NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #3
[This is the third in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]
Moderator: Abubaker Al-Shingieti
“Fatwa in the Era of Globalization”
Moustafa Kassem, Prof. of Islamic Studies, Effat University, Saudi Arabia
My goal is to discuss some issues regarding fatwa in the current world and for the future, approaching them from the standpoint of da`wa, so that those less informed than we can understand. My first finding is that fatwa has a general and a religious definition in the Qur’an. The general or linguistic definition is a response to a request to make something clear. The first example is in Surat-Yusuf in which the Pharaoh asks his council for an explanation of his dream. Another example is when the Queen of Sheba asks her council for advice regarding the letter she receives from Solomon. The religious definition is a question for a religious ruling on a particular action. In response to such a question, the Prophet (saws) says an ithm (sin) is what bothers you in your heart, so that it is uneasy, even though people give you a fatwa that it is permitted.
The job of the mufti who gives the fatwa is not to give a decree, but to clarify an issue, and it is to the questioner to decide how to act on the advice. All actions that a responsible person may do fall into one of the five basic categories defined by the fuquha: wâjib or fard (mandatory), mustahib (preferable), mubâh (optional), makrûh (discouraged), or haram (forbidden). So when you hear someone say Islam is a complete way of life, it means the believer maintains an awareness of his Creator in all actions, whether in the category of traditional acts of worship (such as prayer and fasting) or outside traditional acts of worship. This many actions fall into the optional acts, such as whether to wear red or blue. The mufti gives you his opinion as to which category an act belongs.
Aisha characterized the Prophet’s life as the living Qur’an so the knowledge of his life is necessary, but it is not necessarily sufficient, because the status of an action may differ from situation to situation, and Islam is not a static religion. There is no guarantee that anyone can give you an accurate fatwa for your situation for there may be things about your situation that the respondent may not know. For example a certain form of dress may be seen as respectful in one place and disrespectful in another. We confront new issues, new sciences, new disciplines, like new financial instruments, bioethical questions, intellectual property rights, etc., all of which require a broader knowledge than traditional religious studies like mastering hadith, recitation, and tafsir.
Methodology for issuing a fatwa requires consideration of Qur’an, hadith and Sunnah, ijmâ (which we can call legal precedent and consensus), qiyâs (the analogy of a known ruling an unknown ruling), public benefit, prevention of harm, and position of the Prophet’s companions, among others. These elements of the methodology are not a formula. The mufti may have to delay the response in order to do research. The importance of the legal precedents and consensus is the insight the analysis of previous mujtahids may provide to the mufti. The value of the positions of the Prophet’s companions is that they had the benefit of the Prophet’s corrections and that they were people of taqwa. It doesn’t mean that their circumstances were the same as ours, but that understanding their choices may give insight to ours.
Who is best suited to give a fatwa? Imam an-Nawawi in Adab al mufti wa’l mutsafti (The Manners of the One Asked and the One Asking) gives an answer. When you ask a question of a doctor he gives you recommendations that are only directed to this life, whereas the mufti gives answers that relate to the afterlife, so they must believe in the afterlife, be reliable people, free from traces of corruption and bad behavior. That doesn’t mean they should be perfect, since no one is, but their external character should reflect their internal state. Of course they should be fully conscious. Maybe they shouldn’t be too hungry but then they shouldn’t be too full either. Imam an-Nawawai says there should not be undue discrimination. Thus, a slave who is otherwise qualified can still give a fatwa. A blind person can give a fatwa as long as the blindness does not directly affect their apprehension of the issue. According to my research a woman can give a fatwa. Although in traditional Islamic society women were not in the position of giving enforceable decisions (hukm) they could be consulted in all matters regarding Islam (iftaa). The same for the physically disabled, even mutes though they cannot talk can answer questions as long as they have the means to do so.
Peer approval is a traditional means of determining who is qualified to give a fatwa. If other scholars say you are qualified, you are qualified. Designation by the government is another method, which has benefits of clarity and risks of politicization. Last year in Saudi Arabia the king gave a decree that only “acknowledged scholars” could give a fatwa, resulting in the closing of some radio shows and Internet sites. Finally, there are new means that can be employed not in lieu of traditional means but in addition, like the medical, legal, and accounting boards.
Abdullah at-Tahawy in “The Internet Is the New Mosque” notes that the Internet is not only conveniently accessible, but it allows for more frankness than traditional methods do. However, people might collect money from the website through advertising or they may be unqualified or they may be self-serving in other ways. I suggest that through some method of accreditation and peer review reliable websites can be established.
In the future we need to seek reliable and fair standards. The population is growing quickly and more people are studying Islam than ever before. We need to bring in experts from all fields and benefit from their knowledge. As math and English are the bases of tests like the SATs, we can in principle develop tests based on knowledge of Qur’an and Sunnah. We need to bring more women into the field of iftaa.
In Malaysia we have Shariah boards in the field of Islamic finance who advise banks as to whether their practices are or are not Shariah-compliant. Traditionally there was no barrier to entry to the field, one only needed to establish one’s personality in the field whether by accomplishments or contacts, resulting a network with individuals serving on multiple boards, creating room for conflict of interest. Eventually the government intervened with a regulation that no one could sit on more than one board at a time, opening new opportunities, which some women have taken up.
The challenges for the development of iftaa are several. 1. We need to produce scholars who are broadly informed and open-minded. To give fatwas on technology we need probably young people with knowledge in technology. 2. We need to establishment international guidelines which will be self-enforced by experts in the field. 3. We need to bring the study of Islamic law into the professional fields. 4. We need up-to-date case studies and not limit ourselves to ancient cases. 5. We need to increase accessibility to scholars and fatwa generating institutions. This will require more use of translators, of the Internet, and to increase the presence of Islamic education in higher education. My impression is that the world is ready to take a closer look at the Qur’an and Islamic knowledge and we should respond to this demand. My interest is in bridging the gap between learning about Islam and learning Islam. The analogy is the difference between being an expert in watching kung fu movies and being an expert in the practice of kung fu.
Discussant: Mahmoud Ayoub
The paper and the presentation are related, but are distant from one another. I will focus on the issues of the Internet and women. The Internet is creating confusion in many fields including this one, but we cannot deny its importance. You can write a question to someone like Yusuf Qaradawy and get an answer within three days. You should be careful of your high bar for the qualification of the mufti. The mufti is also a faqih usually and usually those who issue fatwas about medical or scientific matters ask experts in those areas. The maraja in the Shi`a system, because of the zakat system, often control a great deal of wealth. I think we should institutionalize iftaa rather than limit it to individuals. Asked if a conventional mortgage an alim may not know enough about finance or about the American environment, so you get peculiar fatwas like the alim who said you could have a car loan but not a home loan even though the latter is more important. Many fatwas today require more research that an institution can facilitate and then store in a fatwa bank.
Including women in iftaa is neither simple nor easy because of the fiqh limitations on women. You know the famous or infamous hadith related on the authority of Ibn Mas`ud that a woman is deficient in reason and religion. The idea that the testimony of a woman is half that of a man has kept women out of the judgeships. We must deal with these issues before we can say women should be included in iftaa. We have a lot of work before we can have the situation with which you present us, but I admire your ideals and I hope we can rise to the standard you have set.
Discussant: Alexandre Caeiro
I think the paper provides a largely normative account of the fatwa that draws on the traditional genre. At first sight it looks like a mere repetition of previous accounts with a striking sense of continuity which allows Mustafa to draw legitimately and eclectically from a 13th century Shafi jurist, an-Nawawi, and a 20th-21st century Jordanian Usama Sulayman al-Ashqar. The genre is also reflexive with certain contemporary naivety that provides interesting material on the Muslim understanding of religious authority and in the future Mustafa might wish to explore the differences between Nawawi’s account and Ashqar. There is a familiar narrative of the decline of the fatwa both in terms of the quality and piety of the mufti. There is also the idea that the mufti has the right to paint a negative picture of society if it will prompt people to greater piety.
I would raise three questions: on standardization, on the Internet, and on the shifting fatwa –line. 1. The suggestion of standardization implies that the problem of strange fatwas today is due to the lack of qualifications of the uluma. Do you agree? 2. You have a nuanced analysis of the impact if the Internet. The social sciences never see the media as neutral (the medium is the message). Don’t you think that websites with known scholars are privileged over other websites? 3. The paper ends with a call for a shift in the fatwa paradigm from an individual to a collective process, which is already taking place with fiqh councils. How would you respond to the claim that such a shift would take us to a framework very different from the traditional Islamic legal tradition with which you open your paper.
Kassem: The Internet can educate and benefit or be used for personal gain like any other tool. It will ultimately reflect the international community of scholars. I was concerned with those people who do not know who is and who is not a scholar. My understanding of the hadith about women is that the Prophet said, “I have never seen a people so deficient in thinking and religion” and I took sit as a response to a particular situation and not a general comment pronouncement on the qualities or deficiencies of women.
M. Ayoub: The hadith, when you analyze it, is not a proper hadith, it is what is called mudras, because it is Masud’s words not those of the Prophet, but that is not the issue, the hadith “A people led by a woman will not prosper” is the problem.
Jamal al-Barzinji: The actual text of the hadith is invoking women to do more good deeds because no one takes away the common sense of a man than a woman.
M. Ayoub: I do not accept either of the two hadith because we know the Prophet loved women, saying three things were made lovable of this world, women and perfume (which are related) and then prayer.
Kassem: My goal was to bring up issues for consideration, including the inclusion of women in to consultative bodies, beginning with research. I don’t believe we shall ever be finished with iftaa because we will always have new more questions. Inclusion of youth is important. Islamic finance prompts a resurgence in fatwas as the science of economics becomes more familiar to people. As to the testing I suggested. I don’t think we can test taqwa on a bubble sheet, but we can test critical thinking and knowledge.
M. Ayoub: I don’t like this.
Kassem: I may not like it after consideration, but we need some tools for investigation and this might be among them. As to the shift in the fatwa paradigm, the instruction, “Consult your heart” is very important. It does not deal with issues that are completely clear like whether to pray or whether to drink wine. There are cases where you should ask the scholars about their methodology and proofs so you can make the decision yourself. We need to maintain “consult your heart” and treat the scholars as the servants of the dîn who are to serve the people and increase their knowledge.
Wael: You should have made a clear distinction between fatwas relating to ibadât and to mu`amalât. I thought your shift of paradigm was from the individual to the collective, but in my mind it should be from being a reactive mufti to a proactive mufti, so instead of deliberative bodies I think we should be promoting think tanks dealing with technology and globalization seeking to influence policy rather than just answering questions. As a process of question and answer iftaa has always had a small audience and has never been used as an educational tool that never exposes the ummah to larger questions.
Kassem: A fatwa is a response to a question or a need. Perhaps the need is the more important focus now. Some people may be qualified to answer a question in a limited area only. That could be extended to specialized think tanks. Having Islamic scholars on board with other experts is another way to address that problem.
Kenneth Honerkamp: You painted a bleak picture of the muftis, but also of the people who are doing the asking. The farther people move away from the qalb (heart) the more they need to ask questions. There is a different kind of educational process that would reduce the need for people to call an expert in Saudi Arabia for a fatwa. I don’t think the mufti does that kind of education. Peer review bodies like to mirror themselves. I think Islam has offered other solutions to these issues.
Mujiburohman Abas: The standards you gave for a mufti are those of the mujtahid. People follow popular religious leaders rather than apply standards. People are driven by the answers they desire.
Ridwan Basor: There is a difference between fatwa and irshâd (religious guidance) Also, I think we need social scientists to participate in the iftaa.
Hafas Furqani: Can we not ask the society instead of the mufti and have a fatwa by the nation?
Jourdan Hussein: Despite globalization, we have a multiplicity of cultures.
Kassem: In the past the qualifications have been only traditional ones, whereas now we are seeing a synthesis between academic and traditional qualifications. That can have a balancing effect and can address other issues such a cultural sensitivity. Cultural awareness should be one of the requirements of the mufti.
M. Ayoub: I am afraid we are broadening the definition of a fatwa too much for it to remain a fatwa. Irshâd may involve a fatwa, but not necessarily.
Kassem: Fatwa is a matter of clarification while irshâd may be aiding people.
M. Ayoub: The fatwa is good council whether it is done individually or collectively. Even when a fatwa comes out of a research institution, it could still be signed by the head of the institution. I do think we need a mechanism to make fatwas international.
Ezekiel Abdullahi Babagario: Where does this idea that women are not supposed to be heard come from?
M. Ayoub: There were women who issued fatwas at the time of the Prophet or at least who were respected scholars. I wish we were as liberal on this issue now as at the time of the Prophet.
Anwar Haddam: I believe that the reason that iftaa has become an issue is because of the atrocities that have taken place in the Muslim world. We need a clear definition of what is a fatwa and of who is a mufti. One of the conditions of the mufti is he must know the questioner; this condition cannot be met over the Internet. We need to distinguish between the imam, who is also a counselor, and the mufti, and the faqih.
Al-Shingieti: Even in face-to-face situations there is incomplete familiarity between the mufti and the questioner, so we should not discount the Internet too quickly.
Vinay Khetia: The Shia on the Internet will only give general answers and then refer the questioner to their local mufti for a more specific answer.
Jamal al-Barzinji: I think we have gone past the point described by Prof. Ayoub on the role of women. The role of women in these issues is a matter of qualification. The earliest Muslims consulted with women on the question of succession of the Khalifah. The politicization of fatwas deserves a paper of its own. In the Shariah Council in Pakistan the politicization was painful. We have no marjia among the Sunnis, but it is the ummah that gives credibility to the muftis, not the political leadership. What we have arrived at in the last 10-15 years is that the role of Shariah is the re-articulation of the maqâsid, regardless of the issue. With millions of Muslims living under non-Muslim rule, we have to articulate fiqh al aqaliyât. There have been a number of Ph.D. dissertations on fiqh al-jamiyyah (collective jurisprudence). With all our reservations about Egypt, the Grand Mufti there has 30 paid researchers. We have a golden opportunity to bring Sunni and Shia together in madâras al-fatwa. It is a shame that every single iftaa body in the Sunni world does not have a single Shia scholar and vice versa. Commercialization has been a disgrace on scholarship. We need to look at Bin Bayyah’s recent book on fatwas. On the issue of incorporating education: I was once a member of a committee of three sent to al-Azhar to find members for our fatwa council. Out of 35 applicants only one survived on the basis of common sense shown in the interviews, but today the 34 are in positions around the world. If first generation scholars could consult with merchants and women in the issues that affected them, why can’t we?
Hisham Altalib: 20 years ago Shaikh Taha commented on this non-hadith that women are deficient in intellect and religion. How could the Prophet possibly, on the occasion of the Eid, disgrace a group of women in such a fashion?
Iqbal Unus: Suggesting governments should appoint the fatwa boards is an invitation to oppression.
Sarah Albrecht: The issues we discussed today come down to the question of authority. In many comments, authority was reduced to knowledge. I don’t think that applies in this era when other things have more impact than knowledge. If we want to speak of women in the iftaa process we should recognize it is the institutional authority rather than any hadith that determines their absence.
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute