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| | The craft of Issuing Fatwas |  |
| | | كاتب الموضوع | رسالة |
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أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:16 pm | |
| The craft of Issuing Fatwas
Massive progress in science and technology and the diversity of people's novel needs with their consequent multiple and different circumstances, have led Muslims to seek God's prescribed rulings
(Ahkam) so as to distinguish between those matters which are lawful or unlawful, valid or invalid, and acceptable or rejected. The people seek the religious advice in these matters, after the Messenger of God, from the muftis who are known for their knowledge and piety. They are those who are specialized in dictating the rules of God from primary texts, the Qur`an and sunna, through the tedious process of istinbat Shri'I (deducting rulings from textual evidences) as per the words of God the Almighty, "So ask the people of knowledge if you know not." (Qur`an 16: 43)
Given the importance of the ifta` (issuing fatwas) the lives of Muslims and, because it is not an easy process such that anyone can be bold enough to undertake or rush to claim their ability therein, it is necessary to introduce this important craft which is indispensable for the entire Muslim community and focus on its essence, conditions, and methodology; its elements and etiquettes with respect to the mufti and mustafti (inquirer or person soliciting a fatwa) as well as mention its stages; the extent of the change in fatwa with time, place, people and circumstances; and finally how it takes into account the higher objectives of shari'a.
The Messenger of God said,
“The most reckless of you in issuing fatwas is verging to enter Hell-fire." Ifta` is a not to be taken lightly; it is prohibited to issue a fatwa without possessing knowledge because it leads people astray.
It is mandatory for whoever undertakes the responsibility of issuing fatwas to be acquainted with the legal sciences, the sciences of the Arabic language, usul al-fiqh (Islamic legal theory) and theology. Additionally, a mufti must be cognizant of the current realities around him to guarantee that his fatwa conforms to the rulings of the shari'a
In this introduction, we shall attempt to discuss all of the previous points. The purpose is to elucidate the three main elements of ifta`- the mufti, mustafti and fatwa- thus demonstrating its essence and importance in implementing God’s law on earth, fulfilling the duty of conveying the message of God the Almighty and finally avoiding any matter which might lead to people's confusion in matters of their religion.
Definition of ifta`
The linguistic meaning
According to the Arabic Dictionary al-Misbah al-Mounir, the term "fatwa" is a noun derived from the Arabic verb "afta", i.e. elucidating the ruling while “istaftaaytuhu” means “I asked him [the mufti] for a fatwa”. The standard Arabic plural noun of fatwa is “fatawi”. It was also said that the terms futya, futwa and fatwa all mean ‘conveying the legal ruling issued by a jurist’ and ‘`aftahu fil `amr’ means clarifying the ruling for the mustafti. The words futya and fatwa are synonyms for ifta`. ‘Futya’ means explaining a problematic issue and clarifying the ambiguous from among the rulings of the shari'ah. When a mufti issues a fatwa, he clarifies a ruling of God on a certain issue.
In the Qur`an, God the Almighty says,
"And they request from you, [O Muhammad], a [legal] ruling concerning women. Say, "God gives you a ruling about them" (Qur`an 4:127). In his advice to the Companion Wabisa, the Messenger of God advised a Companion named Wabisa said, "O Wabisa! Consult your heart. Righteousness is that about which the heart and soul feel tranquil, and wrongdoing is that which wavers and moves in the heart even though people have again and again given you their legal opinion [in its favor]" [recorded by Ahmed in his Musnad (17315)]. The purport of the Prophet’s words is that one is to consult one’s heart even though one receives the verdict of permissibility or dispensation concerning his question.
In Arabic, the term "mufti" is an active participle from the root word "afta" (issued a fatwa). Whoever issues a fatwa is called a mufti.
Technical meaning
Ifta` means elucidating the ruling of the shari’ah in response to a question concerning an occurrence issued by a qualified person caaled Mufti.. It was also defined as conveying the ruling of the shari'ah based on the rules and principles of fiqh (jurisprudence), and elucidating the ruling of God the Almighty based on the generality and comprehensiveness of legal evidences (i.e. from the Qur`an and Sunnah).
Concerning the word "mufti", As-Sayrafi said,
"In the shari’ah, a mufti is a title conferred upon a person who attends to the people's religious affairs and to one who is acquainted with the general and specific Qur`anic verses, the abrogating and abrogated verses, the sunna of the Prophet and the process of istinbat. It is not conferred upon a non-specialist who knows the ruling for a particular issue. Whoever reaches this rank is called a mufti and whoever deserves this title may issue fatwas on any inquiry presented to him.” On the other hand, ifta` is elucidating an unknown legal ruling on a certain issue with the aim of conveying its legal ruling. Based on this, a faqih (jurist) clarifies the ruling of God the Almighty without exploring the facts or its surrounding circumstances. On the other hand, al-qada` means the enforcement of a legal ruling by a qadi (judge) after the matter is referred to him.
Difference between a faqih, a mufti and a qadi
A faqih deduces the rulings of God the Almighty from their particular evidences. These rulings conform to a set sophisticated scholarly methodologies and process laid down in the sciences of shari'ah.
A mufti explores the reality of the times and prevailing conditions and then looks to fiqh to derive from it God’s ruling that can be applied to the issue in question in a manner that fulfills the objectives of the shari'ah.
A qadi''s verdict is a performative act that enforces God's rulings upon the litigating parties in courts.
The three functions may overlap;
a qadi may perform the role of both a faqih and a mufti while the faqih may perform the role of a mufti. However, the essence and purport of these three scholarly crafts remain distinct. The three roles can be summed up in the example of alcohol consumption. On this issue, a faqih declares that alcohol consumption is prohibited based on the words of God the Almighty in the Qur`an, "O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than God], and divining arrows are but defilement from the work of Satan, so avoid it." (Qur`an 5: 90)
If the mustafti is forced by necessity to consume alcohol, the mufti asks him about his conditions, and applies the legal maxims of undertaking the lesser of two harms and warding off the greater of two evils to this issue. He then pronounces his fatwa permitting the mustafti to consume alcohol despite it being prohibited so as not to perish.
A qadi administers the legal penalty on the Muslim who consumes alcohol but not on one who is forced out of necessity, in which case he orders that the alcohol be thrown away.
Based on the above, it is evident that a mufti informs the mustafti of the ruling on the issue in question; a qadi enforces the ruling, has the authority to incarcerate or exercise ta’zir (disciplinary measures) when an individual does not abide by it and is moreover entitled to execute the legal penalties and oversees retaliation.
The ruling for ifta`
Ifta` is a fard kifaya (collective obligation). It is necessary for Muslims to have recourse to a mufti to clarify the rulings of their religious matters concerning the occurrences they encounter in their day to day lives. Not everyone is competent to undertake this derious task so it is only performed by whoever is qualified for it and possesses the necessary requisites stipulated in Sharia. Ifta` is not deemed fard ‘ayn (individual obligation) because it requires being acquainted with many sciences. Requiring every Muslim to engage in ifta`, would inevitably disrupt the activities and interests of the people since they would then occupy themselves with learning specialized sciences and neglecting other beneficial ones.
Consequently, ifta` follows the same ruling as any other matter deemed fard kifaya. Evidence of its obligation include the words of God the Almighty, "And [mention, O Muhammad], when God took a covenant from those who were given the Scripture, [saying], "You must make it clear to the people and not conceal it." But they threw it away behind their backs and exchanged it for a small price. And wretched is that which they purchased." (Qur`an 3:187) and the words of the Prophet who said, “Whoever acquires knowledge and keeps it concealed, God will bridle him with a bridle of fire on the Day of Resurrection.” |
| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:18 pm | |
| The ruling for istifta` (soliciting a fatwa)
Since it is obligatory to follow the shari'ah rules, it is obligatory for Muslims to seek fatwas on matters for which they do not know. Refraining from seeking the right legal ruling may lead a Muslim to commit something which is unlawful or neglect an obligatory element of an act of worship. Imam an-Nawawi said, "It is obligatory upon the layman to solicit a fatwa upon encountering an occurrence and to know its legal ruling. If he cannot find a mufti in his area, it becomes mandatory upon him to travel, even for long distances, in search of a mufti. Many from among the generation of the salaf (predecessors) spent days and nights travelling to seek the ruling on even one issue."
The status of ifta`
‘Ifta` occupies a great status evidenced by legal texts. God the Almighty says in the Qur`an, "And they request from you, [O Muhammad], a [legal] ruling concerning women. Say, "God gives you a ruling about them." (Qur`an 4:127)
In this verse, God tells His servants that He communicates rulings to them. In principle, a fatwa is from God. During his lifetime, the Prophet assumed that role as a requirement of his message. It is a great honor for a mufti to undertake this task which, in principle, proceeds from the Lord of the worlds. Given that conveying the message and rulings is the role of the master of all creation , a mufti is regarded as the Prophet's successor in elucidating the rulings of the shari'ah.
Ifta` means expositing the rulings prescribed by God the Almighty and applying them on the actions of the human; therefore a fatwa is the word of God. For this reason, al-Qarafi compared the mufti to an interpreter of God’s purport while Ibn al-Qayym considered the mufti a ministerial signatory on behalf of the Lord of the world, which is indeed a great status.
The grand status of ifta`, calls for respecting this weighty duty based on the words of the Prophet, "The most reckless of you in issuing fatwas, is verging to enter Hell-Fire."
In this regard, Imam an-Nawawi said,
"Know that ifta` is the gravest of serious matters, a great responsibility and entails numerous virtues. This is because a mufti is the heir of the Prophets (peace and blessings be upon them), and one who fulfills fard al-kifaya though he is liable to err. For this reason, scholars have said that a mufti is a signatory on behalf of God the Almighty. It was reported that Ibn al-Munkadir said that a scholar is an intermediary between God and His servants, so let him be careful how he mediates between them."
5- The rise of ifta`
It is rightly said that the Messenger of God was the first person in the history of Islam to hold the office of a mufti; he was a Messenger and a mufti who taught people the matters of their religion, conveyed and elucidated the rulings of the shari'a concerning their affairs. The rightly guided Caliphs succeeded the Prophet in this office and performed their role commendably.
After them, the tabi'in (those who were born after the Prophet's death but who were contemporaries of the Companions) took up this task, following their predecessors' methodology. Ifta` and ijtihad reached their peak at the hands of the four Sunni jurists Abu Hanifa, Malik, ash-Shafi'i, Ahmed Ibn Hanbal and others. The increase of novel issues at their time necessitated careful study and the exercise of istinbat. Because these leading imams ranged through the full gamut of possibilities, they codified the sources of ijtihad and left behind numerous scholarly legal texts and books which were used as standard textbooks in the entire Muslim world.
Although both ifta` and ijtihad reached their peak at the time of the four Sunni jurists, ijtihad gradually declined and collapsed after them and scholars confined themselves to taqlid. A call for closing the door of ijtihad was raised to prevent tampering with the rulings of the sahri'a and issuing false fatwas under the pressure of the personal interests of the rulers.
-The Prophet's fatwas and ijtihad
The fatwas of the noble Prophet comprised transmitting God's rulings and conveying His revelation. The Prophet's fatwas encompassed all topics of the shari'a and the different aspects of life; his rulings were general for all Muslims to abide by until the Day of Judgment. When the Prophet exercised his own ijtihad and erred, he would immediately receive a revelation to correct any error. The best evidence to this is God's admonition to His Prophet for accepting ransom to release the war captives from among the disbelievers after the battle of Badr instead of killing them. God the Almighty told him, "It is not for a prophet to have captives [of war] until he inflicts retaliation [upon God's enemies] in the land. Some Muslims desire the commodities of this world, but God desires [for you] the Hereafter. And God is Exalted in Might and Wise." (Qur'an 8:67)
Concerning this incident, the Prophet only exercised his own ijtihad which he based on the general Divine commands of tolerance and forgiveness before the verses of fighting were revealed to him. His fatwa was likewise based on the Muslims' need for financial support and in abidance to the noble manners of forgiveness when having the ability to avenge.
-Ifta` at the time of Companions
The Companions were concerned that the people become too presumptuous with religious opinions without having knowledge and with nothing but following their whims and opinions. The Companions also forbade them from seeking fatwas on hypothetical matters. When 'Ammar Ibn Yasir (God be pleased with him) was asked about an issue, he said, "Has this matter occurred yet?" The inquirer replied in the negative, thereupon he said, "There is no need to bother ourselves with it until it occurs."
When anyone from among the Companions exercised ijtihad on a certain
issue, he would say, "This is my opinion. If it is correct, it is from God. If it is erroneous, it is from my own self and I ask my God for forgiveness."
Regarding fatwa production, the Companions varied from the prolific to the less productive. Generally speaking, the number of Companions, males and females, who issued fatwas was 130 and it was only seven from among them who issued fatwas frequently. These included 'Umar Ibn al-Khattab, Ali Ibn Abu Talib, Abdullah ibn Mas'oud, 'A`isha (the mother of the believers), Zayd ibn Thabit, Abdullah ibn 'Abbas and Abdullah ibn 'Umar (God be pleased with them both). The rest of the Companions were reported to have issued only one or two fatwas.
From among the well-known fatwas of the Companions was one issued by Ali ibn Abu Talib on the duration of a woman's pregnancy which, he maintained, may be only 6 months. His fatwa was in response to an incident involving a married woman who had given birth after 6 months of pregnancy. The woman was brought before 'Uthman ibn Affan (God be pleased with him) who decided to administer the legal penalty for adultery upon her. Ali prevented him from executing the punishment citing God's words, "And his gestation and weaning [period] is thirty months." (Qur`an 46:15)
"The mothers shall give suck to their offspring for two whole years, for him who desires to complete the term." (Qur`an 2: 233)
Ali's fatwa was based on the duration of the nursing period stated in the Qur`anic verse which is 24 months. After deducting the nursing period from 30 months, the remainder is 6 months which is the minimum duration of the woman's pregnancy.
-Ifta` at the time of the Tabi'in
After the death of 'Umar ibn al-Khattab, the Companions spread in the various lands where they attracted a massive following of disciples of knowledge. In Medina, people followed the fatwas of ibn 'Umar and Zeid ibn Thabit; in Mecca, they followed the fatwas of ibn 'Abbas; in Kufa, they followed the fatwas of ibn Mas'oud; in Basra, they relied upon the fatwas of Abu Musa al-Asha'ri and Anas ibn Malik and in al-Sham, they followed the fatwas of Mu'adh ibn Jabal and 'Ubada ibn As-Samit. Each of these Companions taught a large number of would-be scholars which ended with the prominent imams of Islamic Schools of Jurisprudence.
After the middle of the 4th century AH, the role of the mujtahid imams ended and taqlid (blind Imitation) became prevalent. This was reinforced by the disunity of the Islamic state, the spread of fanaticism among the different methodological schools, and the severity of the political rulers whose intimidation caused many judges and muftis to submit to their will. |
| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:22 pm | |
| Elements of the process of ifta`
The process of ifta` comprises three main elements:
The mufti.
The fatwa.
The mustafti.
The mufti
Essential conditions of a mufti
A mufti must:
Be a Muslim; the fatwa of a non-Muslim is invalid.
Be sane; the fatwa of an insane person is invalid.
Be an adult. A Muti has to reach puberty before he administers the office of Ifta.
Have knowledge. It is prohibited to issue a fatwa without knowledge because it includes lying against God the Almighty Who says, "Say (Prophet): the things that my Lord has indeed forbidden are: indecent deeds, whether open or secret; sins and trespasses against truth or reason; associating partners with Allah, for which He has given no authority; and saying things about Allah of which you have no knowledge." (Qur`an 7: 33)
The Prophet said,
"Whoever issues a fatwa without knowledge, will bear the sin of those who follow it."
Specialization:
It is essential for a mufti to have a thorough knowledge of fiqh and its rules and principles. He must have received training at the hand of other senior muftis and be acquainted with the reality and prevalent conditions of the time.
Uprightness:
An upright person is one who avoids what is disapproved by the people in his community. The majority of scholars have maintained that an impious person is not eligible to be a mufti because ifta` includes informing the people of the ruling of the shari'ah and the words of this kind of person are rejected. This view was contested by some Hanafi scholars. They maintained that an impious person may engage in ifta. Ibn al-Qayym as maintained that the fatwa of an immoral person is valid unless he publicizes his immorality or propagates his innovation at a time of widespread and overwhelming immorality otherwise the activity of ifta` is interrupted. It is obligatory to seek out those who are the most upright for a fatwa. If none could be found, then the next in virtuousness and so forth.
-Ijtihad:
It is the effort expended by a scholar to deduct a legal ruling from the considered sources. This does not mean that a scholar must make noticeable effort before each and every fatwa. What it means is that he must have reached the rank of a mujtahid i.e. achieved the prerequisites of ijtihad. Citing ash-Shafi'i, al-Khatib said, "It is prohibited for anyone to issue a fatwa except for a person who possesses knowledge of Qur`an and al- nasikh and mansukh (the abrogated and abrogating verses); the muhkam (definitive and therefore not open to interpretation) and mutashabih (open to more than one interpretation); the interpretation of the Qur`an; those verses which were revealed in Mecca and Medina and the reasons and contexts of their revelation.
It is necessary that his acquaintance with the sunna of the Prophet must be at the same level of proficiency as the Qur`an as he must also be well-versed in Arabic language and poetry and master the linguistic tools necessary for understanding the Qur`an and sunna; he must use them with equity. Furthermore, he must be acquainted with the difference of opinions of scholars in different regions. In addition, he must have the skill of arriving at the correct ruling. If a person meets these criteria, he is eligible to issue fatwas and decide what is lawful and what is not; otherwise he is to refrain from ifta`."
-Aptitude:
A mufti must possess the ability of frequently arriving at the correct ruling as well as accurately derive rulings from the source texts. This requires proper conceptualization of the issues in question. The extent of a mufti's ability to conceptualize the issues presented to him corresponds with his ijtihad. In his book Haqiqat al-Qawleen, al-Ghazali said, "Conceptualizing issues is not an easy matter in itself. An intelligent mufti may be able to issue a fatwa on each and every issue presented to him. However, he will fail to conceive every possible circumstance and detail surrounding each occurrence if this were demanded of him; rather they may never cross his mind in the first place as this is the concern of a mujtahid."
Discernment:
A mufti must be intelligent, vigilant and alert. Ibn 'Abdin said, "He said that some scholars have stipulated a mufti's alertness as a preventive measure against those overwhelmed with heedlessness and forgetfulness. I maintained that this condition is mandatory in our time since it is common nowadays for a person who receives a fatwa to be impudent towards his opponent, claiming to be in the right by virtue of obtaining a fatwa [in his favor], while the opponent is ignorant of the fatwa's content. It is thus imperative for a mufti to be fully aware of people's cunning and deception."
Ibn al-Qayym said,
"A mufti must have the ability to know people's cunning, deception and conditions. He must be cautious, alert and fully aware of their affairs and conditions, supported by his understanding of the shari'a, else he may deviate or lead others astray. In many an instance, the apparent meaning of a mustafti's words is grand though may be deceptive and oppressive at heart. An inexperienced mufti takes the meaning of the mustafti's words as given and rule according to his superficial and niave understanding, while a discerning mufti explores the purport of words and their concealed meanings."
-Non-essential conditions for a mufti
There are some non-essential conditions for a mufti which includes the following:
There is a scholarly consensus that it is not a condition for a mufti to be male. The appeared a number of qualified female Muftis starting with the mothers of believers Ashia.
Scholars have agreed that the power of speech is not an essential condition for ifta`. The fatwa of a mute is valid.
Scholars have likewise agreed on the permissibility of a blind and deaf person issuing fatwas.
-Etiquettes of a mufti
A mufti must abide by numerous etiquettes; they are not limited like the conditions. Some were mentioned by Imam Ahmed who said, "A person must not undertake the office of a mufti unless he possesses five traits. The first is the intention to be sincere to God concerning ifta', otherwise neither he nor his words will gain acceptance. The second is acquisition of knowledge, exercise of patience, and a dignified and calm manner. The third quality is strength in his position and knowledge. The fourth is self sufficiency or else he will be looked down upon. The fifth is knowledge of people [their nature, habits and customs]."
A mufti must also be truthful, knowledgeable, decent, of good repute, of equitable words and deeds, and what he represents externally to others must reflect in his inner self. He must be well dressed and is to follow the shari'ah concerning matters of purity and cleanliness. His rulings must be consistent with the shari'ah; and his own practice must not be contrary to the fatwas he issues. Moreover, he must refrain from issuing any fatwa when under the influence of overwhelming anger, hunger, thirst, exhaustion or moodiness.
A mufti must take the mustafti's circumstances into consideration with regard to the following:
If the mustafti is slow to understand, the mufti must be gentle and accomodating with him. He must be patient both when the mustafti is formulating his question and when he himself is explaining the answer.
If necessary, a mufti must clarify extra legal matters to the mustafti even if they were not mentioned in the question, by way of advice and guidance.
Like a professional physician who asks his patient to avoid certain types of food and gives him other alternatives, a mufti must also give the mustafti alternatives if he forbids him from something he needs.
A mufti is entitled to refrain from answering a mustafti's hypothetical question whose answer is based on ijtihad, by way of informing the mustafti the necessity of asking only about what concerns him and which is of benefit.
Among the etiquettes of a mufti, is facilitating matters for the people, admitting them into the religion of God the Almighty, concealing their secrets and inviting them to follow recognized legal opinions. This is better for them than letting them entirely neglect their religion
-When a mufti makes a mistake
It is essential to put a mufti's error into consideration and seek the reason behind it. An incompetent mufti is blameworthy if he errs. Similarly, a competent mufti errs if he does not exert effort in his research or is hasty at arriving at a ruling. This is based on the words of the Messenger, "God does not take away knowledge by removing it from [the hearts of] scholars, but by their death. So that when no men of knowledge remain, people will take the ignorant as their leaders who, when consulted, will give their verdict without knowledge. They will go astray and will lead others astray."
On the contrary, a mufti is not blameworthy but is rewarded if he errs in spite of his competency and ijtihad. This is analogous to a judge's error of which the Prophet said, "A judge who exercises ijtihad and arrives at the right ruling, earns a twofold reward. And one who exercises ijtihad and errs, earns one reward."
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| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:24 pm | |
| Consequences of a mufti's error and his responsibility towards it
This includes many matters as follows:
The opinion of the Maliki scholars:
"A mujtahid whose fatwa incurs damage and he becomes aware of his mistake, does not bear the responsibility for his mistake. But if he is a muqallid [one who follows the legal opinion of another scholar], he is held responsible if he had issued a fatwa without having the requisite knowledge"
In their well-known opinion, the Shafi'i scholars take another position. Imam al-Nawawi postulated a scenario in which a mufti issues a fatwa which incurs harm upon the mustafti and he later becomes aware of his mistake and that he contradicted the definitive evidences [of Shari'ah]. Abu Ishaq stated that in this case, a competent mufti is held responsible for his error. And if he is incompetent, he is unaccountable for it because the mustafti was negligent in seeking a competent mufti.
The Hanbali scholars maintained that a competent mufti who errs in issuing a fatwa is not held responsible for the consequences of his error though he is held responsible if he is unqualified for fatwa. Ibn al-Qayym analogized this to the case of the unqualified therapist as per the words of the Prophet , "He who practices medicine and is not therein versed, is held accountable." This is considered the overriding opinion because a mujtahid who errs is rewarded for his ijtihad and thus it is unacceptable to be rewarded and held accountable at the same time. Moreover, approving the opinion of holding a mufti accountable for his errors will turn many people away from this task despite being qualified for it.
When should a mufti recants his fatwa and change his ijtihad?
A mufti must recant his fatwa if it becomes apparent to him that he has made a mistake. It is impermissible to acknowledge an opinion which, it is believed, is not from the shari'ah, contradicts it, or is erroneous. In this respect, scholars relied on 'Umar ibn al-Khattab's letter to Abu Musa al-'Ash'ari in which he advised him saying, "After issuing a fatwa, if upon reconsideration you arrive at a different opinion, do not let your original verdict stand in the way of retraction; justice is everlasting and supreme. It is better to retract an opinion than to persist in error."
Following from this is the preponderant opinion that a mufti must not inform the mustafti if he revises his opinion. Al-Qadi Abu Ya'la mentioned in his Kifaya, "It is not incumbent upon a mufti who issues a fatwa based on ijtihad and then changes his verdict, to inform the mustafti of his revision if the latter has already put it into effect."
A mustafti is not to abide by a fatwa in the following cases:
A mustafti must refrain from following a fatwa if the mufti contradicts the primary texts (Qur`an and sunna), consensus or clear analogy even if this involves the separation of spouses or nullifying a sale contract and so forth.
When a mufti revises his fatwa based on ijtihad, the mustafti is not obliged to follow the new fatwa. This is because ijtihad cannot be nullified by another ijtihad.
-Fatwa methodology
A mufti must follow a methodology when issuing fatwas based on the order of precedence of legal evidences. When asked about a certain issue, a mufti must first look for its ruling in the Qur`an; if he cannot find it there he is to look into the sunna; if not, he is to employ qiyas (analogy) until he deduces the ruling he is confident of. It is imperative that the ruling he arrives at does not contravene the consensus.
-The etiquette of a fatwa
The etiquette of fatwa refers to its phrasing and manner of execution. The existence of these parameters determines the validity and efficacy of a fatwa's issuance.
They include:
A fatwa must use clear and straightforward words
The purpose is to avoid any misunderstanding on the part of the mustafti. Scholars have stressed the importance of this condition when issuing fatwas. Al-Bahuti said, "It is forbidden for a mufti to issue words in a fatwa which connote multiple meanings."
A fatwa must not use ambiguous words
This eliminates any confusion on the part of the mustafti. Examples include a mustafti asking about inheritance and the mufti responding with, "It must be divided according to the shares prescribed by Allah, the Exalted be Him." Or the mufti may be asked about 'araya (a sale involving the exchange of fresh dates on the palms against their estimated value for dried plucked dates) and he says, "It is permissible under conditions." It is most likely that the mustafti does not know the conditions of such a sale. On the other hand, it is permissible for the mufti to use sophisticated words when the mustafti is a scholar who can understand the meaning behind the mufti's words and merely wishes to know his opinion.
A fatwa must include evidences and refrences
A mufti would do well to cite the evidence upon which he based the ruling, be it a Qur`anic verse, hadith, or otherwise, and to mention its 'illa (ratio legis) and wisdom behind it; he must not cast the ruling at the mustafti without mentioning any evidence. A ruling communicated with evidence is more likely to be accepted with an open heart and allows the mustafti to comprehend the premises of its ruling. Consequently, the mustafti would most likely follow the fatwa and abide by its ruling.
In many of his fatwas, the Prophet mentioned the evidences he employed. An instance of this is the hadith narrated by Ibn Abbas (may God be pleased with them both) in which he said, "The Messenger of God forbade giving a woman in marriage to a man who is married to her paternal or maternal aunt and said, 'If you do this, you severe your ties of kinship.' " An-Nawawi said, "It is not objectionable for a mufti to mention the evidence in his fatwa if it is a text that is clear and brief."
The fatwa must not assert that it represents God's ruling except if it includes a definitive source text
It is incumbent upon a mufti to refrain from asserting that a fatwa represents God's ruling if the issue involves ijtihad. Scholars have substantiated this position with the words of the Prophet who said, "When you besiege people in a place and they want you to inform them of God's ruling with respect to their situation, do not tell them of it for you do not know whether or not you will match the judgment of God regarding them." This is the opinion of those who regard that the correct ruling lies in either fatwa of scholars with different opinions. It is permissible for the scholar who maintains that the opinion of a mufti who strives to reach a correct verdict is accurate, to say, "This is God's ruling" though this diverges from the preponderant opinion.
A fatwa must be brief
A fatwa must be concise, clear and comprise a comprehensive response to the mustafti's question. A mufti must avoid ineffectual verbosity since a fatwa determines a particular ruling and is not an occasion for exhortations, teaching or authorship.
The above parameters comprise the etiquette of a legal fatwa. The principle in ifta` is the verbal communication of the ruling. It is permissible to put a fatwa in writing, though all care must be taken to avoid tampering and falsification. For this reason, in our present age, a fatwa must be conveyed as an official document issued from a religious authority or institution. According to scholars, any scholar who issues a fatwa must affix his institution's or authority's stamp to the document and take the necessary precautions to prevent any tampering or forgery. |
| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:26 pm | |
| 3 – The stages of a fatwa
A fatwa goes through four essential stages in a mufti's mind before it is issued in the manner the mustafti hears or sees. These are:
-Taswir (conceptualization)
A proper taswir of an issue that corresponds with reality is an essential condition for issuing a correct fatwa. The absence of this condition leads to a fatwa that is not expressive of the reality of the matter. The burden of taswir falls upon the mustafti. Through his questions, a mufti must explore the issue with respect to the four aspects that factor in a fatwa—time, place, people and conditions. It is also imperative for the mufti to take into account the repurcussions and the various situations involved.
The success of a fatwa in fulfilling the objectives of Islamic law, its benefit, and its potential to ward off harm depends upon the extent of the mufti's conceptualization of the question. Al-Ghazali said, "Conceptualization is not an easy matter in itself; an intelligent mufti may be able to issue a fatwa on each and every issue presented to him. However, he will fail to conceive every possible circumstance and detail surrounding each occurrence if this were demanded of him; rather, they may never cross his mind in the first place as this is the concern of a mujtahid."
-Takyif (designation)
This stage involves classifying the issue in question under the relevant categories and furu' (secondary issues) of jurisprudence. For instance, a question may be designated under transactions and not under acts of worship, contracts or under one of its types, or under a new type of transaction [not mentioned in the books of jurisprudence].
This stage paves the way towards the legal ruling on the matter in question. It is the mufti's duty to undertake designation and it requires meticulous study because a mistake may result in the production of an erroneous fatwa. When it comes to takyif, scholars may differ, this being one of the reasons for the differences in fatwa. Preponderating between two different fatwas depends on the strength of evidences employed in each, the depth of the scholar's understanding of prevailing reality, the opinion which best achieves objectives and interests and removes difficulties, all of which constitute the higher objectives of the shari'a.
-Elucidating the ruling
A legal ruling is a statement from God concerning the actions of those morally responsible with respect to iqtida` (something required from God), takhyir (allowing a choice), or wad' (giving stipulations). Rulings are derived from the Qur`an, sunna and scholarly consensus and elucidated through qiyas (analogy) and istidlal (inference). A mufti must have a proper understanding of the Qur`an, sunna, the loci of consensus, manner of qiyas, the meaning of Arabic words, hierarchy of evidences, means of istinbat, as well as a proper understanding of prevailing conditions. He must therefore study 'ulum al-wasa`il wal maqasid (the sciences of means and objectives) such as usul al-fiqh, fiqh, language, hadith and so forth. He must also undergo proper training of ifta` and be pious, God-fearing and act in the best interest of the people.
-Issuing the ruling
In this stage, a mufti applies the ruling which he has arrived at to the reality he has perceived. At this stage, he must ascertain that his fatwa does not encroach upon the objectives of the shari'ah, contravene a definitive text, a unanimous consensus or an established legal maxim. If the ruling violates any of the above, the mufti must revise his fatwa to conform to these conditions.
-Factors determining a change in fatwa
A fatwa differs with a change in time, place, people, and conditions. One cannot object to a change in the ruling of a particular issue consequent to a change in these four aspects. What is meant by rulings here are those which are based on customs and traditions, masaleh mursala (public interests), istihsan (juristic preference) or other secondary evidences. Some scholars consider time one of the aspects that effect change in rulings because it is the vehicle of change of local practices and customs.
Rulings that are not based on local practices and customs as well as essential rulings based on definitive source texts embodying commands and prohibitions, do not change with time, place, or people. Examples include the obligation of prayer, fasting, zakat, jihad, honesty, trustworthiness and so forth.
Ibn al-Qayyim said,
"Rulings are of two kinds. [The first] are those that do not change but remain constant through changes in time, place, the ijtihad of scholars. Examples include the obligation of duties and the proscription of prohibitions, prescribed hudud (legal penalties) and so forth. These are not subject to change or to an ijtihad that contravenes their prescription.
The second kind of rulings change depending on the interests [of the people]. Examples include the hadd of execution for an alcohol addict who was punished on three previous occasions for drinking and commits a fourth drinking offence. Another example is the Prophet's resolve to burn down the houses of those who refrained from observing group prayers. Nothing prevented him from administering the punishment except for fear that it would extend to non-deserving victims from among the women and children. A third example is the ta'zir (disciplinary action) administered by the Prophet which included, in several instances, financial penalties.
Because a fatwa may change with time, place and conditions, the interests of the people with respect to their livelihood and the Here-after are the pillars of the shari'ah. An example of a fatwa that has changed with time and place is the Prophet's interdiction of the penalty of amputating a thief's hand at a time of war. It was reported that in one of the battles, Busra ibn Arta`a found a man called Masdar stealing. He lashed him and did not cut off his hand. He said, "The Messenger of God forbade us from amputating the hands of a thief in battle."
Though this case demanded the administration of one of the prescribed penalties—it was forbidden in battle because it was feared that it might lead to something more hated by God than its suspension or postponement, such as the offender fleeing to join the enemy. A number of scholars have maintained that penalties should not be administered in enemy lands and at a time of famine. Consequently, Umar ibn al-Khattab cancelled the penalty of cutting off a thief's hand during the year of al-Ramada.
A mujtahid, faqih, or mufti cannot practice his work unless he is aware of the reality of the times he lives in and of contemporary occurrences, the political and economic circumstances, and the manners of the people and their livelihoods. He therefore issues a fatwa and employs ijtihad for a certain matter depending on the configuration of facts before him. It is for this reason, the salaf from among the Companions of the Prophet , tabi'in and jurists, would issue their fatwas based on the principle "A fatwa changes with time, place, customs and conditions."
It was on the grounds of this principle that Umar ibn al-Khattab employed ijtihad and sought the counsel of those around him for the issues presented to him and he instructed his provincial judges to do likewise. They would therefore employ ijtihad concerning the matters brought before them and seek the counsel of the people of knowledge and discernment. This established the principle of differences of rulings arrived at through ijtihad due to the differences in environments and regions. It was a necessary consequence of the expansion of the territorial domain of Islam, the dispersion of the Companions therein and the various problems and circumstances of each region. |
| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:30 pm | |
| -Reasons behind change in fatwa
Excogitating the consequences
The actions [of man] are numerous and are either permissible or recommended based on authentic evidences. In certain circumstances, these actions may result in manifest or potential evil. For this reason, rulings are not applied except after meeting the conditions that achieve interest.
Examples include:
The Prophet refrained from killing Abdullah ibn Ubay ibn Saluk, the leader of the hypocrites of al-Medina, in spite of the existence of incriminating evidence against him of plotting with the polytheists against the Muslims, his alliance with them to attack the Muslims, and insulting the Prophet and the emigrants.
Abdullah ibn Ubay said,
"The emigrants are vying with us [in our land]! The example of these emigrants from Mecca is like that of the saying, 'Feed your dog and it will someday eat you! By Allah! When we return to al-Medina, the honored will expel the base!" He further accused 'A`isha of adultery in the incident of "al-ifk". He further said, "Do not support the emigrants until they forsake [the Prophet]." Many of the Prophet's Companions asked him to have this hypocrite killed. Even Ibn Ubay's son, who was from among the righteous of the Companions, approached the Prophet and offered to kill his father. He said, "If you wish to kill my father, command me to do so and I will bring you his head!" However, the Prophet refused and said, "No, let him be lest the people say that Mohammed kills his Companions."
When this hypocrite died, the Prophet shrouded him in his own shirt and prayed [the funeral prayer] over him in spite of Umar's protests. Moreover, the Prophet asked for his forgiveness more than seventy times by saying [the Qur`anic verse], "Whether thou ask for their forgiveness, or not (their sin is unforgivable): if thou ask seventy times for their forgiveness…." [Qur`an 9:80]. The Prophet's aim was to ward off any consequent harm.
-Legislation for a temporary case
'A`isha said, "People from among the Bedouins trickled into the city and the sacrifices were brought in. The Messenger , who had previously forbidden the people to store the meat of sacrificial animals beyond three days, said, 'I only forbade you for the sake of the people who were flocking to the city [for the meat]. [But now] eat, give out in charity and store from it' " [Muslim (3643)]. When 'A`isha asked the Messenger of God about the matter and he told her that the ruling was not permanent but rather temporary.
Al-Qurtubi said,
"If people in need travel to a place during the feast of sacrifice and the inhabitants of the place do not have enough provisions to fulfill the need except for the meat of the sacrificial animals, it becomes mandatory upon them not to store any of it beyond three days similar to the Prophet's injunction to the people of al-Medina. On one occasion, Ali ibn Abu Talib led the people in the feast prayer and then delivered a sermon in which he forbade them from storing the meat of sacrificial animals beyond three days, reminding them of the Prophet's proscription. This was at the time of sedition and Uthman's besiegement, and of poverty and hunger. In a similar manner, some rulings may be issued for a temporary interest. When the interest ceases to exist, the rulings revert to their original status. With the recurrence of the interest, the temporary ruling is reinstated.
-Exceptions made for a necessity
This refers to suspending a ruling with respect to an individual, group or case at a time when it is applied with regard to others.
Examples include:
God the Almighty says,
"Say to the believing men that they should lower their gaze and guard their modesty: that will make for greater purity for them." [Qur`an 23: 30]
The purpose of this Divine injunction is to allow the people to live in chastity. When a person marries a woman without seeing her beforehand, he may be deceived and later regret his choice, making the marriage miserable. For the sake of the continuance of a marriage and the prevention of problems, Islamic law permits a man to look at his bride-to-be. When al-Mughira ibn Shu'ba wished to marry, the Messenger of God told him, "Look at her for this is may generate love between the both of you." Therefore, the exception was made in the context of a potential marriage for the sake of its survival.
-Delaying the application of a ruling
A ruling may sometimes be suspended in certain circumstances to avoid ramifications which may undermine the goal of the Lawmaker. Examples include the narration of Zayd ibn Thabit who said, "Punishments are not administered in enemy lands for fear that the offender join the enemy." Umar is reported to have said, "The leader of an army is not to administer the punishment of flogging upon an offender until the army returns from battle, lest the devil insinuate to him to join the polytheists."
Changing a ruling due to a change in its ratio legis
A ruling is either general or restricted by a ratio legis and changes if its ratio legis ceases to exist or the reason which gave rise to it changes.
Examples include:
The Messenger of God distributed zakat funds among those whose hearts were reconciled to Islam and included them among the deserving recipients of zakat. Some of them were paid zakat to strengthen their faith and others to embrace Islam. This practice continued until the caliphate of Abu Bakr when two men, 'Uyaynah ibn Hisn and al-Aqra' in Habbas, were given [a piece of land] from zakat for the purpose of reconciling their hearts to Islam. When Umar learnt of this, he took the contract from them, spit on it to erase the writing and said, "The Messenger of Allah used to pay you in order to reconcile your hearts [to Islam].
Those were the days when Muslims were few in number. Now Islam no longer needs [support]. Go and do as you please and may God not forgive you if you plough the land." Umar was aware that previously there was a need of strengthening Islam by reconciling the hearts of non-Muslims. But since the Muslims increased in number, the need no longer existed and reconciling hearts ceased to be a necessity. When Abu Bakr learned of Umar's reasoning, the practice of giving zakat to this category of people was abolished, demonstrating that some rulings revolve around an interest and change with a change therein.
Introducing a new ruling
This may be interpreted as restricting a general text or neglecting an apparent meaning. It is a condition that the ruling does not depart from the general principles and texts with regards to gaining a benefit and warding off harm. An instance of this is when Uthman ibn Affan burnt all the transcripts of the Qur`an after he had them compiled in a standard copy.
-Rulings derived from weak hadiths
Some rulings were based on hadiths which were proven to be weak and the likes of which cannot be used as evidence. Therefore, it is possible to issue a fatwa comprising a conflicting ruling. An example includes the report that a woman whose husband is absent, is to wait until she becomes certain that he is either dead or has divorced her.
Ibn Hajar, the hadith scholar, said,
"Its ascription is weak; Abu Hatem, al-Baihaqi, Abdul Haqq and Ibn al-Qattan also declared it weak." Based on the hadith, a woman remains tied to her husband by virtue of the marital bond for the rest of her life, until his peers die, or until his age reaches 70 or 90. This entails certain harm due to forfeiting her right to remarry and to other rights consequent to a husband's death or divorce. The ruling for such a case is not based on proof or authentic evidence. Consequently, in the absence of an explicit text on an issue, a mufti is to deduce a ruling from maxims, the interests of the people and the necessity of warding off harm, and by balancing the possibilities and reaching an applicable ruling.
|
| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:33 pm | |
| -Established rulings derived from personal opinions that have been proved erroneous
It is permissible for a mufti to issue rulings that contravene established rulings derived from erroneous personal opinions if he reckons that such rulings do not serve an interest. This is because the shari'ah comprises the legislations of God and His Messenger have legislated and because the opinion of a mujtahid may be either followed or rejected. Examples of this include what scholars have mentioned about the contentious issue of the maximum period of gestation. Abu Hanifa maintained that the maximum period is two years, while Malik, ash-Shafi'i, and Ahmed maintained that it is four years.
The basic premise of the Hanafi's position is that, through observation, they found that a woman's pregnancy does not last more than two years while Malik and others based their ruling on 'A`isha's report in which she said, "Glory be to God. Who can say this?! This is our neighbor, the wife of Mohammed ibn 'Ajlan; she is an honest woman and her husband is an honest man. She fell pregnant thrice in twelve years, and the period of each pregnancy lasted four years." Had the imams been living in our present times and were acquainted with the opinion of physicians and medical experts, they would have most certainly revoked their opinions. There is no doubt that among the jurists of earlier times, there were some, among who was Ibn Hazm al-Zahiri, who rejected these opinions.
Issue no. 3: The Mustafti
Definition
A mustafti is one who is neither a mujtahid nor a faqih. He may be one who has not reached the necessary qualifications of a mufti or a non-specialist with no knowledge of the various sciences and their branches. He may also be a scholar who has not reached the degree of a mujtahid, or one who has only limited knowledge, is restricted by the legal school of his imam, and is incapable of ijtihad to reach a legal ruling concerning unprecedented matters.
-The ruling on soliciting a fatwa
The ruling on soliciting a fatwa differs according to the differences in people and their conditions as follows:
It is prohibited for a person who meets all the conditions of ijtihad and the requisite qualifications to solicit a fatwa from another scholar. It is a duty upon him to employ his own ijtihad for the issue in question until he reaches a legal verdict on it. It is permissible for him to ask another by way of seeking assistance while searching for a ruling.
A person who does not meet the necessary qualifications for ijtihad, whether he is a layman or a scholar who has not attained the requisites of ijtihad, must solicit a fatwa from another. The obligation for this differs according to people. Based on this, it is necessary for a boy who has attained puberty and is discerning to know the rulings on prayer and the two testifications of faith since these are two of the things that are absolutely necessary for a Muslim to know.
It is disliked to solicit a fatwa about a hypothetical issue except if it concerns an anticipated matter that is likely to occur. An example of this is the question of a person who wishes to become a doctor or a merchant in the future and asks about the ruling on these occupations.
It is permissible for a person for who an obligation is not compulsory to solicit a fatwa about that obligation, such as for instance a poor person asking about the rulings on zakat, pilgrimage, manumission [of a slave], voluntary charity and so forth.
1 The etiquette of a mustafti
It is worthwhile to mention that the following must be observed when the mustafti meets the mufti in person. At present, the means of communication have developed and today, a fatwa may be obtained either on phone, via electronic mail, or posted on websites specialized in issuing fatwas.
A mustafti is to approach a mufti with correct comportment, deference and respect. He is to refrain from positing his question when the mufti is standing and must wait until he sits down. He is not to knock on the mufti's door when he is taking a nap, during the night when he is asleep or when he is resting at his home. Furthermore, a mustafti must refrain from asking for a fatwa if he notices any sign of distress or grief or anything that may preclude the mufti's equanimity and straight thinking. He must wait until these symptoms cease and the mufti regains his composure and placidity. The Messenger of God instructed us not to give two different rulings for a single issue and refrain from adjudicating between two litigants when in a state of anger.
A mustafti is not to ask a mufti,
"What does your colleague say about such-and-such?" or "What do you know about such-and-such?" But he is to say, ""What do you say about such-and-such?" or "What is the fatwa on such-and-such?"
A non-specialist must not ask the mufti for the evidence or proof upon which he based his ruling. He must not ask why or how he arrived at the ruling. God the Almighty says, "Ask the people of knowledge if you do not know." [Qur`an 21: 7] God differentiates between the non-specialist and the people of knowledge and says, "Are those equal, those who know and those who do not know?" [Qur`an 39: 9] Imam an-Nawawi said, "A layman must not ask a mufti for evidence nor must he ask him why he maintains a certain opinion regarding his question. If he wishes to relieve his worry by hearing the evidence, he is to ask the mufti about it another time, in another sitting, or after accepting the verdict from the mufti without evidence."
It is necessary to avoid asking many questions that are not beneficial as it is likewise disliked to ask many questions on matters that are of no benefit in matters of religion or on hypothetical matters. Ibn Abbas told 'Ikrima, "O 'Ikrima! Go out to the people and answer their inquiries. If someone asks about that which does not concern him, do not answer him so as not to burden yourself with irrelevant issues."
The mustafti must be mindful of God and keep Him in mind when positing his question to the mufti. He must not make the mufti a means for something which he knows deep down is legally impermissible. A mustafti may confuse the mufti or mislead him by embellishing words or concealing an element that has a bearing on the designation of the issue in question.
The mufti on his part, is constrained by the formulation of the question because he is not aware of the real surrounding circumstances and background. The mufti would change his fatwa if the issue is presented to him clearly without any falsification or concealment and is made aware of the true circumstances surrounding the matter.
The importance of seeking the right person to ask:
A mustafti must seek out a scholar specialized in legal sciences whose qualifications as a mufti are vouched for by the majority. Al-Zarkashi said, "Verily, [a person is to solicit a fatwa] from one whose knowledge and integrity are known…."
It is recommended that a mustafti overlook any slip or oversight on the mufti's part and is not to turn away from him. Whoever has patience with learning, will acquire knowledge otherwise he will remain ignorant.
A mustafti must not be embarrassed to ask about anything he does not understand; rather he is to ask for an explanation until the matter is fully clear to him. It was said, "A timid person attains little knowledge; the deficiency of a person whose timidity hinders him from asking questions is manifested before others." In the chapter of "Al-Haya` Fil-'Ilm", al-Bukhari quoted Mujahed as saying, "Neither the timid person nor the haughty person will attain knowledge."
A mustafti is to supplicate God for the mufti after he answers his question.
The mustafti must not be inquisitive; he is not to ask about the mufti's personal affairs.
A mustafti must be honest when formulating his question because a mufti's response is determined by the apparent meaning of the question, otherwise, he must not follow the mufti's ruling. A mufti has no knowledge of the circumstances or reasons at the bottom of the matter; had he been made aware of them he would have issued a different verdict. The Prophet said, "Whosoever has received a ruling against the right of his brother, should not follow it because I would then be giving him a portion of Hell-Fire." |
| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52575
العمر : 72
| | موضوع: رد: The craft of Issuing Fatwas الجمعة 13 أغسطس 2021, 6:36 pm | |
| 2 When there is more than one mufti
The majority of scholars have maintained that when there is more than one qualified and upright mufti, the mustafti may approach any of them and follow his opinion. It is not obligatory upon him to seek out information about a mufti's scholarly reputation. It is permissible for him to put his inquiry to the best of them if he wishes and if he so wishes, he may forgo the best and ask a less qualified scholar. They based their opinion on the precedence of the early Muslims who put their inquiries to some of the less knowledgeable from among the Companions instead of asking those with superior knowledge and virtue while they had the opportunity.
If a mustafti posits his question to more than one mufti and receives the same ruling, it is obligatory upon him to follow that verdict if he is comfortable with their responses. Jurists have two opinions regarding an instance when several muftis issue different rulings for one issue. In one of them, the majority of scholars from among the Hanafis, Malikis and some from among the Hanbalis, ibn Surayj al-Sam'ani and al-Ghazali from among the Shafi'is have maintained that in such an instance, a non-specialist, does not enjoy the privilege of choosing from among the muftis' opinions by following the verdict he likes and rejecting the ones he does not like; rather he is to preponderate among them. Most of these scholars then said that a non-specialists' preponderance should be based on his confidence of a mufti's knowledge.
3 The extent of a mustafti's obligation to follow a fatwa
A mustafti must follow legal rulings. The fatwa issued by a mufti may or may not coincide with the legal ruling which a mustafti is obliged to follow. Consequently, the fact that a fatwa is issued by a mufti does not make it binding.
This is the principle. However, a ruling becomes binding in the following conditions among others:
A mustafti must follow an agreed upon ruling since it is not permissible to contravene scholarly consensus.
When the solicited mufti is the most knowledgeable and trustworthy.
When two litigants seek the opinion of a faqih over a right, they must follow his verdict. If at a later time, they resort to the court and the judge issues a different verdict, they are to privately follow the faqih's verdict and openly follow the judge's verdict. This is the opinion of al-Sam'ani. It was also said that, in such a case, the litigants must follow the judge's decision both openly and privately.
When a mustafti approaches a faqih for a legal ruling for a particular issue and follows his opinion, he must continue to abide by it. If he subsequently asks another on the same issue and receives a different ruling, it is not permissible for him to reject the first ruling but must continue to follow it. Al-Hindi and ibn Hijab conveyed the consensus scholarly consensus.
-Criteria for legal interest
Interest, independent of legal evidences such as the Qur`an, sunna, scholarly consensus, and qiyas, is not considered proof in itself such as to build juz`iyat (specific legal rulings) solely on it. Rather, it is a universal conception derived from the entirety of the rulings on juz`iyat, which in turn, were deduced from legal evidences, when existent. Whoever examines the rulings of juz`iyat, will observe that they share a common universal element, which is the goal of considering the interest of the people with regards to their religion and the Here-after.
In legislation, it was imperative to take into consideration the public interest by setting certain criteria determining its universal meaning on the one hand while tying it to specific evidences of rulings on the other. The aim is to effectuate a congruence between the universal and specific injunctions.
The most important criteria considered by Islamic law include:
The inclusion of maslaha in maqasid al-Shari'ah (the objectives of Islamic law) which comprise the daruriyat (essentials), hajiyat (complementarities) and tahsinat (embellishments).
A maslaha must not contravene the Qur`an.
A maslaha must not contravene the venerable sunna.
A maslaha must not contravene qiyas.
A masslaha must not forfeit a more important maslaha or one of corresponding importance.
The scale of measuring the importance of interests are as follows:
Considering the value of a maslaha with respect to its essence and order of precedence.
Considering a maslaha with respect to the extent of its comprehensiveness.
Considering a maslaha with a view to promoting one with certain results in lieu of one with uncertain results.
-Facilitation in fatwa
This does not mean making lawful what is prohibited when there is a necessity or issuing a fatwa to neglect a duty as this is tantamount to not only a deviation from taklif shari'i (religious obligation) but to departure from religion. Facilitation in fatwa means that a mustafti may ask about matters that revolve around any of the following
Voluntary actions; or
rulings consisting alternatives prescribed by the Lawmaker, depending on the mustafti's circumstances; or
rulings forbidding certain matters which are difficult and beyond the mustafti's capabilities so as to preclude boredom or the ability to follow them.
An instance of facilitation in fatwa is when the mufti sees a way out of a problem for the mustafti without transgressing the limits of the shari'ah, in which case he issues his fatwa accordingly. It was reported that the Messenger of God appointed a governor for Khaybar. The governor brought him Junib dates (among the best kinds of dates). The Messenger of God asked him, "Are all the dates of Khaybar of this kind?" The governor replied, "No, by Allah! O Messenger of Allah, we exchange one sa' of this kind (Junib) for two of another and two sa's of this kind for three of another." The Messenger of God said, "Do not do this anymore. Sell al-jam' (dates inferior in quality) and with the money, buy Junib dates" [Al-Bukhari (2050)].
-Elements of contemporary ijtihad
One of the reasons behind making a mistake in a fatwa is a lack of an adequate understanding of the reality of the times in which both the mufti and the mustafti live in. Some people issue reckless fatwas on modern transactions.
Consequently, they either prohibit or make unlawful a transaction without understanding or studying it thoroughly. No matter the extent of a mufti's knowledge of the source texts and evidences, this is not enough unless this knowledge is supplemented with a proper and clear understanding of the reality of the times he is living in.
In pragmatic reality, issuing a fatwa goes hand in hand with exercising ijtihad in matters involving mishaps and catastrophes. Exceptions to this are the categorical rulings of God the Almighty such as when one asks about the greatest verse in the Qur`an, the response to which is the verse of 'the throne' because this was explicitly mentioned by the Prophet.
If fatwa has reached the epitome of efficacy in the C7th and C8th AH,
Source:
https://www.dar-alifta.org/Foreign/ViewArticle.aspx?ID=77&CategoryID=3
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