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Fatwā

By:
Muhammad Khalid Masud, Joseph A. Kéchichian, Brinkley Messick, Joseph A. Kéchichian, Ahmad S. Dallal, Jocelyn Hendrickson
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

    Fatwā

    [This entry contains three subentries:

    Concepts of Fatwā

    An overview of the history of fatwā suggests three different concepts associated with the term: management of information about the religion of Islam in general, providing consultation to courts of law, and interpretation of Islamic law. The first concept, which has been central through history, has reappeared more prominently in modern times, as is evident from the contents as well as from the definitions given in modern collections of fatwās. For instance, Fatāwā Dār al-ʿUlūm Deoband (Deoband, 1962) defines fatwā as “an issue arising about law and religion, explained in answer to questions received about it” by the muftīs of Deoband, a reformist school of religious learning established in 1867. The continuity of tradition in these modern developments cannot properly be appreciated without a look at the semantic growth of the concept in early Islam.

    Fatwā is derived from the root fata, which includes in its semantic field the meanings “youth, newness, clarification, explanation.” In the Qurʿān, 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 fatwā in early Islam developed in the framework of a question-and-answer process to better communicate on religious matters. Its subject was ʿilm (knowledge) without further specification. Later, when ʿilm was identified with ḥadīth (sayings of the Prophet, which are divided into two parts, the matn (text) and the isnād (chain of reporters to verify authenticity), fatwā came to be associated with raʿy (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.

    Fatwā 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, fatwā is contrasted with qāḍā, or court judgment. The jurisdiction of fatwā is wider than qāḍā; matters such as ʿibādāt (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 fatwās. The major difference between the two is in their enforceability: qāḍā is binding and enforceable whereas fatwā is voluntary. The concept of fatwā 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, fatwā is contrasted with taqwā, or piety. For instance, a fatwā may allow choice between a lenient (rukhsah) and a severe (ʿazīmah) view about the permissibility of a certain matter, or it may resort to legal devices (hillah) 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 Ṣūfī writings.

    Fatwā thus 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 mushāwar (jurisconsults), and in early British Indian magistrates they sat as mawlawīs (men of learning). Jurists compiled volumes of fatwās 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 dār al-iftāʿ, a place to issue fatwās. The print and electronic media in the nineteenth and twentieth centuries reinforced the role and impact of fatwās. Muftīs were faced with day-to-day challenges in economic, political, scientific, and technological fields. Not only did the scope of fatwā 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.

    The ideological authority of the fatwā is invariably explained by saying that a muftī is the deputy and successor to the Prophet, the lawgiver. Legally, the authority of the muftī is derived from the doctrine of taqlīd (adherence to tradition), which demands consulting the learned, often those of a particular school of law, and following their opinions. Since a muftī has to cite authorities for his opinion, his authority is moral and institutional, not personal. For this reason the qualifications of a muftī and the rules for issuing a fatwā have been developed in considerable detail. A mustaftī (inquirer) should accept and obey the opinion of the muftī when he is satisfied that he is competent and that his opinion is based on earlier authorities. Theoretically, a muftī must be a mujtahid (an interpreter of law qualified to exercise legal reasoning independently of schools of law), yet a muqallid (an adherent to a school) is also allowed to issue a fatwā, as long as he mentions the source of his citation.

    Modern scholars usually define fatwā as a formal legal opinion given by an expert on Islamic law. Émile Tyan (1960, p. 219) argues that this came about because no legislative power existed in Islam. According to this interpretation, the role of the muftī in Muslim political systems was embedded in both shūrā (consultation) and legislation. Given such widespread use, Muslim governments, especially in the modern period, have tried to control fatwā by instituting organizations that provide consultation to the state and issue fatwās. Among the most famous are the Council of Islamic Ideology in Pakistan, the Hayʿah Kibār al-ʿUlamāʿ in Saudi Arabia, and the al-Azhar University deans in Egypt. While their roles are purely advisory, they are safely nestled in religious ministries, not the more contentious justice departments. Still, fatwās aim to clarify unusual or subtle points of law for experts when those are not covered by existing provisions of modern civil law. In certain instances, they are issued in contradiction of existing laws, precisely to challenge a particular interpretation.

    Famous recent fatwās include Ayatollah Ruhollah Khomeiniʾs 1989 death sentence pronouncement on the author of The Satanic Verses, Salman Rushdie, allegedly because the latter had written “against the Prophet of Islam, and against the Qurʿān.” The Khomeini decree aimed to deter everyone from “insult[ing] the sacred beliefs of Muslims.” Shaykh Yūsuf al-Qaradāwīʾs April 14, 2004, decree called for a boycott of American and Israeli products because, allegedly, “buying goods from them w[ould] strengthen” the “enemy” in the struggle over Palestine. Qaradāwī declared that “American goods, exactly like the great Israeli goods, [we]re forbidden,” and while some Muslims boycotted such goods, the ban was entirely voluntary. Perhaps the most famous recent fatwās were issued by Osama bin Laden, who lambasted the United States and called on his supporters within Muslim revolutionary groups to attack Western interests, although the majority of scholars consider him unqualified to issue a fatwā. In order to appreciate current trends and developments, fatwā today should be seen as a function of management and the communication of information.

    See also LAW; subentry onLEGAL THOUGHT AND JURISPRUDENCE; and MUFTī.

    Bibliography

    • Hallaq, Wael B.A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl al-Fiqh. Cambridge, 1997. Provides detailed information on the evolution of the fatwā within Sunnī legal theory.
    • Qaraḍāwī, Yūsuf al-. Al-fatwā bayna al-inḍibāt wa l-tasayyub. Cairo, 1988. Modern restatement of traditional discussions about the rules and etiquette of writing a fatwā. The author provides a comprehensive summary of the legal theory of fatwā and a good introduction to some problems in its modern practice. Shaykh Qaradāwīʾs numerous fatwās, along with decrees issued by selected other religious authorities, are available in English at: www.islamonline.net/-livefatwa/english/select.asp.
    • Qasimi, Muhammad Jamal al-Din al-. Al-fatwā fi-al-Islam. Beirut, 1986. Excellent summary of the adāb al-muftī literature dealing with the rules and regulations of writing a fatwā and qualifications of a muftī.
    • Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. Concise introduction to the nature of the institution of fatwā.
    • Tyan, Émile. “Fatwā.” In Encyclopaedia of Islam, new ed., vol. 2, p. 866. Leiden, 1960–. Short discussion of the concept and history of the subject, particularly with reference to modern developments.
    • Tyan, Émile. Histoire de l’organisation judiciare en pays d’Islam. 2d ed.Leiden, 1960. Excellent review of the history of the institution, and of the discussion of the qualifications, method, and technique of fatwā in Islamic literature.

    Muhammad Khalid Masud Updated by Joseph A. Kéchichian

    Process and Function

    Delivered by a muftī under the form of an answer to a question, a fatwā is a considered opinion embodying a particular interpretation of the sharīʿah (Islamic law). A key legal-religious institution, dispensing fatwās has flourished across time and place in Muslim societies from early in the Islamic era to the present day, contributing fundamentally to the continuing dynamism of the law and to the regulation of local practices. As a category of legal specialization, however, the issuing of fatwās is less familiar than judging. Fatwās are similar to the opinions of Roman jurisconsults and to the responsa of Jewish scholars. Compared with the court judgments of their colleagues, the Muslim qāḍīs (judges), fatwās have a distinct type of authority. In terms of technical status, judgments are “creative” or resourceful acts while fatwās are “informational”; judgments thus are binding and enforceable while muftīs ʿ opinions are purely advisory. Yet, in the absence of a conception of precedent formation in connection with sharīʿah court rulings, the authority of judgments tended to remain narrowly specific, pertaining only to particular cases. The weight of fatwās, by contrast, was general, potentially extending to all similar configurations of fact across vastly different cultures and societies. Judgments were entered into court registers but were not otherwise reported or published, while fatwās by noted muftīs were apt to be collected, circulated, and cited both by recipients and issuers.

    Because fatwās were delivered by muftīs—likely to be private scholars in most instances—they did not carry the imprimatur of judges, almost always public figures. In the practical world of sharīʿah application, especially before the rise of nation-state legal institutions, the work of muftīs complemented that of the court judges, and in many instances there were formal ties between muftīs and courts. The two roles were always distinct, however. While judges heard opposed claims and evidence from pairs of adversaries and then handed down a ruling, the interpretive interchange that resulted in the delivery of a fatwā was of a different character. Muftīs responded to individual questioners, who typically posed their questions voluntarily and often in private because of the sensitive nature of their queries. Unlike court judges, who were investigators of evidential fact, muftīs took the configurations of fact presented in questions as given. Both judges and muftīs are sharīʿah interpreters, but their interpretive acts have differing points of departure. While a judge 's interpretive work is directed to understanding evidential forms such as testimony, acknowledgment, and oath, that of the muftī seeks out indications in the textual sources of the law, including the Qurʿān and the sunnah (traditions of the Prophet).

    With the early development of various schools (madhhabs) of legal thought that subdivide both Sunnī and Shīʿī traditions, muftīs were identified with specific interpretive communities and sometimes with the programs of particular instructional institutions, such as that at Deoband in India or al-Azhar University in Cairo. For example, in the Mālikī school, ostensibly one of the less rigid in terms of fiqh (jurisprudence) application, the multiplicity of opinions—itself the result of a great many students of the Imam ʿAbdul Malik in Medina—meant that a variety of views emerged on any given topic. More recently, and especially in the twentieth century, many muftīs began to assert their intellectual independence from all such interpretive traditions. Earlier, as is discussed in special treatises concerned with the office of muftī (the adab al-muftī literature), levels of competence among muftīs were specified; the highest was the “absolute” or “independent” interpreter. As a matter of principle, such muftīs did not follow the opinions of other jurists or the positions of the schools, but interpreted the law directly through their personal analyses of its basic sources, the Qurʿān and the sunnah of the Prophet. Below this highest category were “non-independent” or “affiliated” muftīs of several levels, all technically classified as muqallids, followers to some degree of established doctrine. Fatwās of the highest caliber contained explicit exercises of ijtihād, or formal, reasoned interpretation, but even the most unpretentious opinion, which simply stated the law in connection with an uncomplicated matter, was an interpretive act. Still, there were many cases of takhrīj, an operation in which answers for specific cases were not assessed according to such reasoning but relied on analogies based on original texts. Again, using the Mālikī school, several deduction possibilities emerged based on the views attributed to the imam. Consequently, a rich legacy was created that led, in part, to undeniable confusion in some Muslim societies.

    In theory, fatwās could be delivered orally, but aside from the existence of an office established for this specific purpose within the Ottoman fatwā administration, it is uncertain how frequently this occurred. Among written fatwās, many—perhaps the great majority—were considered routine and as a consequence were delivered directly to questioners, in some cases without leaving a documentary trace. For the Ottoman Empire and certain of the schools in India, for example, massive collections of such ordinary fatwās exist in archives. The early nineteenth-century Yemeni jurist Muḥammad ibn al-Ḥasan al-Shawkānī distinguished between his unrecorded “shorter” fatwās, which “could never be counted,” and his major fatwās, which were collected and preserved in book form. At the turn of the twentieth century Muḥammad ʿAbduh, the grand muftī of Egypt, in addition to his official opinions on matters of state, also issued numerous ordinary fatwās to private individuals. Thousands of fatwās delivered over decades by muftīs across the Muslim world were neither collected nor preserved. Muftīs often wrote directly on slips of paper containing the original queries—as they were required to do to confirm their authority—that were returned and carried away by the questioners.

    Varying widely in scope, fatwās have comprised both the single-word responses (“yes,” “no,” “permitted,” etc.) characteristic of some official Ottoman muftīs and also virtual treatises approaching book length. Questioners have ranged up and down the social hierarchies, including men and women of every status, from the ordinary populace to members of the elite, scholars, court judges, and even heads of state. The muftīs themselves have included modest, local-level scholars who occasionally and informally replied to queries arising in their districts and, at the other extreme, the greatest legal minds of an era or powerful state officials at the apex of fatwā-issuing bureaucracies. Fatwās tend to differ in content according to the competence level of the muftī and the status of the questioner addressed. In general, responses to the untutored are likely to be nontechnical, whereas those issued to scholars typically contain precise citations of sources and indicate the methods of reasoning employed.

    The relationship between a muftī and an ordinary questioner was predicated on a differentiation of roles. Before the rise of modern school curricula and universal education, sharīʿah knowledge was the centerpiece of advanced instruction in societies characterized by patterns of restricted literacy. As a consequence, a limited group of scholarly interpreters controlled an essential body of cultural capital, which included not only the many specific details concerning ritual provisions fundamental for the religious life, but also the precise rules of a wide variety of contracts, transactions, and dispositions that structured legal-economic relations. In such social settings it was considered incumbent on those who had acquired knowledge to communicate it, either through teaching or through acting as a muftī. Reciprocally, it was incumbent on the untutored to ask such knowledgeable individuals whenever the need to know a sharīʿah principle arose. Ideally, muftīs were to be exemplary moral individuals whose intellectual achievements were matched by appropriate personal decorum. In accord with the social honor vested in them, muftīs were approached with respect and deference.

    Although the muftī of a given locale was typically a well-known figure, some questioners had to make inquiries or travel to find a suitable scholar. Others had to choose among several available muftīs. The adab al-muftī treatises suggest that a questioner should seek out public information about a muftī  's scholarly reputation, but it is acknowledged that such information would be difficult for an uneducated individual to evaluate. The basic recommendation is that the questioner follow the advice of a single just person or trust his or her own sense of the potential muftī 's piety. In some settings, questioners dissatisfied with a muftī  's response could seek out a second muftī for another fatwā, In other settings, opponents in a dispute approached different muftīs to obtain competing fatwās to buttress their respective positions. Still, because muftīs as well as qāḍīs were allowed to choose and exercise ijtihād in following the verdicts of their particular schools and relied on them, they were obliged to follow a procedure established by nonreligious authorities to maintain uniformity in judgments. Therefore, neither qāḍīs nor muftīs were allowed to shift between verdicts, even if such a move served the best interests of a litigant.

    The interpretive exchange opened with the posing of the question. In their widely varying patterns and concerns, questions provide rich information about the concrete affairs of specific Muslim societies. Questions are of great significance to the interpretive process because they define the terms of the muftī  's engagement with the problem under consideration. At the same time, questions frequently were carefully constructed to highlight certain facts or to elicit a particular response. Since muftīs are not examiners of the facts, these are taken as they are provided in the questions. Whereas judges are permitted to act on the basis of their own knowledge about cases, muftīs are not, unless this information is provided in questions. For these reasons, the opinion to be contained in the fatwā is constrained at the outset by the formulation of the question. In addition, in the Ottoman Empire, questions were rewritten by functionaries to facilitate brief answers from the muftīs. In theory, questions posed to muftīs should pertain to actual events and should not be hypothetical or imaginary. In formulation, however, questions characteristically are presented in generic terms, leaving out details such as place names and using conventional substitutes for actual personal names (e.g., “Zayd” and “ʿAmr” in Ottoman fatwās) or simply “a man” or “a woman.” This standard feature in the design of questions underscores the directionality of the muftī  's attention, which led away from consideration of the contextual circumstances of a case and toward an assessment of an assumed set of facts in terms of the law.

    Muftīs responded to questions received according to their understanding of contents. Such comprehension frequently depended on the muftī  's grasp of both local custom and colloquial expression. In most fatwā collections, the incidence of poorly formulated, ambiguous, or otherwise deficient queries has been masked by editorial redrafting of questions or by their omission altogether. According to the theory of the treatises, when a question remained unclear, muftīs could include explicit caveats in their responses, stating that the value of the answer depended on the information made available in the question. Muftīs typically would handle questions touching on the full gamut of sharīʿah subject matter, including areas such as contracts and punishments, which usually were also within the jurisdictions of the courts, and areas such as ritual issues, which generally were not. In some historical settings, muftīs addressed issues well beyond these strictly legal topics, although some of the early theorists argued that muftīs should not respond to questions in certain fields, such as Qurʿānic exegesis or theology. Beyond their responses in matters covered by the sharīʿah, Ottoman muftīs commonly issued fatwās on issues regulated by secular state law. In the early decades of the twentieth century, responding in print to letters his journal received from around the world, Muḥammad Rashīd Riḍā delivered fatwās on an extremely wide variety of legal, social, and political topics that confronted his coreligionists.

    While sharing a common identity—as answers to questions—fatwās nevertheless took many regional forms depending on local legal cultures and their usages. Fatwās from different regions thus vary widely in language, conventional formulas, and rhetorical style. The theoretical treatises suggest the proper wording for openings and closings and special terms of address; they also discuss “Allāhu yaʿlam,” (God knows best), and other related expressions, one of which appears at the end of most fatwās. The treatises also consider the physical organization of fatwā texts and recommend against such practices as the leaving of blank spaces or the use of more than one sheet of paper, so as to guard against additions or alterations. Unlike the question, which could be in the hand of the questioner or a secretary, the fatwā itself generally had to be written in the authoritative script of the muftī. Before actually delivering the fatwā, a muftī ideally would consult with scholarly colleagues present at the session about his finding. If, upon receipt, the questioner failed to understand the fatwā, he could turn to the muftī or individuals in the sitting room for assistance. In some places, further questions could be posed to explore implications or alternatives. If the response of a private muftī proved undesirable, the questioner was free to consult a different muftī for another opinion.

    Muftīs often were powerful figures. Some muftīs, such as the mid-twentieth-century muftī of the Lebanese republic, or the Grand Muftī of the Sultanate of Oman, were actually important political leaders. Others, such as the grand muftīs appointed in various states over the past century, have wielded considerable political influence through their official fatwās. The heads of the great fatwā-issuing bureaucracies, such as the Ottoman Shaykh al-Islām, were among the highest-ranking state officials. See SHAYKH AL-ISLāM.

    For the scholarly muftī, another form of influence was measured in terms of reputation and expressed in estimations of juristic preeminence, which entailed leadership in such activities as writing, instruction, and fatwā-giving, and also control of certain tax and endowment revenues. In both political and scholarly communities, doctrinal struggles between opposed states or competing instruction centers have been played out in “fatwā wars.” Although the theory of private fatwā-giving held that decrees should be delivered for free, gifts and various forms of pious support were common. Official muftīs, however, were salaried or received set fees from their questioners, and many grew wealthy in their positions. In historical contexts in which there were formal requirements to obtain fatwās as part of the litigation process, muftīs issued opinions that had direct bearing on court outcomes; in other contexts, approaching a muftī amounted to a cheaper, less confrontational, and far more efficient alternative means of dispute resolution.

    The overall significance of the fatwā is twofold. Fatwās by leading jurists articulated formal, legal-religious views of important doctrinal questions, societal issues, and political events. At this level, muftīs employed their creative interpretations of the sharīʿah to grapple with the major continuities and changes in Muslim life. The impact of such interpretations, however, depended on the overall place of the sharīʿah in their respective societies. On the other hand, the mass of unremarkable fatwās issued by muftīs official and unofficial, and of diverse schools and statures, has assisted Muslims from all walks of life in efforts to arrange their affairs in accord with the design of the sharīʿah. Still, those who sought answers were satisfied with the knowledge that fatwās relied on agreed upon verdicts that were valid within their doctrinal school; rested on preferred (rājiḥ) findings because muftīs had the full qualifications for exercising preferences; secured well-known (mashhūr) rulings that provided quantitative support by more than three learned individuals; and carried significant authority within their realms. A believer, therefore, who sought clarification through a fatwā was confident that his confusion would dissipate even in those instances in which public interest (maṣlaḥah al-mursalah), necessity, or custom determined his remedy.

    See also IJTIHāD; LAW, subentry onLEGAL THOUGHT AND JURISPRUDENCE; and MUFTī.

    Bibliography

    • Hallaq, Wael. “Can the Shariʿa Be Restored?” in Islamic Law and the Challenges of Modernity, edited by Yvonne Y. Haddad and Barbara F. Stowasser, pp. 21–53. Walnut Creek, Calif., 2004.
    • Hallaq, Wael. “Iftāʿ and Ijtihād in Sunni Legal Theory: A Developmental Account.” In Islamic Legal Interpretation: Muftīs and Their Fatwas, edited by Muhammad Khalid Masud, Brinkley Messick, and David Powers, pp. 33–43. Cambridge, Mass., 1996. A useful analysis of the value of linkages that defined fatwās.
    • Heyd, Uriel. “Some Aspects of the Ottoman Fetva.”Bulletin of the School of Oriental and African Studies32 (1969): 35–56. The best examination of the textual features of a fatwā-issuing institution.
    • Ibn Khaldūn. The Muqaddimah: An Introduction to History. 3 vols.Translated from the Arabic by Franz Rosenthal. New York, 1958. Contains an institutional view of official muftīs, appointed by the imam.
    • Masud, Muhammad Khalid. “Adab al-Muftī: The Muslim Understanding of Values, Characteristics, and Role of a Muftī.” In Moral Conduct and Authority: The Place of Adab in South Asian Islam, edited by Barbara D. Metcalf, pp. 124–150. Berkeley, Calif., 1984. Survey of theoretical manuals concerned with the office of muftī.
    • Nawawī, Abī Zakarīyā Yahyʿa al-. Ādāb al-fatwā wa-al-muftī wa-al-mustaftī. Damascus, Syria, 1988. Typical “adab al-muftī” treatise, by a thirteenth-century author.
    • Qarāfī, Aḥmad ibn Idrīs al-. Al-Ihkām fī tamyīz al-fatwā ʿan al-aḥkām wa-taṢarrufāt al-qādī wa-al-imām. Cairo, Egypt, 1989. Comparative analysis of the judge and the muftī by a thirteenth-century jurist.
    • Riyāḍ, Muḥammad. Usūl al-fatwā wa-al-qadāʿ fī al-Madhhab al-Mālikī. Dār al-Bayḍāʿ, 1996. Provides detailed definition of fatwā within the Mālikī school of law.
    • Weiss, Bernard G.The Search for God 's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi. Salt Lake City, 1992. On the theory of the interpretive interchange, see pp. 717–728.

    Brinkley Messick Updated by Joseph A. Kéchichian

    Modern Usage

    Fatwās, the nonbinding legal opinions issued by muftīs in response to questions posed by mustaftīs, represent the most dynamic genre of Islamic legal literature. Although fatwās are often simple clarifications of rules regarding such routine practices as prayer and fasting, many fatwās also reflect to a large extent the political, social, and economic circumstances of particular Muslim communities. As Muslims have encountered new real-world situations and turned to muftīs for advice, these jurists have produced fatwās that both address the specific concerns and circumstances of their communities and contribute to the ongoing development of Islamic law. The modern period has witnessed significant changes both in the content of fatwās and the institution of iftā ʿ, fatwā-giving.

    Early Institutionalization.

    Before the eleventh century CE a muftī was simply someone who issued fatwās; knowledge and scholarly recognition were the only prerequisites for a muftī. After this period, a public office of muftī was created alongside the private vocation of iftāʿ. For example, in eleventh-century Khurasan, the shaykh al-Islām of a city was the official head of its local ʿulamāʿ, and functioned as its chief muftī. Under the Mamlūks, one muftī representing each of the four main schools of law was appointed to the appeals courts of provincial capitals. The Ottomans appointed a muftī in each city, integrated muftīs into a hierarchical bureaucratic system, and organized iftāʿ as a routinized state procedure. Under the Ottoman Sultan Murad II (r. 1421–1444, 1446–1451), the once honorific title shaykh al-Islām was transformed into the official title of the chief muftī of the empire. Scribes reformulated the questions submitted to the shaykh al-Islam such that they were often answerable by an efficient “yes” or “no.”

    Parallels to the office of shaykh al-Islām existed outside the Ottoman Empire, although usually under different titles. In Mughal India, the ṣadr al-ṣudūr was the head of the religious corporation, whereas the shaykh al-Islām looked after the affairs of the Ṣūfīs. In Ṣafavid Iran, the shaykh al-Islām was neither the grand muftī nor the head of the religious hierarchy. These functions were reserved for the ṣadr, who was appointed by the state and was charged with appointing qāḍīs (judges), supervising waqfs (religious endowments), and functioning as the official head of the ʿulamāʿ class. In addition to the ṣadr, shaykhs al-Islām were appointed by the state in the capital and several other provincial cities and towns. These shaykhs al-Islām functioned as the chief religious officials in their areas, under the general supervision of the ṣadr.

    The organization of the religious establishment under the Ṣafāvīds presupposed the religious authority of the rulers as the descendants of the hidden imam (thus the title “shadows of God”). In time, this authority was challenged, and the role of representing the hidden imam was reclaimed by the mujtahids. These were independent scholars who filled no office, were not appointed by the state, and were not on its payroll. During the eighteenth century, a theological controversy between two Shīʿī schools, the Uṣūlīs and the Akhbārīs, was resolved in favor of the former. According to the Uṣūlīs, Muslims were under the obligation to choose and follow a living mujtahid known as a marjaʿ al-taqlīd. Under the Qājārs, the body of mujtahids further articulated the claim of collective deputyship of the imam. On account of his knowledge and piety, a mujtahid or a marjaʿ had the authority to interpret and explain the law to ordinary Muslims. Thus, both the Sunnī muftī and the Shīʿī mujtahid shared the function of interpreting the law. There are, however, some important differences between the two offices. Whereas the fatwā of a Sunnī muftī was not binding, that of a Shīʿī mujtahid was. Moreover, with the passage of time, the Ottoman office of the muftī was successfully co-opted into the state bureaucracy, whereas the Shīʿī mujtahids gradually gained a greater measure of independence from the ideological and physical control of the state.

    Public and Private Fatwās.

    Fatwās may be issued by muftīs working privately or in public offices of iftāʿ, and they may serve a number of purposes and be delivered through a variety of mediums. A formal fatwā in response to a formal inquiry may serve as a technical tool in the legal proceedings of a court, or as a scholarly endeavor through which a standard legal doctrine is expanded or modified. Alternatively, a fatwā may be issued at a scholar's own initiative in the form of a treatise or lesson. In any of these forms, a muftī may give what amounts to a minor or a major fatwā. A minor fatwā usually involves one or more of the following: an explanation of the law in complicated cases or to people who have no direct access to its technical formulations; instructions on correct social behavior or lawful religious beliefs and practices; or suggestions for settling disputes without further recourse to courts. Such fatwās contributed to social stability by both providing formal administrative organization and informal networks for running the affairs of society.

    A major fatwā, by contrast, either involves a significant statement on public policy or requires the muftī to perform ijtihād, independent reasoning, in order to derive a legal ruling on an unprecedented and difficult issue. This type of fatwā often leads to the expansion of the corpus of law. In the Ottoman Empire, for example, declarations of war and peace, as well as administrative and fiscal measures and reforms, were sanctioned by the fatwās of the shaykh al-Islām. Not only were fatwās used to justify laws enacted outside of sharīʿah (for example, Ottoman taxation and criminal laws) issued by the secular authorities, but the authority of the sultan was itself legitimized or denied on the basis of such fatwās; for example, Sultan Murad V was deposed by an 1876fatwā on grounds of insanity. Fatwās were also used to legitimize new social and economic practices. In the Ottoman Empire, a fatwā issued in 1727 authorized the printing of nonreligious books; vaccination was declared legitimate in an 1845fatwā; and several fatwās were used to legitimize low-rate interest, selling on credit, and the practice of establishing cash waqf. Muftīs also played a role in curbing the powers of judges and other secular functionaries. By giving voice to the complaints of the people and by providing authoritative articulations of their legal rights, fatwās often permitted individuals or groups to seek redress and justice in courts.

    Post-Ottoman Period.

    Major transformations engulfed the Muslim world during the nineteenth and twentieth centuries. The decline in the centralized power of the Ottoman state and the corresponding increase in European domination over Muslim territory changed the sociopolitical significance of the institution of iftāʿ. The practical pertinence of major fatwās diminished as colonial powers assumed control, but fatwās also became tools for mobilizing the population in both active and passive anticolonial resistance and in the struggle for national independence. Anticolonial fatwās focused on defining Islamic territory (dār al-Islām) and the territory of war or unbelief (dār al-ḥarb, dār al-kufr), and on the related question of whether it was obligatory for Muslims to wage war against or emigrate from dār al-ḥarb.

    The nineteenth century abounds with examples of such fatwās. In 1804 ʿUthmān ibn Fūdī (Usuman Dan Fodio, d. 1817) declared jihād in West Africa (present-day northern Nigeria). Ibn Fūdī justified his declaration of war by arguing that the land was ruled by unbelievers, making it dār al-ḥarb; he added that it was obligatory for Muslims to emigrate from lands ruled by unbelievers and to participate in the war against them. A year earlier, the Indian scholar ShāhʿAbd al-ʿAzīz (d. 1824), the son of the celebrated Indian scholar Shāh Walī Allāh (d. 1762), declared that India under British rule had become dār al-ḥarb; his fatwā was also justified on the grounds that India was ruled by the laws of non-Muslims. Following his lead, the Mujāhidīn movement under Sayyid Aḥmād Barelwī (d. 1831) declared most of India a land of unbelief and enjoined Muslims to emigrate.

    The unrealistic demands of emigration and jihād were soon widely recognized. In 1870, the ʿulamāʿ of northern India issued fatwās stating that the Muslims of India were not obliged to rebel against the British nor to emigrate from their homes. A similar tension is discernible in the Algerian anti-French rebellion led by ʿAbd al-Qādir al-Jazāʿirī (d. 1883). During the period of his leadership (1832–1847), ʿAbd al-Qādir solicited several fatwās from scholars regarding the obligation to emigrate from the French-controlled parts of Algeria and to join the jihād against the French. Although all responses were sympathetic to the Algerian struggle, they differed on the criteria for designating a land as enemy territory. Following the arrest of ʿAbd al-Qādir the active resistance against the French subsided, but many Algerians continued to emigrate to other Muslim countries. To appease the Muslims of Algeria and stop them from leaving the country, French authorities obtained fatwās from muftīs who stated that Muslims under the rule of unbelievers were not obliged either to fight or to emigrate, as long as they were free to practice Islam.

    On numerous occasions, fatwās have also served as instruments of intervention in the political process. For example, in 1904, the ʿulamāʿ of Fez issued a fatwā demanding the dismissal of European (especially French) experts hired by the state. In 1907, the ʿulamāʿ of Marrakech issued a fatwā deposing the sultan of Morocco for failing to defend the state against French aggression. In both cases the demands were heeded. Equally effective was an 1891fatwā by the Iranian mujtahidMīrzā Ḥasan Shīrāzī, who prohibited smoking as long as the British tobacco monopoly continued. In the twentieth century several other fatwās were issued calling on Muslims to boycott un-Islamic pursuits; for example, a 1933fatwā by the ʿulamāʿ of Iraq called for boycotting Zionist products. In Iran, Ayatollah Khomeini used proclamations and fatwās to introduce and legitimize institutions such as the Council for the Islamic Revolution and the parliament of the Islamic Republic of Iran. His most-publicized fatwā, however, was issued in 1989 and called for the execution of author Salman Rushdie for the blasphemy, apostasy, and attacks on Islam said to be contained in Rushdie's novel The Satanic Verses.

    Following independence, most Muslim nation-states established national institutions or committees devoted to issuing fatwās. For example, the Egyptian Dār al-Iftāʿ, founded in 1895, has served to articulate and defend an official national understanding of Islam through fatwās issued in response to government queries on state policy or to the concerns of individual citizens. Although today's state muftīs may bear some resemblance to the Ottoman shaykh al-Islām, at least two key differences should be noted. First, whereas the shaykh al-Islām presided over a network of both muftīs and judges who applied Islamic law in the court system, most nation-states no longer employ traditionally trained judges or use sharīʿah courts. The adoption of European-influenced civil codes of law has greatly reduced the public role of the ʿulamāʿ. State muftīs therefore promote a version of Islam compatible with state law and defend the continued relevance of religion in contemporary society. Second, advances in printing and other media have fundamentally changed the nature of a fatwā's audience and reception; these texts now enter a competitive arena of public discourse. For example, as Grand Muftī of Egypt (1986–1996), Sayyid Ṭanṭāwī, who later became the Imam of al-Azhar, issued a fatwā allowing fixed interest on savings deposits. The ruling was heatedly debated in the Egyptian press by intellectuals and the ʿulamāʿ.

    Contemporary Trends.

    There have been significant recent developments as to the muftī  's character, the medium through which fatwās 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 fatwās; however, many militant and reform movements have disseminated fatwās issued by non specialists which have been widely circulated and followed. For example, in 1998 Osama bin Laden, together with four other associates calling themselves the World Islamic Front, issued a fatwā calling for a “Jihād against Jews and Crusaders.” The fatwā 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 fatwās attributed to bin Laden, many Muslim jurists have stressed bin Laden's lack of the requisite qualifications for either issuing fatwās or declaring jihād. In July 2005, nearly two hundred prominent ʿulamāʿ 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 fatwās. Known as the “Amman Message,” a major purpose of the statement was to delegitimize the fatwās promulgated by leaders of violent Islamist movements (see www.ammanmessage.com).

    A fatwā issued in the aftermath of the September 11, 2001, attacks on the United States also illustrates several recent trends in iftāʿ. A few days after the attacks, a Muslim chaplain in the U.S. Army asked a group of ʿulamāʿ about the permissibility of participating in a war against Muslim countries. In response, five Middle Eastern scholars issued a joint fatwā 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 fatwā drew support for their position directly from the Qurʿān and ḥadīth. The collective fatwā, 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 iftāʿ.

    An estimated one-third of the world's Muslims now live in majority non-Muslim countries. The demand for fatwās 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, www.e-cfr.org), 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 fatwās 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 fatwās issued online by “cybermuftis.” Web sites such as Islam Online (www.islamonline.net) and Fatwa-Online (www.fatwa-online.com) are among a large number of sites offering instant fatwās to readers from all over the world. Islam Online publishes a searchable archive of “live fatwā ” 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 fatwās, have contributed to the changing, and thriving, nature of contemporary iftāʿ. Muslims may now consult any number of muftīs worldwide, anonymously, instantly, and from the comfort of their home or local Internet café.

    See also EUROPEAN COUNCIL FOR FATWA AND RESEARCH; IJTIHāD; MUFTī; and RUSHDIE AFFAIR.

    Bibliography

    • Bar, Shmuel. Warrant for Terror: The Fatwas of Radical Islam and the Duty to Jihad. Rowman and Littlefield, 2008.
    • Bunt, Gary R.Islam in the Digital Age: E-Jihad, Online Fatwas, and Cyber Islamic Environments. London: Pluto Press, 2003.
    • Caeiro, Alexandre. “Adjusting Islamic Law to Migration.”ISIM Newsletter12 (2003): 26–27. Brief discussion of fiqh al-aqallīyāt and the European Council for Fatwa and Research.
    • Hallaq, Wael B.“From Fatwās to Furūʿ: Growth and Change in Islamic Substantive Law.”Islamic Law and Society, Special Sample Issue (1993): 1–33. Makes a strong case for the responsibility of the muftī in the development of legal doctrine.
    • Heyd, Uriel. “Some Aspects of the Ottoman Fetva.”Bulletin of the School of Oriental and African Studies32 (1969): 35–55. Classical study of fatwās in the Ottoman Empire.
    • Inalçik, Halil. The Ottoman Empire: The Classical Age, 1300–1600. London: Sterling Publishing, 1973. The best social history of the Ottoman Empire for the period 1300–1600, with sections on the structure of Ottoman religious and bureaucratic hierarchies.
    • Lambton, Ann K. S.Theory and Practice in Medieval Persian Government.London: Variorum Reprints, 1980. The second and third chapters in this book, entitled “Quis custodiet custodes: Some Reflections on the Persian Theory of Government,” are especially useful on the structure of Shīʿī religious hierarchy in Ṣafāvīd Iran.
    • Masud, Muhammad Khalid. “Islamic Law and Muslim Minorities.”ISIM Newsletter11 (2002): 17.
    • Masud, Muhammad Khalid, Brinkley Messick, and David S. Powers, eds.Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge, Mass.: Harvard University Press, 1996. The introductory article by the editors provides a short history of the institution of iftāʿ through modern times, including a summary of the primary differences between muftīs and judges. Twenty-five case studies follow, covering the early modern through modern periods and a broad range of Muslim and non-Muslim countries.
    • Nafi, Basheer M.“Fatwā and War: On the Allegiance of the American Muslim Soldiers in the Aftermath of September 11.”Islamic Law and Society11 (2004): 78–116.
    • Peters, Rudolph. Jihad in Classical and Modern Islam: A Reader, 2d ed.Princeton: Markus Weiner, 2005. Extremely useful work containing excerpts from primary documents and accounts of fatwās used for active or passive resistance in the modern Sunnī world. Includes a full translation of the World Islamic Front's 1998 fatwā.
    • Skovgaard-Petersen, Jakob. Defining Islam for the Egyptian State: Muftis and Fatwas of the Dār al-Iftā. Leiden: Brill, 1997. Discusses the founding and development Dār al-Iftāʿ and the role of the state muftī in Egypt, including several detailed case studies of fatwās issued by the Dār.
    • Zilfi, Madeline C.The Politics of Piety: The Ottoman Ulema in the Postclassical Age, 1600–1800. Minneapolis: Bibliotheca Islamica, 1988.

    Ahmad S. Dallal

    Updated by Jocelyn Hendrickson

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