From my blog post:

The Potential Solution Suggested by Shaykh Amin Kholwadia.

”Some months ago Shaykh Amin Kholwadia engaged in a conversation with Shaykh Shadee Elmasry. One of the segments of their discussion focused on the concept that if Muslims adopt the theoretical paradigm (attributed to Imam Abū Ḥanīfah RA) stating that Muslims residing in non-Muslim lands are in “Dar al-Harb” (abode of war), they could potentially find justification for obtaining loans with interest (mortgages) in order to purchase a home. I will present a summary of the rationale behind his stance first. The complete video segment is available below for you to watch yourself. In the end, I will elucidate why, despite the Shaykh’s good intentions being clearly evident, his position presents problems on various levels. Shaykh Amin begins by discussing his research in Islamic Finance. He was a member of a larger group of scholars and intellectuals responsible for writing a book about the current state and potential of Islamic finance. He was tasked with writing the first chapter of the book. As part of the project, he explains that they examined the existing conventional debt monetary system and compared it to the Islamic model, attempting to identify points of reconciliation. However, they ultimately realized that merging the two was not feasible, likening it to attempting to “fit a square into a round hole.” The book was eventually utilized in various colleges in England to provide an introduction to Islamic Finance. Shaykh Amin Kholwadia subsequently discusses how, simultaneously, they aimed for a slightly more innovative approach in seeking a solution. However, they chose not to attach an Islamic label to a Western instrument, as is done by some proponents of Islamic Finance / Banking with their purportedly Sharia-compliant mortgage offerings. The Shaykh expressed his disagreement with those who adopt that strategy. Instead, he aligns himself more closely with an alternative method in which they strive to grasp the differences between Dar al-Harb and Dar al-Islam. He considers this viewpoint to be a genius understanding by Imam Abū Ḥanīfah RA (born 699, Kūfah, Iraq— Muslim jurist and theologian whose systematization of Islamic legal doctrine was acknowledged as one of the four canonical schools of Islamic law madhhabs) and his students. They argued that there is a distinction in the way Muslims live in Dar al-Harb compared to Dar al-Islam. Thus, the questions regarding Islamic transactions arise: Are they considered fard al-ayn (individual obligatory actions that every Muslim is personally responsible for performing), or are they primarily subject to the Wali or Hakim (judge or arbiter responsible for interpreting and applying Islamic law in legal matters and disputes.) and their governing decisions? This is because the Wali possesses the authority to declare certain actions as wrong and demand repayment. In Europe or the USA for example, disputes about Islamic transactions cannot be brought before a judge, as they lack knowledge about Islamic transactions. This puts Muslims in a compromising position, as they’ll likely have to abide by the local laws, which might contradict Islamic jurisprudence. Hence, Shaykh Amin Kholwadia argues, the need to reestablish the notion that these two systems are distinctly different. While some moral theories may overlap and be compatible in certain aspects, the regulation of specific transactions remains unclear. The argument is for the necessity of a new system of Islamic finance, as practiced in Dar al-Harb. This is the objective they aim to achieve at their institute, Darul Qasim College. Shaykh Amin clarifies that individuals frequently err in assuming that the classification of land as “Dar al-Harb” implies an ongoing war or battle. Those unfamiliar with fiqh terminology tend to make this novice error, he explains. According to Shaykh Amin, Dar al-Harb refers to a land where Islamic law cannot be willingly applied, where the integrity of Islamic law is compromised, and where an alternate legal system based on a different worldview holds supremacy. This aligns with the Hanafi definition, Shaykh Amin says and has no association with actual warfare. Shaykh Shadee Elmasry subsequently describes the various contract types offered by Islamic Finance Companies/ Banks, which effectively facilitate riba through a combination of contracts. To many Muslims, including Shaykh Amin, practices of this nature appear to resemble financial maneuvers, which may adhere to the letter of Islamic law but fail to align with its spirit. Shaykh Amin Kholwadia expresses his concern about the monthly repayment rates that Islamic Banks offer for their mortgages. He finds them exorbitant. They are more expensive than conventional mortgages, which is a common complaint among a lot of Muslims. That’s why Shaykh Amin is attempting to revive the Dar al-Harb argument. According to him, it’s a more coherent and consistent theory than what Islamic Finance / Banks are doing now with their contract offerings. To support the Dar al-Harb argument, he provides the example of Qisas (the principle of proportional retribution for crimes, allowing victims or their families to seek equivalent punishment or compensation for intentional harm). ‘‘Can we independently carry out Qisas in the USA or Europe? No, because it’s within the government’s prerogative. If they choose capital punishment and opt to execute someone, they possess the constitutional prerogative to do so. As Muslims residing in these non-Muslim lands, we can’t demand that the Qur’an mandates us to carry out Qisas. In this scenario, all scholars would concur that Qisas is not obligatory for Muslims in this country; no scholar would insist on taking the individual to Dar al-Islam for execution. Every scholar is compelled to acknowledge that in the matter of implementing Qisas, Muslims are pardoned and exempt from that ruling.’’ This serves as an example where Dar al-Kufr creates a distinction in the hukm/ruling, as per Shaykh Amin’s perspective. He desires to apply this rationale to other Ahkam,(legal rulings determining the religious permissibility or obligations of various actions based on Islamic sources and principles). He articulates: “Does it apply to Zabiha? No, because we don’t require a government prerogative for Zabiha (referring to the method of slaughtering animals according to Islamic law). Does it apply to Nikkah? No, because we don’t need government intervention for that (marriage contract). Will it apply to divorce? Perhaps in some cases, but not in others. For instance, what should we do about those aspects of divorce where implementing Islamic laws isn’t feasible? We must find creative solutions consistent with the theory of Qisas. We will adhere to the law to the best of our ability, but we are still exploring this because it presents a significant challenge for Muslim divorced women who are left without much recourse when Islamic Sharia law is implemented. You could call it a personal trial or test for them, but ultimately, Muslims are suffering, and they often resist the idea of implementing Islamic divorce laws. So, how can we address such problems? We must address the issue and assist Muslims; it’s not about changing Islamic law, but rather about aiding women in dire situations. What can we do for her? Some also ask, what about the divorced woman’s brothers, sisters, and family? What if she has no family? What if her relatives are not Muslim? Why would they assist her? These are questions we are examining. I’m not suggesting for a moment that we alter Islamic law; I’m not advocating for that. I’m saying we need to find a coherent theory that benefits Muslims who are sometimes in compromised situations. This is another area where you might discover that Islamic law cannot be implemented fully, and this can also be extended to other rules and ahkam in Islam, such as riba/interest.” Shaykh Amin proceeds to pose the question, “Is riba something from which Muslims can be exempt in non-Muslim lands?” According to him, the distinction between the theory of riba and the hukm of riba (Hukm is an arabic term that translates to “ruling” or “judgment” . In Islamic jurisprudence it refers to the legal ruling or verdict issued by a qualified Islamic scholar or jurist regarding a specific issue or matter) is significant. While he adheres to the teaching that it is wrong to profit from lending money and acknowledges it as “atrocious” and “almost inhuman,” he also raises the question, “To what extent and in what manner can we practice Islam in Dar al-Harb?” Some Usuliyuun (Islamic jurists) suggest that living in Dar al-Harb indefinitely is not permitted, as one should practice Islam comprehensively. However, the dilemma arises: What should be the course of action for the millions of Muslims residing in non-Muslim lands? Even if all Muslims were to resettle in Muslim lands, there would still be challenges in achieving full Islamic practice there. It’s a catch-22 situation (moral dilemma). Shaykh Amin Kholwadia urges the Ulama not to “force the issue” and to consider the repercussions of doing so. He expresses frustration over the lack of a coherent solution within the Muslim community, stating, “As Ulama, we are challenged.” He then goes on to elaborate on the Dar al-Harb thesis, which he views as a potential solution. According to his interpretation of Imam Abū Ḥanīfa RA’s teachings, he points out “There is no riba in Dar al-Harb. Therefore, he’s not legalizing riba; rather, he’s clarifying that it’s not riba in the first place. He’s not categorizing it as halal or haram; he’s stating that there’s no specific ruling on it — the transaction is not viewed as a transaction in Dar al-Islam or Dar al-Kufr.” Due to the legal theory of Dar al-Harb by Imam Abū Ḥanīfa RA, some contemporary Ulama used his view to justify Muslims in non-muslim lands being able to take and receive interest. The Ulama mentioned by Shaykh Amin Kholwadia includes “Shaykh Yusuf Al-Qaradawi, Shaykh Ali Gomaa, two or three Ulama from the subcontinent, and most of the Ulama in Turkey.”

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