gif Principles of Islamic finance
justifications and cannot be ignored. The fact of being Sahabi can be established by continuous testimony (tawatur) or by affir- mation of any other companion or even by own claim (if the person is upright).
Fatwa of Sahaba means an opinion reached by a Sahaba by way of Ijtihad. As regards to whether fatwa of Sahaba con- stitutes proof for succeeding generations, there are three views:
• The first view is that it is an absolute proof. The proponents of this view quote the Quranic verses 9:100, 3:109. They also quote Hadith like “my companions are like stars” or “Honour my companions”. The first view is held by Imam Malik, Imam Shafii and Ahmad Bin Hanbal also have been quoted in its support. Against this view, it has been sug- gested that these references speak of the status and dignity of Sahaba. These are not categorical (Qaati) re- garding compulsion to obey their de- cisions.
• The second view is that Ijtihad of a companion is not a proof and does not bind the succeeding generations. Hanafi jurist Abul Hasan al Karkhi, Imam Ahmed (according to one view of him) and Asharite and Mutazilite scholars hold this view. They quote the Quranic Ayat 59: 2 (“Consider, O You who have vision”). It is argued that the Ayat makes Ijtihad an obli- gation of all who are competent and makes no distinction between Sa- habis and others. Imam Gazali and Amidi consider it preferred view.
• Third view is that of Abu Hanifa him- self. He says that ruling of a compan- ion is a proof if it is in conflict with Qi- yas but not when it agrees with Qiyas. The aforesaid are the main views. There are some other views which may be seen in the books of Usul.
It can be concluded that the Fatwa of a companion is a source of guidance, which merits careful consideration (though not binding except in case of their clear Ijma).
Contemporary Fatwa Trends
There have been significant recent de- velopments as to the mufti’s character, the medium through which fatawa are communicated, the types of questions posed, and the methodologies by which the muftis arrive at their answers. Accord- ing to the traditional principles of Islamic jurisprudence (usul al-fiqh), a mufti must
34 GlobalIslamic Finance June 2010
acquire a high level of specialized knowl- edge before issuing fatawa; however, many militant and reform movements have disseminated fatawa issued by non- specialists which have been widely circu- lated and followed.
For example, in 1998 Usama bin Laden, together with four other associates calling themselves the World Islamic Front, issued a fatwa calling for a “Jihad against Jews and Crusaders.” The fatwa proclaimed it the individual duty of all Muslims to kill as many Americans as possible, including ci- vilians. In addition to denouncing the con- tent of this and other fatawa attributed to bin Laden, many Muslim jurists have stressed bin Laden’s lack of the requisite qualifications for either issuing fatawa or declaring jihad.
In July 2005, nearly two hundred promi- nent ulama convened in Jordan to issue a ruling that recognized the legitimacy of eight schools of Islamic law, forbade de- claring any member of these schools to be an apostate, and declared that only schol- ars trained according to the requirements of a recognized school of law may issue fatawa. Known as the “Amman Message,” a major purpose of the statement was to delegitimize the fatawa promulgated by leaders of violent Islamist movements. A fatwa issued in the aftermath of the 9/11 attacks on the United States also illustrates several recent trends in ifta. A few days after the attacks, a Muslim chaplain in the U.S. Army asked a group of ulama about the permissibility of partici- pating in a war against Muslim countries. In response, five Middle Eastern schol- ars issued a joint fatwa permitting Mus- lim 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 fatwa drew support for their position directly from the Qur’an and hadith. The collective fatwa, the lack of adherence to any one school of law, and the incidence of questions from Western Muslims directed toward muftis in Muslim countries have all become common fea- tures of ifta.
An estimated one third of the world’s Muslims now live in majority non-Muslim countries. The demand for fatawa on such issues as attending church wed- dings, 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 aqalliyat, 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 Re- search (ECFR,
http://www.e-cfr.org/ar/), founded in 1997, have sought to provide authoritative rulings that address the con- cerns of minority Muslims, facilitate their adherence to Islamic law, and stress the compatibility of Islam with life in diverse modern contexts. The ECFR’s internation- al 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 col- lective fatawa suitable for European con- texts. For example, an ECFR ruling issued in 2001 allowed a female convert to Islam to remain married to her non-Muslim hus- band; the muftis justified this stance part- ly 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, oth- ers have criticised it as a divisive system of exceptions.
Far less formal than the deliberations of the ECFR; are the fatawa, issued online by “cyber-muftis.” Web sites such as Is- lam Online (
www.islamonline.net/) and Fatwa Online (
www.fatwa-online.com/) are among a large number of sites of- fering instant fatawa to readers from all over the world. Islam Online publishes a searchable archive of ‘live fatwa’ ses- sions, which numbered almost a thou- sand in mid 2007, and posts each mufti’s biography. These sites, along with radio shows and satellite television programs offering call-in fatawa, have contributed to the changing, and thriving, nature of con- temporary ifta. Muslims may now consult any number of muftis worldwide, anony- mously, instantly, and from the comfort of their home or local Internet cafe.
Fatwa covers a wider scope, including matters of legal theory, theology, philoso- phy, and creeds, which are not included in fiqh studies. Thus, the concept retains a broader concern about religion and soci- ety than is reflected in the formal Islamic law defined by the five schools. From the perspective of judicial authority, realm, and enforceability, fatwa is contrasted with qada, or court judgment. The jurisdiction of fatwa is wider than qada; matters such as ibadat (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 fatawa.
The major difference between the two is in their enforceability: qada is binding and enforceable whereas fatwa is voluntary. The concept of fatwa can therefore be
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