Jesus, the son of Mary, confirming the previous scripture, the Torah. We gave him the Gospel, containing guidance and light, and confirming the previous scriptures, the Torah, and augmenting its guidance and light, and to enlighten the righteous The People of the Gospel shall rule in accordance with God’s revelations therein. Those who do not rule in accordance with God’s revelations are the wicked (5:44 and 46).

This multi-confessional legal system persists up to today in some Arab countries with more or less no change, but on the whole, the approach tends to lead to unification. So in both Jordan and Syria, the non-Muslim religious communities apply their religious laws concerning family law, with the exception of inheritance, and have their own religious courts, whereas Egypt suppressed these religious courts.

We can then say that in the state as established by Muhammad, religion remains the principle criteria of division. There are the Muslims who form the ummah qualified by the Quran as “the best community ever raised among the peoples” (3:110). Besides this main group, there are the groups who have revealed books: they can stay in the country, keep their belief, have their laws and jurisdictions, but have to accept restricted rights and to pay tribute. This tolerance did not apply to those among them that lived in Arabia. Muhammad, on his deathbed, called Omar (died 644), the future 2^nd caliph, and told him, “Two religions must not coexist in the Arabian Peninsula”[16]. Recalling this narrative, Mawerdi writes that non-Muslims were not admitted to stay in the Hijaz more than three days. Their same cadavers would not be buried there and, “if it took place, they will be exhumed and transferred elsewhere, because burial equalled staying for ever”[17]. Classic Muslim jurists did not settle the geographical limits in which this norm had to apply. Today Saudi Arabia alone invokes this norm to restrict the freedom of worship for non-Muslims.

What about polytheists, those who do not have revealed books? It seems that Muhammad, in the beginning, wanted to make some concessions to them. One passage of the Quran, recorded by Al-Tabari, recognized three of their divinities: Al-Lat, Al-Uzzah and Manat. But, facing his Companions that saw in this concession a breach to monotheism, Muhammad denounced this passage as revealed by Satan (i.e.: the source of Salman Rushdie’s Satanic Verses). Although this passage disappeared from the Quran, traces remain that confirm a provocative polemic (53:19-23). Muhammad admitted the possibility of a pact with polytheists (9:3-4). But it was also denounced (9:7-11) and polytheists were summoned, in conformity with the verse of the sword (9:5), either to convert or undergo war until death.

Muslims are convinced that one day all humanity will become Muslim, thus extending the realm of Islam to the entire world. Conversion to Islam is encouraged by different means. In the same time, conversion from Islam (apostasy) was prohibited. In this field we have contradictory norms in the Quran and the Sunnah. The Quran says, “There shall be no compulsion in religion” (2:256). It does not foresee a precise punishment against an apostate although it speaks repeatedly using the term kufr (disbelief)[18], or the term riddah (abjuration)[19]. Only punishments in the next life are foreseen, if one excepts verse 9:74, that speaks of “painful retribution in this life and in the Hereafter”, without making specifications. Narratives of Muhammad are more explicit:

One that changes his religion, kill him [20].

It is not permitted to attempt to the life of the Muslim except in the three following cases: disbelief after faith, adultery after marriage and homicide without motive[21].

Mawerdi defines as follows apostates:

Those that being legally Muslim, either of birth, or following conversion, quit the faith, and the two categories are, to the point of view of apostasy, on the same line[22].

On the basis of Quranic verses and Narratives of Muhammad, classic jurists foresee the death penalty for an apostate, after having granted him a delay of reflection for three days. If apostasy concerns a woman, some jurists recommend putting her in jail until her death, or her return to Islam[23]. It is necessary to add measures of civil order: the marriage of the apostate is dissolved, his children are removed, his inheritance is opened and he is deprived of inheritance rights. Collective apostasy relates to war. The fate reserved for apostates is thus worse than that reserved for an enemy, no truce being permitted for apostates.

Chapter III. Islamic law and Muslim minorities

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 Quran 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)[24]. 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[25].

The Land of War can benefit from a treaty of peace (ahd), becoming thus a Land of Treaty (Dar ahd). According to Abu-Yousof (died 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”[26]. Here Abu-Yousof merely paraphrases from the Quran, “Never falter and cry for peace when you can have the upperhand”(47:35).

Three centuries later, Mawerdi (died 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[27].

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[28].

Ibn-Khaldun (died 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-defence[29].

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 emigrate and 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; see also 100; 9:20).

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”[30]. 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[31]. Ibn-Qudamah (died 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[32]. 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[33]. 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[34].

Ibn-al-Arabi (died 1148), judge of Seville, is also opposed to the sojourn of Muslims in the Land of Disbelief as well as in the Land of schism (Dar al-bid'ah) (by virtue of the verse 6:68). He also directs Muslims to emigrate from a country, which is dominated by the illicit (haram), where they are in danger for their health, their persons, their goods and their families. He quotes Abraham (29:26 and 37:99) and Moses (28:21) who escaped for reason of fear[35].

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; died 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 [36].

Those who were unable to emigrate hid their religion by resorting to the dissimulation (taqiyyah) as permitted by the Quran:

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).

Legitimating such an attitude, a fatwa of mufti Ahmad Ibn-Jumaira, dated December 1504, provides precise regulations to fit their hostile milieu. Thus if Muslims are obliged by the Christians 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 Quranic 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[37].

The precedent fatwa concerns Muslims who could not emigrate from their country[38]. Concerning those who were able to leave, Al-Wansharisi (died 1508) is of the opinion, in two fatwas, that they should not remain[39]. He says that emigration from the Land of Disbelief to the Land of Islam remains obligatory until the day of resurrection. He 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[40] and denies Islam. He cannot fulfil the prayer without having the infidels laugh at him, a fact condemned by the Quran (5:58), neither can he fulfil 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. 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[41].

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 (died 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 Quran [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 a Land of Treaty (Dar ahd)[42].

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 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. 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 Land of Treaty (Dar ahd) or Land of Mission (Dar da’wah)[43]. 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)[44], 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[45].

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[46]. So the 2^nd 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 (qawmiyyat) and links of blood (asabiyyat), are void[47].

The 1983 Constitutional Model of the Islamic Council of Europe[48] 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)[49]. 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[50].

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)[51]. 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 son[52].

The classic Islamic concept played an important role in the creation of new Islamic States following Soviet downfall, as well as in 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[53]. 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 remarried[54]. 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 he has a divine permission[55]. In the U.S., black Muslims founded the Nation of Islam, in 1930. Its goal is still to create an independent Muslim State[56].

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 Land of Disbelief? If such is the case, should Muslims emigrate from these countries and proceed to a Muslim country? Al-Wazani (died 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 Muhammad 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”[57].

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[58].

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[59].

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 concept of religion, but also to maintain their own laws with their own courts and judges for many social, civil and economic questions[60].

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[61].

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 borders are no longer national borders?

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 community), 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 Muslims 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 migration[62].

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 Europe[63] grants, to any Muslim, the right to achieve citizenship in a Muslim State (article 14). The second Islamic Declaration of Human rights published by the Islamic Council of Europe in 1981[64] 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 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 Quran (3:28). Dissimulation must 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 life[65]. On the other side, dissimulation is not permitted when confronted with an unjust authority[66]. 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 Quran requires him to fight the neighbouring 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”[67]. 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[68].

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 Quran, “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).

Speaking about the Quranic obligation to immigrate, Al-Qalqili says that this duty was prescribed for two reasons:

-   Muslims could not maintain their faith in Mecca before its conquest.

-   Muslims needed men who could participate in the war effort against enemies.

The immigration to a Muslim community remains an obligation for a Muslim when these two conditions are realized. Thus:

-   It is an obligation for a Muslim who goes to America or another country where laws opposed to his religion are applied and where he cannot practice his religion, and is exposed to perversion, risks having children ignorant of their religion and, after his death, does not find somebody to pray on him. Such a Muslim engenders children who abandon their religion and sometimes fight against their nation and against the religion of their fathers.

-   It is an obligation for a Muslim whose country needs him to participate in battle.

In these two cases, a Muslim has no right to leave his country, and if he is already outside his country, he must emigrate from there into a Muslim country. Al-Qalqili adds that if somebody is constrained to leave his country, he should do it for a country where a Muslim community exists and whose members help each other to maintain Islamic identity. Those who emigrate from their country and go to countries where they lose faith and engender infidel children commit a great sin; they prefer the life in this world to the next[69].

The Guide for the Muslim in Foreign Countries, edited by a Shiite Lebanese publisher in 1990, recalls the prohibition of going to the Land of Disbelief. It quotes the Quranic verses relating to this subject and a saying of Imam Al-Sadiq, “There are seven deadly sins: voluntary homicide, false accusation of adultery, desertion in battle, return to nomadism after emigration, eating unjustly an orphan’s goods, acceptation of usury and all what is punished with hell by Allah”[70]. The return to nomadism refers to Bedouins converted to Islam in the time of Muhammad who went back to the desert, dissolving their links with the Islamic community and refusing to participate in its wars.

This book claims that the Muslim must always feel a barrier between himself and the impure Land of Disbelief. It quotes the Quranic verse, “The polytheists only are unclean” (9:28). This barrier must prevent the Muslim from integrating himself into this society. He must have the feeling that he is in an unjust society and that his presence in this Land of Disbelief is an exceptional presence dictated by the necessity that he must flee as much as possible, “Indeed, what is for a Muslim worse than to loose his eternal life for a temporary pleasure or a brief interest?”[71].

This book accuses parents who send their children to foreign countries, especially their girls without relatives. It explains that foreign countries attract these Muslim children with scholarships or by granting them political asylum or even citizenship through marriage with one of their citizens. This is intended to separate them from their Muslim milieu according to the missionaries’ plan which failed to convert them to Christianity, and which now tries to distort their personality. After the failure of military and economic colonialism against Muslim countries, foreign countries cannot find any other means than to impose their domination on brains[72].

However, the book denies that it is in favour of cutting Muslims off from the world; its purpose is only to vaccinate them against the defects of the Land of Disbelief. The Muslim has to choose either to leave the Land of Disbelief or to immune himself spiritually against it. The purpose of the book is then to help the Muslim to safeguard his identity and his purity in the Land of Disbelief[73]. For this purpose, it establishes the following principles:

-   It is forbidden for a Muslim to go to a Land of Disbelief if the way of life in this Land can undermine faith, regardless of the reason for travel: tourism, studies, trade or permanent sojourn. Undermining faith means committing any sin, small or great, such as shaving his beard, shaking hands with a foreign woman, abandoning prayer and fasting, eating impure foods, drinking alcohol, etc.

-   If the risk to undermine faith concerns solely women and children, the Muslim must leave them in his Muslim country. Because of that, the Guide speaks only about duties of Muslim men, and not about those of Muslim women.

-   If a Muslim needs to travel to a Land of Disbelief for medical treatment or for other important reasons, and he simultaneously risks undermining faith, this travel is permitted within the limits of necessity.

-   In all cases, it is preferable not to live in the company of sinners or of those who are in error, unless there is a valid reason. He who lives among the sinners receives part of the maledictions, which hit them. He who lives in the Land of Islam benefits from the benedictions which it receives[74].

Concerning those who must go to the Land of Disbelief, they must respect Islamic norms, developed in this Guide. We mention here:

-   To accomplish daily prayers. Not to eat impure foods, not to drink alcohol, nor to sit at a table where alcohol is consumed. Not to have face or back toward Mecca while on the toilet, because Western toilets are not oriented according to Islamic norms.

-   Not to touch a foreign woman. Marriage with a pagan (non-monotheist) or apostate is forbidden. Marriage with a Jewish or Christian woman should only be temporary. If a virgin, the Muslim must ask her father’s consent. In divorce, it is forbidden to leave children with the woman. Unless unavoidable, a woman must be treated by a female physician or nurse, and a man by a male physician or nurse if treatment involves touching or seeing “disgraceful parts” (awrah).

-   Not to bury a Muslim in the cemetery of infidels unless unavoidable due to the impossibility of sending the body to a Muslim country.

-   It is permitted to work in a supermarket if one is not obliged to sell pork or alcohol. It is forbidden to sell or purchase lottery tickets or musical instruments[75].

-   Medical students must avoid staying among women, and if impossible, they must take care not to be influenced. They must not touch a woman’s body or look on her “disgraceful parts” unless required for treatment. They must not look upon an image of a human body with desire. They must not practice autopsy on a Muslim corpse unless life depends on it and a non-Muslim corpse is not available[76].

-   To seek to convert infidels to Islam. This has to be considered by the Muslim as a payment for having left the Land of Islam[77].

The magazine of the Saudi Commission of Fatwa publishes the following answer of Sheik Ibn-Baz (died 1999):

Question: Is it licit for a student to live with a family in a foreign country in order to learn the language better?

Answer: It is illicit for a student to live with such a family because he risks contamination by the morals of the infidels and of their women. The question remains whether such travel is licit in itself. It is in fact forbidden to travel in the Land of Disbelief for study except in case of extreme necessity and on condition that the student is lucid and prudent... Muhammad says, “God does not admit the acts of a Muslim if he frequents the polytheists”... He says also, “I consider myself rid of any Muslim who sojourns among the polytheists”. Many other sayings of Muhammad have the same sense. Thus, the Muslim must avoid travel in the Land of Disbelief, except in extreme necessity. Unless the traveller is lucid and prudent and intents to convert others to Islam ... In this case, his travel is meritorious[78].

The journal of this religious authority twice published the same editorial to warn against the sending of students for language courses organized in the West, including programs of entertainment and sojourn in infidel families. The headline is expressive, “Warnings against travel in the infidel country and the dangers of such a travel for religion and morals”[79].

A Saudi woman demands that the government forbids Saudi girls to register in mixed foreign schools, faculties or universities. She wants girls to be obliged to wear Islamic clothes[80].

Abdallah Ibn Abd-al-Muhsin Al-Turki, of the University of Imam Muhammad Ibn-Sa’ud, wrote the preface to a book on the reasons for and the economic consequences of the emigration of scientists from the Muslim world. He says that such emigration is due to the fault of both: Muslim societies and Muslim scientists. If Muslim societies had not ceased to follow the teachings of Islam, they would not have suffered from this problem. Concerning Muslim scientists, if they had steadfast zeal and a feeling of their Islamic national duty, they would have remained in their places to fulfil the needs of their societies even if they had to suffer some difficulties and to sacrifice some of their interests.

Al-Turki adds that besides the arguments presented in the book, there is a necessity “to recall to our Muslim scientist brothers who emigrated and refused to return to the Land of Islam that it is not allowed for a Muslim, according to the Islamic law, to live in a Land of Disbelief and take it as his homeland and domicile”. He points out that, besides the underdevelopment in Muslim countries, the emigration of the brains has consequences on the children of these scientists who risk abandoning Islam. These scientists should think, “the seduction of the life, including scientific position, notoriety or economic security, has no value if their sons and daughters leave the Islamic religion”[81].

The author of this book points out that educated children who go to Western countries provide these countries an annual help estimated at millions of dollars. Some of them work in sensitive fields such as the creation of atomic bombs and whose secrets go to Israeli atomic installations, which in turn threaten Muslims[82].

There is also a debate concerning Muslims who take the citizenship of a non-Muslim country. One author does not hesitate considering such a Muslim as an apostate, because he submits to Western laws instead of Islamic laws. He even asks Muslim citizens in a non-Muslim country, including converts, to give up their citizenship and return to live among their Muslim brothers[83]. This problem was submitted by the Islamic Centre of Washington to the Academy of Islamic Law that depends of the Organization of Islamic Conference. Members of this Academy were divided, so that they could not make a clear response[84]. We will reconsider this point in detail in the following discussion of Muslim naturalization.

Facing the impossibility of forbidding any Muslim from emigrating to the Land of Disbelief and their naturalization, Al-Jaza’iri, preacher of the Prophet’s Mosque in Medina, recommended the creation of a commission of all Muslim countries, with the goal of protecting immigrant rights by providing a budget to which all Muslim countries must contribute according to their ability, and whose goal is:

-   To construct mosques to pray there and to learn their religion.

-   To provide imams and books.

-   To unite Muslims and create only one group that will be connected exclusively to the same commission.

-   To organize a religious teaching for immigrants.

-   To create a cooperation between immigrants for their own butcher shop and cemetery.

-   To create a commission of three religious scientists in every country of immigration whose goal is to solve conflicts between immigrants in order to avoid addressing themselves to the non-Muslim courts; to conclude and dissolve their marriages; to share their inheritance according to a will established in accordance with Islamic law; to create a cash-box to help in every mosque; to establish economic law between them and a bank to receive deposits according to Islamic norms.

Al-Jaza’iri believes these measures will prevent Muslims from dissolving into the unbelieving and atheistic Western society[85].

We must here take note of the fact that some Muslims living in Muslim countries claim for their coreligionists living in non-Muslim countries the application of the Islamic family law, in the same way Muslim countries apply to their non-Muslim communities their own religious family laws. An Egyptian professor writes:

The non-Muslim States, who pretend to be the most civilized, do not reserve for Muslim citizens any particular treatment in matters of family law considered by them as public order applied equally for all. This is not the case of Islam that applies to non-Muslims their own family laws. What a beautiful equity is Islam[86]!

Another Egyptian professor wishes the creation of a Muslim family code applicable to Muslims living in the non-Muslim countries who opt for such a code. This code should be inspired entirely by Islamic law in a contemporary interpretation, which would be the most compatible with universal values. The purpose is “to allow the coexistence between the members of the Muslim community and other communities respecting the culture and the legitimate interests of this growing Muslim community”[87].

The application of such a code, according to this professor, could be limited to Muslims established in Europe and whose links with their country of origin are interrupted. But it will not be applicable either to European Muslims or to Muslims not established in Europe, whose links with their country of origin remain strong. This unified code could avoid, theoretically, the principal discriminations attributed to the Islamic law, i.e. discrimination on the basis of sex or religion. It should:

-   exclude the impediment to inheritance for disparity of religion;

-   limit polygamy to exceptional cases according to the spirit of the Islamic law;

-   limit or subordinate divorce by unilateral repudiation to conditions which are similar to those of divorce in order not to deny the rights of the defending party.

In this way, adds this professor, “it is possible to elaborate on the basis of Islamic norms an Islamic family law which allows Muslims living in the West to realize their principal objective which is to establish their identity without being in disharmony with the society in which they are trying to integrate”[88].

The proposition of the two Egyptian professors is not new. Already in 1980, the Seminar of Kuwait on Human Rights in Islam organized by the International Commission of Jurists, Kuwait University and the Union of Arab Lawyers mentioned a similar idea:

The Seminar calls all nations to respect minority rights in exercise of their cultural traditions and religious rituals, and the right to refer in their personal statute to their religious convictions, and it recommends providing the necessary support to all initiatives that encourage this spirit and strengthen this orientation and outlook[89].

It is important here to mention the point of view of a Muslim author of ex-Yugoslavia in a doctoral thesis, presented in Saudi Arabia. After noting that acquiring citizenship in a non-Muslim country by a Muslim constitutes apostasy[90], this author indicates that it is not possible to apply Islamic norms that impose migration toward the Land of Islam and forbid naturalization to Muslim minorities. Indeed Muslim minorities do not live voluntarily under non-Muslim domination, but are forced there and acquire citizenship in spite of them according to the right of blood or the right of soil. Therefore, they are not sinful, nor guilty of wrongdoing. Further, these Muslims can be considered obliged, according to Islamic law, to accept citizenship of a non-Muslim country, since this citizenship confers benefits and rights from the State. But this author adds that such Muslims must keep in mind the idea that they are forced to acquire this citizenship, without which they would not be able to have a worthwhile life. Meanwhile, they must use all means at their disposal to spread Islam, and be ready when a Muslim State will come about, to answer the call and immigrate[91].

This author allows a Muslim to emigrate from a Muslim country to a non-Muslim country and to acquire its citizenship in the following conditions:

-   His country of origin does not need him.

-   This Muslim cannot have a life in his country very equal to the one procured in the non-Muslim country.

-   He must not be harmful to a Muslim in his work.

-   He must not commit what is illicit according to Islam.

-   He and his family are secure and he can without danger practice his religion.

-   He does not ask for the citizenship of the non-Muslim country unless this country does not grant any work for unnaturalised people.

-   He intends to return to his country of origin at the first opportunity.

-   He disapproves the evil he commits while acquiring this citizenship, at least in his heart.

The author in question mentions the verse, “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). He concludes that if the Muslim must disavow faith out of necessity, for stronger reason he may acquire foreign citizenship to protect his faith, his life, his possessions and his family. He also mentions a narrative of Muhammad that affirms, “All countries are God’s countries, and all believers are God’s servants. Remain anywhere you feel well”[92]. He then answers objections over the naturalization of a Muslim:

-   The marriage of a naturalized Muslim takes place according to civil law. The author answers that such a civil marriage is however done by a Muslim for show. After the civil marriage he concludes a religious marriage before an imam or a religious person according to Islamic norms.

-   The inheritance of a Muslim is shared according to Western law, contrary to Islamic law. The author answers that a Muslim has always the right to dictate his will according to Islamic law, denying inheritance to those who do not have the right thereby.

-   A Muslim can be forced to serve in the non-Muslim army, sometimes against fellow Muslims. The author answers that the military service in most Western countries is voluntary and can be exchanged against an amount of money. On the other hand, Muslim minorities in ex-Yugoslavia adhered to the army to learn to handle weapons. Most who took part in the Yugoslav army ran away, not to participate in the war against fellow Muslims.

-   A Muslim can be submitted to Western laws, contrary to Islamic law. The author answers that this is also the case in many so-called Muslim countries that apply Western laws. A naturalized Muslim who submits to Western laws has the benefit of excuse for constraint.

-   Muslim children are educated according to programs based on disbelief, without links to Islam. The author answers that non-Muslim countries allow Muslims to educate their children in Islamic schools and centres[93].

It is important here to say a word concerning the politics of migration adopted by Maghreb countries. These countries conceived of emigration as having three purposes: to have fewer unemployed persons, to obtain more currency to finance development, and to enable the emigrants to acquire a professional training in Europe which would help their respective country’s development after their return. This was considered advantageous for the receiving countries as well as for the exporting countries[94]. They conceived of this migration as provisional. The National Algerian Charter promulgated in 1976 (Title VI, V, 5) indicates the return of immigrants as one of “the major objectives of the socialist revolution”. It adds, “From their side, the emigrants will make their return to the country... one of their fundamental aspirations”. The return is encouraged by administrative simplifications and tax facilities, priority for housing or acquisition of land for building[95].

These countries did not envisage losing their children for the benefit of the receiving countries. Because of that, they were hostile to the idea of Dual-nationality. Even when they support it, it remains for them a stopgap measure. Thus, according to article 30 of the Tunisian decree 63-6 of February 28^th 1963, the voluntary acquisition of foreign citizenship has as consequence the automatic and irrevocable loss of Tunisian citizenship. The law 75-79 of 14 November 1975 has modified this article: the loss of Tunisian citizenship is henceforth facultative and occurs by decree of the Tunisian government. This reform was aimed principally, according to the Tunisian press, at satisfying the complaints of Tunisians working in foreign countries. They wanted to “obtain for a time” the citizenship of the receiving country in order to “lay claims to the social advantages reserved for nationals of these countries” and “to avoid all forms of discrimination”[96].

This desire of the country of origin to keep their children is evident in the agreements signed by Algeria and Tunisia with France on military service. The Franco-Algerian agreement of 1983, as well as the Franco-Tunisian convention of 1982, replaced the expression “Dual-nationals”, with “young people”. The agreement with Algeria, contrary to usual agreements that link the service of Dual-nationals with the criteria of residence, leaves the choice open. Often, concerning Algerians at least, young people choose, usually under pressure from their parents, or sometimes their parents themselves choose for them, to perform Algerian military service. Once the choice is made, it is irrevocable according to the above agreement[97].

Concerning Algeria, the French Commission on Citizenship indicates that this country has for long time been reluctant to permit the acquisition of French citizenship by its citizens established in France. It accepted unwillingly that children born in France after January 1^st 1963, to an Algerian father be considered French by virtue of the double jus soli (child born in France to a father born before independence in Algeria); such children are Algerians according to Algerian law. It seems, however, that the attitude of the Algerian authorities is changing and that they envisage limiting their influence to the maintenance of cultural links[98].

This new conciliatory attitude by Algeria can be explained by its economic difficulties. In the first years after independence, the official policy was to permanently claim the country’s descendents, to remind them that their sojourn in France was only provisional, that their destiny was with their homeland. To stay in France was considered a desertion, to acquire French citizenship a betrayal, to marry a French a shame. When the Algerian government, confronted by its very high demographic rate, understood the importance of emigration for the stability of the country, it stopped its blackmail of Algerians living in France, “If you take French citizenship, you loose forever your Algerian citizenship”. The Algerian authorities accepted with realism the departure of hundreds of thousands of persons that it could no longer nourish and to whom it could no longer offer a job[99].