Mufti (jurisconsult)

The mufti was the scholar who answered a question of religious law with its ruling. The answer is the fatwa. In early Islam anyone with the learning could give one, and the office became formal only later, as the schools of law took shape and the state and the courts began to employ jurists. In the Ottoman state the shaykh al-islam held the authority to issue fatwas, and muftis in the provinces answered the questions of ordinary people. ¹

The word fatwa is related to fata, a young man, and in the dictionary means a strong answer that explains a ruling or settles a difficulty. In the technical sense it is the answer a learned person gives, in writing or speech, to a question of law. Asking for a ruling is istifta, the questioner is the mustaftî, and the one who answers is the mufti. ¹

The Qur'an uses the word and its forms in nine verses, mostly for asking for an opinion. The Prophet's sayings use futya more often, and the technical sense of fatwa as a settled institution came in later centuries. ¹

The entry sets out how a fatwa differs from a judge's ruling. A fatwa is advice and explains the law, so the mufti cannot force the questioner to act on it. A judge's ruling binds the parties and is enforced by the state. A fatwa covers the whole of religious law, including worship. A judge rules only on matters that can be brought before a court. A fatwa speaks to the religious side of a matter, a judgement to its legal effect: a man who says he has paid a debt gets an answer from the mufti about his conscience, and must give proof to the judge. ¹

A fatwa given on a question is general, and the Prophet ﷺ's answer about the water of the sea shows this: the question was asked once, but it binds everyone who asks it later. A judge's ruling is particular to the people named in it. ¹

The entry reports that the Prophet answered questions on religious law as they arose, and that the Companions answered after him from the Qur'an, the Sunna and their own reasoning. Some answers were taken as revelation not recited, such as the answer to the Companion who ate in forgetfulness while fasting. Some Companions are named as men who gave many fatwas. A first group of seven (Umar, Ali, Abdullah ibn Masud, Abdullah ibn Umar, Abdullah ibn Abbas (may God be pleased with him), Zayd ibn Thabit (may God be pleased with him) and Aisha) gave many; a second group of about twenty, including Abu Bakr, Uthman, Anas ibn Malik (may God be pleased with him) and Abu Hurayra (may God be pleased with him); and a third group of about a hundred and twenty, of whom few fatwas are recorded. ¹

Abu Bakr and Umar consulted others before deciding public matters, so that an agreed ruling (consensus) could be reached. A ruling reached by consensus was stronger than one given by one man. In the time of Umar the Companions stayed in Medina, and he forbade them to leave it. Under Uthman, about two thousand Companions moved to Kufa, Basra, Damascus and other cities, and the people of each city asked them for fatwas and went to their study circles. ¹

The Followers divided into two circles. The Hijazis, under Said ibn al-Musayyab, followed the fatwas of Zayd ibn Thabit, Abdullah ibn Umar, Abdullah ibn Abbas and Aisha, and gave great weight to the practice of Medina. The Iraqis, under Ibrahim al-Nakha'i, followed Umar, Ali, Abdullah ibn Masud and Sa'd ibn Abi Waqqas, and relied more on reasoning. The entry names jurists who gave fatwas in other cities: seven in Medina, and others in Mecca, Basra, Kufa, Damascus, Egypt and Yemen. ¹

In the time of the great imams of the schools, such as Abu Hanifa and Malik ibn Anas, many jurists could reason for themselves and followed no single school. Later, the jurists divided into those who reasoned and those who followed a school. A mufti of the Abbasid period, Abu Yusuf, a student of Abu Hanifa, gave fatwas and also held the judgeship with the title qadi al-qudat under Harun al-Rashid. ¹

Once the schools took shape, the office of mufti became a recognised post in the state. The entry says the principle that judges handle legal cases and muftis handle religious questions has lasted, though it was never absolute. ¹

The jurists of the Hanafi school, following Ibn Kemal, divided the learned into seven ranks by their learning: the mujtahid in religion, the mujtahid in the school, the mujtahid in the question, those who draw out rulings, those who weigh rulings, those who distinguish, and the plain follower. The first three could reason to a ruling, the fourth could draw one out by following the school's method, and the rest could give a fatwa only by passing on another's view. The Shafi'i school divided muftis into the independent mufti and the non-independent, with four further grades. The Maliki and Hanbali schools were close to the Shafi'i division. ¹

The jurists agree that a mufti must know the Qur'an and the Sunna, including their abrogating and abrogated parts, the occasions of revelation, and the classes of hadith. He must know Arabic grammar, the points on which earlier jurists agreed or differed, and analogy. He must also be sound in judgement, pious, intelligent, not swayed by feeling, and well read. ¹

The entry records the view that a mufti who is not a mujtahid may only pass on the view of one who is. Ibn al-Humam wrote that the true mufti is the mujtahid, and that a jurist who repeats a mujtahid's view is a mufti only by extension. ¹

The entry says that Osman Gazi placed his father-in-law Edebali over fatwa work and his brother-in-law Dursun Fakih over judicial work. When Edebali died, Dursun Fakih also took up fatwa work. In the early fifteenth century the office of shaykh al-islam was set up, and the authority to give fatwas belonged to it. A special procedure and organisation grew up around it, including the fatwa house (fetvahane). Muftis in the provinces, sanjaks and districts answered the questions of the people. The shaykh al-islam's fatwas were asked for on war, peace, reform, the deposition of a sultan, and the punishment of brigands. Fatwas on private law were given at the request of individuals, and fatwas on public law at the request of rulers. ¹

A fatwa usually began with a formal statement of the question, then the answer, and the ending wallahu a'lam (God knows best), which in Ottoman fatwas was usually written after the word "the answer". The question was often more detailed than the answer, and could be answered with yes, no, permitted or forbidden, or at length when needed. Names in the question were replaced by such names as Zayd, Amr, Bakr and Khalid for men and Hind and Zaynab for women. The mufti signed with his name, his father's name and his nisba or title. In a collection of one mufti's fatwas the names were removed. ¹

The entry warns that giving an answer without knowledge is a serious wrong. The Prophet is reported to have said that the sin of a fatwa given without knowledge falls on the one who gives it. Ibn Abi Layla said that he had known a hundred and twenty Companions, and that when a question was put to one of them he sent it on to another, until it came back to the first. ¹

In the Turkish Republic the religious affairs directorate and its muftiates answer the religious questions of the people, besides their other official duties. They cannot give fatwas as a state body on matters regulated by law, so the entry does not treat them as the fatwa institution of the past. Advisory bodies such as the Higher Religious Affairs Council in the directorate, and congresses such as the Islamic Fiqh Academy of the Islamic Conference Organisation, now take up current questions by collective reasoning. ¹

• TDV İslâm Ansiklopedisi, "FETVA", vol. 12, Fahrettin Atar, pp. 486–496, Istanbul 1995. ¹