People have had to migrate for various reasons in the past and today. This situation has brought about many positive and negative changes. Because migration has paved the way for change and transformation in everything that belongs to humans. As a result, a weak group has always formed in society that needs legal, economic and social protection. For this reason, the phenomenon of migration has become an important issue waiting to be researched and solutions produced with its legal, political, economic, social and cultural dimensions. In order for these people, who are in a weak position due to migration, to benefit sufficiently from their basic human rights, many legal systems have adopted the idea of the rule of law and the principle of justice for all as a principle. In this study, we aim to reveal the freedom of immigrants to preserve their belief, worship, culture and language, based on the principle of preservation of religion, which is one of the five principles collected under the title of zarûriyyât-ı hamse in the fiqh corpus of Islamic law. Thus, we will have concluded that there is no obstacle for immigrants, who are generally weak in society, to benefit from freedom of belief, which is one of the fundamental rights generally accepted by Islamic law.
Islamic Law, Zarûriyyât-ı Hamse, Fundamental Rights, Freedom of Belief, Immigrant.
People have had to leave the place where they live for various reasons in the past and today. This situation, which is expressed with the concept of migration, has brought many positive and negative effects on people and space. Migration has paved the way for change and transformation of beliefs, thoughts, rules and institutions that belong to people, especially individuals.
Throughout history, the phenomenon of migration has always existed, it still exists today, and it seems that it will also happen in the future. This situation has always created a weak mass in society in need of legal, economic and social protection. For this reason, all states and legal systems have adopted the principle of the rule of law and the principle of justice for all, so that people in a particularly vulnerable position can benefit sufficiently from their basic human rights. However, although the rule of law and the understanding of justice for all, which will enable all segments of the society to benefit from basic human rights, are adopted in principle/abstract, we regretfully observe how some states/powers and legal frameworks sometimes do the opposite in practice.
After the current situation is briefly expressed in this way, Islamic law’s perspective on this issue will be discussed and examined in this study. After the general view of Islamic law on fundamental rights and freedoms is mentioned, it is aimed to reveal the freedom of immigrants to preserve their belief, worship, culture, which is the manifestation of belief, and the language, which is its carrier, based on the principle of preservation of religion, which is one of the five principles collected under the title of zarûriyyât-ı hamse in fiqh books. Thus, the limits of immigrants’ freedom of belief in Islamic law, which is the purpose of the study, will be determined.
In Islamic law, which is a universal legal system of divine origin, people do not have to be Muslims or belong to a certain race in order to benefit from freedom of belief, which is one of the fundamental human rights. Because Allah, the Creator of all people with all their religious, racial/color and social differences, wants his servants to be Muslims, he is pleased with this, but he does not force them to do so.
According to Islamic law, everything on earth is given to human use, and it is essential that all people, regardless of their religion, race and culture, and regardless of their socioeconomic status, benefit from basic human rights. A human being has these rights from birth just because he is a human being. The most important of these rights are the rights to belief and worship. According to Islamic law, it is essential for a person to benefit from this fundamental right, whether he lives in his own country or as an immigrant in another country.
In terms of the application of Islamic law, all Islamic countries have been accepted as a single country. A Muslim has the right to settle there and enjoy all kinds of fundamental rights and freedoms, regardless of which Islamic country he migrates from his own country of residence to for any reason, whether compulsory or voluntary.
The security of life and property and the rights of belief and worship of the dhimmis with whom a non-aggression/peace treaty has been made and the people of the country with whom a non-aggression/peace treaty has been made are also under the guarantee of the Islamic state/law.
Foreigners/harbis who enter the Islamic country with security/permission are now under the guarantee of the Islamic state, just like dhimmis, in terms of benefiting from fundamental rights as musta’men/non-Muslim immigrants, as they are now assured. The group called Musta’men includes people called ” under temporary protection” or “refugees” who leave their country for compelling reasons in today’s international law, as well as immigrants who go to a foreign country of their own free will for any reason.
These immigrants, who have to leave their country and take refuge in any Islamic country because they are deprived of basic human rights, must be accepted by that Islamic country. The Islamic state must act according to what is required in terms of public security and social welfare when it comes to accepting or rejecting immigrants who come to an Islamic country voluntarily, but not for a compelling reason.
Islamic law is more comprehensive and advanced than current legal systems in terms of accepting immigrants and the rights it provides them. Because if the person who comes as an immigrant is a Muslim, every Muslim has the right to benefit from all kinds of fundamental rights and freedoms as a citizen, no matter which Islamic country he goes to. If the immigrant is a non-Muslim, he/she benefits from the same basic rights with the guarantee of immunity provided by embezzlement/citizenship, settlement/peace agreements or trust/permission institutions.
