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Fatwa
A fatwa (Ar. fatwā) is a legal–theological opinion based on Sharīʿah, the religious law. The opinion is given by an authoritative scholar of Islam who in his particular capacity as jurisconsult is called a mufti (Ar. muftī). A mufti does not issue a fatwa on his own accord, but on the request of a person or institution, the mustaftī. The fatwa is nonbinding and is not to be applied by any person or institution except the fatwa-petitioner.
A fatwa can relate to any kind of query that is of importance to the petitioner, but it was intended originally to explain the finer details of Sharīʿah to those not learned in the law. A fatwa therefore commonly answers questions with regard to issues of ritual law, personal status law, and social interaction, but it has also gained importance in sociopolitical issues—modern examples include fatwas on entering into war, drinking coffee, using a printing press, listening to the radio, and residing under non-Muslim rule.
The practice of fatwa-giving (iftāʾ) finds its origin in the Qurʾān, where a number of verses addressed to the Prophet Muḥammad begin, “When they ask you for an opinion (yasataftūnaka) on..., then say (qul)….” (e.g., QURʾāN 4:127, 176). The iftāʾ was officially not part of Islamic legal scholarship, as fiqh and uṣū al-fiqh, but the authority of certain muftis was such that collections of their fatwas became part of that scholarship.
A fatwa should be distinguished from a ruling issued by a judge. A judge uses the law in order to make a decision in a conflict between two parties and to rule on the basis of evidence presented. The mufti, on the other hand, merely provides a single petitioner with information that is exclusively based on Islamic legal rules. Unlike the fatwa, the judicial ruling is binding and can be enforced by the state.
Another important distinction relates to the functionaries: in premodern times the judge was a civil servant of the state, whereas the mufti was not an appointed official. Ideally, the petitioner selected the mufti based on the scholar's knowledge and personal integrity. In practice, it is conceivable that a petitioner would select a mufti whose views matched those of the petitioner, perhaps even in disregard of the mufti's reputation.
In the past as well as the present, courts and rulers have also acted as mustaftīs. The judge might ask for a fatwa as support for the judge's understanding of the law or as a pronouncement of the law based on the bare facts given to the mufti. The ruler, on the other hand, frequently used a fatwa as support for an act he desired to take. Under the Ottomans, the muftis became part of the state apparatus, with the appointment of a state mufti (called shaykh al-Islām). This practice has been continued by most modern Muslim states, often alongside the establishment of a state-appointed body that issues fatwas (dār al-iftāʾ).
Fatwas in Modern Times.
Since the late twentieth century, the practice of iftāʾ outside of state-institutionalized iftāʾ has undergone several remarkable changes with regard to content as well as procedure and methodology.
In terms of content, the traditional field of fatwa-queries has been expanded to encompass a wider array of issues than was previously the case. This can be explained by the increasing importance of Islam in the modern Muslim world, such that Islam not only pertains to issues of ritual and private social life, but also to a host of societal, economic, and political questions related to the globalizing and modern world. The prolific use of fatwas to support or condemn events of global implications—such as the 1991 allied response to Iraq's invasion of Kuwait, suicide bombings, or the attacks of 9/11—is an example of the highly politicized and altered use of this institution.
In terms of procedure, iftāʾ has developed in a variety of ways. Although until recently the fatwa-petitioner would generally only contact a local mufti, the petitioner now has access to muftis all over the world, who promptly issue fatwas by means of email. Moreover, fatwas are often filed in online archives that can be browsed at leisure. This phenomenon of “cyber-fatwas” not only serves the individual Muslim petitioner who is one click away from a mufti, but also yields an ever-growing corpus of fatwas on contemporary issues.
In addition to this development, the number of muftis has increased, including many whom the religious establishment of traditionally trained scholars (ʿulamāʾ) does not consider qualified. However, although Islamic doctrine does prescribe the general professional and personal qualifications of a mufti in the so-called adāb al-muftī literature, there is no central authority to uphold them. Recently, two measures have been employed to counter the increase in what is perceived by the religious establishment as unauthorized fatwas. First, religious and governmental authorities jointly issue statements emphasizing the qualitative conditions for issuing fatwas. An example is the Amman Message of 2004, a detailed statement from King Abdullah of Jordan defining Islam and the conditions for issuing fatwas, which in a consecutive process of conferences and Internet exchanges was endorsed by more than five hundred Muslim scholars and most Muslim state leaders.
The second measure is the cooperation among muftis to jointly issue fatwas that, due to their collective endorsement, will carry more authoritative weight than individual fatwas. The cooperation can take place within either a network or a collective. Networks of muftis are commonly employed by Internet sites that receive questions by the petitioner and then distribute these questions among their network of selected muftis. Although these muftis still operate in their traditional role as individual jurisconsults, the name and position of the Internet site guarantee a degree of conformity in the fatwas issued.
The collective is a historically new phenomenon through which scholars, often of different nationalities and of different schools of law (sometimes including both Sunnī and Shīʿite scholars), have organized to issue joint fatwas. This process of joint iftāʾ is also known as “collective legal interpretation” (ijtihād jamāʿī). Examples of the collective approach are the fatwa boards of Islamic financial institutions and international fatwa councils.
The third modern development in iftāʾ is related to the methodology employed in reaching a fatwa. The most remarkable trend is the return to the practice of ijtihād, a method of reasoning based on direct reference to the sources of the Qurʾān and Sunnah. Although ijtihād is formally not disallowed in iftāʾ, it is now practiced in innovative ways in fatwas, for example, allowing gender equality and banking interest. The most conspicuous use of this new approach is in fatwas with extreme militant content. Fatwas in support of suicide bombings, the indiscriminate killing of bystanders, and the declaration of individual Muslims or Muslim governments as unbelievers (takfīr) have contributed to the image of the fatwa as a death warrant.
Another approach of this new ijtihād, on the other hand, advocates a return to ruling on grounds ofthe underlying objectives of the Sharīʿah (maqāṣid al-Sharīʿah), rather than on the literal source material. This approach allows two important principles to be derived: what is in the interest of Muslims (maṣlaḥah) and what is impelled by “necessity” (ḍarūrah) to go against the rule. The main argument behind this new approach is that the Sharīʿah is meant to serve the interests of Muslims and to make their lives easier (taysīr) rather than more difficult—hence, contemporary fatwas have been issued that allow Muslims to take on a mortgage, to reside in non-Muslim countries as long as their religious freedom is guaranteed, or to allow fasting times to be adjusted for Muslims living in areas with long daylight hours. This form of ijtihād is found in particular in the elaboration of fiqh al-aqallīyāt (Islamic jurisprudence for Muslim minorities), which applies to Muslims living in Western countries. Opponents of this new form of reasoning argue that the interests of Muslims should not be shaping the outcome of the Sharīʿah since the Sharīʿah is meant to determine the interests of the Muslim.
The enormous production of fatwas since the late twentieth century testifies to the importance of Islamic authenticity to many Muslims, but it attests very little to the impact of these fatwas on Muslims. The extent to which Muslims acknowledge the authority of fatwas, or regulate their lives accordingly, is to date unknown. For that reason, fatwas cannot be equated prima facie with the conduct or opinions of Muslims. Fatwas may at best be read as a collective of opinions on what Muslims “ought to think” rather than “what Muslims find to be true.”
[See also DāR AL-IFTāʾ; MINORITY FIQH; and SHARīʿAH.]
Bibliography
- Bunt, Gary R. Islam in the Digital Age: E-jihad, Online Fatwās and Cyber Islamic Environments. London: Pluto Press, 2003. Analyzes contemporary developments.
- Calder, Norman. “Al-Nawawī's Typology of Muftīs and Its Significance for a General Theory of Islamic Law.” Islamic Law and Society 3, no. 2 (1996): 137–164. One of the many articles written on the status, practice, typology, and qualifications of muftis.
- Gerber, Haim. State, Society and Law in Islam: Ottoman Law in Comparative Perspective. Albany: State University of New York Press, 1994.
- Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunnī uṣūl al-figh. Cambridge, U.K.: Cambridge University Press, 1997. Contains an extensive discussion of the theological and legal technicalities of fatwas.
- Masud, Muhammad Khalid, Brinkley Messick, and David S. Powers, eds. Islamic Legal Interpretation: Muftīs and Their Fatwās. Cambridge, Mass.: Harvard University Press, 1996. Provides an overview of the use of fatwas through the ages, with an extensive introduction on the characteristics and functions of the fatwa.
- Skovgaard-Petersen, Jakob. Defining Islam for the Egyptian State: Muftīs and Fatwās of the Dār al-Iftā. Leiden, The Netherlands: Brill, 1997.
- Tyan, Émile. Histoire de l'organisation judiciaire en pays d'islam. 2d ed. Leiden, The Netherlands: Brill, 1960. pp. 219–229.
- Walsh, J. R. “Fatwā.” In Encyclopaedia of Islam. Vol. 2. New ed. Leiden, The Netherlands: Brill, 1960–2004. A basic introduction to the fatwa, mostly treating the classical period.
