Sources of authority: The making of fatwas in practice, and by tradition, is a collective process of adapting change to Islam

By Sheikh Gamal Qotb

Deliberate and malicious fabrication and haphazard and unsubstantiated sourcing have combined to generate a dangerous profusion of misinformation in the world of satellite networks and other media. The phenomenon is especially apparent in the field of Islamic studies and in Islamic jurisprudence in particular. The process of issuing fatwas (religious decrees) is a case in point.

To clarify the confusion surrounding the fatwa one must address the following questions: What is a fatwa ? How did it arise historically and how important is it? Is the promulgation of fatwas an individual or institutionalised process? If the latter, is there a single institution or are there several involved? What is Egypt’s experience in this regard over the centuries?

While the fatwa is one of the features of Sharia or Islamic law it intersects with diverse disciplines, as it can embrace everything from canonical law to conditions and changes in contemporary society. The fatwa is commonly perceived as a means to answer important questions or to solve problems. In fact, it is a legal mechanism to bring realities under the rule of Islamic law, but without deception or excess, as one must neither disregard the spirit and text of the law nor ignore the conditions and circumstances of reality.

The promulgation of fatwas, thus, is one of the sources of Sharia and, as such, involves the study of the diverse sciences connected with Sharia — the Quran and the Prophetic Hadith. The mufti must therefore be versed in the Islamic system of beliefs connected with the scope of faith versus heresy; the body of Islamic legal provisions defining what is lawful and what is sinful; the Islamic value system delineating the scopes of desirable and abhorrent behaviour; the Islamic methodological system for identifying the scope of right and wrong; the Islamic vision of the relationships between the divine, life and mankind; the spirit of Sharia, which must not be transcended; the divine laws of reason and revelation with which the mufti must also seek to conform.

If the foregoing are some of the sciences required for the maturity of the fatwa process, the following disciplines are also prerequisites for sound judgement. First, the jurisprudence of reality: awareness of the environment surrounding the subject under consideration and of the difference between this and the Sharia ideal. Second, the jurisprudence of priorities: the ability to distinguish between and order things in accordance with their relative importance. Third, the jurisprudence of consequences: the ability to assess the affects of a fatwa and the extent to which these will conform to the tenets of Islamic law. Fourth, the jurisprudence of fatwa legacy: the ability to take guidance from precedents that are right and appropriate and to avoid those that are inconsistent with fundamental principles and tenets.

Since all of the above comprise the very least with which any fatwa -issuing authority should be endowed and since it is difficult to find all of these fields of knowledge and expertise in a single individual, we frequently find that any discussion of the principles of jurisprudence revolve around how difficult the proper exercise of legal judgment is and how rare the general jurist is, if such an individual exists at all.

But no definition of the fatwa process is complete without taking into consideration two important values. The fatwa is an excellent instrument for the management of social crisis. However, those empowered to issue such decrees must not act independently. Indeed, they are legally bound to consult others, specifically specialists in fields relative to the problem in question, be it economic, social or political, in order to devise the best possible solution.

Second, the fatwa process, from its initiating phase through its consequences is an instrument for shaping the future, in view of the changes it produces on the ground. To illustrate the difference between general jurisprudence and the promulgation of a fatwa, let us take for example the evening prayer. It is generally established that evening prayers require four prostrations to be performed at prayer time. However, fatwas permit exemptions for certain individuals: people who are travelling or who are ill may reduce the prostrations to two; people who are excessively weary from travelling or very ill may reduce the prostrations or not perform the prostrations at all; those who have no access to water may perform their ablutions with sand.

In the event of inclement weather, the prayer may be performed in the home. The very ill or incapacitated my perform the prayer from a sitting position, or lying down and by merely moving the lips or by gesture or by whatever means possible to evoke the sense of prayer. In severe cases, such as coma, the worshipper is exempt from the duty to pray until he or she recovers consciousness and from the need to compensate for the prayers missed while thus incapacitated.

Such differences between the abstract provisions of Islamic law and application underscore the need to comprehend reality quantitatively and qualitatively. In the preceding example, for instance, medical experts or similar specialists are needed in order for the individual issuing the fatwa to be able to exercise sound judgment in light of the facts.

However, another example is needed here in order to underscore certain boundaries and risks to the fatwa in areas where it is possible to exercise independent judgement and general jurisprudence — a fatwa applied to all segments of the community. One recalls how sharply opinion has diverged over one of the most prominent symbols of our age: allegiance to the nation and the willingness to die in defence of its dignity and honour. Clearly, this is a humanitarian principle to which all contemporary societies subscribe, including ours. However, to decree jihad and translate this into preparation for war and then to escalate this from a defensive to an offensive drive are decisions that cannot be left solely to political or military authorities. This is because these authorities are essentially specialised instruments for assessing a current reality, available options, and the possible consequences of these options together with all other — political, economic and military — forces in society.

Based on the assessments of these forces, the religious authority empowered to issue a decree of war must clearly establish: At what point have all political, diplomatic, economic, media and other peaceful alternatives been exhausted, leaving recourse to military force as the only available alternative to repel aggression? At what point does it become permissible to take up arms against an enemy? To whom, exactly, does the term “enemy” apply; to the invading forces or to civilians assisting the invasion? Which foreigners can be relied on in each instance?

The history of the fatwa and ijtihad (creative enquiry in religious sources) is as old as Islam itself. Justification for this practice is to be found in the Quran itself, in the following Quranic verses: “They ask thy instruction concerning women. Say God does instruct you thus … ” ( Women, 127) and “They ask thee for a legal pronouncement. Say God decrees to you thus on those who leave no descendants as heirs.” ( Women, 176).

The Quran and the Sunna, then, not only establish the right of the Prophet to issue fatwas, but also to authorise some of the Companions, whether in his presence or not, to do likewise, in accordance with established principles and procedures of jurisprudence.

In the legacy of the Muslim nation there has always been a clear distinction between two levels of ijtihad, or the exercise of reasoned judgment, to determine a fatwa. The first pertains to the daily lives of individuals, whether in the performance of their religious rites or in their dealings with others (in the adjudication of disputes, for example). The most familiar and widely practiced form of the process, it is performed by the individual mufti. The second level pertains to decisions affecting the welfare of nations and societies at large. For such strategic concerns, Sharia stipulates additional instruments that entail a broader array of knowledge and expertise and that bring into play the concept of consensus. As such, the process transcends doctrinal confines and the scope of the individual mufti to the level of pure ijtihad, which necessitates the reaching of a unanimous opinion amongst both teams (specialists in the relevant fields and religious scholars) involved in the decision-making process.

The foregoing distinction spares us the need for further discussion on the question as to whether the promulgation of fatwas is an individual or institutionalised process. Clearly, the latter is an imperative in matters pertaining to public affairs related to the stability of the nation, public security and questions of affiliation and allegiance to the nation. Nevertheless we must stress two important points in this regard. Firstly, institutionalised ijtihad must be academically specialised and functionally distinct. Secondly, the institution must be an autonomous whole and an integral part of the religious establishment so as to ensure its continued reliability and credibility. So the fatwa process has remained across the historical and geographical span of the Islamic world. From the age of the first four Caliphs to the end of the 18th century, it has remained an academic discipline and a functional specialisation within the religious establishment that, in turn, remained an autonomous institution separate from the office of the chief of state.

In Egypt, this phenomenon was epitomised by Al-Azhar, the authority in charge of all disciplines and functions related to the preservation and promulgation of the faith for more than 800 years until Mohamed Ali assumed power as the governor of Egypt in 1805. These eight centuries of history affirmed both the power of the Egyptian state and the strength of its people’s allegiance to the state, as evidenced in their ability to repel the invasions of the Crusaders and the Tartars. The power of this cohesion lasted into the 19th century, through the defeat of the Napoleonic expedition, which so riled the centres of colonialist power and Christian evangelism as to galvanise them in the study of the sources of stability of the Egyptian state. When they realised that the primary source of stability resided in the loyalty of the people which derived its strength from their faith in the credibility of Al-Azhar as a bastion of the credibility of the state, they encouraged Mohammed Ali and his successors to dismantle the religious establishment, ostensibly to protect their power on the throne, in the hope that this would leave the state exposed to European designs.

Mohamed Ali and his successors sustained this hope and began to relentlessly strip the religious establishment of its authority and prestige. This period brought about the official separation between the posts of Sheikh of Al-Azhar (head of the religious establishment) and the Grand Mufti. The last persons to serve in this dual capacity were Sheikh Al-Abbasi and Hassouna Al-Nawawi. Thereafter, the role of Al-Azhar in public affairs drastically dwindled, with the ultimate effect of eroding the confidence of the public, which had long taken its cue from Al-Azhar, in the government’s policies.

The appointment of a man with as high a stature as Mohamed Abdu (regarded as a figurehead of enlightenment) as mufti of Egypt represents another landmark in the government’s drive to reduce the influence of Al-Azhar. However, the simultaneous proliferation of the press gave rise to a new arena for influencing the public, which affected Al-Azhar much less than it did the prestige of the government. In this page in the history of the fatwa, which is heavily documented in the press, government records and Al-Azhar archives, one finds many sources for bitter amusement.

If by the 20th century, Al-Azhar had been effectively sidelined from the realm of public affairs, the post-revolutionary period would bring about an even further reduction in its scope of jurisdiction. In 1956, the revolutionary government abolished the system of religious courts, leaving the mufti without a structural edifice for his office. Nevertheless, for the sake of form, the government retained this office and issued several decrees defining its functions. These were little more than: to review death sentences pronounced by the criminal courts (as the government was not bound by the opinion of the mufti, the purpose here was solely to secure a religious legitimacy for the penal code); to pronounce the sightings of new moons marking the beginning of the months of Ramadan and Shawal.

Does anyone still doubt the need to restore religious affairs to the authority of Al-Azhar, and to revive the prestige and autonomy of that venerable institution? Would this not help resuscitate the hopes and confidence of the people? Or is confusion in the media and perhaps also in mosques to remain a harbinger of worse ills looming on the horizon?

* The writer is former head of Al-Azhar’s Fatwa Council.