Fatwa between freedom and monopoly

The programme Al-Wasatiyya, presented by Tareq al-Suwaidan, gave its twenty-fifth episode to the question: is fatwa a freedom or a monopoly? ⁵ He introduced it by saying that the programme takes up issues on which Muslims, and sometimes the scholars themselves, disagree, and tries to discuss them frankly, clearly and courteously. ⁶ The episode follows an earlier one on fatwa on the satellite channels and turns on the ideas of ijtihad, taqlid and the madhhab.

The presenter said that references, schools and sects have multiplied and scholars disagree on old and new questions, leaving young people and others confused: whom should we ask? How can we be at ease with a fatwa? Must a person hold to one school? ^{5 7} He asked who bears the sin when a questioner acts on a wrong fatwa, and what to do when a senior scholar issues a fatwa that most scholars of the community reject. ⁷ Is the answer to restrict fatwa to a fiqh council or to a fatwa committee under the ministry of endowments — or would that open the door to politicians controlling religion, end the scholarly movement, bring stagnation and kill creativity when a dissenting scholar's view is the sounder one? ^{8 9}

The presenter asked the audience whether there is chaos in religious fatwa today. ¹⁰ Eighty-six percent said there is. ¹ A professor of comparative fiqh at a faculty of sharia said he had voted the same way: the problem is not only scholars disagreeing, each with his proof, but fatwas that rest on no proof, and others that contradict the plain text of the Qur'an and Sunna. ^{11 12}

The professor of comparative fiqh defined fatwa as stating the religious ruling to the one who asked about it, by a qualified mufti, based on proof, about a specific occurrence. ¹³ A hypothetical question ("if such happened, the ruling would be such") belongs, in his account, to ijtihad, not fatwa. ¹⁴ Ijtihad and fatwa both rest on proof, but ijtihad works in unclear, probabilistic questions, while a fatwa may answer a question of belief or worship even when it is known of the religion by necessity. ¹⁵ He defined a madhhab as a method of deriving rulings according to recognised principles, such as the schools of Abu Hanifa and al-Shafi'i; a madhhab usually concerns fiqh, a sect (firqa) concerns creed, and the presenter limited the episode to questions of fiqh. ^{16 17 18}

The presenter asked a guest, introduced as a judge of the Court of Cassation in Qatar and a member of the Islamic Fiqh Academy, whether a mufti has conditions, who set them, and, if someone other than the Prophet ﷺ set them, whether they can be changed. ^{18 19} The guest listed the conditions: knowledge of the Book and Sunna, of fiqh and its sources, of the principles of jurisprudence, of Arabic, of the reality of the time and of the questioner's situation; ²⁰ a mufti may have partial ijtihad in one field, such as transactions, or marriage and divorce. ²¹ Formal schooling is not required in his view, but knowledge must be acquired by the scholars' recognised paths, in a school or a mosque; someone who reads a book at home cannot declare himself a scholar — he must have studied under a shaykh or in a sharia faculty. ^{22 23} Competence is known from research, teaching and the testimony of scholars, and a graduation certificate is a minimum to begin with. ²⁴

The professor of comparative fiqh added that competence comes with practice, repetition and acceptance of one's answers by scholars and people, and cited the Prophet's testimony that Mu'adh ibn Jabal was the most knowledgeable of the Companions about the lawful and the unlawful. ^{25 26} The presenter distinguished the upper level, for which he gave Yusuf al-Qaradawi as an example of someone whose capacity for fatwa nobody disputes, from the minimum he was asking about: the sharia graduate. ²⁷

Dr Kayed, a professor of siyasa shar'iyya (Islamic governance), said a scholar's fingerprints point to him — his research, conferences and supervision of theses — while sitting in a mosque or appearing on television is not enough. ^{28 29 30} He set two criteria for fatwa: a principled one, a large sufficiency of knowledge, and a situational one, in which circumstances may force some conditions to be relaxed; he noted that Ibn Qayyim al-Jawziyya and others discussed the fatwa of the imitator and of the layman. ^{31 30} Degrees of religious knowledge, he said, vary. ³²

The presenter, who said he is an engineer by training, pressed the question of the minimum: a mosque imam who graduated from a sharia faculty and whom people ask — may he give fatwas? ³³ A guest answered that fatwa is a knowledge, an art and a trained skill like judging, medicine and engineering; a doctor does not practise outside his specialism, and a scholar may be a judge yet not be good at fatwa, so the least requirement is mastery of particular questions. ^{34 35 36} He thought fatwa can be specialised: matters all muftis know, such as personal status; matters for a specialist mufti; and questions for councils. ^{37 38}

Asked whether a woman may be a mufti, the guest said yes, that women give fatwas in the media and on satellite channels, and all the guests agreed that no scholar makes being male a condition for a mufti. ^{38 39} The presenter introduced Dr Sana' as the first woman to hold a doctorate in sharia judiciary. ³⁹

Dr Sana' distinguished fatwa, a statement of the ruling without compulsion, from judgement, in which the judge's ruling carries binding authority; she saw a great boldness in issuing fatwas among those without specialism. ^{40 41} Her minimum was enrolment in a faculty or university specialised in religious knowledge. ^{41 42} The presenter objected with great scholars in Mauritania and Yemen who reached high rank without universities, and with the Companions, who had no schools; ^{42 43} she replied that it is a matter of understanding present reality: without that marker, anyone with some Islamic culture would dare to give fatwas — and not every graduate is fit for it. ^{43 44}

When it was proposed that a mufti must not depart from the majority of his time's scholars, the presenter objected that Ibn Taymiyya departed from the majority more than anyone in the community's history and was imprisoned twenty-one times for his views, and that Ibn Hazm did likewise. ^{45 46} Dr Abd al-Majid, a professor of fiqh and its principles, said the sound fatwa comes from a mujtahid who meets the conditions of ijtihad, together with knowledge of reality, of the questioner's psychology and of the fatwa's effect on him and on society. ^{47 48} Jordan, he said, has hundreds of sharia doctors and thousands of graduates, but the muftis accepted by society, whom people call from Saudi Arabia and Europe, number perhaps twenty, and they became known for piety, knowledge and scrupulousness, not through satellite channels. ^{48 49 50 51} In his view the mosque imam — whether a sharia graduate, an engineer who knows the Qur'an by heart or a doctor who took some courses — does not give fatwas but transmits them, saying "Shaykh so-and-so said"; his example of a transmitter is one who reports that, in the Shafi'i school, touching a woman breaks ablution. ^{51 52}

The presenter asked: when you need a fatwa, do you ask any mufti whose knowledge you trust, or only particular scholars such as those Dr Abd al-Majid described? ^{53 54} Forty percent chose any mufti and 60% particular scholars. ² A young man who chose the first said limiting whom to ask is hard in a large country and that he turns to websites he trusts. ^{55 56} A young woman said she has no way to reach the great muftis, that amid the randomness of fatwas she consults her own heart, and that she had come to learn who a mufti is. ^{56 57} Another young man said he looks for the best mufti as he looks for the best doctor; asked by the presenter whether fame is a criterion, since anyone on satellite television becomes better known than far abler scholars, he said it is not. ^{58 59}

The professor of comparative fiqh said the mufti is like a doctor and needs a certificate from scholars or a recognised institution, after which further conditions apply. ^{60 61} He distinguished questions with clear rulings, which an imam or a qualified graduate can answer, from questions that only those able to derive rulings can address. ⁶² In public matters where homes are ruined and property and lives are declared lawful, people turn to muftis appointed by the state or to scholars known for trustworthiness. ⁶³ Television fame, he said, does not create trust: many well-known figures are not consulted and many obscure ones are; trust is earned. ⁶⁴ He proposed a body of scholars to accredit muftis, as a medical council accredits doctors, and to place them across the country so people know where to ask. ^{65 66}

Dr Kayed added that quality standards are now applied to institutions and academics, so why not to muftis? He attributed to Ibn Taymiyya a question to the effect: you set inspectors over the bakers but not over the muftis? ^{67 68} Narrow specialism alone is not enough: no one is qualified on cloning without knowing what it is, or on insurance and reinsurance without experience of economics. ⁶⁹ The Fiqh Academy member said disagreement over the criteria is wide and scholars will not all agree, but the minimum is known, and a scholar who leads a mosque may be better than someone appointed to fatwa or seen on screens. ^{70 71 72}

The presenter asked: if I consult someone I took for a scholar, he gives a wrong fatwa and I act on it, who bears the sin? The guest answered that the mufti bears the error, not the questioner, and quoted the Gulf saying "put it on a scholar's head and come out safe". ^{72 73} He explained the levels: the absolute mujtahid, able to give fatwa on any question of religion, of whom he said none exists today; the mujtahid in particular questions or fields; and the mufti of today, who can prefer one jurists' opinion over another by the strength of its proof. ^{73 74 75} The presenter explained the rule "the ruler's decision ends the dispute": when scholars differ and the state needs to adopt one view, what the ruler adopts, through parliament or directly, is followed — as with divorce laws, which differ between countries. ^{76 77} The guest held that fatwa is graver than judgement, because a judgement concerns one or two people while a fatwa is a general ruling; that a questioner is bound by a fatwa once he trusts it, has begun acting on it, or finds others agree with it; and that he does not move to another mufti out of whim. ^{77 78 79} The presenter told a story of Ahmad ibn Hanbal: a man's face fell at his fatwa, so Ahmad called him back, asked whether his fatwa had weighed on him, and directed him to another scholar who ruled differently. ^{79 80}

The presenter raised the case of a fatwa by a senior scholar that bank interest is not riba, opposed by senior scholars and perhaps their majority: had he the right to issue it, who settles the dispute, and does someone who follows it sin? ^{81 82} Dr Abd al-Majid answered in three "telegrams". First, not every sharia graduate can give fatwas: he had seen an exam paper on which a student wrote not a single letter; he wished sharia faculties admitted high-scoring students and graduated only the qualified, and noted that Islamic fiqh restrains the reckless mufti. ^{83 84 85} Second, a "culture of seeking fatwa" must spread, because some questioners hunt for the easiest answer; whoever chases concessions and scholars' slips sins, and piety means seeking the able, knowledgeable mufti. ^{85 86 87} Third, there are anomalous fatwas, such as the one on bank interest, investment certificates and bonds, whose proofs, he said, make students laugh — such as explaining interest on investment certificates as a reward from the state by appeal to the verse on returning a greeting; fiqh academies answered it and about ten books were written in reply; whoever follows it after that clarification follows desire; and some muftis issue fatwas to suit rulers. ^{88 89 90}

Dr Sana' quoted a saying current among scholars, "whoever chases concessions becomes a heretic", and said seeking the easiest mufti without scholarly conviction is not permitted. ^{91 92} She held that the mufti explains the schools' views to a student of religious knowledge, who must follow a school; she said she follows the Shafi'i school, insisted that specialism in fatwa is obligatory, and gave the example that someone with toothache goes to a dentist, not to someone with general medical culture. ^{92 93 94 95}

Reminding the audience that anomalous fatwas sometimes come even from senior scholars, the presenter asked: do you support restricting general fatwas that society needs — not a fatwa for one person — to fiqh academies or fatwa committees? ^{119 120} Seventy-eight percent said yes and 22% no. ³

Tareq al-Suwaidan closed by saying that people's concern to regulate fatwa shows the community is still alive in its religion, and that choosing a mufti is a religious duty for anyone who wants to keep to the faith. ^{104 121} He called for spreading the "culture of seeking fatwa", counting the programme part of it, and for meeting anomalous opinions and wrong fatwas with proof and argument. ¹²² One individual may sell his religion, he said, but it is impossible that all members of the councils would, so keeping politics away from fatwa matters and so does people's trust in scholars and councils. ¹²³ Most important to him, whether a fatwa is collective or individual, is that thought is not banned: argument is met with argument and opinion with proof. He ended: no chaos, no monopoly — the middle way. ^{123 4}

The vote results are the opinions of that episode's studio audience, not representative surveys. Some guests' names are unclear in the recording, so they are described by the roles the presenter gave them.