Shuratic Iftaa: the Challenge of Fatwa Collaboration

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #10

[This is the tenth 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. Names of participants in the general discussion have been omitted.]

Moderator: Moustafa Kassem
“Shuratic Iftaa: the Challenge of Fatwa Collaboration”
Imad ad Dean Ahmad, Ph.D., President, Minaret of Freedom Institute

Moderator: Moustafa Kassem

“Shuratic Iftaa: the Challenge of Fatwa Collectivization”

Imad ad Dean Ahmad, President, Minaret of Freedom Institute

In the classical era of Islamic jurisprudence, the best scholars were those who not only possessed the keen intellect required for clear original analytical reasoning, but those with a broad general knowledge of all the fields that might bear on their legal reasoning. Today, extreme specialization of knowledge that is a hallmark of modernity poses one of the primary challenges to the process of juristic development in the modern world and has made the process of issuing legal opinions more difficult than ever before. It has been suggested that we must accept that no single scholar can possibly posses all the necessary knowledge to engage in ijtihad on issues that require significant technical knowledge in specialized fields, and that we must develop a new methodology for collectivized iftaa. I explore the arguments for fatwa collectivization, particular challenges faced in any attempt at such collectivization, and solutions to overcome the obstacles and objections.

A fatwa is a non-binding legal opinion and iftaa is the process for the issuance of such opinions. Such a legal opinion must be distinguished from the binding legal judgment called qadâ, which is issued by a judge (di). The judge is concerned with legal disputes, while the mufti provides juris-consultation on a very broad range of issues from ritual to family relations, to political questions. The mufti is the one who implements the process of iftaa and issues the fatwa. The mufti may be of two kinds, one qualified to engage in original legal thought is a mujtahid and may issue fatwas based on his own reasoning derived from the sources of Islamic law. One who is not so qualified, but who is well-versed in the analysis of mujtahids who have preceded him (a muqallad), who must cite the sources for his fatwa.

It is interesting that some of the issues we find in contemporary iftaa have been present form the earliest times, including “fatwa shopping” and evaluation of the competence of the muftis.  Because the overwhelming majority of such opinions were delivered orally, there is no record of them, but most were over routine matters that were not controversial and prompted only by the fact that low literacy prevented questioners from looking up the answers to simple questions themselves. In that environment, the paucity of the written record posed no problem to society. While issues of fiqh and iftaa overlap, the development of fiqh is distinguished by its formal systematic evolution. Iftaa is directed at providing answers to particular real-world inquiries, and is often unrecorded.

 

Initially, a mufti was anyone recognized by the community as capable of issuing fatwas ,but after the tenth a public office by that name was created and gradually the office was increasingly politicized until under the Ottomans there was a government appointed chief mufti, the shaykh al-Islâm.

With increasing frequency over the last couple of centuries, muftis have asserted a right not to be bound by taqlid to earlier fatwas. Further, the usurpation of the functionality of iftaa by the colonial powers and the postcolonial regimes that inherited their administrative structures resulted in a shift of the focus of the muftis’ attention from questions of daily living into political areas. Muftis must now wrestle with the challenges posed by various aspects of modernity as well. At the same time, there has been an exponential rise in the amount of knowledge possessed by humankind and in the degree of specialization in the proliferating fields of knowledge. How can a mufti answer a question about medical ethics, for example, if he has no grasp of the medical issues involved and no comprehension of the discourse of ethicists within the medical profession? With no familiarity with the technical information that is available and without the sophistication required to understand that information, the mufti must either make wild guesses or accept the advice of technical advisers who may have no familiarity with the Qur’an and Sunna.  In the West, we are confronted with the additional problems posed by the unfamiliarity of immigrant or foreign muftis with the cultural context in which their juristic decisions are applied.  Throughout the world, problems are posed by the increasing distance of the jurists from the original languages and contexts of the textual sources and by the complexity of the social conditions in which the decisions are to be applied.

The argument has been made that since no single scholar can master all of the knowledge necessary to arrive at a decision on a number of pressing issues, some mechanism of collective iftaa is necessary. Setting aside for a moment what the mechanism of a collective iftaa would be, let us only consider the abstract benefits of having multiple participants in the process. In what ways are n heads better than one? By allowing the multiplicity of parties to collaborate in the decision the iftaa group benefits from the complementarity of knowledge of its members. Medical researchers with no knowledge of Qur’anic Arabic, Arab grammarians with no knowledge of medicine, bioethicists unschooled in Islamic history, political theorists with no knowledge of hadith, and classically trained Islamic legal scholars without experience in modern scientific research, can compensate for one another’s weaknesses and provide context for each other’s contributions in addressing particular problems that might in theory be resolved by a hypothetical al-Azhar graduate in Islamic studies who had won the Nobel prize in medicine, had such a person existed.

Attractive as this fantasy may be, serious objections arise when we tried to imagine the mechanism by which such collaboration may be effected. Let us imagine the assembly of the committee to deal with the issue of embryonic stem cell research. Let us ignore problems posed by the size of such a committee. For the sake of argument, let us assume that every conceivable relevant discipline is represented in the assembly. If this assembly is a deliberative body modeled on a parliament, however, how are their relative areas of strength going to be integrated into the deliberative and decision-making process? Qualified mujtahids on the panel will object to giving any role whatsoever to medical technicians and would instead relegate the latter to the status of advisors who would be consulted for technical information, but should have no vote in the process. Medical experts may well feel that their insights are not sufficiently understood by religious legal experts who are incapable of integrating them into a coherent fatwa.

Another problem we must confront is the scope of the mission of such bodies. Is their mandate revolutionary or evolutionary? Are they to weave an entirely new understanding of the Shariah that would replace the old schools of fiqh? Or are they required to hew as closely to precedent as possible, and merely tweak old fatwas by the smallest quanta necessary to meet the challenges posed by the questions that are put to them?

Two different modes of collectivization that may be brought to bear. One mode I shall call the parliamentary mode and the other the academic research mode of interaction among the members of the collective. In the parliamentary mode, once we have identified the participants they engaged in a formalized debate on such fatwas as they may propose. As is customary for such debates the merits of each proposal are discussed. Amendments are proposed and considered in the course of debate. Votes are taken on amendments, substitute amendments, modifications, alterations, etc. until a final form of the fatwa can be agreed upon by a majority or some super majority as may be required.

The drawbacks to such an approach are enormous. As previously mentioned, there will be a debate as to who is entitled to have a vote in such a discussion. Some members of the deliberative body will be more equal than others in the sense that some may be allowed to participate in the debate, but not to vote. In the process of amendment political compromises may be made, and the final fatwa may be a hybrid, which has the full endorsement of few if any of the members of the constituent body, but is the only end product that can be arrived at by the parliamentary process. In other words, what should be a legal process will have been politicized. The similarity of such a method to the process of parliamentary legislation evokes the famous dictum that those who like legislation, like those who enjoy sausage, should never see it being made.

The alternative mode is the academic research mode in which the writer of a fatwa develops the opinion in an iterative fashion submitting it for expert review at each iteration. The criticisms of the peers are considered at each step and incorporated into the next iteration. Further, the publication of such fatwas allows competitors to publish alternative fatwas that are informed by the work of their peers. The drawbacks to this mode are it is slow and it does not guarantee that competing fatwas will not survive the process. I think these drawbacks are an acceptable price to pay for a process that promises to match the success of modern scientific research (which is also slow and often results in competing models) in arriving at the truth. One must recall that in Islamic history we often had competing fatwas. Those who require an instant fatwa may have to be content with an individualized fatwa and forgo the advantages of collectivization.

Rather than develop a totally new collective methodology, we suggest that the traditional Islamic concept of shura be combined with modern scientific methodologies of peer review and the new developments in online communication in order to implement techniques that take advantage of the latest developments in technology and scientific collaboration to preserve the fundamental principles of Islamic juridical development. This process supplements the classical texts with the discoveries of scientific inquiries, provides a means for the inclusion of social and physical scientists along with the scholars of the traditional Islamic disciplines, restores the separation between state and scholarship of early Islamic society, and avoids the sectarianization of institutions.

I use the initials OCI to signify an online collaborative iftaa to designate a method for the development of collectivized fatwas that combines academic research mode with the expert review capabilities of the latest technology, while still preserving the benefits of an evolutionary approach that remains linked to traditional methods. The wiki technology (best known for its implementation in Wikipedia, the online encyclopedia) is a popular method of online collaboration. The work of an initial drafter is published online and approved collaborators alter and add to it. However, it is plagued by problems of “thrashing” that result from persons of different perspectives repeatedly changing one another’s material. Our proposal is closer to what is called a collaborative Q&A site, such as those powered by the online technology called stackoverflow.

An OCI site may be established and the general public permitted to post questions for which they desire a fatwa. Responses of particular draft fatwas will be posted to a closed audience of reviewers and then revised by authorized peers and commented upon by a broader circle of experts permitted to comment but not change the posted text. Once a fatwa has been refined and stabilized into a final form, it will be available to the general public for reading and further comments. Nothing in this model prevents competing fatwas from being published in response to a single inquiry. Mechanisms for combing or reconciling such fatwas could be put in place, but the possibility of admitting to multiple solutions (even if mutually exclusive) must be retained if we are to avoid sectarianism. If, for example, there is both a Sunni and a Shia answer to a particular inquiry, there is no reason not to publish both. The traditions to which they belong would be clearly identified to make it easy for non-experts to select between them.

Writers for the initial draft may either be mujtahids with some knowledge of the technical areas of expertise in the question or technical experts with some familiarity with the traditional texts on related issues. Commentators and editors may base their comments and amendments on technical, maqâsidi, or traditional considerations, since it is desirable that the final product take all of these into consideration. As with scientific peer review, the writers of the fatwas need to take fully into consideration all possible criticisms, although they may rebut any of them as well. As much of the debate over controversial points would be retained in the final fatwa as is historically found in a well-written classical fatwa. All fatwas would conclude Allahu a`lam.

The implementation of this proposal will require cooperating teams of computer programmers and an administrative board to screen and appoint the fatwa writers, editors, and consulting experts. The propagation of the results is built into the mechanism itself as the Internet provides its own propagation. Civil society institutions, such as mosques and Islamic federations, can be motivated to make use of the product by giving them a role in the recruitment and administrative process. Muslim businesses can be invited to advertise on the site providing them with an incentive for its wide use provided there are safeguards to maintain the academic integrity of selection and review process. Constitutional safeguards would need to be in place to insulate operations from corruption such as, for example, an advertiser seeking a fatwa favorable to a halal designation for a particular food or financial product.

Calendar Reform provides a candidate for the proposed process. The attempt of the Fiqh Council of North America (FCNA) to engage in shuratic iftaa on the deliberative model demonstrates the politicization to which such a model is susceptible. The official members of the council consulted with three non-member scientists who presented their three competing proposals for dealing with the issue of defining the date of the hilal crescent. As the FCNA members made their iftaa arguments, the scientists were allowed to comment and question. A vote was taken settling on the adoption of the proposal of the astronomer, the “Uniform Islamic Calendar for the Western Hemisphere” (UIC) which I proposed many years ago that the date of the new month would be based on the convention of astronomical new moon before sunset at Makkah. In response to lobbying out of session, the FCNA reversed itself within 48 hours, adopting instead the convention of birth of the new moon at noon GMT, which would result in a one-day delay in the start of the Hijri month in about one case out of eight. The official position given at the FCNA website only says that “to determine a lunar Islamic calendar, a conventional point of reference must be used. The International Date Line (IDL) or the Greenwich Mean Time (GMT) may be used.” The very next year the FCNA changed its position again, this time adopting the position of the European Council for Fatwa and Research (ECFR) that that the conjunction must take place before sunset in Makkah and moon must set after sunset in Makkah. This allowed the date to be one day earlier than by the UIC about one time in eight and than the FCNA’s previous position about one time in four.

How might events have unfolded if an OCI had been employed? A fatwa based on the UIC could have been the original draft with the comments, questions, and criticisms of the consulting scientists and the FCNA members annotated and debate online with ongoing evolution of the proposal until it coalesced into a final form, or failing convergence into two or three variations. It seems to me that even in the event of divergence it is unlikely that we would have ended up with more than the three different positions described in the history above or that the process of evolution would have taken more than the five years that have passed since that original FCNA meeting in 2006 to arrive at the vague statement on the FCNA website cited above.

 

Embryonic Stem Cell Research provides another example. The Shi`a position on embryonic stem cell research is well established and research in Iran on the subject is reportedly well underway. The American Muslim community was still wrestling with this issue as recently as last year a panel of experts was convened by the Islamic Institute to use a deliberative model to develop an Islamic perspective. Their conclusion was that embryonic stem cell research is permissible subject to certain conditions, but they concluded their opinion with a disclaimer that the opinion was “subject to further enhancements in the case of scientific developments unknown to us at this time.”

An OCI could have started with the statement of the Shia position with the consultants participating in the conference making whatever comments and changes they wished. The unlimited varieties of areas of expertise that can be brought to bear in an OCI would provide a remedy for the lack of training in bioethics, which, as Abdulaziz Sachedina has shown in his paper at this institute, is a fact of life for the muftis who have dealt with this subject to date. The worst-case scenario is that convergence would not have been complete at this time, but in that case, the current state of opinion would be constantly updated and available to inquirers without the necessity of additional conferences being held. In other words, there would be a state-of-the-art fatwa available at all times.

We live in an era of high literacy, including computer literacy, when more and more Muslims can avail themselves of the ability to “look up” a fatwa rather than rely on an oral delivery. This has exacerbated the problems of fatwa shopping on the demand side and posting of fatwas of undetermined pedigree on the supply side. The creation of a well-organized OCI provides the mechanism by which both of these problems may be addressed. Participants will receive a real-time as-needed education in the relevant areas of texts, tafsir, context, science, and technology. A “one stop” site for online fatwas provides the opportunity for quality control on the demand side and a market deterrent to proliferation of fatwa sites (think of Wikipedia and Google) on the supply side. The inclusion of all experts in the process can act as a deterrent to sectarianism while enhancing the quality of the fatwas at the same time.  The mass marketing aspects of the Internet can facilitate education on iftaa and the propagation and adoption of the fatwas produced.

Discussant: Muhammad Adam al Sheikh

Collective fatwas something I believe is very important for the reasons stated by Dr. Imad. Asked what will happen after you are not here to answer our questions, the Prophet said to make a collective effort. Hilal and Halal are examples of areas identified by the Fiqh Council. It is unfortunately true that fatwa shopping exists. Some may ask you whether boyfriend/girlfriend relationship or mut`a marriage is better? If you say both are haram you will be ignored. One can say mut`a is not allowed, but at least you will not be subjected to hadd. Truly, Allahu a`lam. It is the one part of any fatwa that is beyond debate. It is better to say I don’t know rather than do tahbîz. As to FCNA, we invite Dr. Imad back.

Discussant: Jamal Barzinji

Whether a fatwa is binding depends on who’s issuing it. I would like more of a discussion of the Sunni v. Shia methods. I make a distinction between shura approach and collective fatwa. In Saudi they do consult with experts but they think they know more, so you should be advocating that the knowledge of the experts should be binding. We assume that those who go into shariah are inferior scholars, which is unfortunately true. Is it easier to teach a banker Islam or to teach an Islamist banking? I would like to see shariah be only to those who have first gotten an advanced degree in any other discipline. I would prefer a Supreme Court model. I worry about the control of advertisers. Dr. Taha took some really courageous positions in maqasid ash-shariah. Since we lost him to Egypt, we have found no replacement. Organization of Islamoic Conference would have been the right ones to take this on. NASA knows every second where the moon is and at what phase, so why do we not have political leadership to say we shall accept that? My suggestions are to: 1) revive FCNA; 2) beef it up with experts in medicine, astronomy, etc; 3) encourage more people in the sciences to take intensive courses in Shariah and expose our respectable scholars of Shariah to intensive courses of general knowledge and modern technology, because the brightest of them would appreciate this; 4) insist on the role of maqasid in taking us out of its stagnation; and 5. exhibit pride in fiqh-al-`aqalliyyât which, in sha Allah, will become fiqh-al-awlawiyyât.

Ahmad: I would be glad to consult with the FCNA, whether they agree with me or not, so long as my views not be misrepresented. The binding fatwas that Dr. Jamal has mentioned demonstrate the problems of state-scholar entanglement that I see as a problem. The great scholars of the early Islam were famous for refusing to cooperate with the state. Academic authority is different because it a non-coercive authority that comes from the respect of the listener for the professor. The Shias do have a more structured system than the Sunnis, and they do require the lay people to attach themselves to a scholar, but even their leading scholars of the degree of Ayatullah Sistani will allow people the flexibility to accept decisions from other scholars.  Knowledge of experts is binding in a way comparable to the peer review process. Scientific experts with no knowledge of Islamic law should be allow input into the process but they should not be allowed to impede the output of the process. The same goes for so-called “Shariah scholars” with no knowledge of the matter at issue. Dr. Jamal’s suggestion of making an advance degree in anything else a pre-requisite to Shariah scholarship is fascinating, and perhaps it would obviate the need for collective iftaa, but if not, I think it could be incorporated into my proposal so that those with editorial control over the published fatwas would have to be knowledgeable in both Islamic law and the secular science at issue. I will have to give your proposal of a Supreme Court model serious thought, but if you look at the U.S. Supreme Court, you will see it has not totally eliminated the problems of politicization. I worry about the adverse impact of advertisers too, but I think that can be dealt with constitutionally  because the Internet is so inexpensive that you are not a slave to the advertisers. In any case you always face the possibility of competition, so I think the objective of any site has to have such a degree of quality and integrity that all the most qualified scholars are drawn to it. I don’t have much faith in OIC because of my concerns over politicization. Why NASA doesn’t suffice is there are some strictly Islamic concerns on which NASA has no opinion, for example the fact that he Prophet did not take the science of his day into account. Those issues must be answered on grounds of maqasdid rather than science.

General Discussion

Mut`a marriage has nothing to do with fatwa; it is a fiqh debate. We all know it was practiced in the beginning and we disagree with whether it was abrogated. I would suggest fatwa institutionalization rather than collectivization. Some have proposed that research institutions be established to deal with these issues for mujtahids to sign off on, and much of Dr. Imad’s presentation could be incorporated into this. Now Sistani is the recognized international marja, but even those attached to him need not accept his fatwas. There is freedom and we have to be careful what we call fatwa. In jest I said shuratic fatwa is a contradiction in terms. Whether you accept a legal opinion or not, we shouldn’t call just any conclusion a fatwa.

The objective of institutionalization has always been there, but the challenge of authoritarianism has always been there as well. Why has Dr. Taha’s example not led to a tradition? The political culture and psychology has prevented it.

There is a fear of chaos if everyone would speak as a faqih. What we need is area research. Expertise and authority need not clash.

It is not just a question of competence; it is also a question of courage. One most respective scholar who has excellent positions on two highly controversial issues has declined to make them public because of his fear that were he to do so he would lose his following and his position.

Is collective fatwa like ijma? When an immediate fatwa is needed can we have a temporary fatwa without waiting for peer review?

Collective fatwa can lead to ijma. It has in the sciences. Relativity was shocking when it was first published, but is now the consensus view. Peer review need not be a drawn out process, but on controversial issues it will. On those controversial issues that require an immediate answer I think the questioner will have to be satisfied with an individual fatwa until the peer review process works itself out.

How does that legacy of colonialism affect the kind of questions being asked? Is the fragmentation of knowledge a part of the colonial legacy? Do you envision this as a multidisciplinary or interdisciplinary project? There is a lot of literature on interdisciplinary methodology. There are non-Muslims (“friends of other faiths”) who know a lot about Islam.

It is not colonialism per se that causes fragmentation of knowledge but the explosion of knowledge. Interdiscipinary study is a means of managing the fragmentation. There is a role for interdisciplinarians. Non-Muslims of friends of other faiths can have knowledge of Islam, but those who do not should be included in the discussion in an appropriate way.

Are we talking about an approach to iftaa in the United States or in a global scale. Who is the audience? Is the inclusion of non-Muslim experts in Islamic studies problematic in the area of authority? Is it really feasible to train people in Islamic studies in 6 months?

Yes. I would start with you.

My audience is initially Muslims in the United States, but it doesn’t end there. I see no problem with allowing non-Muslim experts in Islamic studies to have input, although to give them editorial control over fatwas would simply be inappropriate.

People need to master Shariah from the beginning of their lives. It can’t be done in 6 months.

Not master, but being able to pass the tests that are put to the graduates of these schools of Shariah. He will not master Shariah but will have enough knowledge to challenge the graduates of those schools. The dismantling of the awqaf has been an obstacle to obtain the best brains. It I take some brilliant scientists, doctors, IT specialists, with strong Islamic background twelve months of intensive study they will have access to that knowledge, know how to handle it, have access to it. Allahu a`lam.

The Imam Association in Michigan is an interesting model for the collectivization of fatawa in the North American context. Some of these ideas were shot down in Iran because each has his own khums and followers. Yet somehow they will sometimes issue a fatwa together. All the maraja are represented on the council in Qom.

I prefer the loose structure of the Sunnis over the hierarchical structure of the Shia, but I think the Shia have remained truer to the academic model.

It’s striking how conservative the use of Internet has been in the case of fatwa. Does not this election of participants politicize the process? The presentation indicates confidence in the capitalist model, even to the point of allowing advertising on the site. Do you see any limits? Also, what are the long-term consequences of academization? Will flexibility be lost?

It is hard to be brief with such a profound question. Selection of participants will politicize the process, but it need not be fatal. We have the same problem in selecting the editors of an academic journal. If I submit a paper to an academic journal and it is rejected by a reviewer who holds a view opposed to mine, I get an opportunity to rebut the criticism and ultimately the issue is resolved by another editor or reviewer. The constitutional structure of the site must be established in such a way as to minimize the politicization—and I would add the same for the risks of commercialization. As to the long-term consequences, I think that we are returning to an earlier model. In the early days of Islam the people who did this work were not political appointees, they were scholars whose ability to do this work was respected by their peers and by those who brought them the questions. I don’t think nuances will be lost. I outline a structure in which there is lots of input from lots of sources. If one person says something is haram and another says it is makruh, a debate will ensue and the final fatwa should reflect the nuances of that debate.

Years ago an alim said to me there are two births of the moon, the fiqh birth and the astronomical. I think there should be a happy marriage of the fitra of creation and the injunctions of al-wahi. Finally, I know a couple of scholars who when they start their research say we have some opinions contrary to the common understanding and they are afraid to publish them while they are alive. It is very sad. Can we at least convince them to write them while they are alive for publication after their death.

I’ve never asked anybody for any fatwa on how to live my life. I look at the knowledge floating around from the people I respect and make my own decisions, because that is all I am responsible for. I would weaken rather than strengthen this institution of non-enforceable fatwas. Science is not collective but individual; we should fear the loss of individual creativity.

The first established council of collective iftaa was in Egypt. The European Council was created in this mold. Independence doesn’t necessarily lead to openness. look at the fatawa of Muhammad Hussein Fadlallah. Do you think the institutionalization of fatwa in the American context, with its amazing ethnic, sectarian and doctrinal diversity, will work here?

I would compare non-binding iftaa to dietary advice. No one can stop me from eating junk food, but their advice is valuable. I think the mission should be not to weaken the institutions of iftaa, but to strengthen the sense of individual responsibility among the people. I don’t think American diversity is a problem. Consider Kuhnian paradigm shifts. When you look at the immigrant community here it looks hopeless, but their children all know they cannot argue something is right because his father does it because his interlocutor can say the same thing.

Without making any claim of mastery, I found myself in this field since I was very young, and I think the contempt of people in the field to others who have not been in it from the beginning is a problem. We have two valuable people on the FCNA who are not ulama’, but their contributions are very valuable. I appreciate the comment on mut`a, and as someone in the field I can tell you about three kinds of mut`a: temporary marriage, mut`a at-talâq (termination by unilateral divorce) which is sunnah but not applied, and the fatwa of bin Baz (marrying with the undisclosed intention of divorce).

No priest would ask a Muslim his opinion on Canon law and no rabbi would ask his opinion of rabbinic law but Islam is an open field.

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

One Response to “Shuratic Iftaa: the Challenge of Fatwa Collaboration”

  1. Shuriatic Iftaa is essentially both Islamic and American, but the issues in both are similar.

    There are many models. The worst possible model is the Wikipedic, which in practice from my experience is based on power to the person who can yell the loudest and intimidate the Wikipedia moderator.

    The U.S. Supreme Court model may be the best because it permits minority opinions, i.e. minority fatwas, as does even the system of maraja in Shi’i Islam, at least in the initial iteration of deliberation. In theory both the Islamic system and the American system are based on a constitution derived from both divine revelation and natural law (the Sunnat Allah), though the militant secularists today would deny this.

    The major issue in the U.S. system is whether the jurists (mujtahids or muftis)follow the principle of “original intent”, as distinct from “judicial legislation”. This fundamental difference, which is basic to discussion among Muslims, is why minority opinions are essential. For the same reason, minority opinions or minority fatwas should be accepted as essential to a universally binding fatwa (if there is such a thing).

    The revival of the maqasid al shari’ah under the world leadership of the IIIT, after six centuries of eclipse especially in the Sunni world, provides and even requires the legitimacy of majority and minority fatwas. The reason for this is that the architectonics (Muna abul Fadl’s term) of the tri-level system (maqasid, hajjiyat, and tahsinniyat) of explicating the irreducible principles of human responsibilities and human rights (the maqasid) is based on informed human inductive reason as the basis for deducing fatwas as guidance for the fiqh al ‘aqaliyat” and, in sha’a Allah, for developing a “fiqh al awlawiyat”.

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