Inhalt

Muftis, Fatwas And Islamic Legal Interpretation

This chapter is written by all the three editors of the book as introduction to the volume and to create a background of the subject. Islamic legal system of interpretation is based on two distinct categories of legal interpreters, qadis (the judge) and muftis (jurisconsult). In addition to courts, early Islamic jurists provided a legal aid service in the form of legal consultants called muftis. In their different venues, both qadis and muftis have specialized in handling the everyday traffic in conflicts and questions falling within the purview of the Shari’a[1]. Any Muslim could approach the mufti and seek his expert opinion, or fatwa, on a question of Islamic law. The fatwa was non-binding advisory opinions of the muftis but rest on the high degree of authority that is equivalent to the recognized Anglo-American legal mechanism of case law precedent.

This chapter explains the history and transformation of issuance of fatwa traced back from the Quranic revelation on Prophet Muhammad (s.a.w.) when one or more members of the community or companion of the Prophet (s.a.w.) approached the Prophet (s.a.w.) and ask for clarification of certain issue over which the Prophet (s.a.w.) sometimes wait for revelation from Allah almighty (known as quranic text) or sometimes without awaiting the reaction of the divinity, responds immediately (known as hadith).

In 632 A.D after death of the Prophet (s.a.w.), Muslims turned to the companions of the Prophet (s.a.w.) for their guidance in new issues arising due to the expansion of Islam and Muslims beyond the boundaries of Arab. Approximately one hundred thirty companions functioned as muftis during the seventh century. Among others, some renowned muftis of that time were Mu’ad bin Jabal, Zayd bin Thabit and Ibn-e-Abbas.

After the death of companions of the Prophet (s.a.w.), the era of ulama (scholars) and fuqaha (jurists) came. In Mecca, Madina, Damascus, the Yaman and other countries eminent scholars like al- sha’bi, al- zuhri, makul and tasu generated discrete legal materials that were used by subsequent generations of scholars to create the fully developed system of Islamic law. This special class of scholars acquired religious authority analogous to that exercised by the Prophet (s.a.w.). They were called as human interpreters of God’s will on earth.

Under the heading of institutional manifestations history of futya (legal consultation) is discussed. Initially futya or legal consultation was a private activity of the mufti or jurist but gradually in some parts of the world the activity of futya acquired a public and official nature. During the period of Umayyad, muftis served as legal consultants for judges and issued fatwas at the request of provincial governors as well. In the second half of the tenth century, process of collection of fatwas of the muftis began to appear and continued. This fatwa collection was classified mainly as sunni fatwa collection, which was further divided into hanafi, malki, shafi’i and hanbali’s school of legal thoughts and shi’is fatwa collection consistent of ja’faris school of thought. As the demands of fatwas increased the official department for issuing fatwas known as office of shaykh-ul-Islam was establish during the Ottoman period (1516-1918). The fatwas issued by the shaykh ul- Islam were systematically recorded in registers, and those issued by certain distinguished shaykhs were collected in book form as well.

Under the division of adab al- mufti not only qualifications and status of muftis is defined but basic identity of mufti, the formal requirements of this position and character of the interpretive relation between muftis and questioners is also discussed.

Under the heading of modern muftis, the changes and transformation in the character of muftis and issuance of fatwas is been discussed according to which one of the fundamental change having direct impact on muftis is the transformation in the essential character of knowledge and its means of transmission. Shari’a or fiqh has been largely displaced by secular subjects, derived from western model. Study of fiqh is removed from Islamic institutes or to specialized law schools where it competes with offerings in western-style law. Educational systems are now producing lawyers and law professors instead of muftis. Codifications powerfully harnessed the Shari’a materials. Interpretive authority has been passed from the hands of individual jurists and muftis to the collective bodies of national legislatures.

In recent years, fatwas has become a media phenomenon, for example, in cases of assassination of Anwar al- Sadat and the condemnation of sulman Rushdie. Scope of the modern fatwas appears broader in social address, religious issues and family law as compared to strict legal issues. The concept of istifta (request for a fatwa) is also altered with popular concept of referendum or plebiscite.

[1] Islamic law

Ifta’ and Ijtihad in Sunni Legal theory: A Development Account

This chapter of the book is about Ifta’[1] and Ijtihad[2] in sunni legal theory: a development account. Islamic legal theory always worked for the establishment of the principles and precepts to govern the procedure of Ijtihad or legal interpretation. The institution of ifta’ and mufti are deeply concerned with the process of transmitting the outcome of Ijtihad to the people. So, the question arises here is whether the mufti had to be a mujtahid or not? To answer this query the writer of the book presented views of different scholars of the different era and tried to demonstrate us the gradual transformation to this idea that whether a mufti must have the qualities of mujtahid or any person can give fatwa?

The writer began from the eighth century with the views of al-Shafi’i (d. 820) who does not expressly mentioned this fact that mufti must be capable of Ijtihad but the criteria presented by him clearly indicated that a person less than mujtahid can not be a mufti or cannot give fatwa. According to al-Shafi’i qualities of knowledge in which one must be proficient in order to qualify as a mufti include skilled knowledge of the quran, of the Prophet’s (s.a.w.) sunnah, the Arabic language, the legal questions subject to consensus and art of legal reasoning (qisas).

Uptill tenth century, the scholars were having the same views regarding the mufti. Abu al- hasan al-basri (d. 1044) maintains the views of al- shafi’i and clear this thing that ifta’ means the exercise of Ijtihad and nothing less than this. Al- basri was deeply against the muqallid[3] to practice ifta’ because as per his view logical conclusion and the aftermaths of allowing a muqallid to practice ifta’ would be severe. He does not give a muqallid status of more than a layman.

In eleventh century majority jurists maintained directly or indirectly the same view that Ijtihad is a prerequisite for giving fatwa. The jurists of this century followed the footsteps of their predecessors in affirming that to be a mufti is nothing short of a mujtahid.

In twelfth century an interesting change and gradual transformation to this view is found. Al- amidi (d.1234) presented the view that a mujtahid within a legal school (mujtahid fi’l- madhhab), who is knowledgeable of the methodology of the independent mujtahid whom he follows, and who is capable of deriving rules in accordance with this methodology and defending his position in scholarly debates, is entitled to practice ifta’. Ibn al- hajib (d. 1248), a younger contemporary of al- amidi, goes further by presenting the view that a jurist who is not himself a mujtahid within the legal school of mujtahid (mujtahid fil-madhhab) is entitled to issue fatwas if he is knowledgeable of a madhhab and is able to reason properly. Ibn al-salah al- shahrazuri (d. 1248), contemporary of ibn al-hajib takes another step in articulating the change. He divides the muftis into two kinds as independent mufti, the one who follows the teachings and methodology of no one else and who has established his own legal school (madhhab) and muftis who are not independent. Ibn al- salah further divides those who are not independent muftis into four kinds as per their descending degree of knowledge.

By the middle of thirteenth century, it seems common to allow the muqallids to occupy the office of ifta’. Ibn abd al- salam (d. 1261) issued a fatwa on the query that who is entitled to issue fatwa. Al- salam maintains that if a mufti does not meet the requirements of absolute Ijtihad, then he may be a mujtahid fil- madhhab, he may still issue a fatwa on points of law where he feels, beyond any shade of doubt, that he is competent. Ibn daqiq al- id (d. 1302) gone further and maintained that it is sufficient if the mufti is just (adl) and is knowledgeable of the school of the mujtahid whom he cites in his fatwa as in times of ours it is difficult to have fatwas on the basis of ijtihad. The great majority of subsequent theoreticians maintained the same concession for mufti- muqallid.

Through this chapter the writer demonstrated from Sunni school of thought the development in the institution of issuance of fatwas in relation to qualification of the muftis to issue fatwas in changing situations.

[1] The act of issuing fatwas

[2] Independent reasoning; authentic scholarly endeavour

[3] Practitioner of taqlid; a person who follows school doctrine because he is not qualified to engage in deductive and analogical reasoning

Learning at Mosques in al- Andalus

This chapter refers to first fatwa of the book underhand. The scheme of the writers to present the fatwas from chapter three to onward is that first, writer explained the context to which the fatwa presented by him belonged, then translation of fatwa is given in the form of question and answer which is followed by analysis of the fatwa by the writer.

Chapter three is containing a fatwa regarding the learning at mosque in al- Andalus. In the start, writer discussed pivotal role played by Mosques in the lives of Muslims. The query raised in the fatwa deals with the issue of Mosques to be used as public place. In two short paragraphs the writer presented the views of the judicial advisors (muftis) that teaching in mosques and gathering there to discuss religious knowledge must be permitted. The only authority quoted is Malik bin Anas, as in al- Andalus teachings of Maliki school of thought was prevailing.

The writer also presented the disagreement of Ibn Sahl with his predecessors a view came after two centuries of above mentioned view. He presented a different opinion over the same topic. Ibn Sahl argued that general permission to assemble in the mosque should be restricted to very specific cases, such meetings should be allowed only when they are led by knowledgeable and trust worthy people. For Ibn Sahl, Muslims ought to meet in mosques only if they were properly directed by someone not likely to arose dangerous emotions. As, at that time such gatherings were increasing towards which Sahl pointed out, but two centuries earlier, scholars had not even considered this possibility, and they accepted and recommended assemblies of learned people in mosques.

Caliphal Legitimacy and Expiation in al- Andalus

The chapter underhand is related to Caliphal legitimacy and expiation in al- Andalus. In this chapter writer has discussed three cases about the appropriate expiation in cases of transgression and the fatwas of eminent scholars of Maliki school of thought over the issue.

The writer has discussed different forms of expiation allowed in Islam and presented the views of muftis in cases of specific nature discussed in the chapter along with the reasoning of the muftis to opt for only one form of expiation which is fasting. According to writer, the reason to suggest this form of expiation is to purify the persons involved and to deter them from falling again into transgression.

Ibn Taymiyya on Leadership in the Ritual Prayer

Chapter five presented the views of Ibn Taymiyya on leadership into the ritual prayer. The writer commented it as popular fatwa in truest sense because the question or mas’ala dealt in this fatwa is for people in general and is of much importance for Muslim community. The question dealt in fatwa was, concerning the four school of law, whether to perform prayer under leadership of certain people is permitted and disallowed for certain others and whether invalid performance of the prayer on the part of imam affects the validity of the prayer performed by the one being led, the ma’mum. There is difference of opinion among the four schools of thought. According to Hanafi, Shafi’i and Hanbali view the prayer of ma’mum is not valid whereas Maliki view is that prayer of ma’mum is valid. Ibn Taymiyya’s fatwa affirms the open and tolerant spirit that existed within the confines of the four Sunni schools.

Use And Abuse Of The Law: A Mufti’s Response

This chapter refers to the issue of use and abuse of the law: a mufti’s response, in which fatwa of Taqi al- Din al- Subki is translated and analyzed. The fatwa discusses the adab al- mufti i-e rules, regulations and restrictions which a mufti has to follow while giving any fatwa. According to which muftis were not expected to verify the facts of the cases about which they were asked to issue fatwas. They are only expected to provide a precise answer to the question asked to him. They are advised to incorporate in their response all relevant information about the case. Muftis must insure that their written fatwas would stand as autonomous and self-explanatory texts and must be in particular context, justifying its problematic character.

Dhimmi Women and Mourning

In chapter seven writer states about dhimmi [1]women and time period of her mourning, as the Muslim woman has to observe certain limitations. A man from Tripoli (now known as Lebanon) sent a query to Taqi al- Din Subki to give fatwa. Al- Subki was popular jurist and was known for his interest in the application of principles of Islamic law to the status of non- Muslim, may be this is the reason that the same question was put to him by the questioner.

The mas’ala in the fatwa mentioned in this chapter was whether dhimmi women is the believer of God and the day of judgment and comes under the hadith of Prophet (saw) according to which she was to observe mourning of three days except for her husband for whom she has to mourn for four months and ten days.

Jurists noted that Quran does not limit the application of the widows idda’[2] to believer women only. According to al- Shafi’i free women either Muslim or dhimmi, old or young, all are in equal status regarding ihdad. Modern jurists also observed that anything obligatory on Muslim women is also to be followed by dhimmi wife and she is also expected to observe idda’.

In his answer to the question al- Subki changes the order of the clauses , addressing the claim that dhimmis are believers before he addressed the interpretation of hadith dealing with ihdad and maintained his view that dhimmi women are bound by the hadith.

The write through this fatwa presented an example that a mufti can even go beyond a moot question to address what he believes to be an important issue. The writer concluded that for a mufti’s expertise is especially valuable for defining the borders of Islam that what comes inside or outside the concern of Islamic belief and how to relate them.

[1] Islam allows the marriage of a muslim man and a free jewish or christian woman, such a woman is called dhimmi women.

[2] Period of sexual abstinence, waiting period for a woman after divorce or the death of her husband.

The Art of Legal Opinion: al- Wansharisi On Tawlij

This chapter is elaborating the art of legal opinion: al- Wansharisi on Tawlij. Twalij means financial transaction between the parents and children designed to circumvent the Islamic inheritance law. The main focus of this chapter and fatwa including it is analysis of the way in which Muslim proprietors attempted to resist the perceived constraints of Islamic inheritance law and the manner jurists assisted them in this endeavor.

Islamic law of inheritance places substantial constrains on the freedom of a person to determine the devolution of his property. He cannot bequeath more than one third of his property and cannot made the same in favor of anyone who qualifies to be his legal heir. The jurists taught that the inheritance rules take effect only on property owned by the deceased at the moment they enter their deathbed illness, and that proprietors are free to dispose of their property in any way they wish prior to that moment. Similarly there is no restriction on the amount of property that a person alienates during his lifetime whether in favor of legal heirs or anyone else. This type of transaction was designed by Maliki jurists with the name of tawlij.

The mas’ala under the fatwa was whether a sale transaction under consideration qualifies the status of tawlij and whether that can be reversed/ claimed by the legal heirs. Al- Wansharisi rejected the claim because it was not supported by the testimonial evidence. Al- Wansharisi made no reference from Quran or Sunnah rather situates the authority of his response in an impressive range of Maliki sources that included doctrinal law books, treatises dealing with legal formularies, earlier fatwas and court practices.

When Women Went to Mosques: al- Aydini on the Duration of Assessments

This chapter is dealing with when women went to mosque: al- Aydini on the duration of assessments. Duration of assessment is a treatise of al- Aydini in which he attempted to describe the “life span” of an assessment. In plain meaning, the phrase “duration of assessment” refers to a ruling issued in response to an inquiry about the licitness of some practice; once the ruling is issued the presumptive status of the practice remains thereafter the same. This principle is conservative that the ruling once issued would remain generally effective and there is no need to opt for second ruling on the same subject matter but if something becomes detrimental subsequently al- Aydini argues that the earlier assessment is revoked. This principle is flexible one and allowed a mufti to reinvent the law if something leads to “deleterious consequences” (fasad). In al- Aydini’s treatise the flexibility of Islamic law is clearly demonstrated, but he argues that the mutability of the Shari’a can be used in conservative and reformation way.

Child Marriage in Seventeenth- Century Palestine

Chapter ten states about the child marriage in seventeenth century Palestine, the same practice was also prevailing in China, Japan, India, Babylonia, Rome, Athens, among Jews and Christian Europe during the middle ages along with pre-modern Muslim societies. According to writer, the difference of the views between pre-modern Muslim societies and modern western standards lies in the definition of the childhood. The fatwa in the chapter is presenting the sketch of Muslim marriage practice in Palestine during the seventeenth century. The fatwa also provide an insight into the different aspects of child marriages, the procedure involved, the proportion of boys and girls involved, the ages of marriage partners, the motives behind such marriages and the problems arising out of it. It also reflects the social circumstances and daily happenings that judges and muftis of the time had confronted.

Eleven Fetvas of the Ottoman Sheikh ul- Islam ‘Abdurrahim

Chapter eleven consists of eleven fatwas, given by the ottoman sheikh ul- Islam’ Abdurrahim. Writer of the chapter while describing the history of the fatwas given by sheikh-ul-Islams, mentioned that from the half of the sixteenth century until the end of nineteenth century, collections of the fatwas issued by sheikh-ul-Islam formed a distinctive branch of legal literature. The compilers usually grouped the fatwas under chapter headings. Each chapter consisted on further headings and subheadings according to the subject matter.

Under the command of sheikh ul- Islam Ebassu’ud, in sixteenth century the fatwa office was established as the issuance of fatwas became a routine procedure during his time.

In this chapter, the writer discussed the fatwas from the compiled collection of the fatwas of Abdurrahim, who held office as sheikh ul- Islam from 1715 to 1716. This is illustration of series of fatwas grouped together in the manner mentioned by the writer before.

The issue discussed under these fatwas is related to the legal status of mother and child when a man produces offspring by a female slave belonging to his wife. This status determination is an important feature of Islamic family law.

Abdurrahim has eleven fatwas on this problem that’s why the writer chose to give this name to the chapter. The salient feature of Ottoman fatwas is their secrecy as the identities of original questioner; the officials who drafted the question in its existing format and the protagonists in the case are all usually kept secret. Another feature of the fatwas of this era is their conciseness both the questions and answers contain nothing except the essentials of the case.

The writer very carefully pointed out the pros and cons of these fatwas, according to his view the element of conciseness provided a great clarity to the point of law illustrated in the fatwa whereas the element of secrecy gave the generality to the fatwa which is contradictory to the usual fatwas, which applies to particular cases only. For a modern reader these two features are having drawbacks, as these had obscured the processes whereby these fatwas came into existence. This made impossible for the writer to comment on the social and legal background of the fatwas with certainty mentioned in the chapter.

The writer presumed the situations in which these fatwas may had been forwarded by qadi / judge to the sheikh ul- Islam for his opinion and put light upon the process of formation of legal precedents in Ottoman law. The judgment given by the Qadi/ judge was limited to the case at hand whereas, the fatwas had more general validity and would provide Qadi with authoritative guidance in similar cases in the future, means had precedential value.

The Fatwas Of Condemnation

This chapter is the start of early modern period which is part three of the book. It contains the fatwas of condemnation. Fatwas of condemnation includes those fatwas which are issued to banish the troublesome elements intended to unravel the unity among the Muslims and to drive them away from the right path.

The fatwa discussed by the writer in this chapter is about Muhammad b. Ali al- Sanusi, a man who belongs to a group of those who deflect the people from the true path and promote high individualism and hatred toward taqlid[1]. This independence of approach cast them in bad odor within the Ulema of their day. The review of the charges levied against al- sanusi in the fatwa was discussed in the chapter while divided into two principle categories by the writer. One is that several of teachings of al- Sanusi are denounced as dangerous innovations and the other is that some of his ritual practices of the brotherhood were denounced as having departed from the rigors of Maliki convention and pure path of Islamic Shari’a.

The writer opines that the fatwa discussed in the chapter and other fatwas of the same classification were result of weaknesses of Ottoman authority and rapid rise of European activity in Africa, India and the Middle East. According to analysis of the writer, through his use of Ijtihad, which according to other ulema’s was not allowed after its closure but in views of al- Sunasi was common property of all Muslims of high learning, al- Sunasi tried to establish an entente between Sufism and fiqh, but failed in his effort like his predecessors, as his talents were not given value by the official ulema’s of his time.

[1] Following the opinion of another within a madhhab, or school of law

Fatvas as Asymmetrical Dialogues: Muhammad Karim Khan Kirmani and His Questioners

Chapter thirteen is dealing with fatwas as asymmetrical dialogues: Muhammad Karim khan Kirmani and his questioners. The writer while giving historical background of the topic mentioned that since the institutionalization of Twelver Shi’ism as the religion of the Iranian state in the Safavid period (1507-1722), the ulema have been a heterogeneous sector of society representing different theological and political positions. Ulema not only saw frequent criticizing and contending with one another on different theological issues but also struggling to attain positions of authority.

In the sixteenth century, two groups emerged having contradictory views regarding the function of mujtahid. One known as Usuli’s were of the view that mujtahis is a guide for the community and can apply his personal interpretation to the texts. Usulis were more flexible regarding authority of the mujtahids, this flexibility allowed the religious leaders of the time to express political opinion and thus to influence the worldly matters. Whereas the other group Akhbaris believed that the only authoritative sources are Quran and Sunnah.

The writer discussed few fatwas of the Muhammad Karim khan Kirmani and through these fatwas analyzed the historical and social context of these fatwas along with evaluation about mufti i-e Muhammad Karim and the Mustafi/ questioner who remain unknown in these fatwas. These fatwas do not deal with theological issues rather dealing with administrative proceedings of the Shaykhi community. Through his analogical reasoning the mufti relocates the coordinates of specific situation within an abstract system of rules which provides material for further elaboration and expansion of the system. Taken together, the asymmetries of such fatwas provide an image of a complex, articulated and variegated society, documenting, at local level, different languages, statuses, attitudes, patterns of thought, and finally, lives.

Sacred Space And Holy War In India

This chapter contains the fatwa about “sacred space and holy war in India”. the chapter is dealing with the controversy aroused in late twentieth century when Hindu communist groups charged that the Baburi mosque at Ayodha, near faizabad in the northern province of Uttar Perdesh, India stood on the site of the birthplace of the holy figure Ram, and that medieval Muslim rulers had demolished the temple that used to commemorate that sacred spot. Similar controversy agitated in 1850 in north India when the Sunni Muslim activists of the time became convinced that the Hanumangarhi had been built atop the site of an old mosque.

The fatwa discussed here is related to query whether Muslim had a right to act independently of the state to redress the insult to Islam that they felt the hanumangarhi represented. The answer to this query is given in the form of fatwa by a shi’a jurist that without the participation of ruler either he is customary law rule or Islamic law ruler such actions are not permissible. The writer thoroughly discussed all the social and political context of the issue along with difference of opinion in sunni and shi’a thought towards the controversy.

Two Fatwas on Hajj in British India

This chapter explains about two fatwas on hajj in British India. The writer took two fatwas issued in the late nineteenth century by the maulana Rashid Ahmed, the mufti on the questions posed by Azizuddin, the questioner, related to hajj. The writer under different headings like subject, rhetoric and sources, institutional context and dissemination elaborated the topic and in the end mentioned in his conclusion that these fatwas are broadening the issues not only of religious obligations but also of moral opinion regarding a wide range of customary practices, relevant to the attempt of the ulama to define a purified and authoritative personal standard of faith and practice as the foundation of individual and communal life.

Apostasy And Judicial Separation In British India

Subject of apostasy and judicial separation in British India is discussed in this chapter. The writer discussed two fatwas related to the issue of apostasy and its effect on the relationship of a Muslim spouse. The questioner (musta’fi) approached mawlana Ashraf Ali Thanawi for the fatwa on the issue. The writer elaborated the issue by giving the translation to the fatwa given by mawlana Ashraf Ali Thanawi, presenting the background to the issue in British India, institutional development of this institution there, providing with the doctrinal context of the issue and then finally in his conclusion he analyzed the reasoning due to which mawlana Thanawi adopted the aspects of Maliki Legal doctrine and amended the view presented by Hanafi’s that apostasy annuls the marriage contract in favour of judicial divorce.

The writer through these fatwas suggested that legal reform is acceptable in Islamic law even if it is legislated by a non-Muslim government if a semblance of continuity with the past is maintained and if it is initiated through the institution of ifta’.

Are Wahhabis Kafirs? Ahmad Riaz Khan Barelwi and His Sword of the Haramayn

Chapter seventeen is related to the topic of uniqueness of Prophet (s.a.w.) and love to him (s.a.w.) which is inseparable from the worship of Allah (SWT) and those who contradict this view are infidel (kafir). The chapter is named as “Are wahhabis kafir? Ahmed riaz khan beralwi and his sword of haramayn.

In 1902-03 Ahmed Riaz Khan Beralwi wrote a treatise in which he issued the judgment of infidelity (kufr) on certain contemporary South Asian Muslim Scholars of Islamic law. In 1906, when he went to Haramayn on his second hajj, he submitted his work there before some ulama’ with request to write testimonials (tasdiqat) in support of his verdict of infidelity (kufr). After his return to subcontinent his verdict and testimonials received from the Haramayn were published as a fatwa entitled Husam al- Haramayn ala Munhar al- kufr wa’l Mayn (the sword of the Haramayn at the throat of Kufr and falsehood).

The writer through the headings of Ulama’ Responses to British Rule in the late nineteenth century, the Ahl-i Sunnat movement and its use of the term Wahhabi, the context of writing of Husam al-Haramayn and Rhetoric and style of argumentation in Husam al- Harmayn, presented and elaborated the full context of the fatwa taken from the work of Ahmed Riza Khan Barelwi. The writer concluded after thoroughly discussing the history and context of the fatwa the Ahmed Riza Khan considers it the duty of ulama’ to condemn the practices of those who act against the fundamentals of faith and to declare them as kafir.

The Lions Of Qasr al- Nil Bridge: The Islamic Prohibition Of Images as an Issue in the ‘Urabi Revolt

This chapter is about the lions of qasr al- nil bridge: the Islamic prohibition of images as an issue in the urabi revolt. The fatwa taken by the writer here for analysis and interpretation is part of collection of some 13,500 fatwas issued by Grand Mufti Muhammad al- Abbasi al- Mahdi of Egypt. Although the issues discussed in fatwa seems to deal with purely religious question- namely the obligation to remove images of human beings and animals- but the context in which it was requested to be issued was of highly political nature.

The writer very briefly elaborated the function of the institution of ifta’ along with powers and authorities the Grand mufti and muftis of that era enjoys, their status and importance attached to their fatwas.

The query (mas’ala) presented in the chapter is situated in the context of Urabi Revolt, 1881 in Egypt. Urabi apparently wanted to make a public gesture showing his Islamic zeal. This gesture took shape of an attack on some statue placed in Cairo. The demolition of this and some other statutes was a symbolic act that carried both religious and political implications. To show that to destroy these statues is not only agreed by all the schools of thought but also an obligation of a religion on a Muslim ruler, Urabi, asked for a fatwa by a Grand mufti.

The grand mufti replied that such images and statues are almost forbidden and removal of the same legally obligatory. Similarly, it is ruled out that images located at both ends of Qasr al-Nil Bridge should be removed. But interestingly and differing from the fatwas of the era, the Grand mufti wrote a supplement to the answer in which he presented his political views to clarify the Urabi, that Grand mufti did not want him to increase his legitimacy by posing as a Muslim ruler, who is carrying out the commands of Islam faithfully. The Grand mufti pointed out number of political and social evils which a Muslim ruler must strive to eradicate from his Egypt and which needed urgent consideration.

An Argument about How to Argue

This chapter is the start of fourth part of the book i-e the modern period. It is dealing with a very interesting topic of an argument about how to argue. Although the fatwa included in the chapter is regarding the keeping of dog, cleanliness and uncleanliness of their saliva etc but the query (mas’ala) sought for fatwa is dealing with more than one kind of issue.

The fatwa in the chapter came from Kelantan, Malysia in the mid- 1930s.The writer elaborated the history, historical development and establishment of the institution of ifta’ in Kelantan, Malaysia. The chapter includes the details of majlis muzakara, took place in the audience hall of one of the royal palaces of Kelantan on the issue of keeping dogs etc. which was ended inconclusively upon which the request for issuance of fatwa was made to clarify the matter. The writer opines that this entire episode made him to conclude that this was an argument about how to argue.

The Council Of Indonesian ‘Ulama’ On Muslims’ Attendance at Christmas Celebrations

Chapter twenty is related to the topic of “the council of Indonesian ‘ulama on Muslims’ attendance at Christmas celebrations”. The chapter is dealing with an important social issue of the day and a case study of Indonesia. The writer analyzed in the chapter how the fatwas reflects broad social issues and how the emergence of the fatwa is conditioned by its social surroundings.

The fatwa was issued by the Council of Indonesian Ulama’ (CIU), an elaborate discussion is made out here about the misconceptions among the Muslims that the Christmas celebrations are having no ritual value and there is no harm in participating in these celebrations as these promote tolerance and harmony among the people of different faith. The ulema council was of the opinion that participations in these celebrations could jeopardize the faith of Muslims and promotion of religious tolerance should be carried out through social activities, not in the area of theology and rituals. Muslims are required to cooperate with the non- Muslims on the basis of humanitarianism only. The chapter also included the reaction of the Indonesian government, the pressure inflicted upon CIU to revoke the fatwa and refusal of the CIU.

A Modern Indian Mufti

This chapter discusses about a modern mufti. Through this topic the writer mentioned the settlement of legal disputes among Muslims in India, which has two ways: firstly, they can either go to state- sponsored courts where they are allowed to be governed by the Muslim Personal Law which is a complex mixture of judge made legal compromises blended from a few translations, text books and precedent or secondly, they can opt for legal opinion from a mufti/ religious scholar known as fatwa.

The writer chose a fatwa on a mas’ala of endowment’s custodianship and through this presented the analysis of the observations of the individual mufti, the Islamic school he represents and the ways both interact with ordinary believers in Hyderabad, India. The writer took jami’a Nizamiyya to elaborate his research, presented its history and development as a fatwa giving institution, presentation and style adopted by the mufti of the jami’a and stuggle of the mufti to maintain the authority of the jami’a which is ultimately source of his own authority.

Mut’a: Regulating Sexuality and Gender Relations in Post Revolutionary Iran

Chapter twenty two is dealing with Mut’a: Regulating Sexuality and Gender Relations in Post revolutionary Iran. The writer is discussing about temporary marriages known as mut’a marriages to be taken as sexual license or activity of sexual control, the sunni shi’a dispute over the issue and traditional versus modern concepts regarding the issue. The writer presented firstly, the views of Ayatollah Khomeini, a religious and political leader of the Iran in post revolutionary era through his fatwas over the topic through which he presented his idea parted company with the prevailing shi’a view which allows women to arrange a mut’a marriage for themselves. Secondly, the response of the president Rafsanjani in the form of sermon cum- fatwa is presented who while ignoring the cultural stigmatization of temporary marriage by Ayatollah Khomeini drew on classical Shi’a religious law to sanction the contracting of a temporary marriage.

The Complementarity of Ifta’ and Qada’: Three Saudi Fatwas on Divorce

This chapter gathered three Saudi fatwas on divorce about the Complementarity of Ifta’ and Qada: The writer initially presented the process through which fatwas can be obtained from religious scholars in Saudi Arabia either privately or through public agencies established for this purpose. Then, writers choose three fatwas on the topic of divorce but in different contexts as talaq by oath, talaq uttered in anger and matter of pronouncement of triple divorce by a single expression.

The writer presented the functional distinctions between the ifta (issuance of fatwa) and Qada (issuance of judgment) as method of applying law and as institutions. Investigation into both these types of institutions could lead to results altering certain long- standing western judgments about fiqh.

The Fatwa as an Instrument of Accommodation

This chapter is covering the topic of The Fatwa As an Instrument of Accommodation. Here, the writer examined the use of fatwa as an instrument to bring a semi- nomadic tribal society within the orbit of normative Islam. Although it is the primary responsibility of the judge (qadi) to apply the Shari’a to a nomadic, tribal society in the process of becoming sedentary, the role of mufti became important where the formalities of qadi’s office discourage the Bedouine from turning to Shari’a for help in settling their disputes.

To illustrate the issue the writer took the Bedouine of the Judean Desert who came under the jurisdiction of the Shari’a courts of Jerusalem and Bethlehem and provided the history and historical development of the institution of the ifta’ there. The Bedouine of the Judean Desert resort to both qadis and tribal arbitrators for settlement of their matters but in cases of personal status, the arbitrators gradually has been superseded by the institutionalized qadi.

In Jordan, muftis were linked to Shari’a courts and their status in hierarchy of religious scholars was lower than that of the qadis. In addition to appointed muftis, religious scholars (ulama) and jurists (fuqaha) also served as muftis without appointment in their private capacity.

The fatwa under discussion was taken from a mufti who was not affiliated with an institution rather was acting in a private capacity. Although the fatwa discussed with reference to Bedouin of the Judean Desert is discussing about the matter of suspended repudiation but the point of focus in the discussion remained the utilization of the fatwa as an instrument to bring the Bedouin closer to normative Islam.

Postmortem Examination in Egypt

Chapter twenty-five is related to issue of Postmortem Examination in Egypt. While discussing the history of the topic writer mentioned that prior to twentieth century, Islamic philosophy and Islamic legal ethics were reluctant to discuss this topic and viewed that human body is a trust and not a private property but once postmortem became common practice throughout the world, Islamic law could not remain indifferent.

The writer selected the fatwa given by Hasanayn Muhammad Makhluf as represented example of Egyptian fatwas on the mid- twentieth century medical issues, which according to writer can be classified among those fatwas that helped to shape the national consensus on the subject.

The writer concluded that Makhluf and other Muftis who addressed the subject of postmortems engaged in complex legal reasoning to discover references in the Quran, Hadith and Shari’a indicating that God and His messenger gave preference to the promotion of health over religious obligations.

Tantawi on Banking Operations in Egypt

This chapter is about Tantawi on Banking Operations in Egypt, which is redressing the complex issue of banking operations. The writer revealed the unique character of the fatwa issued by Tantawi, as the general form and style adopted in the fatwa place it squarely within the modern tradition of fatwa giving on the subject of banking, sated with citations from both classical and modern jurists. The writer concluded from the example of such a lengthy fatwa of Tantawi on such a complex issue that mufti in the late twentieth century Egypt recognizes the limitations of religious knowledge in the modern world and acknowledge the necessity of acquiring of knowledge regarding such modern issues.

Operation Desert Storm and the War of Fatwas

Operation Desert Storm and the War of Fatwas is the topic of this chapter. The topic discussed under the chapter is different fatwas issued on the Gulf crisis either to favor or disfavor the introduction of American troops into the Arabian Peninsula on the occasion of Iraqi invasion of Kuwait 1990. These fatwas were to address the query that to seek help from non-Muslims and to form a coalition with non- Muslims against other Muslims is legitimate in Islam or not.

The writer mentioned various fatwas issued to favor and disfavor the situation but focused on the detailed and comprehensive fifty- page fatwa of the mufti of the Arab Republic of Egypt, Muhammad Sayyed Tantawi, according to whom there is no room for nation to coexist; their role is to compete for righteousness rather than domination, and to struggle to realize peace, security and the common good.

Media Muftis: Radio Fatwas in Yemen

The last chapter is about Media Muftis: Radio Fatwas in Yemen. The writer after analyzing and elaborating the position of the conventional muftis and fatwa giving compared the method of those with the fatwas prepared to be broadcasted on the Yemeni national radio. The writer, by illustrating the fatwas broadcasted on radio, very carefully presented and elaborated the differences between the two methods of fatwa giving.

The writer concluded upon this new activity that these are broadcasted for mass audience. The voice is no longer that of the mufti himself but that of a professional broad caster. The new technology has removed the fatwa from the nexus of immediate human contact. The personal matter has become public here, in much the same way that it has in the western media.

CONCLUSION

The book is an incredible approach to explain the institution of fatwa and its use in Islamic societies to expand justice and to redress the grievances in shortest possible time same as now west is exploring for methods of alternate dispute resolution to have not only expeditious but inexpensive, and just decisions to be within the reach of all and for all.

The book very brilliantly explored the history, development and gradual changes in the institution of ifta. The book introduces the initial form of fatwa as an expert legal opinion practiced to settle the complex disputes for which qadi approached the mufti for his expert opinion. Despite the non- binding and advisory nature of the opinions given in fatwas great sanctity and sacredness was attached to it. Gradually institution of ifta’ has been politicized and socialized when topics like gulf crises, banking operations, postmortem etc started to be sought in fatwas.

The book is compiled in such an enchanted manner that the reader swims with its flow in a very calm, enjoyable and beneficial manner. It took the reader in its magnetism and introduces him gradually with history and chronological position of this institution then left him on the edge of rejuvenation, by giving him chance to know media muftis or the fatwa giving with the use of technology. Similarly, the book remained successful in drawing the attention of the reader to chose this method of ifta’ as a method of alternate dispute resolution (ADR) for which west is striving hard today.

It can be said without any doubt that the book is found as only profound effort on the subject which is of historical nature and despite its giving the glaring concepts on such a complex topic, to some extent it failed to introduce practical and practicable approach that can be utilized in today’s epoch. The book remained unsuccessful in providing its dimensions, jurisdictions and interaction with the existing legal systems of Muslims and non- Muslim societies prevailing around the world.

The book is master piece and valuable effort by the contributors around the world on such an affluent topic but its productivity would only herald a new premise when the Islamic states would, not only promote this institution but also utilize it as an effective method of alternate dispute resolution (the slogan of west). In this conspectus, it is now incumbent upon the Islamic states to renovate this institution of ifta’ and to advance its practicability before the west.

Glossary

Adl A person of good character and integrity who qualifies to serve as a witness in court
Dhimmi Islam allows the marriage of a Muslim man and a free Jewish or Christian woman, such a woman is called dhimmi women
Fatwas A fatwa is an Islamic religious ruling, a scholarly opinion on a matter of Islamic law.
Fuqaha Jurists, experts in Islamic law (fiqh)
Futya Legal consultation; fatwa
Fiqh Legal doctrine(s), substantive law
Fasad Corruption, deleterious consequences
Hadith Narrative reports
idda’ Period of sexual abstinence, waiting period for a woman after divorce or the death of her husband.
Ifta’ An act of issuing fatwa.
Istifta A request for a fatwa, the question itself
Ijtihad Independent reasoning; authentic scholarly endeavor
Muqallid Practitioner of taqlid; a person who follows school doctrine because he is not qualified to engage in deductive and analogical reasoning.
Maslaha Benefit, common good, public welfare
Mujtahid A scholar who is qualified to exercise independent reasoning (ijtihad)
Mustafi Inquirer / a person who requests a legal opinion
Mut’a Temporary marriage
Qadi Judge
Qada The issuing of a judgment, the act of judging
Shariah Islamic law
Sunnah Exemplary behavior of the Prophet Muhammad (s.a.w) as presented in hadith
Taqlid Following the opinion of another within a madhhab, or school of law.
Twalij Financial transactions parents and children designed to circumvent the Islamic inheritance law
Talaq Divorce by repudiation
Ulama Scholars
Usuli’s A Shi’a school of law in which the mujtahid serves as a guide for the community

Impressum

Texte: Sehrish Saba
Bildmaterialien: Sehrish Saba
Lektorat: Nusrat Azeema
Satz: Nusrat Azeema
Tag der Veröffentlichung: 19.07.2020

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