Fatwa Between the Mufti's Eligibility and the Chaos of Fatwa-Issuance

A paper presented to the 15th Imams' Conference — the Assembly of Muslim Jurists of America (AMJA), Houston, February 2018. The fiqh opinions in this research are solely those of the author and do not necessarily represent AMJA.

Introduction

It is a gracious invitation from the eminent scholars overseeing the academic projects of the Assembly of Muslim Jurists of North America that I take part in this conference — and I count myself only as a student-guest in the presence of these noble scholars.

I do not conceal that this invitation met with ready acceptance in my heart, for I am one of those pained day and night by the effects of the chaos and randomness in the issuing of unrestrained or irresponsible fatwas — whether from specialists who curry favor with rulers and thus become a means to deceive the people, or from glib pretenders and the eloquent-tongued by whom the common folk are deceived, so that they ruin themselves and those they advise. The harvest of their tongues has produced an unhappy outcome: the dilution of the fixed principles of the religion and the loss of the landmarks of Islam.

There comes to my mind here the saying of the Prophet ﷺ: "God does not take away knowledge by snatching it from people, but He takes it away by taking away the scholars, until, when no scholar remains, the people take ignorant ones as leaders; they are asked and they give rulings without knowledge, so they go astray and lead others astray" (narrated by al-Bukhārī).

So thanks and appreciation are due to the Assembly for the trust it has placed in us; we ask God to direct our steps, to inspire us with right guidance and preservation for as long as we live, and to record us among those who race toward what pleases Him.

Preamble: Defining the Terms of the Title

Since acquainting the reader with the terms of the title's wording opens for him greater familiarity with the topics and issues the research contains, we present the following definitions — (fatwa, mufti, qualification [ahliyya], chaos [fawḍā]) — and the related terms they require.

Fatwa: Linguistically and Technically

Linguistically, fatwā is a term derived from clarification and exposition and the expressing of an intended meaning, or the giving of an opinion in answer to a question and the removal of a difficulty; it also denotes strength and vigor. Ibn Manẓūr said: "He gave him a fatwa in the matter: he clarified it for him… and al-futyā, al-futwā, and al-fatwā are: that which the jurist issues as a ruling."

Technically, many definitions have been given: al-Qarāfī defined it as "an act of informing about God in obligating or permitting"; al-Shāṭibī defined it as "informing about a Sharia ruling in a non-binding manner"; and others defined it as "informing of God's ruling, by ijtihād from a Sharia proof, to one who asks about a newly occurring matter." One may say it is: informing of the Sharia ruling, by one qualified to know it, coupled with its proof, to one who asks about it in actual events and the like, without binding the questioner. (The restriction "in a non-binding manner" distinguishes fatwa from judgeship: the mufti clarifies the truth for the questioner without binding him, whereas the judge's ruling is binding and must be enforced.)

The Mufti

Scholars defined the mufti in several ways: al-Shāṭibī said, "The mufti is the one who stands in the community in the station of the Prophet ﷺ." It was also said: "He is the one able to know the rulings of events by Sharia proof, while having memorized most of fiqh." And in al-Muʿjam al-Wajīz: "The mufti: a jurist appointed by the state to answer the problematic Sharia questions."

The Difference Between the Mufti and the Mujtahid

Scholars differed over distinguishing them in two views. The first: that there is no difference, and that the mujtahid is the mufti — the view of the legal theorists (uṣūliyyūn); Ibn ʿĀbidīn said, quoting Ibn al-Humām: "The view of the uṣūliyyūn has settled that the mufti is the mujtahid; as for one other than the mujtahid who memorizes the mujtahid's statements, he is not a mufti, and his duty, when asked, is to mention the mujtahid's statement by way of narration." Al-Shawkānī likewise said: "The mufti is the mujtahid." The second: that there is a difference, and that the mufti is one who issues rulings only according to his imam's school and is below the mujtahid; Ibn al-Humām said: "It is thus known that what occurs in our age of the fatwas of those present is not a fatwa, but rather the transmission of the mufti's words for the questioner to act upon"; and it is called a "fatwa" only metaphorically, because of the resemblance, since it is the fatwa of an imitator (muqallid) and not a fatwa in reality.

The view chosen by scholars is that there is a difference between issuing fatwas (iftāʾ) and ijtihād: iftāʾ is informing of the Lawgiver's ruling in a case that has actually occurred, whereas ijtihād is the derivation of the Sharia ruling to address an event that has occurred or may occur. Thus iftāʾ deals with realized fiqh, and ijtihād with hypothetical fiqh. Accordingly, the fatwa is a branch of ijtihād, and whatever newly arises in the domains of ijtihād entails changes in the reality of fatwa.

The Difference Between the Mufti and the Judge

The mufti informs of the Sharia ruling, while the judge is bound to enforce its requirement; the judge's ruling binds the one who litigates before him and is executed compulsorily, whereas the mufti's fatwa is non-binding. It is said that the judge has a greater reward than the mufti, for reasons including that the jurist's role is to issue a fatwa on the spot, while the judge's role is deliberation and verification; and that in judgeship there is a binding force not found in fatwa. Al-ʿIzz ibn ʿAbd al-Salām is cited in preferring rulers over muftis: "The judge's reward is greater, for he issues a fatwa and binds, so he has two rewards." Fatwa is more general than judgeship in that it includes what judgeship does not — for example, the rulings of acts of worship, such as the times of prayer and the onset of Ramadan, for the statement on all that belongs to the domain of fatwa, not judgeship.

Qualification (Ahliyya) and Chaos (Fawḍā)

Qualification for a matter means fitness and competence for it; the author of Taysīr al-Taḥrīr says: "A person's qualification for a thing is his fitness for its issuing from him, its being sought from him, and his acceptance of it." Chaos means a disorder in the performance of functions and tasks and their lack of system; so what is meant by the chaos of fatwa is either a disorder in the mufti's performance such that there issues from him what he is not qualified for, or that the fatwa suits him as to the principle of its issuance but does not suit the questioner or the reality in which it was issued.

The Etiquette and Conditions of the Mufti

It is established among the people of knowledge that the mufti is a signatory on behalf of the Lord of the Worlds in the most important matter of human life — namely, their relationship with their Lord. This is a task the Lord undertook by Himself, saying: ﴾They request from you a ruling. Say, "God gives you a ruling…"﴿; He ascribed it to His exalted Self so that we may grasp the gravity of undertaking fatwa. Al-Nawawī said: "Know that issuing fatwas is of grave danger, of great consequence, and of abundant merit; for the mufti is an heir of the prophets and one who fulfills a communal obligation (farḍ kifāya)." Many of the Companions of the Prophet ﷺ dreaded issuing fatwas and would push the task to one another, out of the intensity of their fear of bearing its responsibility.

Among the most comprehensive statements on the mufti's conditions is that of Imam al-Shāfiʿī: "It is not lawful for anyone to issue a fatwa in the religion of God except a man knowledgeable of the Book of God — of its abrogating and abrogated, its decisive and ambiguous, its interpretation and revelation, its Meccan and Medinan, and what is intended by it — then he must be, after that, perceptive of the hadith of the Messenger of God ﷺ, perceptive of the language, perceptive of poetry, employing this with fairness and few words, acquainted with the differences of the regions, and possessing native acumen. If he is thus, he may speak and issue fatwas concerning the lawful and the unlawful; and if he is not thus, he has no right to speak about knowledge nor to issue fatwas." Ibn al-Samʿānī said: "The mufti is one in whom three conditions are joined: ijtihād, uprightness (ʿadāla), and refraining from seeking concessions and laxity." Ibn al-Ṣalāḥ said: "That he be legally responsible, Muslim, trustworthy, dependable, far removed from the causes of moral corruption and from what undermines integrity (murūʾa)… and that he be of sound juristic instinct, sound of mind, firm of thought, correct in conduct and derivation, and alert."

First: The Conditions of Legal Responsibility (Taklīf)

Islam: No one may occupy the office of fatwa unless he is a Muslim, for he informs about God and stands in for His Messenger ﷺ, and people receive what he rules as the religion of God. Puberty: because the statement of a minor carries no legal weight, even if he is intelligent and astute. Sanity: because the pen is lifted from the insane, owing to the absence of awareness and comprehension.

Second: The Conditions of Knowledge (Being of the People of Ijtihād)

Linguistically, ijtihād is the expending of effort and the exhaustion of capacity in accomplishing an arduous matter. Technically — gathering the definitions of the imams (al-Shāṭibī, al-Rāzī, al-Qarāfī, al-Āmidī, Ibn al-Ḥājib, and others) — it is: "the exhaustion of capacity in reflection and in attaining knowledge or strong supposition of some Sharia ruling, in a way that incurs no Sharia blame and in which one does not sense one's own incapacity."

The ranks of the mujtahids are six in summary: (a) The absolute mujtahid (al-mujtahid al-muṭlaq): who is independent in his own principles; he must have complete knowledge of the Book, the Sunna, the statements of the Companions, the principles of jurisprudence (uṣūl al-fiqh), and the instrumental sciences, with ample command of the language and the loci of consensus and disagreement. (b) The affiliated absolute mujtahid (al-muntasib): who is affiliated with an imam because he followed his path in ijtihād, not out of imitation. (c) The mujtahid within a school: who knows fiqh, its principles, and the proofs of rulings in detail, but imitates his imam in what his imam's text has made plain. (d) The mujtahid of weighing and fatwa (tarjīḥ wa-fatwā): deeply versed in his imam's school and able to prefer one statement over another; by these the needs of people in various eras were met. (e) The class of imitators (muqallidūn) able to distinguish the strong from the weak within the school. (f) The mujtahid in a particular issue or issues (partial ijtihād).

Is it permissible to act upon the fatwa of an imitator? Ibn Daqīq al-ʿĪd held that restricting the matter to mujtahids constricts people, saying: "Suspending fatwa upon the availability of a mujtahid leads to great hardship… so the chosen view is that a transmitter from the earlier imams, if he is upright and able to understand the imam's words and then relates to the imitator his statement, suffices." But Ibn al-Qayyim said: "It is not permissible for an imitator to issue fatwas in the religion of God on the basis of what he merely imitates, with no insight into it beyond its being the statement of the one he imitates; this is the consensus of the early generations, and al-Shāfiʿī, Aḥmad, and others stated it explicitly." So it is not lawful for one who issues fatwas according to an imam's school to do so unless he has come to know its proof and the manner of its derivation.

Third: Personal Qualities

(1) Fairness (inṣāf): a character trait God commanded in His words: ﴾O you who have believed, be persistently standing firm for God, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness﴿ (al-Māʾida: 8). The mufti's fatwa must not incline to one side over another out of kinship, personal inclination, or worldly interest; and worse still is that people's rights be trampled because of currying favor with a ruler or attaining some rank of state.

(2) Soundness of mind and sharpness of thought: for the cunning latent in the questioner's mind may at times overcome the mufti's astuteness. The Prophet ﷺ warned of this: "You bring your disputes to me, and I am only a human being; perhaps some of you may be more eloquent in his argument than others."

(3) Correctness of conduct and astuteness: Ibn al-Qayyim said: "He should be wary, astute, knowledgeable of people's states and affairs, his understanding of them matching his understanding of the Sharia; otherwise he goes astray and leads astray. How many an issue has a beautiful outward appearance while its inward is deceit, trickery, and injustice." Among the examples is the fatwa of Isḥāq ibn Ibrāhīm to the caliph who had relations with his wife in Ramadan — by fasting rather than feeding the poor — because Mālik commanded feeding only for one who has wealth, while the caliph spends from the Muslims' treasury; and the aim of the expiation is deterrence, and the king is not deterred by feeding but is deterred by fasting.

(4) Knowledge of reality (al-wāqiʿ): Ibn al-Qayyim said: "Neither the mufti nor the judge can attain the truth except by two kinds of understanding: the first, understanding the reality and being well-versed in it, and deriving the truth of what occurred by circumstantial indicators until he encompasses it in knowledge; the second, understanding what is obligatory in that reality — namely, understanding God's ruling that He decreed in His Book or upon the tongue of His Messenger ﷺ for this reality — then he applies the one to the other."

(5) Observing custom (ʿurf): al-Qarāfī said: "This is a rule that must be observed… Whatever custom newly arises, take it into account, and whatever lapses, drop it; and do not rigidly cling to what is recorded in books your whole life. Rather, if a man comes to you from outside your region seeking a fatwa, do not apply to him the custom of your land; ask him about the custom of his land and apply it to him. Perpetual rigidity upon transmitted texts is misguidance in religion and ignorance of the aims of the Muslim scholars."

(6) Moderation in ruling, carrying people upon what suits them without excess or negligence: al-Shāṭibī said: "The mufti who has reached the summit of his rank is the one who carries people upon the familiar middle course suitable for the generality, neither taking them down the path of severity nor inclining them toward the edge of dissolution." Among the common errors is some muftis' exaggeration in carrying people to the more burdensome view as a precaution and a blocking of imagined pretexts — which has led to delay in ruling on many issues that the world around us reached before us.

(7) Avoiding partisan zealotry (taʿaṣṣub) for a school or imam: Ibn Taymiyya said: "Whoever is zealously partisan for one particular imam to the exclusion of the rest is in the position of one who is zealously partisan for one particular Companion to the exclusion of the rest… These are the ways of the people of innovation and caprice." Ibn al-Qayyim said of the zealot who made the statement of the one he follows a measure against the Book and the Sunna: "This is closer to blame and punishment than to reward and correctness."

(8) Observing the higher objectives of the Sharia (maqāṣid): the objectives of the Sharia must not be absent from the mufti's mind when issuing his fatwa; he must attend to the wisdom and the rationale (ʿilla) of the legislation behind the text, linking them by a comprehensive, holistic view. Among the evidences of the Companions' observance of maqāṣid: ʿUmar's withholding from dividing the conquered land of Iraq, to preserve the interest of future generations; ʿAlī's fatwa holding craftsmen liable, saying, "Nothing sets people right but that"; and Muʿādh's fatwa accepting a substitute in kind for the zakat of grains and fruits. The science of maqāṣid is grasped only by one who has comprehended the rulings of the Sharia and understood their meanings and aims.

(9) The condition of specialization (takhaṣṣuṣ): a condition I support in this age, given its nature — that whoever undertakes fatwa has studied fiqh, uṣūl, and legal maxims thoroughly, has practical familiarity with the issues and acquaintance with lived reality, and has obtained higher studies from accredited universities or studied at the hands of senior scholars. I treated it as a separate condition — though it falls under the condition of knowledge and ijtihād — to settle the state of chaos stirred up by those who have not specialized in fiqh and uṣūl and yet object to and debate fatwas whose juristic principles they never studied.

The Chaos of Fatwa: Fatwa Between the Old and the New

The early generations valued the matter of fatwa, feared its station, and held none qualified for it but the trustworthy among the people of knowledge. A man saw Rabīʿa ibn ʿAbd al-Raḥmān weeping and asked, "What makes you weep?" He said: "One who has no knowledge has been asked for a fatwa, and a grave matter has appeared in Islam." Ibn Ḥamdān al-Ḥanbalī commented: "How then if he saw our age, and the rushing of those with no knowledge to issue fatwas, with their scant experience, their aim being only reputation and ostentation, and rivaling the virtuous and the firmly grounded scholars?"

The Companions used to push the fatwa away from themselves and scrupulously avoid it. Al-Barāʾ ibn ʿĀzib said: "I saw three hundred of the people of Badr, and there was not one among them but loved that his companion would spare him the fatwa." Abū Ḥanīfa said: "Were it not for the dread before God that knowledge might be lost, I would not issue fatwas." Aḥmad said: "Whoever exposes himself to fatwa has exposed himself to a grave matter," and he used to say: "Restraint is dearer to me."

Through these scenes we see the difference between souls grounded in the fear of God and then in regard for the trust of knowledge, and people deluded by the titles they hold and the gathering of people around them — especially in an age in which each person has his page on Facebook or his channel on YouTube, granting himself every title he desires, and so daring upon fatwa, whether out of ignorance of the gravity of what he undertakes or out of a boldness against God, His Book, and His Messenger. From here the chaos of fatwa arose, and the single proof came to be used according to what listeners demand, what viewers desire, or what businesspeople and office-holders set up. Ibn al-Qayyim's words perhaps summarize this confusion: "It is not permissible for the mufti to bear witness against God and His Messenger that He made such a thing lawful or unlawful, obligatory or disliked, except for what he knows the matter to be so, from what God and His Messenger have stipulated."

Some who assume the pulpit of fatwa may possess enough Sharia knowledge to qualify them, but in a time and place they do not transcend, due to their ignorance of the conditions of other places and the requirements of reality therein; thus their fatwa has no effect but the confusing of people, for what is permissible for people in one locale may not be permissible for others in another.

Conclusion and Recommendations

In closing this address, I propose the following:

1. The union of Islamic institutions around designating a dedicated channel for fatwa and restricting whatever may come from other sources — though I know this proposal may not exceed being a proposal, since the unity of the community itself needs a reshaping of the minds, since the satellite channels are mostly owned by those not concerned with the Islamic cause, and since such an effort needs no slight funding.

1. The rallying of preachers around the figureheads of daʿwa and fiqh and supporting unity of the source of fatwa; this requires fully releasing our scholars and providing for them so they may devote their time to answering people's needs, and determining the juristic references that issue fatwas to people while setting among themselves controls and standards to follow, so that people are not scattered.

1. Opening channels of communication among the official muftis of the Islamic world on decisive issues, surveying opinions according to the schools and visions, and recording these matters in collective periodicals to be a fixed reference representing a global consensus.

1. Further enrichment of the idea of the fiqh academies at the level of nations, increasing their activities and the frequency of their sessions to keep pace with new developments; this is among the most important of what AMJA does as a juristic reference for the imams of the Muslims in America, especially its Fatwa Committee.

1. Teaching people to take fatwas only from the scholars of the lands in which they live and those most aware of its reality; this role is perhaps entrusted to the preachers and imams of the mosques. The imam must distinguish between his role as an imam and his being a mufti; if the instrument and faculty of fatwa are not available to him, it is more fitting that he refer matters to their specialists.

1. Issuing statements that object to the channels that host non-specialists for fatwa or discuss complex juristic issues with those not qualified to debate them.

And God, the Most High, knows best.

Written by: Dr. Ahmed Abouseif — 15th Imams' Conference, Assembly of Muslim Jurists of America, Houston, 2018.