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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

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7 Responses to “Fatwas 101”

  1. Jimmy Loong says:

    The problem in Malaysia is that the BN interprets the laws by their own whim. The Internal Security Act, ISA, is a very good example.

    They abuse the ISA which itself is totally the reverse of Islamic teachings. Worse, they use ISA against the people who are trying their best to follow Islamic teachings. The best example is Raja Petra Kamaruddin who was put under ISA detention several times.

    Please log onto http://mt.m2day.org/ for more information.

  2. kanchil says:

    In this country, the religious departments are under the control of the political heads of the government. Hence all the fatwas delivered are geared to promoting the ruling party’s political philosophy, which in this country, is so sectarian (racist) that it is hard to remove the thought that Muslims are predatory in nature.

    However, there is a dearth of rational Muslims coming out in opposition to their racist brethren. Contrast this with the Chinese who, before, during and after the Emergency, have in many, many cases, come out in processions, banners and speeches to voice their opposition to the Malayan Communist Party. Why can’t the Muslims do the same to give everyone some confidence in their ability to live in a single “Malaysian” world? In fact, the absence of any “peaceful protests” gives one the impression that every Muslim secretly harbours predatory thoughts on their non-Muslim citizens. Well, I hope someone can prove me wrong here.

  3. hibou says:

    For far too long, we have been led astray by so-called experts/learned scholars in religion, political science, etc., who try to persuade or impose on the ordinary people, their self-righteous views, with copious quotes from their holy books, or clever quotes or ideas from prominent leaders of the past. Through the ages till the present, these so-called scholars have multiplied, and come up with even more complex and “clever” ideas/logic, and even more reference to clever quotes/ideas from people of the past.

    Many among us are immediately impressed by these scholars, claiming how insightful, or wise, or brilliant these scholars are, and even vow to champion the ideas of these scholars.

    With all these so called clever scholars/thinkers in the world today and who seem to be multiplying by the day, you’d think that the world would be heading towards a state of utopia. Sadly though, the reality is we are ever more confused and angry and even more prone to conflict among ourselves.

    So how has it all gone wrong, even with all these “clever” guides we have?

    What has gone wrong is that we have too easily surrendered, the most powerful gift, given to each and every person born on earth, and that, is our natural instinct.

    Our natural instinct, contrary to what many may say, is the good and peaceful path. We need to listen ever more closely to our hearts for the right answer/action. With the right intention, the correct path will always be revealed to us.

  4. md dawn says:

    As universally understood and agreed amongst Islamic jurists and scholars alike, jurisprudential differences are merely small and regarded as “hikmah” in understanding Islam. Nevertheless, there are also wide areas in local customs, in beliefs or practices and rituals that manifest glaring and conspicuous acts of man made logic, sadly, very much against the principles of Islamic jurisprudence.Some are blatantly practised for decades or even centuries in many parts of the so-called countries that professed Islam to be their belief, their way of life. Some even go beyond rationale, championing the cause of Islam.

    To be truthful, are Muslims not aware that the earth is very much too old and sickened by so much wrongs and sins done by them and those “non-alike”. Islam and its jurisprudence was always too holy and divine as before, be it today and ever after for eternity. Only, when too few, would by then, realize and grasp the “rope of Allah” – the ad-din and the Sunnah, be the bravest of all souls to sincerely practise, endure His hukum, by then, dare to believe, His promise is real – kiamat. Before that moment,as we all see, through the hypocritical eyes of many, Muslims everywhere humiliated, surely not by Allah’s doing, but sinfully, made fools by our wrongs of disobedience and non-comformity to His laws – the hukum and guidance.

    Fathers and mothers, brothers and sisters, wherever we are, unity and strength, istiqamah, only in the path of Allah (swt), and the prophet (saw). Then only Muslims would expect and hope and pray in the solat, God (Allah) – sent Al-Falah. Until clear conscience and light comes to every Muslim soul, sons of Abraham, without our jihad-an-nafs, the divine love and respect to Allah and His prophet (saw), dare not we dream in mere fantasies.

    Do we as appointed and chosen caliphs on His earth, sinisterly forgotten, His hells and heavens are REAL. His bringing life after death is real, His Day of Judgment and Trial is real, His handing of records of deeds is real, His wrath and mercy is His and not of ours. Thinking wishfully on all of these, what are we really to His greatness and divinity. Dare to find another ground to call our Earth of our own. Before that, try risking not to breathe with His air, find your own air, because, oxygen is also His own kun fayakun.

  5. benzaini says:

    No one should dispute what is said by imam Feisal about fatwa and Islamic laws. The main criterion in Islam by which a law – whether it comes by the way of istihsan, urf or adat, qiyas or ijtihad and ijma’, or through government legislation – should be considered shar’i is how far it is in accord with the teachings of the Quran and the hadith of the prophet Muhammad, or in the words of imam Feisal, how far it is consonant with God’s prescriptive and prohibitive commandments. In other words, in Islam the teachings and principles of the Quran and the hadith constitute the constitution by which a legislation would be considered constitutional only if it does not contradict Quran and the hadith. Otherwise, the legislation should be deemed unconstitutional.

  6. Justitia says:

    Thanks for the enlightening article, Shanon. Imam Feisal should run training sessions with our Syariah Court judges, Jakim, state religious authorities, and the fatwa councils!

  7. pang says:

    This article, for it to achieve its true target and impact in this country, should be translated into Malay.


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