Fatwas 101

IMAM Feisal Abdul Rauf is the imam of Masjid Al-Farah in New York City, barely 12 blocks from the site of the 11 Sept 2001 attacks on the World Trade Centre. He is also CEO of the American Society for Muslim Advancement (Asma). Established in 1997, Asma is a Muslim organisation committed to bringing Muslims and non-Muslims together through programmes in academia, policy, current affairs and culture.

Furthermore, Imam Feisal is the architect of the Cordoba Initiative, an inter-religious effort to improve relations between the Muslim world and the West. His work takes him all over the world, including Malaysia. As he tells The Nut Graph: “I am interested in bringing humanity together, not creating divisions.”

Imam Feisal granted The Nut Graph this exclusive interview to clarify the issue of fatwas, from historical, religious, and political perspectives. He stressed that he wanted this to educate and to clarify an issue that seems to have caused a lot of confusion in Malaysia, among both Muslims and non-Muslims.

(Background image (© Jetmir Decani)

TNG: What exactly is a fatwa?

Imam Feisal: A fatwa is a legal opinion. But depending upon the context in which it is given and who provides the opinion, it can have the force of law. If a fatwa is given by an authority that has the jurisdiction to render law, then that decision has the power of law.

It’s like if you ask a qualified lawyer to give his opinion on something, it’s a legal opinion. But the opinion given by a judge who sits [in] a court has jurisdiction in a particular piece of geography. And if it is done [according to] a certain process, then that opinion has the force of law.

When a judge gives an opinion on a specific case, it is called a hukum in Islam. It’s a specific application, a judgment. And that judgment of that particular sitting judge has the power of law in a particular jurisdiction if it is [from] the highest authority. [So] in courts, we can go to a higher court to appeal, until [we] go to the highest level of the court system. The Islamic legal system is analogous to that in some ways. If the authority giving the fatwa has jurisdiction in that territory, then that opinion has the force of law.

The codification of Islamic law in contemporary times must be quite different than how it was applied during the period of classical Islam. In the classical period of Islam, what would be the process in issuing a fatwa?

[The] classical period in Islamic history refers to a particular period during which Islamic jurisprudence was being developed, which was roughly the second, third century [after Hijrah] till about five or six hundred years [after].

The imams developed the science of Islamic jurisprudence, called fiqh. Because we have what is called a syariah or a syarak. Syarak is the ordinances which God made in the Quran, and we have the syariah, which jurists define as being, roughly, depending upon which school, anywhere between 150 and 500 verses in the Quran called ayatul ahkam, which are verses in which God commands and prohibits. And there are about 12 to 15 hundred hadith of the prophet (Muhammad), in which the prophet also commands and prohibits.

This group of Quranic verses and prophetic statements [is] called the syariah. This is God-given, so to speak. And what we call fiqh means our understanding of the syariah. Of course, there is always, in Islamic thinking, a caveat that we human beings are not perfect.

The prophet himself was a human being, but he was guided and protected by the divine power during his prophethood. [W]hen the prophet did something God disagreed with, God would send a [Quranic verse] to correct the prophet. This is something which has happened.

So we call fiqh our understanding of the divine and prophetic statements. Because we always believe that our understanding may be imperfect and may be wrong. We try our best, but we know we cannot be completely correct all the time.

Fast-forward to contemporary times, and fatwa-making in the different Muslim nation-states and Muslim-majority societies has become so divergent. I remember a fatwa by Al-Azhar Grand Imam Sheikh Mohamed Sayed Tantawi, where he agreed with the ruling in France banning the hijab in public schools. The Grand Mufti of Egypt, Sheikh Ali Gomaa, at one point also issued a fatwa saying if the congregation agrees to have a woman imam for Friday prayers, then that’s fine for that congregation. In Malaysia, on the other hand, there was a lot of objection to these two things. There does not seem to be a lot of harmony in the Muslim world now as far as the issue of fatwa-making is concerned.

Well, see, there is an impression by many Muslims that there’s only one correct answer to many of these questions. This is a relatively modern phenomenon.

[But] that is not the case. Based upon even our knowledge of how the prophet (Muhammad) himself rendered decisions, the prophet gave different answers to the same question based upon who was asking.

Therefore it is a principle of Islamic jurisprudence, Islamic law, that the right answer to a question is very often context-specific. And this is something Muslims need to understand, that the context can itself shift the answer.

Even in our history, imam Shafie (d 820CE) — and Malaysia is [mostly] governed by Shafie principles of Islamic law — when he moved from Iraq to Egypt, modified or changed some of his fatwas because the context changed.

So it is a long-standing and well-recognised principle of Islamic law that the correct answer to a question … can be context-specific.

And I think at some point imam Shafie defended imam Malik (d 795CE), and then when he went to Egypt, imam Shafie was suddenly very critical of how people were blindly following imam Malik’s judgments.

First of all, there is not that much difference between the different mazhabs. They are by and large identical. The differences lie in small areas; minor differences.

This comes out of the historical, societal and social narratives in which many of the founders of these mazhabs had lived. For example, imam Malik, who lived in Medina, in the Hijaz (western region of the Arabian Peninsula) — which was a very homogeneous society, mainly Arabs — had a different viewpoint.

Imam Abu Hanifah (d 765CE), who lived in what is modern Iraq today, lived in a far more heterogeneous society, far more multicultural. So in more multicultural societies the situations are different, needs are different, and therefore they were more proactive in developing principles of interpretation which were suitable for their societies.

But within a few centuries, there was a general consensus by Muslim scholars that all of these mazhabs are equally correct. And this is something which modern Muslims need to apply in their behaviour.

Very often Muslims, while they know that there are four classical mazhabs in Sunni thought — which implies that there can be differences in opinion, both of which are deemed correct — don’t apply that in behaviour. The tendency for many modern Muslims today [is] to act in such a way that if you do not agree with their opinion, you are considered a kafir right away.

You’ve clarified that fatwas are context-specific. A lot of Islamic jurisprudence evolved out of specific historical and social contexts, as far as the human interpretation of the primary and secondary sources of Islam are concerned. So, am I correct in concluding that public opinion and legislative processes can contribute to Islamic lawmaking?

Absolutely. In fact, government legislation is a recognised source of laws [in Islam]. You see, what the Islamic jurists did [was that] they classified the sources of law. And they looked at how people legislated or brought about laws.

The Quran and the hadith are a particular source of law, the primary sources of what we call Islamic law, [meaning] laws which are consonant with God’s prescriptive and prohibitive commandments.

But then there are other sources of laws which societies have. One is legislation by the authorised legislative powers. Government legislation has already been recognised under Islamic law as being syarie.

The word syarie is understood by Islamic scholars in much the same way that people say, “Is this law constitutional?” Modern societies, modern nation-states have a constitution. The legislature may enact a law. But if this law contradicts the constitution, you can raise a case against it in the courts, and the courts can strike it down as being unconstitutional. But if the law is not in conflict with the constitution, then it is considered acceptable or constitutional. [That is what] the term syarie means in the way that it is applied.

And the same has been considered to other sources of law which are recognised by Muslim jurists. Like the importance of what is called al-ada. You call it adat over here, or custom, and it’s called urf also in Islamic law. [People have customs], there’s an adat. There’s adat Melayu, adat Cina, adat Arab, there’s all kinds of adat from different countries. If the adat does not contradict the principles of the Quran or the hadith, it is considered syarie.

There have been cases where judges have issued judgments based upon their understanding of Islamic law. A case happens, they apply a decision. This is sometimes called judicial activism. This is under the Hanafi principle of istihsan, which has been used to refer to the activism of judges making decisions in cases where there is no existing law, and the process creating law or creating precedents [from] their judgments.

Because this is, in a sense, what the prophet (Muhammad) did. The prophet would be asked to judge a case, and the way he judged a case is considered part of the hadith of the prophet.

The prophet himself performed ijtihad, and in many cases gave us the reason for something. So, judges have done the same thing, and they categorise it under different names. So these terms that we have used, istihsan, urf and adat, or government legislation, these are sources of law which are deemed to be syarie.

In fact, the vast majority of Islamic law is not the Quran or hadith, but later legislation or the custom of the people. And this is an important thing to understand because there is a general recognition by Muslim scholars that things in the Quran and hadith tend to have a more permanent value. But laws which were enacted later, or come from the adat of a people, even though they were deemed syarie in earlier times, can be modified.

So when you look at the whole corpus of laws which people deem to be Islamic, we have to be a bit more refined or nuanced in what we mean by “Islamic”. We mean not just the Quran or the hadith but the whole history of the laws that Muslims [governed] themselves by.

---

See also Part II: Islamic crime and punishment