Tuesday, February 5, 2013

Is Islam Capitalist or Socialist?

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By Shahul Hameed


Islam is neither capitalism (Right) nor socialism (Left). It is the comprehensive way of life decreed for mankind by Allah Almighty. In Islam we find principles and formulations aimed at shaping the individual as well as the collective life of man within the parameters of divine guidance contained in the Qur’an and the Sunnah. As Islam encompasses all areas of human life, both politics and economics come under its purview.

The two socio-economic systems predominant in today’s world are democratic capitalism and democratic socialism. The hallmarks of the former are private ownership and free markets, while those of the latter are collective ownership and state control. The United States and France are two countries that have adopted the democratic capitalist system, while China and India, for instance, have adopted democratic socialism.

We find that both these systems suffer from inherent and systemic flaws that have made their practitioners leave their ideals and hastily adopt measures that undermine the very foundation of those systems. Thus, France often calls itself a socialist country, while China already shines with a capitalist hue.

There is also the Communist system, which is described as the culmination of the socialist evolution. But it has never materialized in history and exists only in the dissertations of staunch ideologues. Communism is impracticable, as it seeks to violate human nature and basic instincts.

In contrast with the above systems, the Islamic system approves of individual ownership in the case of certain things and collective ownership in certain other things. Islam also provides for the state ownership of some resources.

Although the true Islamic political system does not exist now, (of course, there are some countries that call themselves, “Islamic”) it once flourished, producing dramatic results. It was Islam in its pristine purity that succeeded in transforming a primitive desert people into the most civilized nation of the time. The boundaries of the Islamic Empire then stretched between China in the East and the Atlantic Ocean in the West. It was the deviation from Islam that caused the failure of the Islamic Empire.

Islam stands for the submission and subordination of all our interests and concerns to the One God; and the foundation of the Islamic state is the principle of the oneness of God. All humans, being the creations of the One God, are equal. Islam views man as a part of nature, which is destined to obey certain rules. The so-called natural laws are the laws of God; and as nature obeys God’s physical laws, nature is Muslim (that is, submitting peacefully to God’s laws). All the planets that float around the sun obey the unalterable laws of God, and so they are Muslim (submitting peacefully to God). Man is distinguished from other creatures of God by virtue of his reasoning power and free will. Man obeys two kinds of laws.

The first kind covers the physical, biological, and instinctive activities like breathing, digesting, or feeling curious. The second kind covers those activities that are based on man’s free choice and decision.
God commands us to live in harmony with the natural laws; when we obey God’s laws of nature, we are Muslim in the basic sense; but when we obey God in areas where we can make moral choices, we are Muslim by willful choice. Man is God’s vicegerent on earth, as Allah says in the Qur’an what means:

*{And when your Lord said to the angels, I am going to place in the earth a vicegerent, they said: What! will You place in it such as shall make mischief in it and shed blood, and we celebrate Your praise and extol Your holiness? He said: Surely I know what you do not know.}* (Al-Baqarah 2:30)

So, the Muslims (who know their God-given role on earth) must strive to fulfill their khilafah (vicegerency) on earth. A moment’s reflection will convince us that the role of khilafah involves both individual and collective efforts. The Islamic state is the chief medium of the collective efforts of Muslims in this regard. It is from this concept that the politics of Islam derives.

One major thrust of the Islamic system is its effort to attain social justice. This should be obvious to anyone who has a cursory knowledge of the Qur’an. For example, the Qur’an says what means:

*{O you who believe! be maintainers of justice, bearers of witness of Allah’s sake, though it may be against your own selves or [your] parents or near relatives; if he be rich or poor, Allah is nearer to them both in compassion; therefore do not follow [your] low desires, lest you deviate; and if you swerve or turn aside, then surely Allah is aware of what you do.}* (An-Nisaa’ 4:135)

It also says what means:

*{O you who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite you not to act equitably; act equitably, that is nearer to piety, and he careful of [your duty to] Allah; surely Allah is Aware of what you do.}* (Al-Ma’idah 5:8)

So the Islamic state would strive for social justice by all the means at its disposal; and naturally to lessen the material differences among the people has top priority for it. Capitalism, on the contrary, favors the rich and approves and contributes to widen the gap between the haves and the have-nots in the society; and this is one major difference between the two systems.

Islam recognizes the differences among people owing to their natural inborn talent, education, capacity for work, and so on, and makes allowances for these. But socialism would ignore these differences among people and impose its “concept of equality” on the society. That is why the Khmer Rouge in Cambodia (the radical Communists who controlled Cambodia for four nightmarish years from 1975 to 1979), for instance, compelled engineers and doctors to work in the farms, with disastrous consequences. But the Islamic state recognizes these differences and gives freedom to people by providing equal opportunities for all members of the society to develop and utilize their talents and tastes as best as they can.

The chief cause of economic problems, according to the capitalists, is the scarcity of natural resources; whereas according to the socialists, it is the exploitation of the workers by the capitalists. Islam differs from both as it realizes that the reason for the economic problems is man himself. The Qur’an says what means:

*{And He has made subservient to you the sun and the moon pursuing their courses, and He has made subservient to you the night and the day. And He gives you of all that you ask Him; and if you count Allah’s favors, you will not be able to number them; most surely Man is very unjust, very ungrateful.}* (Ibrahim 14:33-34)

This means that unjust and ungrateful man disregards God’s laws that provide the principles of equality and social justice; thereby he creates discord between groups and wastes the resources and scatters destruction. Thus, from the Islamic point of view, it is man himself who is the root of all problems; so if man is taught to check his pride, his meanness and his greed, there will be peace on earth, as well as progress and prosperity.

For the above reason, the first endeavor of Islam is to develop in its adherents a commitment to honor God’s laws in nature, in individual life as well as in social life. In brief, the political or economic system of Islam is an inseparable part of a complete code for the whole of human life. Therefore, it is pointless to isolate one area of human endeavor from the total Islamic system to analyze it. In other words, the economics or politics of Islam is of a piece with its morality and spirituality, which are reflected in Muslim life. The advantage Islam has over man-made systems is that Islam binds man to God. As someone has explained, Islam starts from the depths of the human conscience and proceeds in its endeavor to secure a happy life for all.


http://www.onislam.net/english/ask-about-islam/islam-and-the-world/politics-and-economics/166290-is-islam-capitalist-or-socialist.html?

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The unfortunate conditions obtaining in the Muslim world today have misguided some to regard the Islamic economic system as a form of "Capitalism." Nothing can be farther from truth. Exactly speaking, Islam is a class by itself. But if it can be likened to any of the modern ideologies, that is Socialism. A brief analysis of the economic teachings of Islam in the light of this fact may, therefore, be given, in order to bring into broad relief the role which Islam can play in defeating the challenge of Communism.

(1) Islam is not "Capitalism" because, although it allows private property and gives the scope for personal initiative, it is definitely opposed to the concentration of wealth in the hands of a few. Islam achieves that end by different means, the most important among which are:—

(a) Islam stands for the state-ownership of such "means of production" as the mineral wealth, thus eliminating from its society the steel-barons and the oil-magnates.

(b) Islam prohibits usury and interest in all forms. All students of economics know that the greatest impetus which Capitalism receives today is from the modern system of Banking which functions on the basis of interest. Islam does not permit the rate of interest to rise above zero and conceives the Bank primarily as the medium of commercial transactions.

(c) In the field of Agriculture, Islam does not favour feudal absentee landlordism. Its ideal is the creation of a society of peasant-proprietors.

(d) Among all the systems of Law, the Islamic law of inheritance is the most anti-capitalistic. It stands for the distribution of inherited wealth among the largest number of persons on the basis of the widest margin of relationship.

(e) Islam condemns the hoarding of capital in very strong terms. It imposes a fairly heavy tax on all capital, above a certain minimum standard, for the benefit of the less fortunates.

(2) The Islamic economic system is "socialistic" because:—

(a) From the ultimate point of view, Islam regards the interest of the society above the interest of the individual.

(b) Islam makes it an obligation of the Islamic state to provide for the basic necessities of life, including such 'modem necessities' as health services and free education, for all of its citizens. With that end in view Islam levies a Social Insurance Tax on all persons possessing more than a certain minimum of wealth.

(c) Islam stands for free trade. It is averse to monopolies and favours the participation of the largest number of people in commerce, for which it advocates the creation of Mutual Alliance Societies—Islam's substitute for Capitalistic Banking.

(d) In the field of industry, Islam's ideal is the creation of the "Co-operative Guilds of Workers" where all forms of exploitation as well as unrest and bad blood are eliminated.

(e) Islam, however, does allow private enterprise in industry even as it allows private trade. But then it propounds a socialistic principle of wages. In that connection: (i) It gives freedom to the wage-earner to fix his wages at whatever reasonable level he desires. Simultaneously with this prerogative it safeguards the wage-earner against all possible harm which the 'capitalist' might do to him by closing the doors of livelihood, and for that purpose it creates a fund for the maintenance by the state of all unemployed wage-earners; (ii) The standard of wages which Islam has ordered all the Muslim employers to adhere to is that in which the employee gets the "same to eat" which the employer eats and the "same to wear" which the employer wears. That means equalisation of economic status between the employer and the employee in the basic necessities of life.

(f) Islam does not only demarcate clearly the legitimate (socially good) and the illegitimate (socially evil) means and methods of income but it also limits the legitimate items of expenditure in such a way that in a. truly Islamic society it must become (and it did become in actual fact in the glorious period of Muslim history) impossible to find glaring inequalities in the basic manifestations of economic life. It is in the field of luxuries that most of the social heart-burning is to be found, and Islam sets healthy limits to them. For instance, household articles made of gold and silver have always formed an integral part of aristocratic life. Islam prohibits them definitely. Similarly, Islam prohibits the use of certain types of aristocratic clothes by men. Islam has permitted the Muslims to spend only on such things which have some real utility for the development of human life and it lays down the comprehensive principle that all spare money which one has, after spending on the basic and healthy necessities of life, is a trust of God meant for the improvement of the social health.

(g) As all students of Islam know, Islam establishes "spiritual democracy," "social democracy" and "political democracy" of the most perfect type. The teachings of Islam relating to these three aspects of human life, combined with its economic teachings, if followed in letter and spirit, guarantee the establishment of a classless society where all social conflicts must remain in abeyance.


http://ourpurposeoflife.blogspot.co.nz/2011/06/islam-capitalism-and-socialism.html

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Friday, January 25, 2013

Fatwa : Islamic Jurisprudence and Legal Maxims

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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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Tuesday, December 4, 2012

World's Muslims: Unity and Diversity

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The World's Muslims: Unity and Diversity


The world’s 1.6 billion Muslims are united in their belief in God and the Prophet Muhammad and are bound together by such religious practices as fasting during the holy month of Ramadan and almsgiving to assist people in need. But they have widely differing views about many other aspects of their faith, including how important religion is to their lives, who counts as a Muslim and what practices are acceptable in Islam, according to a worldwide survey by the Pew Research Center’s Forum on Religion & Public Life.


















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