Iftaa: Historical Background, Contemporary Contexts

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #2

[This is the second 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.]

Session 2 Moderator: Hisham Altalib
“Iftaa: Historical Background, Contemporary Contexts”
Mahmoud Ayoub, Prof. of Islamic Studies, Hartford Seminary

A religion requires authority in the form of a divine being or a human-divine being. Sometimes a seer or kahin is asked and what he proposes becomes a kind of fatwa. Fatwas have different levels of application all of which have to do with religious authority or law. The first to use fatwas as an instrument of law, even positive law, were the Romans. The Greeks used it in more of a mythical way, a means of managing the policy. The Romans were better administrators and had more of an interest in this aspect of law, usually called responsa, to ask questions and receive answers. The most important for the Romans was reponsa pruduntia, many of which were gathered together in the digests of law. Ninety such books were assembled by Julianus. Law can be to the good or bad. Sophistry (safsata) is a manner or speaking that makes the false seem true and the true seem false. The sophist cannot be taken seriously, but the responsa became a way to establish justice. We believe the Hebrew queries and answers developed to deal with daily issues, and it probably did not exist before the development of rabbinic Judaism. It was a series of blessings and curses into which the legal system was woven. We see this as far back as Hammurabi who probably wrote the first Semitic law that influenced later legal developments, including the style, if not the content, of Leviticus. The responsa developed as commentary on what the Christians call the Old Testament. This was the mishna (that which is repeated again), along with two other forms of commentary (the Talmud, or Gomorrah which developed into two talmuds, the Babylonian and the earlier Talmud of Palestine or Jerusalem). A third commentary is the midrash (Ar. Madris). Together these are the sources of Jewish law which is divided into halakha and hagadah. Halakha is fiqh, strictly speaking, dealing with diet, purity, family law etc. Hagadah means story and relates to law and belief from an allegorical point of view. An example is the story of a far away king with a beautiful daughter. When people come to ask for her hand he says I cannot be separated from my daughter so you must a room in her palace for me also. In this allegory God is the king and his daughter is the people of Israel.

Shallot (queries) and teshavod (response) dealt with basic matters of faith in the community. The centers of these responsa and much of Jewish learning were from the schools of Babylon and Palestine. I think Iraq was the cradle of civilization three times: the birth of agriculture, Islamic Baghdad, and rabbinic Judaism.

As-sadiya Fayumi was Geon (meaning leader) who translated the Torah into Arabic. In the Geonic period the geons would issue responsa that are important sources of Jewish history.  Jewish responsa after the eleventh century are studied century by century. Among the questions asked were what happens to a Jew forced to convert to Christianity or Islam? They ruled that it was better to convert to Islam since one would still have tawhid. In modern times we find questions like: Can electric lights be used for Hanukkah? and can the radio or telephone be used on the Sabbath? An Israeli astronaut who was orthodox wanted to celebrate Sabbath, but every 90 minutes was a cycle of night and day. The rabbi suggested that he follow earth time, but that raised the question where on earth. The rabbi suggested his place of departure, Cape Canaveral.

The rabbis often use qiyâs, seeking an analogy to the Talmud or classical literature. This is where the jurisprudence became very involved with responsa. The first mufti in Islam was Allah: “yas’alunika an ….” (“They ask you about ….”) There are several references in the Qur’an to fatwa. According to Jamal ad-din al-Kassimi, the companions of the Prophet issued fatwas based on their recollection of prophetic practice, then came the ta’ibÎn (successors to the companions). After the fourth century fatwas became pure imitation or taqlîd, not original, but according to a particular madhhab. Until then people did not speak of madhhabs. Perhaps the closing of the door to ijtihad stems from this development.

Every Muslim country now has its grand mufti and every region has its own mufti. In my view every mufti is a mujtahid. Sh. Ibn Taymiyyah and Muhammad Abdu did not accept the closing of the door to ijtihad. One of the characteristics of fatwa is it can be used in a non-positive sense. In 2:129-30 there is a discussion of divorce saying after a third divorce a woman may not remarry her ex-husband unless she first marries someone else. A subterfuge was made for a woman to marry someone else and divorce him for the purpose of going back to her ex-husband. Both the Prophet and the early mujtahids opposed this. The purpose of the verse was to prevent men from repeatedly marrying and divorcing women in order to prevent them from marrying someone else.

After the 19th century the Shi`a developed the marja at-taqlîd. I don’t do taqlid, but it is very important. Even when you do taqlid to a particular marja you can still shop for a fatwa. In Beirut we have a Shia mufti.

Sh. Mahmud Shaltut’s fatwa that you need not follow a particular madhhab and may on occasion turn to any school including Jafari, led to the rapprochement among the Islamic legal schools and makes me very happy.

There is a series of fatwas by Sistani online divided into two kinds of questions: ibidât (ritual) and mu`amalât (actions). The latter deals with music, interest, smoking, magic, even exploiting angels—however one does that—in addition to human relations, family planning, etc. I hope in the future we might consider fatwa collections and move beyond the theoretical treatment.

Discussant: Louay Safi, Georgetown University

I am neither a jurist nor a historian, but a political scientist. The argument that the “oral torah” supercedes the written torah reminds us of the claims that the hadith cannot be limited by the Qur’an. There are certain ayahs in the Qur’an that are responses to particular questions. The collection of fatwas is especially important to the Hanbalis and to a lesser extend the Shafis. These are important because of the difficulty for the individual to access the law. It has its analogy in modern times in the difficulty of the individual accessing the law that requires lawyers. Fatwa increased in importance to compensate a lack of clarity in the principles that distinguish between right and wrong. The Shariah is alien to the believer, who needs a mode of access. In the last centuries of Islam the mufti became an office, but the response was mainly to the inquiries of qudât, and they were not binding on the qâdi, who was limited by `urf (custom). Anyone can be a mufti but you require at least the appearance of religiosity or, to have a broad impact, a substantial following. The antidote to fatwa is maqasid (the higher objectives of the Law).

Discussant: Moustafa Kassem, Effat University, Saudi Arabia

The fatwa is the basis of religious authority, by which the mufti takes on the status of spokesperson for the Creator, which is why it’s such an often abused position, if they are not prepared with the proper knowledge. In hellfire are the one who gives an opinion without knowledge and the one who accepts bribes. A balanced approach is needed by both individuals and the establishment. Religious authoritarianism occurs when the issuers of fatwas overreach to give opinions on worldly matters beyond their authority, and on the other side is relativism where religion is no longer a factor in people’s lives. Another aspect of responsibility of the mufti is the role of qiyâs (analogy). A new situation is to be related to something established. Taqwa is as important as sound reasoning to arrive at a correct fatwa. I would like Prof. Ayoub to clarify the claim that the Jews had the first concept of one God in the light of Qur’anic mention of pre-Hebraic prophets.

M. Ayoub: Fatwa is much older than the Ottoman empire, but the shaikh al Islam (Grand Mufti) was a creation of the state. The empire imposed fatwas on Christians and Jews and everyone else through this office. After a while fatwas were issued by anyone who wanted to do so, without knowledge. There are positive functions for iftaa. Allah made riba haram, but what is riba? Fatwa is an important tool of Islamic law. It can be abused but so can any tool.

Vinay Khetia: There is insufficient literature on the Shia conception of fatwa in the peer-reviewed literature. There is a distinction between fatwa, for which Sistani does not allow followers to refer to others, and Ihtiyat for which he does, if after extracting hukm (judgement) from dalâ’il (evidence), there is room for uncertainty. Every marja has to have a published book. One particular marja has said you can marry people of the Book, but they are impure. Questioned on this, he said that these are two separate questions.

M. Ayoub: Why would the Qur’an say you may marry and share food etc. with the people of the book and still say they are impure?

Kenneth Honerkamp: We need expertise and taqwa; maybe we should tie them together. I understand there are fatwas from outside the domain of the fuqaha, and I hope we can address them.

M. Ayoub: The mufti no more speaks for the Creator than does the professor. We are both concerned with looking into the meaning of creation. The only mufti who speaks for God is the Prophet.

Mohammed Adam Sheikh: As a judge in Sudan (and here) I am expected to give a judgment based on the Qur’an and sunnah and the opinions of the scholars. I would ask Dr. Ayoub to elaborate on the relationship between the fatwa and the authority, since I have been doing this for more than 20 years and I know at home you cannot do this unless you have the authority from someone (God, the ulama, or the state). I may be the best-qualified person in the country, but unless authorized by the state I cannot be a judge. The sunnah can overrule the Qur’an through abrogation. I have encountered many cases in the U.S. where people have said a hadith has overruled the Qur’an on inheritance.

Anwar Haddam: Muftis are not qadis. The qadi’s decision is binding, that of the mufti is not. We need a method of accreditation for muftis.

M. Ayoub: The wasˆiya (will of inheritance) verse is not necessarily abrogated by the hadith. Many did see it as abrogated, but many did not.

Khaled Troudi: Why can’t we consider the fuquha muftis?

Safi: The issues that come out of iftaa are of two kinds, the ethical and the legal, The latter should go to the courts. I feel we have an ethical laxity now as people want to abdicate their moral responsibility and put it on the shoulders of someone else, thus they go shopping for fatwas.

Ahmad: There is a distinction between a qadi and a mufti. Iftaa may or may not require ijtihad.  The question of abrogation has been explored at previous IIIT summer institutes, and I reject the notion that the Qur’an is abrogated.

M. Ayoub: The only ijtihad among the sunnis now is iftaa.

Ahmad: I agree, but there is great ambiguity among Sunni Muslims as to whether the door to ijtihad was closed or is closed. It is something we must discuss and I will discuss it when we get to shuratic iftaa.

Khetia: Those who provide no justification for their iftaa are not taken seriously.

Ayoub: There is no fiqh aqaliyât (jurisprudence of minorities) except that if a non-Muslim country allows Muslims to have their own judges they are part of Dar al Islam. I don’t know if it began here.

Alexandre Caiero: Many scholars buy into this claim of the closing of the door to ijtihad.

Honerkamp: Fiqh al waqi’ (jurisprudence of current affairs) or fiqh az zamân (jurisprudence of the time) must also fit into the present discussion.

M. Ayoub: Shi`a have bana al `uqala’ which means building on the knowledge of the wise. We must examine the givens of Western scholarship, such as there was no creative fiqh after the 14th century, but when you look at the majallah and the Egyptian work it is not true.

Imad-ad-Dean Ahmad, Ph.D
Minaret of Freedom Institute
www.minaret.org

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