Gorilla’s Guides

Fatwas and Ijtihad are as old as Islam. Their justification is to be found in the Holy Qur’an itself:

4:127 ويستفتونك في النساء قل الله يفتيكم فيهن ومايتلى عليكم في الكتاب في يتامى النساء اللاتي لاتؤتونهن ماكتب لهن وترغبون ان تنكحوهن والمستضعفين من الولدان وان تقوموا لليتامى بالقسط وماتفعلوا من خير فان الله كان به عليما

They ask your legal instruction concerning women, say: Allah instructs you about them, and about what is recited unto you in the Book concerning the orphan girls whom you give not the prescribed portions (as regards Mahr and inheritance) and yet whom you desire to marry, and (concerning) the children who are weak and oppressed, and that you stand firm for justice to orphans. And whatever good you do, Allah is Ever All-Aware of it.
Women, 4:127

and

4:176 يستفتونك قل الله يفتيكم في الكلالة ان امرؤ هلك ليس له ولد وله اخت فلها نصف ماترك وهو يرثها ان لم يكن لها ولد فان كانتا اثنتين فلهما الثلثان مما ترك وان كانوا اخوة رجالا ونساء فلذكر مثل حظ الانثيين يبين الله لكم ان تضلوا والله بكل شئ عليم

They ask you for a legal verdict. Say: “Allah directs (thus) about AlKalalah (those who leave neither descendants nor ascendants as heirs). If it is a man that dies, leaving a sister, but no child, she shall have half the inheritance. If (such a deceased was) a woman, who left no child, her brother takes her inheritance. If there are two sisters, they shall have two-thirds of the inheritance; if there are brothers and sisters, the male will have twice the share of the female. (Thus) does Allah makes clear to you (His Law) lest you go astray. And Allah is the All-Knower of everything.”
Women, 4:176

The right and duty to issue judgements, in accordance with established principles and procedures of jurisprudence is clearly therefore established and has been from earliest times.

Fatwas are the means by which Islam takes account of change. Contrary to popular western belief the issuing of fatwas both in practice, and by tradition, is very often a collective process rather than an a process carried out by an individual jurist.

There is a lot of confusion and a considerable amount of deliberate and malicious fabrication surrounding  fatwas the purpose of this page is to try to remedy some of this by addressing the following questions:

• What is a fatwa ?
• How did fatwas arise historically?
• How important are they?
• How are they promulgated? — Is this an individual or institutionalised process?
• If there are institutions involved which institution or institutions are involved?

A fatwa (pronounced fatwā فتوى‎; plural fatāwā فتاوى‎); is a feature of of Shariah (Islamic law). Its purpose is rule upon Islamic law and, as Islam is a religion of laws, to act as a  religious edict.

The fact that a fatwa is a feature of Shariah does not mean that it does not intersect with other disciplines. Fatwas can and indeed must Include within their not scope only canon law but conditions and changes in contemporary society. This because it is a legal mechanism to bring evolving social realities under the rule of Islamic law, and not as commonly held merely a mechanism for answering important questions or to solving problems. A fatwa is required to have due regard to:

• The spirit and text of extant law.
• The reality of the evolving conditions and circumstances faced by Muslims.

Moreover a fatwa may not be either deceptive or lend itself to excess.

As a ruling upon Islamic law fatwas not only draw upon the Shariah but are also one of its sources. They thus involve the study of the disciplines associated with the Shariah:

• The Holy Qur’an.
• The Hadiths.
• Legal precedents.

The Mufti must also be well versed in the Islamic doctrines concerning:

• The scope of faith.
• What constitutes heresy.
• The corpus defining what is lawful (licit) and what is unlawful (illicit, sinful).
• The Islamic methodological system for distinguishing between right and wrong.
• The Islamic system of values defining the the difference between behaviour that is desirable and behaviour that is abhorrent.
• The relationship between the creator, life, and humanity.

Additionally the Mufti’s decisions must strive to conform to the spirit of the Shariah and God’s laws of reason and revelation.

It is not enough for a mufti to be well versed in Islamic law to be able to issue fatwas, they are also required to exercise sound judgement. The mufti must take account of:

1. The circumstances of the topic being considered and the difference between these circumstances and the ideals of the Shariah.
2. The differentiation between and relative importance of the matters (circumstances) surrounding the topic being considered.
3. The guidance offered by appropriate precedents.
4. The likely consequences of the effects of a fatwa and the extent of their conformity to Islamic law’s tenets.

Clearly it is difficult to find an individual endowed with all the qualities and expertise outlined above a fact recognised by Islamic jurists who, like lawyers everywhere,  in their discussions and debates on jurisprudence frequently bewail the difficulties of exercising legal judgement, and the rarity of the ideal jurist described above.

There are two further important considerations to be considered in relation to the fatwa process:

1. Those who issue fatwas are required to consult specialists in fields relevant to the issue under consideration economic, political, military, medical, and so on in order to formulate the best possible solution. This requirement arises from fatwas’ use as an instrument to contain and manage social crises.
2. It follows from (1) above that the process and consequences of issuing a fatwa are an instrument for shaping the future as it is designed to effect changes “on the ground”.

Fatwas Affecting Individuals

For example it is well-established that Muslims are required to engage in evening prayer. It is also well established how many prostrations be performed during the prayer, and how those prostrations are to be performed. However there are well known rulings that deal with prayer and illness:

• People who are ill may either reduce the number of prostrations or not perform them at all.
• If they are very ill they may perform the prayer from a sitting position, or lying down.
• If they are severely incapacitated  just moving the lips or making a gesture to evoke the sense of prayer will suffice.
• If the patient is comatose they are exempted from the duty to pray until they recover consciousness and are not required to make extra prayers to compensate for the prayers missed while they were incapacitated.

Fatwas such as these illustrate the requirement on the jurist that they are required to comprehend the reality of a situation both quantitatively and qualitatively when applying the abstract abstract provisions of Islamic law to a particular situation. In the examples above the individual(s) issuing the fatwa would be required to seek guidance from medical experts in order to provide a sound judgement judgment in light of the facts.

Fatwas Affecting The Community As A Whole

The situation becomes more complex when the jurist is required to exercise his* judgement on matters that apply to an entire community. For example, it is generally accepted that citizens are required to give allegiance to their nation and, if necessary, to engage in war to defend its integrity and freedom. There are specialised societal agencies, the political, diplomatic, and military arms of government, to perform the assessments and carry out the tasks necessary to maintain a state’s integrity and freedom. That their job is to protect both the citizenry and the state does not empower them to issue a fatwa decreeing jihad, preparing for war, and then to escalate those preparations from a defensive posture to going on the offensive. Such decisions cannot be left solely to the arms of the state precisely because of their specialised role in society.

A religious authority empowered to issue a decree of war must consult those specialised social agencies and then exercise his judgement to clearly establish several points such as:

• Has the point been reached where all political, diplomatic, economic, propaganda, and other peaceful alternatives been exhausted? — In other word is a recourse to military force now the only available alternative to repel aggression?
• Has the point been reached where it is licit to take up arms against an enemy?
• If the answer to that question is “yes” to whom, exactly, does the term “enemy” apply?  Does it apply only to enemy invading forces or does it also apply to civilians, such as diplomats and “reconstruction teams” who are their as part of the invasion?
• Does the term “enemy” also apply to domestic forces and civilians who are assisting the invader?
• Is it acceptable to seek the assistance of foreign fighters to help repel the invader?

In the jurisprudence of the Muslim nation there has always been a clear distinction between two levels of Ijtihad, or the exercise of reasoned judgment, to determine a fatwa. The first pertains to the daily lives of individuals, whether in the performance of their religious rites or in their dealings with others (in the adjudication of disputes, for example). The most familiar and widely practiced form of the process, it is performed by the individual mufti. The second level pertains to decisions affecting the welfare of nations and societies at large. For such strategic concerns, Sharia stipulates additional instruments that entail a broader array of knowledge and expertise and that bring into play the concept of consensus. As such, the process transcends doctrinal confines and the scope of the individual mufti to the level of pure Ijtihad, which necessitates the reaching of a unanimous opinion amongst both teams (specialists in the relevant fields and religious scholars) involved in the decision-making process.

Two levels of Fatāwā

Fatwas therefore can deal both with individual case law and legal matters relating to the national and public interest. Moreover the promulgation of fatwas, particular as they relate to the national and public interest is an institutionalised process and this institutionalisation is an imperative in fatwas related to national security and public affairs related to the affiliation and allegiance to the nation. However two important points arise:

1. Institutionalised Ijtihad is required to be academically specialised and functionally distinct.
2. The institution need to be an autonomous whole and an integral part of the religious establishment if it is to been seen as reliable and credible by the Ummah.

By and large the fatwa process has remained both autonomous whole and an integral part of the religious establishment across the ages and throughout the Dar al-Islam. While the Ulema who, in turn, mostly managed to retain their autonomy from the rulers. Perhaps the two best known examples are  Al-Azhar, which had as its charge all branches of knowledge and and all duties related to the preservation and well-being of the faith from 975 until 1805 when Muhammad ‘Alī Pasha al-Mas’ud ibn Agha assumed power as Wāli (Governor) of the Wilayah of Egypt and Sudan, and the Ulema of Iran who insisted upon their independence from the Safavids and later dynasties and who from the time of the Tobacco Crisis played an increasingly important role in political life .

Whither The Fatwa?

Throughout Islamic history the power of the ruler has been both tempered and legitimated by the requirement to obey the edicts of Islam. The ruler therefore was beholden at least to some extent to those who interpreted Islam’s edicts — the Ulema.

The Ulema developed as a class of religious advisers, which sometimes directly played a role in the running of the state but more generally played a secondary part, legitimating (and frequently tempering) the authority of the political leadership. “The ones who have Knowledge” claimed to be entitled to monitor political authority, but the way they did so changed according to political circumstances. Some of them challenged rulers on particular issues, more often most held that obedience to the ruler was mandatory.

The Ulema often had a twin role they serving both as legal experts and political advisers with a sometimes very fine line indeed between what a westerner would call their “temporal” and their “theological” activities. At various times, some Ulema would claim a superior authority to that of the ruler, but in general until recently they refrained from challenging the power of the state. Although they were far from being the only educated class on the Islamic scene their role in politics far outstripped that of philosophers, mathematicians, or natural scientists. “The ones who have Knowledge” explained the Shariah and used their social and moral power to keep the rulers from stepping too far out of line.

This situation has a modern, and sinister, descendant. The fatwa is making a comeback, except this time many “fatāwā” are being issued by people who are very far from being the learned and tempered jurists of the traditional Ulema. Traditionally, the Ulema used fatāwā, their religious edicts, to give a legal opinion on matters causing concern to the Ummah. The need to issue legal opinions was most urgent where new situations had arisen that were lacking legal precedent. Whenever a social circumstance emerged that had no clear precedent, various ulema would intervene and devise a legal way of dealing with it. These solutions could and did differ between the various jurisprudential schools but were generally relatively minor, particularly between the Sunni schools. Some fatāwā, but not all, had political significance. 

Radical Islamic groups are issuing fatāwā to attract new followers, especially among impoverished and embittered youth, and are using these fatwas to undermine the conventional power of the state and its affiliated theological institutions. Fatwas coming from fundamentalists are published to rival fatwas from conventional jurist organs and often have a clear political message. Instead of being fallible legal opinions, their authors proclaim that they are the last word on any given matter.

If we take the Napoleonic incursion as the start of the distortions wreaked upon Islamic societies by forced modernisation undertaken to benefit first western colonialists and then western-oriented post-colonial elites then we can see how this distortion came about. The fatwa is an important weapon in Islamic societies, and is being hijacked by various groups who wish to overthrow the existing unprecedented unIslamic, inequitable, and unjust social and political order. The cost is at the expense of the reasoned response advocated by Islamic reformers. Some of whom I have heard refer despairingly to the edicts of the  al-Salafiyya al-Ilmiyyah and the actions of the al-Salafiyya al-jihadiyya as doomed and harmful attempts to blow open the gates of Ijtihad.  Fatwas, instead of being legal advice based on consensus precedent and reason knowledge, are being used as polemical weapons to be used not only against governments but against entire populations.  It is easy to understand how this disastrous situation came about.

In Islamic history, the power of the ulema always waxed during periods of political decadence and waned in times of renaissance or vigour. Today, thanks to the disastrous alliance between western-oriented corrupt political elites we are seeing a distorted and very dangerous repeat of this old phenomenon. The power of the, or at rate an ulema, is once again being established, but these new ulema are not from the educated elites of the past instead they come from the ranks of embittered radicals determined to overthrow the existing order root and branch.

The past, and past actions remain relevant. Centuries ago, Islamic societies gave to the ulema the right and duty to monitor the political performance of rulers. Small wonder then that the first thing fundamentalists did was to claim this power and use it to their own ends.

markfromireland

* It is worth pointing out that at the time of writing (April 2008) there are female students in some of the seminaries in Qum and have been for some years now. I am in my late forties assuming a normal lifespan I expect there to be female Ayatollahs within my lifetime.

mfi

Afterword: This page is dedicated in respectful and affectionate memory to my good friend and learned colleague the late Laith Abu Mohammed.

markfromireland