By Sheikh Ali Gomaa
Former Grand Mufti of Egypt
A fatwa is the elucidation of sharī‘a ruling concerning an occurrence in the world. Ultimately, none but God issues fatwas; others merely transmit His rulings pertaining to specific matters. The first person in Islam to carry out this role was the Prophet ﷺ, as he was issuing fatwas by delivering the message of God. The Prophet ﷺ was followed by his Companions, who were then succeeded by the scholars from amongst their followers (al-tabi‘un). Later generations established the eight schools of jurisprudence: the four Sunni schools (the Ḥanafī, the Mālikī, the Shāfi‘ī, and the Ḥanbalī), the two Shi’ite schools (the Ja‘farī, and the Zaydī), the Ibāḍi school, and the Ẓāhirī school.
To perform the duties of a mufti, one must be Muslim, sane, mature, knowledgeable, specialized, and just. One must have also attained the scholarly status of “mujtahid,” which characterizes those possessing advanced ability in independent legal reasoning. There is consensus among scholars that being male is not a condition for issuing fatwas.
There is certain etiquette by which the mufti should abide, and its importance is such that it may become requisite in our age. This etiquette calls on the mufti to make things easy for people by bringing them into God’s religion, protecting them, and providing a means whereby they can act in accordance with a position that is acknowledged by the sharī‘a. This approach is recommended because it eases the path and thus prevents people from leaving religion entirely and falling into grave moral error. To deter people from religion would be tantamount to blocking their path to God, and the scholar must be aware of this risk. This does not mean that one may seek out licenses to dodge God’s law, which is of course forbidden, but the difference between approaches is subtle to a degree that many may not understand.
The main goal of the mufti is to create a legal tool that aids in the actualization of the Islamic juristic tradition without departing from the tradition or making it a barrier to contemporary Muslims. This technique should not be denounced. And the opinion at which the mufti arrives will be one over which scholars disagree, and this is dealt with according to the following maxim: “Whoever is afflicted with something concerning which there is difference of opinion should follow those who permit the action.”
The mufti should have a methodology concerning the hierarchy of evidence he employs in his rulings. When the mufti is asked about an issue, he should first consult the Quran. If he does not find evidence in the Quran, then he should turn to the Sunna. If the Sunna does not provide guidance on the issue, then the mufti should employ analogy in the evidence for his ruling. It is required that the rulings not breach consensus. As for disputed evidence, such as in the case of juristic preference (istiḥsān) and the law of communities that preceded us, the mufti may issue fatwas based on these sources only if his own legal reasoning (ijtihād) leads him to accept them as true. The protocol established by the schools of jurisprudence allows the mufti to issue fatwas following any of the mujtahid schools, so long as his own ijtihād does not lead him to belief that the truth lies elsewhere.
The expression of the fatwa should follow a particular etiquette: 1) The fatwa should be in written form; 2) Unclear phrases that carry multiple meanings should be avoided; 3) Evidence should be provided; and 4) The fatwa may not assert that it represents God’s ruling with unwavering certainty.
A fatwa goes through four major stages in the mufti’s mind before it is put in the form that the questioner hears or sees. These stages are: conceptualization (al-taṣwīr), designation (al-takyīf), the elucidation of the ruling (bayan al-ḥukm), and the issuing of the fatwa (al-iftā’).
During the stage of conceptualization (al-taṣwīr), the mufti grasps the issue that has been raised by the person asking the question. A correct conceptualization must be in accordance with the reality of the inquired-upon action and is an essential condition for issuing sound fatwas that are appropriate for the world in which we live. The burden of conceptualization rests primarily on the shoulders of the one asking the question, but the mufti should check that the inquirer is not confused by making inquiries on the four changing aspects of life (time, place, people and conditions), since the alteration of these details could effect change in the fatwa.
Designation (al-takyīf) is the act of linking the concept under question to the appropriate categories and issues of jurisprudence.
The elucidation of the ruling (bayan al-ḥukm) involves deriving the ruling from the Qur’an, the Sunna, or consensus. The ruling may also be composed through judicial analogy (qiyās).
The final stage generates the fatwa when the mufti applies his formulated ruling to the reality that he has perceived. At this stage the mufti must make sure that his fatwa does not go against the goals (maqāṣid) of the sharī‘a, or contravene one of its definitive texts, an agreed upon consensus, or an established legal maxim.
Fatwas differ according to their specific time, place, people, and conditions. If, for example, customs were to remain unchanged for several centuries, nobody would be able to change the fatwa concerning them. As for rulings that are not based on customs and local practices, as well as essential rulings based on definitive texts that embody commands and prohibitions, these fatwas do not change regardless of time, place, or people. Examples of these steadfast rulings are the obligations to pray, fast, pay alms (zakāt), and to be honest and trustworthy. The permissibility of commerce and the prohibitions of fornication and consumption of alcohol also fall into this category of essential rulings.
Egypt’s National Fatwa Office (Dār al-Iftā’ al-Miṣriyya) follows a well-defined methodology in issuing fatwas. The methodology seeks to transmit the four well-known Sunni schools of jurisprudence while acknowledging the other schools that Muslims follow in different parts of the world (Ja‘farī, Zaydī, Ibāḍī, and Ẓāhirī) and taking them into consideration. In addition, Dār al-Iftā’ often widens the scope of the evidence upon which it relies to include the schools of major mujtahids like al-Awza‘i, al-Ṭabarī, al-Layth b. Sa‘d, and others from among over eighty mujtahids throughout Muslim history. These opinions are taken into account and may even be given priority of consideration according to the strength of their evidence, the need for their perspective, the purpose of the greater good, or in order to fulfill the goals of the Sharī‘a. This methodology reflects the values adopted by all scholarly societies today, in both the East and the West and throughout the Muslim world.
Dār al-Iftā’ adheres to the agreements of the Islamic councils, particularly the Majma‘ al-Buhuth al-Islamiyya (The Council of Islamic Research) under the auspices of al-Azhar, Majma‘ al-Fiqh al-Islamī (The Council or Islamic Jurisprudence) under the auspices of Munaẓama al-Mu’tamir al-Islamī (The Organization of the Islamic Conference) in Jeddah, and Majma‘ al-Fiqh al-Islamī (Council of Islamic Jurisprudence) under the auspices of al-Rabita al-Islamiyyh (The Muslim League) in Mecca. These agreements are of particular importance when it comes to new matters needing clarification across the Muslim world.
Dār al-Iftā’ also has recourse to deriving rulings directly from the legal texts of the Quran and the Sunna when needed. These texts are more encompassing than all that has been mentioned above; they are more encompassing than the eight schools, the eighty mujtahids, and the agreements of the fiqh councils. Dār al-Iftā’ derives legal rulings directly from their evidence in the Quran and the Sunna when the ruling is not found in the previously mentioned sources, or when the ruling is present but is not appropriate to the situation in question. The condition for the validity of deriving rulings directly from the texts is that the texts support the interpretation given them based on the established criterion of the scholars of juristic methodology.
The task of issuing fatwas is not so simple that anyone may boldly claim to have the requisite capabilities. The times we live in and the cultural milieu in which we find ourselves reflects the promise made by the Prophet ﷺ according to Samrah b. Jundub, “This will not occur until you see great matters becoming increasingly serious and you ask yourselves, ‘Did your Prophet ﷺ mention something of this to you (Ibn Ḥibbān)?’” The state of our contemporary culture is unstable, and many of its implications have yet to be defined. Charlatans abound in the public sphere. They discuss and give advice on everything from medicinal matters to fatwas, without having the least bit of relevant knowledge and having memorized but a few verses of the short chapters of the Quran. These people have held public office; some of them want us to separate ourselves from our religion and history; some of them practice intellectual terrorism. They claim it is either their way or straight to hell, but for them hell is actually paradise, and paradise is hell, for they are enemies of the truth who seek to lead people astray. The solution to all of this will require us to be patient and to affirm our commitment to freedom, while leaving the charlatans to publicly discredit themselves through their triviality and flimsy ideas. We ask God to give us forbearance and success.