To understand what a fatwa is, we should keep in mind that a fatwa is a part, an element, and, more precisely, a legal instrument, which must be understood in the light of the corpus of Islamic law and jurisprudence.
Fatwa (plural fatawa) means, literally, “legal decision,” “verdict,” or, following the definition of Ash-Shatibi, “A reply to a legal question given by an expert (mufti) in the form of words, action, or approval.”
Authenticity of Fatwa
A fatwa has two essential aspects: it must, first and above all, be founded on the sources and on the juridical inferences and extractions arrived at by the mujtahidin who practice ijtihad (personal reasoning) when the sources are not clear or explicit (that is, when they are zanni, the one who committed illegitimate sexual intercourse) or when there is no relevant text. It must also be formulated in the light of the context of life, the environment, and the specific situation that justifies its being made – and which is in fact its cause.
The place of the mujtahid and the mufti is of prime importance. As Ash-Shatibi said: “The mufti, within the community, plays the part of the prophet. Numerous evidences support his assertion. First there is the proof of hadith: ”Truly the scholars are the heirs of the prophets, and what one inherits from prophets is not money, but knowledge (`ilm).’ Second, he (the mufti) is the source of transmitting rulings (ahkam) in conformity with the words of the Prophet: ”Let the one among you who is witness transmit (that to which he is witness) to those who are absent” and ”Transmit from me, even if it is only one verse.“ If this is the case, it means that he (the mufti) stands in for the Prophet.
In fact, the mufti is a kind of legislator, for the Shari`ah that he conveys is either taken [insofar as it has already been stipulated] from the Lawgiver (by way of the Revelation and the Sunnah) or inferred or extracted from the sources. In the first case, he is simply a transmitter, while in the second he stands in for the Prophet in that he stipulates rulings.
To formulate judgments is the function of the legislator. So, if the function of the mujtahid is to formulate judgments on the basis of his opinion and efforts, it is possible to say that he is therefore a legislator who should be respected and followed: we should act according to the rulings he formulates and this is vicegerency (Khilafah) in its genuine implementation.”
Ash-Shatibi underlines the importance of the mujtahid who stands in for the Prophet in the Muslim community after the death of Muhammad (peace be upon him).
Sources of Fatwa
In this way, the mujtahid or the mufti represents the continuity of knowledge (`ilm) guided by the two sources, so that it may be rightly applied throughout history. Ash-Shatibi made a distinction between clear and explicit evidence (that stipulated in the sources) and that which requires the exercise of deduction and inference and puts the mujtahid in the position of legislator (even though he must seek the guidance of God, the Supreme Legislator, and follow the example of the Prophet).
The distinction drawn by Ash-Shatibi has the great advantage of setting out the two different levels of fatwa: when questioned on legal issues, the mujtahid will sometimes find a clear answer in the Qur’an and the Sunnah because there is an explicit text. Then the fatwa consists of a quotation and a restatement of the authoritative proof.
If there is a text that is open to interpretation, or if there is no relevant text, the mufti must give a specific response in the light of both the objectives of the Shari`ah and the situation of the questioner. Ash-Shatibi underlines that the mufti really does play the role of vicegerent who must come up with a legal judgment for the one who calls on him.
The more the issue is related to an individual or a particular case, the more precise, clear, and specific it must be. Consequently, a fatwa is rarely transferable, because it is a legal judgment pronounced (in the light of the sources, of the maslaha (good/interest), and of the context) in response to a clear question arising from a precise context. In the field of law, this is in fact the exact meaning of “jurisprudence.”
Many questions have been raised in the course of history about the diversity of fatawa. If Islam is one, how could there be differing legal judgments on the same legal question? The ulama have unanimously affirmed that if geographical or historical contexts differ, it is no longer the same question, for it must be considered in the light of a new environment.
Thus, properly considered responses should naturally differ, as is shown by the example of Ash-Shafi`i, who modified some of his legal judgments after traveling from Baghdad to Cairo. So, even though Islam is one, the fatawa, with all their diversity, and sometimes contradiction, still remain Islamic and authoritative.
This kind of diversity was understood, accepted, and respected, while the problem of disagreement between scholars faced with an identical legal question has given rise to endless debates. Is this possible in the area of religious affairs, and if so, how can Islam be a unifying force for Muslims?
To be continued…
The article is an excerpt from Dr. Tariq Ramadan’s book “Western Muslims and
the Future of Islam” Oxford University Press (2004).