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By MUGHEES SHAUKAT
22/04/2009
INCEIF the Global University in Islamic Finance
Kuala Lumpur, Malaysia
MIF/PhD Program
General Perception of Fatwa and its role in Islamic Finance
(See paper for abstract and Introduction)
The first legal rulings were issued by the Prophet in his role as intermediary between God and the Muslims. Fatwa is one of the noble tasks of Prophethood that has been known throughout the history of mankind. Due to the critical position of fatwa competent scholars fear from it and prefer not to get involved in its process due to the implications on human life.
1. Meaning of fatwa
A fatwa (plural fataawaa), in the Islamic faith is a religious opinion on Islamic law issued by an Islamic scholar. In Sunni Islam any fatwa is non-binding, whereas in Shia Islam it could be, depending on the status of the scholar.
Fatwa is derived from the root fata, which includes in its semantic field the meanings “youth, newness, clarification, explanation.” In the Qur'an, the term is used in two verbal forms meaning “asking for a definitive answer,” and “giving a definitive answer” (4.127, 176), although neither passage has a binding clause. Consequently, the concept of fatwa in early Islam developed in the framework of a question-and-answer process to better communicate on religious matters. Its subject was 'ilm (knowledge) without further specification. Later, when ?ilm was identified with Hadith (sayings of the Prophet , which are divided into two parts, the matn (text) and the isnad (chain of reporters to verify authenticity), Fatwa came to be associated with ra'y (opinion) and fiqh (jurisprudence). After a corpus of legal definitions emerged, the term followed madrasah (religious school) interpretations, especially when fiqh did not provide clear technical assessments.
In the early days of Islam, fatwa were pronounced by distinguished scholars to provide guidance to other scholars, judges and citizens on how subtle points of Islamic law should be understood, interpreted or applied. There were strict rules on who is eligible to issue a valid fatwa and who could not, as well as on the conditions the fatwa must satisfy to be valid.
2.1 History of fatwa in Islam.
The first legal rulings were issued by the Prophet in his role as intermediary between God and the Muslims. The form in which these legal commands were revealed takes into account the fact that the Islamic model instituted by the Prophet reflected, in some respects, a drastic departure from previous Arab customs while in other areas, the Islamic response built upon existing customary practices. Because of this relationship between pre-Islamic customs and the new Islamic legal structure, many Qur'anic legal commands were revealed as a result of individual members of the Prophet's (s.a.w.) community approaching him for "clarification regarding the continuing validity of a certain practice."
After the Prophet's death, when direct access to divine revelation was no longer available, Muslims turned to the Prophet's closest Companions for guidance. Fatawa at this point in Islamic history took the form of the Companions commenting on how the Prophet approached a certain issue. When the generation of the Companions died out, Muslims came to rely on hadith, which were linked to the Prophet through their isnad. Those who mastered these hadith, the 'ulama, became in the second Islamic century the means by which to receive religious guidance on specific issues. As the Islamic Empire expanded and sophisticated state control became increasingly necessary, legal scholarship as the basis of state legitimacy-took on a similarly bureaucratic nature. Whereas "fatwa began as a private activity that was independent of state control," it became increasingly formalized, culminating in the creation of the four Sunni madhhabs and Shi'i Jafari madhhab, each of which compiled its own "fatwa collections."
Today, with the existence of modern independent States, each with its own legislative system, and/or its own body of Ulemas, each country develops and applies its own rules, based on its own interpretation of religious prescriptions. Many Muslim countries (such as Egypt and Tunisia) have an official Mufti position; a distinguished expert in the Shariah is appointed to this position by the civil authorities of the country.
2.2 Fatwa of Sahaba (companion of the Prophet)
Fatwa (opinion or ruling) of Sahaba is indeed a very important and deserves highest consideration, they being close to the Prophet and because of their direct knowledge from the Prophet. There is some disagreement as to who is a Sahabi. Majority hold that anybody who met the Prophet while believing Islam is a Sahabi. Minority hold that "Suhbat" (continuity of companionship) is a requirement to call a person a Sahabi of the Prophet [Imam Shawkani, Irshad; also Dr. Hashim Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge, U.K.]. Both points of view have justifications and cannot be ignored. The fact of being Sahabi can be established by continuous testimony (tawatur) or by affirmation of any other companion or even by own claim (if the person is upright).
Fatwa of Sahaba means an opinion reached by a Sahaba by way of Ijtihad. As regards whether fatwa of Sahaba constitute a proof on succeeding generations, there are three views: First view is that - it is an absolute proof. The proponents of this view quote the Quranic verses 9:100, 3:109. They also quote Hadith like "my companions are like stars" or “Honour my companions". First view is held by Imam Malik, Imam Shafii and Ahmad Bin Hanbal also have been quoted in its support. Against this view, it has been suggested that these references speak of the status and dignity of Sahaba. These are not categorical (Qaati) regarding compulsion to obey their decisions).
Second view is - that Ijtihad of a companion is not a proof and does not bind the succeeding generations. Hanafi jurist Abul Hasan al Karkhi, Imam Ahmed (according to one view of him) and Asharite and Mutazilite scholars hold this view. They quote the Quranic Ayat 59 : 2 ("Consider, O You who have vision"). It is argued that the Ayat makes Ijtihad an obligation of all who are competent and makes no distinction between Sahabis and others. Imam Gazali and Amidi consider it preferred view.
Third view is that of Abu Hanifa himself. He says that ruling of a companion is a proof if it is in conflict with Qiyas but not when it agrees with Qiyas. The aforesaid are the main views. There are some other views which may be seen in the books of Usul. It can be concluded that the Fatwa of a companion is a source of guidance which merits careful consideration (though not binding except in case of their clear Ijma).
2.3 Contemporary Trends
There have been significant recent developments as to the muftī's character, the medium through which fatawa are communicated, the types of questions posed, and the methodologies by which the muftīs arrive at their answers. According to the traditional principles of Islamic jurisprudence (usūl al-fiqh), a muftī must acquire a high level of specialized knowledge before issuing fatawa; however, many militant and reform movements have disseminated fatawa issued by non-specialists which have been widely circulated and followed. For example, in 1998 Usāma bin Lāden, together with four other associates calling themselves the World Islamic Front, issued a fatwa calling for a “Jihād against Jews and Crusaders.” The fatwa proclaimed it the individual duty of all Muslims to kill as many Americans as possible, including civilians. In addition to denouncing the content of this and other fatawa attributed to bin Lāden, many Muslim jurists have stressed bin Lāden's lack of the requisite qualifications for either issuing fatawa or declaring jihād.
In July 2005, nearly two hundred prominent ῾ulamā' convened in Jordan to issue a ruling that recognized the legitimacy of eight schools of Islamic law, forbade declaring any member of these schools to be an apostate, and declared that only scholars trained according to the requirements of a recognized school of law may issue fatawa. Known as the “Amman Message,” a major purpose of the statement was to delegitimize the fatawa promulgated by leaders of violent Islamist movements.
A fatwa issued in the aftermath of the September 11, 2001, attacks on the United States also illustrates several recent trends in iftā'. A few days after the attacks, a Muslim chaplain in the U.S. Army asked a group of 'ulamā' about the permissibility of participating in a war against Muslim countries. In response, five Middle Eastern scholars issued a joint fatwa permitting Muslim military personnel in the U.S. armed forces to participate in actions against Muslim states. Rather than referencing any of the major schools of Islamic law, the authors of this fatwa drew support for their position directly from the Qur'ān and Hadith. The collective fatwa, the lack of adherence to any one school of law, and the incidence of questions from Western Muslims directed toward muftīs in Muslim countries have all become common features of iftā'.
An estimated one‐third of the world's Muslims now live in majority non‐Muslim countries. The demand for fatawa on such issues as attending church weddings, responding to a French ban on headscarves in public schools, or buying houses through mortgages, has led to the controversial development of what since 1994 has been termed fiqh al‐aqallīyāt, or the jurisprudence of Muslim minorities. Organizations such as the Fiqh Council of North America, established in 1986, and the European Council for Fatwa and Research (ECFR, http://www.e-cfr.org/ar/), founded in 1997, have sought to provide authoritative rulings that address the concerns of minority Muslims, facilitate their adherence to Islamic law, and stress the compatibility of Islam with life in diverse modern contexts.
The ECFR's international membership has adopted an explicit methodology of drawing on all four major schools of law, as well as a range of other legal concepts, in order to produce collective fatawa suitable for European contexts. For example, an ECFR ruling issued in 2001 allowed a female convert to Islam to remain married to her non‐Muslim husband; the muftīs justified this stance partly on the basis of existing European laws and customs which guarantee women the freedom of religion. Although this type of ruling has been welcomed by many, it has been criticized by others as a divisive system of exceptions.
Far less formal than the deliberations of the ECFR; are the fatawa, issued online by “cyber-muftis.” Web sites such as Islam‐Online (www.islamonline.net/) and Fatwa‐Online (www.fatwaonline.com/) are among a large number of sites offering instant fatawa to readers from all over the world. Islam-Online publishes a searchable archive of ‘live fatwa’ sessions, which numbered almost a thousand in mid‐2007, and posts each muftī's biography. These sites, along with radio shows and satellite television programs offering call‐in fatawa, have contributed to the changing, and thriving, nature of contemporary iftā'. Muslims may now consult any number of muftīs worldwide, anonymously, instantly, and from the comfort of their home or local Internet café.
2.4 Scope of Fatwa
Fatwa covers a wider scope, including matters of legal theory, theology, philosophy, and creeds, which are not included in fiqh studies. Thus, the concept retains a broader concern about religion and society than is reflected in the formal Islamic law defined by the five schools. From the perspective of judicial authority, realm, and enforceability, fatwa is contrasted with qadā, or court judgment. The jurisdiction of fatwa is wider than qaḍā; matters such as 'ibadat (religious duties or obligations) are excluded from the power of courts, even though they are essential parts of Islamic law and appear very prominently in fiqh manuscripts and fatawa. The major difference between the two is in their enforceability: qadā is binding and enforceable whereas fatwa is voluntary. The concept of fatwa can therefore be seen as an indirect instrument for defining formal concepts of law when applied in courts. From the perspective of moral and religious obligation, fatwa is contrasted with taqwā or piety. For instance, a fatwa may allow choice between a lenient (rukhsah) and a severe ('azimah) view about the permissibility of a certain matter, or it may resort to legal devices (hilah) to circumvent the strict implications of a law, but taqwā may not approve of such strategies. This last contrast is often referred to in literary and Sūfī writings.
2.5. Characteristics of fatwa in Islamic
Imam Ahmad (may Allah be pleased with him) said that the one nominated to hold the position of Mufti, should possess the following characteristics:
o He should have a pure intention to guide the questioner and never to misguide him.
o He should have deep insight, equanimity and tranquility.
o He should have a firm religious background and deep knowledge.
o In his capacity as a religious leader, the Mufti should have adequate means to earn hislivelihood.
o Finally, he should be aware of daily life and contemporary issues.”
Moreover, Sheikh M. S. Al-Munajjid, a prominent Saudi Muslim lecturer and author, adds “Not every individual has the right to issue Fatawa and make pronouncements on matters. A Mufti must be qualified and of profound knowledge. He has to be able to know the evidence, the wording and apparent meaning of the texts, what is Sahih (authentic) and what is Da`if (weak), An-Nasikh wal-Mansukh (the abrogating and the abrogated), what is specific in application and what is general, and what is stated in brief and what is mentioned in detail.
This needs lengthy experience and practice, knowledge of the various branches of Fiqh and where to look for information, knowledge of the opinions of the scholars and jurists, and memorization or knowledge of the religious texts. The Mufti should be knowledgeable and rich in life experience. We cannot imagine him to live in an ivory tower and turn a blind eye to life around him. Undoubtedly, issuing Fatawa without having qualification to do so is a grave sin. Allah has warned us against that, saying: "And speak not, concerning that which your own tongues qualify (as clean or unclean), the falsehood: "This is lawful, and this is forbidden,’ so that ye invent a lie against Allah. Lo! Those who invent a lie against Allah will not succeed.” (An-Nahl: 116)”
According to the usul al-fiqh (principles of jurisprudence), the fatwa must meet the following conditions in order to be valid:
o The fatwa is in line with relevant legal proofs, deduced from Qur'anic verses and hadiths; provided the ahadith was not later abrogated by Muhammad.
o It is issued by a person (or a board) having due knowledge and sincerity of heart;
o It is free from individual opportunism, and not depending on political servitude;
o It is adequate with the needs of the contemporary world.
2.6 Legal implications of a fatwa
There is a binding rule that saves the fatwa pronouncements from creating judicial havoc, whether within a Muslim country or at the level of the Islamic world in general: it is unanimously agreed that a fatwa is only binding on its author.
Fatwa functioned independently of the judicial system, although in some systems muftīs who issued decrees would be officially seconded to religious courts. Thus, in Andalusian benches muftīs sat as mushawar (jurisconsults), and in early British Indian magistrates they sat as mawlawis (men of learning). Jurists compiled volumes of fatawa stating, for the benefit of judges, the consensual and authoritative views and doctrines of a particular school. Partly for these reasons, the position of muftīs in Muslim political systems was defined by the role fiqh enacted in that society. In Andalusia, jurists were indeed powerful, because they were part of the shūrā (council) of amīrs and caliphs, whereas in the Ottoman and Mughal political systems, the chief muftī was designated as Shaykh al- Islam. Muftīs were also appointed to various other positions, including market inspectors, guardians of public morals, and advisors to governments on religious affairs.
Under colonial rule the madrasahs took over the role of muftīs as religious guides. The madrasahs established the institution of dar al-ifta, a place to issue fatawa. The print and electronic media in the nineteenth and twentieth centuries reinforced the role and impact of fatawa. Muftīs were faced with day-to-day challenges in economic, political, scientific, and technological fields. Not only did the scope of fatwa widen, but because of its instant availability to a wider public, its language, presentation, and style adapted. Although no international Islamic authority has been established to settle legal differences, an Islamic Fiqh Academy was created in January 1981 by the Organization of the Islamic Conference (OIC), but its renditions are not binding.
This was underlined by Sheikh Abdul Mohsen Al-Obeikan, vice-minister of Justice of Saudi Arabia, in an interview with the Arabic daily "Asharq al awsat", as recently as on July 9, 2006, in a discussion of the legal value of a fatwā by the Islamic Fiqh Academy (IFA) on the subject of misyar marriage, which had been rendered by IFA on April 12, 2006 .
Despite this, sometimes, even leading religious authorities and theologians misleadingly present their fatwa as obligatory, or try to adopt some "in-between" position.
Thus, the Sheikh of Al-Azhar in Cairo, Muhammad Sayid Tantawy, who is the leading religious authority in the Sunni Muslim establishment in Egypt, alongside the Mufti of Egypt, said the following about fatawa issued by himself or the entire Dar al-Ifta:
"Fatwa issued by Al-Azhar are not binding, but they are not just whistling in the wind either; individuals are free to accept them, but Islam recognizes that extenuating circumstances may prevent it. For example, it is the right of Muslims in France who object to the law banning the veil to bring it up to the legislative and judicial authorities. If the judiciary decides in favor of the government because the country is secular, they would be considered to be Muslim individuals acting under compelling circumstances." Otherwise, in his view, they would be expected to adhere to the fatwa.
In Morocco, where king Mohammed VI is also Amir al-Muminin (Commander of the faithful), the authorities have tried to organize the field by creating a scholars' council (conseil des oulémas) composed of Muslim scholars (ulema) which is the only one allowed to issue fatwa.
In this case, a national theocracy could in fact compel intra-national compliance with the fatwa, since a central authority is the source. Muslims in other nations would obviously not be required to obey it.
3. Islamic Schools of law their Methodology of fatwa and its development:
There are a few methods of fatwa applied by scholars from different school of law, depending on various approaches in Islamic jurisprudence. We elaborate very briefly on those methods according to the popular school of law:
3.1. Maliki School of law:
Imam Malik was known as the “master” of the Hadith School and therefore the influence of hadith in his ijtihad is very clear, and his fatwa is tradition or hadith based. Before Imam Malik gets involved in the issuance of fatwa, he usually considers and observes few criteria in his fatwa as follows:
o ‘Farness from fatwa’, he used to say I don’t know in most of the cases subject to his ijtihad.
o Thoughtfulness, slowness, careful consideration, deliberation before fatwa in order to provide an accurate and sound Islamic ruling. This approach demonstrates the value and appreciation given to fatwa.
o Imam Malik dislikes issuing fatwa for something which did not yet happen, i.e. Propositional law. Usually he issues the fatwa only when it happens and becomes a real case which needs an Islamic ruling.
3.1.1. The Maliki School its Methodology and Development of fatwa:
The criteria that have been established by the Master of the school were taken into account by his followers and the leaders of the schools after him. Furthermore they have developed the methodology of the fatwa in the school and established a reliable and sound source and criteria for the fatwa in the mazhab. The major sources of Shariah in ijtihad and fatwa observed by the Maliki School taken into consideration during the issuing of the Islamic ruling are: the Holy Quran, Hadith Sharif (tradition of the Prophet ), ijma. (consensus of legal opinion), amal ahl al madinah (tradition of people of Madina), fatawa of the companion of the prophet , qiyas(analogy), masaleh al-mursalah (public interest), istihsan (juristic preference), sadu darrai (blocking the lawful means to an unlawful end), and al-urf (Custom).
The above sources represent the major and important sources for ijtihad and fatwa in the Maliki School. However there are some characteristics pertaining to each source which must be fulfilled to ensure the sound approach in the interpretation of the text, or in determining the new case subject to fatwa.
3.2. Shafai School of law
3.3. Hanafi School of law:
Abu Hanifa. the master of this school, is one of the prominent scholars recognized by this ummah, but his methodology in fatwa and ijtihad is different from Imam malik due to the normative influence from his intellectual environment in Iraq where the hadith was not the back bone of his ijtihad but he depended on a rational approach and the use of the intellect and reasoning as important sources for interpretation. The major sources in the Hanafi School taken into consideration considered during the issuance of fatwa and Islamic ruling are: the Holy Quran, Hadith Sharif, ijma, and selection from fatawa of the companion of the prophet, qiyas, masaleh al mursalah, al-urf and Istihsan.
3.4. Hanbali School of law
Imam Ahmad Ibn Hanbal is the master of the Hanbali school of law and the prominent student of Imam Shafi, The Hanbali school took into consideration the following major sources when issuing the Islamic ruling and they are: the Holy Quran, sunnah (hadith sharif), ijma, fatawa of the companion of the Prophet , al ahdith al mursal (broken chain in companion) and qiyas. Besides the abovementioned sources, Imam Ahmad considered other factors in his fatwa as follows:
o The changing of time and location (this factor is considered by other scholars as well).
o He is not restricted to his previous fatawa.
o He takes into account the principle of daroura.
o Observe the niyyah or intention of the person in his fatwa and the Islamic ruling can be affected according to his intention.
3.5. Imam Al Shawqani (as independent scholar)
Imam al-Shawqani is not a master of any school of law but he is an independent jurist and a competent scholar accepted by the ummah. By reviewing his fatawa in finance and other aspects of Shariah we can observe some important criteria which govern his methodology in fatwa and ijtihad as follows:
3.5.1: Methodology of his fatwa:
Shawqani has adopted some criteria in his fatwa methodology which can be summarized in the following points:
o Refer to al dalil (evidence) and dependence on it in issuing fatwa or in supporting any
Shariah opinion.
o Independent in his ijtihad, which means that Imam Shawqani was an independent scholar in his ijtihad and interpreted the text according to his understanding as a qualified and competent scholar.
o Depending on the Arabic language in extracting the fatwa or Islamic ruling from the text,
o Connecting the branches of fiqh to the Islamic jurisprudence rules.
o Linking the investigation in fiqh with the hadith (Sunnah)
o Depending on reasoning as additional evidence to support his understanding and fatwa.Consideration of the social dimension in his fatwa Consideration of maqasid al-Shariah in his fatwa.
3.5.2: Technical approach in his fatwa:
In addition to the above criteria, Shawqani has some other technical methods which support his overall methodology in fatwa which are as follows:
o Providing an introduction to the fatwa by some rules of Islamic jurisprudence related to the subject matter of fatwa.
o Providing the fatwa in details and not in brief statements like other scholars do. The fatwa of Shawqani therefore is detailed and explicit like a research paper rather than a very brief statement.
o Emphasizing more on the hadith in his fatwa, and depending on it as sound proof and evidence in supporting and empowering his Shariah opinion due to his background in hadith. He is in fact considered as one of the distinguished scholars of hadith.
4. Fatwa in Islamic finance
4.1 Importance of fatwa and its roles in Islamic banking and finance
4.2. Methodology of fatwa in Islamic finance:
4.3. Some rules governing the fatwa and the mufti in Islamic finance
5. Fatwa issued by Shariah board or advisory Shariah council.
5.1. The area covered by Shariah advisory
5.2. Duties and responsibility of Shariah committee
Key Terms
References
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