Evolution and Relevance of Fatwa in Islam

Syed Sharfuddin

Fatwa in Islam means a legal opinion given by a Muslim scholar on a matter of concern or interest to Muslims, both individually or collectively, at a set time, situation, location or circumstances. In Islam the institution of fatwa has had a significant impact on the interpretation of Sharia law which governs the private and public lives of Muslims of all denominations and sects. Believers have regularly consulted their religious consuls (muftis) to seek clarification about any new aspect of their social engagement  to draw a line on what is permissible under Islam and what is not. Muftis have a high responsibility as interpreters of Sharia law and as advisers for the public to play their role as good Muslims and citizens in the wider international community. In this respect muftis are comparable to Rabbis in Judaism who provide guidance to the practicing Jews in almost every aspect of their life as prescribed in Talmudic literature. However, Muslims depend much less by comparison on the muftis than Jews on the Rabbis.

There is a distinction between a mufti and a qadi. A mufti is a legal consul whereas a qadi is a judge. The job of a mufti is to provide an interpretation of a question according to Islamic law. A Qadi does not give interpretation of Sharia. He gives a ruling on a case in the light of the Sharia. The fatwa of a mufti is non-binding on public. The judgement of a Qadi is official and binding on the people it addresses. The subjects of fatawa (plural of fatwa) are vast as they can cover any human activity in private or public life. The subjects of a Qadi are limited to the case brought before him, although his ruling may establish a precedent for the future court decisions. Muftis are often outside the payroll of the State, whereas a Qadi is employed by the Muslim State. Muftis regulate their own conduct through their training and accountability institutions called Darul Ifta. They take their terms of reference from the holy Quran, sayings of Prophet Muhammad, (hadith), reports of the companions of the Prophet about the Prophet’s life (seerah), their understanding of the Sharia according to the Quran and hadith, and their awareness of the time and place where the fatwa is sought. Qadis on the other hand are bound by Sharia law or by the laws of the Muslim State and are informed by the legal opinions of muftis in arriving at their ruling.

The object of this essay is to clear two false assumptions around fatawa which are publicised to cast doubt about the universality and contemporary relevance of fatwa in Islam. The first fallacy is that Islamic jurisprudence is a post-development which developed after Islam encountered the more sophisticated Persian, Roman and Greek legal systems and had to establish a legal system it could call its own. The second fallacy is that the institution of fatwa has lost its relevance in modern times because the multitude of fatawa representing different schools and sub-groups of Islam muddy the ground for observing the edict ‘enjoin the good and prevent evil’ (amar bil maroof wa nahi anil munkir),  instead of providing guidance and clarity to Muslims globally.

Brief History
During the time of the Prophet, peace be upon him, there was no need for fatawa, as guidance came from him in the way he spent his life among the companions, sharing with them the divine revelation he received from Allah and engaging with his followers as a leader and reformer. There are many instances where the Prophet’s companions directly asked him about a matter and got a reply from him, either in the form of revelation or as his own advice, which they later narrated for the information of following generations (Tabieen, Taba Tabieen, and Thuma Lazina Yalunahum and so on). After the demise of the Prophet, the caliphs continued emulating the way of the Prophet. Where it was necessary, they interpreted the Sharia in accordance with the need of their time. For example, the first caliph, Abu Bakr was very harsh in dealing with the issue of apostasy. This matter had not arisen during the time of the Prophet and therefore there was no clear guidance whether to ignore the claims of the false prophets or fight against them for causing dissension in the ranks of the believers.

Caliph Abu Bakr’s decision to challenge them wherever they had declared rebellion and deny them mercy even surprised the companion of the Prophet Omar Ibn Khattab who was known for his hardline attitude on matters of faith. During the time of the four caliphs, fatawa were given on many aspects long before these were codified in later centuries. The second caliph Omar Ibn Khattab started the institution of Traveeh prayers in the nights of Ramadan and added the phrase ‘the prayer is better than sleep’ in the Fajr Azan. The third caliph, Osman Ibn Affan collected all parchments and manuscripts of the written Quran and compiled them in the form of one standard book which has 114 chapters (Surah), 7 parcels (Manzil) and 30 volumes (Juz).

In the early period of Islam fatawa began simply by providing explanation of Quranic edicts and the sayings of Prophet Mohamad, peace be on him. After the growth of Islam which led to the formation of different schools of thought called madhabs, the institution of fatwa also diversified. Muftis interpreted Islamic law in line with the teachings of a particular madhab or Imam which they followed. As Islam expanded globally outside Arabia, fatawa also took into account the practical aspects of Muslims living in diverse pluralistic societies, including societies where Muslims lived as a religious minority. But the common element which runs through all fatawa and brings unity in diversity is the unanimous consensus of muftis on the authoritative references comprising the holy Quran and the hadith of the Prophet. Where they differ with each other is in the interpretation of the authoritative sources and the methodology of applying these to the contemporary situation and the circumstances where the fatwa is requested or issued.

The early jurists of Islam gave so much attention to the authoritative references that these became the dominant discourse of fatwa. Adherence to the original texts was so strict that over time, the work of these jurists also became a part of the primary sources of fatwa. The  early Imams of the Sunni and Shia schools of thought and their sub-schools have continued to act as authority for their followers who go to back to the time of their  respective Imams to seek guidance about contemporary issues.

The key purpose of the fatwa is to preserve the Sharia, which in turn aims to preserve the five higher objectives of Islamic law. These objectives are: 1) removal of harm individually and socially from society to preserve the self and humanity; 2) importance of saving human life and preservation of the soul; 3) preserving the mind and intellect as these are faculties which differentiate humans from other creatures; 4) preserving the institution of marriage and family as the nucleus of society; and 5) preserving the wealth and property of individuals so that there is order, peace, justice and welfare for all.

Just as acquiescence and precedent played an important role in the development of customary law in Europe, the original source of Islamic jurisprudence (Quran and hadith) played a central role in the development of fatwa in Muslim lands. The first four centuries of Islam was a period of foundation of the institution of fatwa which resulted in the development of a formal Islamic legal structure. In this period fatawa defined and established Islamic legal tradition clarifying what was permissible in the Sharia and what constituted unacceptable or unlawful. In this period legal standards were set for assessing the legality or otherwise of an action. Courts sought their guidance by applying this legal standard and gave rulings. The emphasis in this period remained on the authoritative reference of the Quran and the hadith. Any other influence outside this primary authority was unacceptable.

Then came the period of Muslim empires when the mufti and his fatwa came under tremendous pressure from the palace. Rarely, Muslims rulers were practicing Muslims but these rulers were mindful of the religious sensitivity and duty of care for their Muslim subjects from whom they collected taxes, formed their armies and recruited their officials. There was often a conflict between the mufti and the monarch on speaking the truth in line with the authoritative sources. Since the monarch was also a Muslim, he could not directly go against the Quran and hadith, but the monarch expected that the jurist will interpret the primary sources in the context of the contemporary situation existing at the time and give an opinion that suited the crown. In this period there was neither a complete capitulation of the institution of fatwa in favour of the political power, nor complete independence of the Islamic jurist from political influence. In some instances, one side was ascendant and at other the other side was triumphant. 

When Islamic legal system formally became part of the working machinery of the Muslim State, muftis were officially attached to the courts of magistrates as advisers. In Muslim Spain this office was regularly filled by experts in Islamic jurisprudence. Under the Ottoman Sultans, the office of mufti was officially incorporated in the centralised judicial administration. The Grand Mufti, who had the right to issue fatwa on behalf of the Muslim State was given the title of Sheikh ul Islam. Muslim rulers attached great importance to  muftis because they were taken seriously by their Muslim subjects and also indirectly provided legitimacy to the ruler. Their opinions carried weight in the Islamic legal system.

With the decline of Muslim rule in Europe, Africa and Asia, and its replacement by Western colonialism, official fatwa institutions were either shut down or were starved of resources. By then they had already made a rich contribution through compilation of elaborate body of legal doctrines, techniques and hermeneutical methods that shaped the Islamic legal discourse. Fatawa were codified and hand-written in different languages spoken in former Islamic lands. However, the consequent loss of State patronage to muftis under foreign rule destroyed the institution of fatwa and resulted in its fragmentation in each colonised region and country, and was left on its own. What was even worse was the use of some Islamic scholars by colonial powers to get fatwas in support of foreign rule. For example, the controversial fatwa in British India after the 1857 war of independence which asserted that Jihad against colonial rule was unlawful.

Principles of Fatwa
A mufti is a learned scholar of Islamic jurisprudence who is bound by his education and training to vet a question against four standards before giving his fatwa. The first standard is the holy Quran. When addressing a question, a mufti checks how many times the Quran discusses the subject under reference, what does each verse say about it and what is the context under which similar verses appear in different chapters. He also looks at the historical context of these verses and the conditions that existed at the time of the revelation. Also included in his examination are the repetition and sequence of verses on the same subject in the Scripture which lead to the final commandment, such as the progressive prohibition of alcohol in the time of the Prophet. The mufti also finds out the timing of the revelations, and whether these were in response to a question the Prophet was asked by the people of the Book, or were these direct commandments from Allah for Muslims to know and follow (Ayat Muhkamat). A mufti also checks the verses which were cancelled (tanseekh) and replaced by other verses.

The principles of jurisprudence (usual-e-fiqh) require that a mufti should first refer to a specific provision and then to a general provision dealing with a particular situation. A general provision cannot be interpreted to contradict a specific provision. A specific rule supersedes a general rule. A general rule is interpreted in a broad context, while a specific rule is interpreted in a narrow context. For example, there is general rule that the flesh of swine is forbidden for Muslims but there is also a specific provision that if there is famine or starvation, and nothing is available to consume except the flesh of swine, it can be eaten only to the extent of avoiding death by starvation.

If a mufti cannot find an answer to a question from the Quran, for example the exact method of performing obligatory prayers in congregation or the criteria for calculation of zakat on wealth, property, livestock and produce, he applies the second standard and uses hadith to find an answer to the question. As hadith is a very vast subject and includes several narrators, the authority of the hadith becomes very important. However, different schools of thought have attached importance to some narrators of hadith over others and this selective methodology has resulted in muftis following their own school of jurisprudence where they have graduated from. After this, a mufti also looks at the existing fatwas if the subject under examination has already been covered before by an earlier fatwa in another place in the past. 

If a mufti cannot find an answer in hadith, such as a question about organ donation, or freezing sperm for lab-assisted conception, or heart transplantation using parts of forbidden animals, or performing obligatory prayers during space travel, the mufti then uses the third standard of applying reason by analogy (Qiyas) providing the best judgement he can reach while keeping in view the requirement of staying within the spirit  of the Quran, hadith and applying the aforementioned five preservations in the Sharia. Qiyas may sound like a freeway to relax Islamic injunctions to suit modern times, it has its limitations. It cannot override the Islamic law of prohibitions and commandments. Qiyas can use progressive reasoning (Ijtihad) in order to find a solution of a question in a new situation and time, but it cannot deviate from the spirit of the Sharia. A fatwa based on Qiyas must always exhaust fully the first two principles and provide progressive reasoning from the Quran and hadith in simple words in order to be understood easily by the public.

In order for Qiyas or Ijtihad to be acceptable for the community, the fourth standard is applied which is consensus (Ijma) of the scholars. This means that on a new issue there are bound to be many informed opinions of muftis, but the opinion or answer that finds wider acceptability among the community of muftis is the authentic way forward. Islam is a practical religion made easy for the people to understand and follow. Ijma may take time to develop overtime. It may also differ from one school of jurisprudence to another. As long as the fundamental principles and preservations have been followed and applied by muftis, there is room for these differences to exist within the major schools of Islamic jurisprudence. This explains why the timing of breaking the fast is different in Shia and Sunni schools. Or why it took so long to accept installation of electronic sound amplification in mosques when the method of appointing mukabbirs to say takbeer after imams in congregational prayers existed in mosques for centuries.

After a fatwa has been issued, a mufti has no control how it will be received by the community. Often on a controversial topic such as whether a Muslim can vote for a political party which may not serve the interests of Muslims if elected to government, there can be multiple fatawa giving conflicting or extreme opinions in favour or against the question. The community takes the fatwa which suites its circumstances dictated by geography, economic situation and other domestic factors facing he community. When Sir Syed Ahmad Khan started the Aligarh Movement in British India for Muslims to study English language and modern disciplines, there were fatawa issued against and in favour of his mission. Such difficult situations create confusion in the community, especially if the community happens to be a religious minority in a non-Muslim or secular country because there is no single authority to endorse it. However, within the wider Islamic community, the Sufi, Shia, Athna Ashari, Agha Khan and Ibadi schools have a religious hierarchy that guides their followers globally with greater clarity than their Sunni, Wahabi, Deobandi and Barelwi counterparts around the world.

It is incorrect to assume that just because there are so many diverse schools within the Islamic jurisprudence, the institution of fatwa has lost its relevance. In fact, it has gained popularity because as knowledge is easily shared and updated in modern times, more Muslims are asking questions about fashioning their lives around Islam in a manner that they do not get cut off from the world but at the same time remain good Muslims contributing to peace and economic progress of the countries they live in and help the needy, the poor, dislocated, vulnerable and less endowed people around them. The number of muftis is also increasing in keeping with the need of the community. It is not inconceivable to assume that just as every mosque has an imam and a muezzin, in not too long a period, it will also have a qualified mufti attached to each mosque to guide the laity and replace Diy muftis and professional fakirs and charlatans who misguide the public with their self-informed opinions in the name of God.

Ijtihad does not mean departure from the tradition. It is deeply rooted in the tradition and original texts. Its merit lies in finding answers to questions that were not asked before because the situation and time in the past was different from the present, but the basic needs of people as humans have remained unchanged. Each fatwa that is issued and attains Ijma becomes a part of the rich archive of Islamic jurisprudence. The internet and e-collection of fatwas has also made it possible for fatwa schools to teach comparative intra-Islamic and inter-faith legal doctrines to their students to broaden their knowledge, and equip them with better tools to find answers to complex issues for the contemporary Muslim community.


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The Issuance of Fatwa: Rules and Conditions







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