NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #7
[This is the seventh 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: Jamal Barzinji
“Iftaa in an Age of Diversity, Religious Pluralism and Democracyâ€
Ebrahim Moosa, Professor of Islamic Studies, Duke University
When I got out of madrassah I thought everything I have learned will not help me in the world until I read Fazlur Rahman, who put together what rang a bell with me in a way the re-enchanted me with Islamic thought. I went to Chicago to meet him and was met at the airport by Mazen Hashem. After 24 years he picked me up again at the airport last night.
How do we understand the issues of religious pluralism and diversity? I want to discuss the development of norms. Cultural diversity is obvious, but more important there is intra-Muslim diversity, beyond Sunni-Shia diversity, even a spectrum of traditional opinions. Consider Yusuf Qaradawi, Muhammad Fadlallah, the Islamic revivalists, the Islamic social movement tradition, non-classical scripturalists, modernists, etc. Iftaa was always outsourced to the Muslim traditionalists of one sort or another, with the result that that authority privileges its own normative tradition as the only normative tradition and the most opposed to diversity, or it tolerates diversity, but without integrity. There are activistist jurists like Qaradawi, but by and large they work from a canonical tradition. They recognize no audience but their own. If they do not attain credibility within their own constituency, they are toast. We invoke religious pluralism in order to elicit toleration for one another. Certain kinds of freedom are critical to the democratic order, in some sense a liberal political order. In pre-modern times normative traditions, the life world, shaped the political world. In the modern world the political world shapes the life world.
The universe of iftaa is steeped in an illiberal order, by which I mean freedom is not a high priority. Those who argue otherwise are taking shortcuts with history. Umar was not a liberal. Umar had sensibilities of fairness, justice and rights, but to call him a liberal shows an unclear methodology. The tradition is an illiberal order in which obligations trump claims, although obligations reciprocate claims. Also status questions filter into the fiqh, as in, for example, marriage law. It takes a lot of work to rethink those categories and move them from an obsolete ontology to a new ontology for the modern world. When someone says men and women are equal with some minor modifications—for example, saying that education of women is obligatory, that is a major normative transformation. Thus, I respectfully disagree with people like S. H. Nasr who accept the static ontology of Mulla Sadra. Ontologies mutate and transform themselves.
The modern world we live in is one of rights. In the West people looked to a rational consensus on what is the best way of life, but they could not find a single answer to that question, and it is thrown into question on a global scale repeatedly. Those who trumpet liberalism as the only right way overlook the fact that even if liberalism is the best way, there are other ways that develop. I ask do we have a moral consensus on critical issues or can we map where we are heading on these issues—for example women’s rights? The hermeneutical, interpretative package in which the classical schools worked did not go back to the Qur’anic text, but built their modifications within the framework of their own schools. The Muslim canonical schools committed suicide at least 200 years ago and the salafi methodology of going back to the Qur’an and hadith has replaced it.
We have two schools within liberalism: John Locke and Immanual Kant on one side, who exemplified the liberal project of a universal regime. Locke defends toleration because it permits discovering the best mode of life. Hobbes and Hume, on the other hand, are the advocates of a liberalism of coexistence. Rawls and Hayek are the heirs of the universal regime and Isaiah Berlin and Michael Oakshot of the modus vivendi.
A rational inquiry into ethics yields no consensus on the best of life but provides a realization that humanity is too diverse to fall into a single way of life and encourages multiple ways of human flourishing. I favor the modus vivendi that promotes multiple ways of life, but makes no claim that they are commensurably valuable, but they are differently valuable. This is value pluralism that admits each side has moral knowledge and there are multiple solutions to conflicts.
The fatwa has become the moral and ethical face of Islam, but Muslims seem to be unaware that when they signed the human rights charter they were not just signing onto a set of rights, but onto the liberal project. Limiting by the Shariah raises the question of what is the Shariah? Consider the Rushdie affair. Khomeini was watching the killing of the demonstrators in Mumbai and asked why Muslims were being killed. He was told an Indian writer wrote ugly things about companions of the Prophet. He merely recapped the traditional position, but after an institution offered a reward for Rushdi’s death, the word “fatwa†has taken on the meaning of edict, or even worse, death penalty. Ghanouchi said Khomeini did us a great disservice. We all know that a fatwa should not be given without knowing the context, but not enough attention has been paid to the audience that shall receive the fatwa. The hukm al qâdî is confined to a particular case. Because we tend to think of the fatwa as directed to the questioner, we forget that the opinion of the mufti has a life beyond the questioner and must be attuned to all the audiences that will receive it and tailored to all those audiences. I think if Khomeini had given more careful thought to the consequences of his fatwa, he might not have made it. The suggestions some of you are making for collectivizing fatwas might provide the necessary filters.
Some will object: shall we change the hukm Allah for the audience? You can say all ahkâm are based on `urf and maslaha, and change with time and place, or you can distinguish between those that are and devotional commands, which could be applied to ibâdat. But what if the ibâdat results in stampedes and death at Mecca? Those must change too. Well, we can excuse them by necessity, but I say we must always consider `urf and maslaha in the reception of a fatwa.
The question of science is a major hurdle in the reception of fatwas, but common sense is an even bigger one. The view that common sense should not be considered makes fatawa unintelligible. Loudspeakers were once rejected for the call to prayer. Today hardcore Deobandi circles that rejected photography on grounds that shadows were involved now accept digital photography because no shadows are involved. Said Ahmad Palanpuri threw me out of his office when he thought an audience that would disapprove of videography would be aware of it—even though his board meetings are always videorecorded.
Look at the whole range of organ transplantation. For some, sharing organs undermine human dignity. (Paul Ramsey has said the same in the West.) Al-Azhar says it is permissible. The pioneer of kidney transplantations in Egypt has stopped doing them because Ali Gomaa is unclear about the issue of brain death. There can be multiple ways of life but there must be a discourse to make them intelligible.
I asked about genetically modified food and I received a fatwa that it is permitted unless there is harm to human beings. This showed no deep knowledge of the scientific issues.
A variety of temperaments, political, personal, cultural, etc. influence how the mufti selected his precedents. Beyond temperaments and audience there is a need to expand the epistemological framework. We need a robust knowledge of tradition and an updating of the epistemological framework so we inhabit the real world. Then we need not be embarrassed by fatwas like Izzat Atiya’s breast-feeding fatwa (that male and female co-wrokers are permitted if the man suckles at the woman’s breast). This is fiqh-l-`âqalîyyah, which is reform by stealth, because jurists avoid the hard questions. Then there are the Kuwaiti mufti’s rules of wife-beating. Mahmoud Zakzouk said in the future fatwas have to be consistent with logic and human nature, but we see sincere and well-meaning clerics totally unaware that they are propagating a moral wrong. They are a minority, but they are the ones who capture the headlines and sully our image. These fatwas are the pathological signs of what is deeply absent: the act of re-visioning the moral framework of our tradition, the lack of moral consensus and resources t rebuild those foundations. You can tell me the ayatollahs are reading Heidigger and Kant in Qom, but if they are only reading for apologetics and not gaining insights, we are in trouble.
Discussant: Dr. Mazen Hashem
I feel we live in a time when the fatwa has been inflated over its previous status because of fatawa on radio and fatawa on line. I am enraged by the confusion between Shariah, fiqh, fatwa and the qadi. Maqâsid ash-shariah gives us more space for the understanding of issues. These basic distinctions are absent from our minds when we translate maqâsid ash shari`ah as the goals of Islamic law. Shariah is not Islamic law. The institutionalization of iftaa robs it of its dynamism. Institutions have their own priorities. Our muftis are parts of institutions and those institutions are sponsored by regimes. The catholic model of iftaa is the consequence of the liberal order seeking to move iftaa to serve Western industrialism. Muslims rejected the breast-feeding fatwa out of their common sense.
Discussant: Prof Abdul Aziz Sachedina
We Muslims in the West have a fatwa consciousness that you do not find in the Muslim world, where they are usually individual and only shared with others with a specific interest in it. The nearest thing to a collective inquiry comes from the government, where it is regional. I asked Ayatullah Khui about the controversy over the fact that men could be seen from the women’s section in the Toronto mosque and he said are you asking about Toronto or Najaf? The fatwa that it is permissible and should not be used as an excuse to prevent women for attending the masjid was rejected by the people of Toronto. The ulama here are much more narrow-minded than their mentors in their home countries. We need to change not only how it is propagated in that part of the world, but how it is received here. In the Shia community have three different Eid dates because they have three different definitions of the new moon. It is not just a crisis of epistemology but of purpose. What are we supposed to achieve? When we lose the sense of right and wrong, then we get the fatwas like the breast milk fatwa. The larger moral picture is absent.
Mahmoud Ayoub: The community in Toronto asked me to take questions to Ayatollah Khui. I translated the questions and answers and the head of the community said they would translate the answers, but the night before they were to distribute them they said no one is going to change our customs not even Ayatullah Khui. Very often our practice, especially family law, depends more on custom than Qur’an or sunnah or fatwas. The West has made its peace with secularism and we have not. We can question the suckling of the adult as ridiculous, but what can do about the word of God on chastising a wife? We have to find a way to keep our authenticity. We need not create movies like “The Last Temptation of Christ†or “The Passion of the Christ.†We and the orthodox Jews are the last two communities trying to live our lives in a way that meets the demands of the faith. I am not trying to be conservative, I am only confused.
Ebrahim Moosa: I am struck by Umar saying if I were not afraid of people saying Umar changed the Qur’an I would have placed the verse of rajm (stoning for adultery) in it. We are not worshippers of Qur’an but worshippers of Allah. The test is there to free you. As the world around us changes this world around us changes. The polarity of stability verses dynamic is false. Maybe the meaning of fatwa has changed and we call moral learning fatwa. Not every verse of the Qur’an is actionable.
General Discussion
Imam Mohammed Majid: As a practitioner I face the problem of closing the gap between the theory of Prof. Moosa and the reality on the ground. People ask their questions not as an academic exercise but in the desire of pleasing God. There is a lack of understanding of the tradition before we engage in critique. There were arguments even among the companions, such as the hadith from Aisha regarding breast-feeding that the other wives refused to accept. Sometimes we look at Islam from the Western context, but there is more than one reality and value system. We need to discuss fiqh al mu`amalât: What are the consequences of any fatwa or discourse.
Kenneth Honerkamp: I am a fortunate person in that I spent ten years in the madrassas of Pakistan 1969-79. It seems to me the baby was thrown out with the bathwater 50 or 60 years ago, I speak of ahlâq (morals) and adâb (manners). Certain epistemological categories discredited in the modern world have been preserved for us to fill the void in Islamic legal discourse. The immigrant community is more conservative than we converts. When al-Ghazali wrote Ihyâ Ulûm ad-Dîn, he meant Ihyâ Ulûm ad-Dîn.
Moustafa Kassim: To have a rational discourse don’t you need to start from common premises? Does a fatwa imply a new situation? Do you include the Bahraini shaikh as giving a fatwa or explaining something in the Qur’an? We need to talk about education that will prepare people to understand the text.
Moosa: We are in different places and so we hear differently. I do believe I am in touch with communities, but there are a number of young people in universities and colleges who are thinking along these lines, and you need to be aware of this. Everything is studied in our university and three audiences don’t tap into that knowledge: American Muslims, the American public, and the American government. The ghaibi (transcendental) dimension is important, but today’s discussion is about the discursive dimension, so why bring up the ghaib? We mustn’t sound apologetic when we defend the turâth (heritage). What if the other wives didn’t disagree with Aisha? It seems like everything must bespoken from the grave. If the turâth has no answer, it’s our job to devise one. We need to avoid the East-West canard. If the people in the East are suspicious of us, let them be.
The question of how do we translate the teachings of tusawaf into teaching of moral ethics is an important one, but we have to deal with it innovatively. I hold Muslim traditionalists responsible for failing to deal with colonialism in a better way than just building walls and changing Islam from a robust knowledge tradition into a static religion out of fear that knowledge of the West will convert us into Westerners. When we cannot agree on the best way of life because we don’t have rational means for that, we must tolerate our differences. The Bahraini explanation was dars rather than fatwa, but when you are television you are doing both. Moral philosophy comes out of the secular tradition, but we should not be governed by anxiety. Ataturk did violence to Turkey, but by coercively changing the ontology to a secular mode he benefited the Islamists. I am not saying or that Pakistan should do the same or that he did something good, but that the damage may be fixed.
Imad-ad-Dean Ahmad: The significance of the classical era for liberalism is not its liberalism or illiberalism but its notion of rule of law on which liberalism is built. I am not enraged by the translation of Shariah as Islamic law, even though I agree it requires explanation. Of the two kinds of liberalism, they are united in the work of Robert Nozick (Anarchy, State, and Utopia). Common sense of Muslims have rejected fatwas many times in the past: remember the fatwa against coffee? Sachedina’s point about the receivers being a bigger problem than the propagators is valid, and fear of their local audience explains why the local propagators may be more inflexible than the distant ones. The charge that by listing rules limiting the beating of women, the Kuwaiti shaikh is implying that there is a scriptural requirement to beat women is unfair. Instead we could criticize him for not going far enough in turning the limitations into a prohibition. The fear that “knowledge of the West will convert us into Westerners†ignores the fact that we can be Westerners and Muslims at the same time.
Maghfira Dahlan-Taylor: Are you trying to argue that what we understand to be Islamic values should be available to scrutiny by non-Muslims?
Daoud Nassimi: If our standards do not come from the Book of Allah, from where do they come?
Adam El Shaikh: The more I listened to these speakers the more I appreciate mentor Hasan at-Turabi who insisted I should come to the West. I was raised in an anti-Western community, so I did not understand his urging that I study in Europe or preferably in the U.S. Everything in this world has good aspects and bad aspects. We should be the ummat-al-wasat (the Middle Community) and take from both sides.
Sami Ayoub: How are we to create this new ontology? Is the nation-state a good or bad thing? What is the Qur’anic verse to which Dr. Ayoub referred?
Alexandre Caiero: Do you see any role for the fatwa at all in the new ontology? To be fair, Qaradawi acknowledges a role for temperament in the issuing of fatwas, although his discussion falls short because he wants to maintain the fiction that the fatwa is nonsectarian, outside politics. To what extent is that fatwa still viable?
Moosa: You can’t find a single definition of Shariah. Some say it is the text, some say it is the abstract principles behind the text. The Qur’an calls it a path, which seems more open to the moral and ontological approach. If one views the process of iftaa as definitive, then that is the end of any conversation and we cannot do more than tinker around the edges. We are stuck in a pattern culturally adapted to seventh century Medina and Mecca. But our predecessors adapted in to a wide variety of times and places; so I think a lot more conversation is required. You have to have an eye on history but you cannot reject the present. Discursive tradition is always a living tradition. I have no inferiority complex; I am a Western man. Those who say the good Muslim is the Eastern Muslim are the ones with the inferiority complex. They say without ghaira (zeal) you are bad Muslim. Ghaira brought us suicide bombings. These terms are problematic. You don’t create ontologies; we live them already. I know the liberal world is incomplete, but I am not one of those who benefit from the Western world but despise it. Is there a place for fatwa? I think to be a faqih you need a fairly deep basic understanding of science, politics, and economics, and have opinions on it. We need to be aware of these temperaments and filters we have. That Muslim values must be intelligible to everybody else is the heart of my talk. We must have the language to intellectually debate them and no fear to do so.
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org
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