Principles of Islamic finance gif
seen as an indirect instrument for defin- ing formal concepts of law when applied in courts. From the perspective of moral and religious obligation, fatwa is con- trasted with taqwa or piety. For instance, a fatwa may allow choice between a leni- ent (rukhsah) and a severe (azimah) view about the permissibility of a certain mat- ter, or it may resort to legal devices (hilah) to circumvent the strict implications of a law, but taqwa may not approve of such strategies. This last contrast is often re- ferred to in literary and Sufi writings.
Characteristics of fatwa
Imam Ahmad (may Allah be pleased with him) said that the one nominated to hold the position of Mufti, should possess the following characteristics:
• He should have a pure intention to guide the questioner and never to misguide him. • He should have deep insight, equa- nimity and tranquillity. • He should have a firm religious back- ground and deep knowledge. • In his capacity as a religious leader, the Mufti should have adequate means to earn his livelihood. • Finally, he should be aware of daily life and contemporary issues.
Moreover, Sheikh M. S. Al-Munajjid, a prominent Saudi Muslim lecturer and au- thor, adds:
“Not every individual has the right to is- sue Fatawa and make pronouncements on matters. A Mufti must be qualified and of profound knowledge. He has to be able to know the evidence, the wording and ap- parent meaning of the texts, what is Sa- hih (authentic) and what is Da’if (weak), An-Nasikh wal-Mansukh (the abrogating and the abrogated), what is specific in ap- plication and what is general, and what is stated in brief and what is mentioned in detail.
This needs lengthy experience and prac- tice, knowledge of the various branches of Fiqh and where to look for informa- tion, knowledge of the opinions of the scholars and jurists, and memorization or knowledge of the religious texts. The Mufti should be knowledgeable and rich in life experience. We cannot imagine him to live in an ivory tower and turn a blind eye to life around him.
Undoubtedly, issuing Fatawa without hav- ing qualification to do so is a grave sin. Allah has warned us against that, saying: “And speak not, concerning that which
your own tongues qualify (as clean or un- clean), the falsehood: “This is lawful, and this is forbidden, so that ye invent a lie against Allah. Lo! Those who invent a lie against Allah will not succeed.” (An-Nahl: 116)
According to the usul al-fiqh (principles of jurisprudence), the fatwa must meet the following conditions in order to be valid:
• The fatwa is in line with relevant legal proofs, deduced from Qur’anic verses and hadiths; provided the ahadith was not later abrogated by Muham- mad. • It is issued by a person (or a board) having due knowledge and sincerity of heart. • It is free from individual opportunism, and not depending on political servi- tude. • It is adequate within the needs of the contemporary world.
There is a binding rule that saves the fat- wa pronouncements from creating judicial havoc, whether within a Muslim country or at the level of the Islamic world in general: it is unanimously agreed that a fatwa is only binding on its author.
Fata functioned independently of the ju- dicial system, although in some systems muftis who issued decrees would be offi- cially seconded to religious courts. Thus, in Andalusian benches muftis sat as musha- war (jurisconsults), and in early British Indian magistrates they sat as mawlawis (men of learning). Jurists compiled vol- umes of fatawa stating, for the benefit of judges, the consensual and authoritative views and doctrines of a particular school. Partly for these reasons, the position of muftis in Muslim political systems was de- fined by the role fiqh enacted in that soci- ety. In Andalusia, jurists were indeed pow- erful, because they were part of the shura (council) of amirs and caliphs, whereas in the Ottoman and Mughal political systems, the chief mufti was designated as Shaykh al-Islam. Muftis 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 muftis as religious guides. The madrasahs established the institution of dar al-ifta, a place to issue fatawa. The print and electronic media in the nine- teenth and twentieth centuries reinforced the role and impact of fatawa. Muftis were faced with day-to-day challenges in eco- nomic, political, scientific, and technologi-
cal fields. Not only did the scope of fatwa widen, but because of its instant availabil- ity to a wider public, its language, pres- entation, 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 rendi- tions are not binding. This was underlined by Sheikh Abdul Mohsen Al-Obeikan, vice- minister of Justice of Saudi Arabia, in an interview with the Arabic daily “Asharq al awsat”, as recently as on July 9, 2006, in a discussion of the legal value of a fatwa by the Islamic Fiqh Academy (IFA) on the sub- ject of misyar marriage, which had been rendered by IFA on April 12, 2006 .
Despite this, sometimes even leading re- ligious authorities and theologians mis- leadingly present their fatwa as obliga- tory, or try to adopt some “in-between” position. Thus, the Sheikh of Al-Azhar in Cairo, Muhammad Sayid Tantawy, who is the leading religious authority in the Sunni Muslim establishment in Egypt, alongside the Mufti of Egypt, said the following about fatawa issued by himself or the entire Dar al-Ifta:
“Fatwa issued by Al-Azhar are not binding, but they are not just whistling in the wind either; individuals are free to accept them, but Islam recognizes that extenuating cir- cumstances may prevent it. For example, it is the right of Muslims in France who object to the law banning the veil to bring it up to the legislative and judicial authori- ties. If the judiciary decides in favour of the government because the country is secular, they would be considered to be Muslim individuals acting under compel- ling circumstances.” Otherwise, in his view, they would be expected to adhere to the fatwa.
In Morocco, where king Mohammed VI is also Amir al-Muminin (Commander of the faithful), the authorities have tried to organize the field by creating a scholars’ council (conseil des oulemas) composed of Muslim scholars (ulema) which is the only one allowed to issue fatwa. In this case, a national theocracy could in fact compel intra-national compliance with the fatwa, since a central authority is the source. Muslims in other nations would obviously not be required to obey it.
Now we have seen the historical and legal significance of fatwa, we will move on in the next part to take a more detailed look at Islamic schools of law; their methodol- ogy of fatwa; and its development as an important aspect of Islamic finance. gif
2010 June GlobalIslamic Finance 35
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