AUTHOR: Dr. Mohammad Qatanani
Definition of Fatwa: It is the issuance of a non-binding Islamic legal ruling, aided by evidence, by one qualified to do so, in response to a question regarding a particular case.
Definition of Islamic Legal Ruling (al-Hukm ash-Shar’i): Islamic Law’s address relating to the actions of legally responsible individuals through a command, option or declaration.
A Fatwa is different in some ways than a judicial decree (Qada’) or an issue regulated by law, especially in that a Fatwa is a non-binding decree.
For those qualified, issuing a Fatwa is a community obligation (Fard Kifaya); it is incumbent upon one who’s capable to answer a questioner. The Mufti should never be keen on issuing a Fatwa; he should limit it to necessity.
Since it is a community obligation (Fard Kifaya), if a Mufti doesn’t issue a Fatwa, the larger body of scholars is required to issue a Fatwa. Consequently, the fiqh councils fill this role for the Ummah and remove the blame and burden from the shoulders of individual Muftis.
Asking the people of knowledge is a requirement upon everyone who needs religious guidance and needs to know the status of his actions, statement and transactions.
It is a requirement upon one seeking a Fatwa to seek a Mufti with confirmed uprightness (‘Adala), God-consciousness (Taqwa), religious precaution (Wara’) and knowledge. It is not permissible to follow the opinions of one who isn’t qualified to issue a Fatwa or is known to take it lightly. Fatwa should not be sought from one who doesn’t give its due right in terms of verification or is known to follow whim or to have bad intent.
It is prohibited to issue a Fatwa without knowledge. It is essentially lying upon Allah and wrongfully speaking on His behalf.
قل إنما حرم ربي الفواحش ما ظهر منها وما بطن، والإثم والبغي بغير الحق، وأن تشركوا بالله ما لم ينـزل به سلطاناً، وأن تقولوا على الله ما لا تعلمون
Say, “My Lord has only forbidden immoralities – what is apparent of them and what is concealed – and sin, and oppression without right, and that you associate with Allah that for which He has not sent down authority, and that you say about Allah that which you do not know.” (7: 53)
The Prophet ﷺ said,
“Whoever is given a Fatwa that has no basis, then his sin will be upon the one who issued that Fatwa.”
Imam ash-Shatibi said,
“The Mufti has taken the position of the Prophet ﷺ in the Ummah, clarifying the rulings of Islamic law to people, saying ‘This is halal’ or ‘This is haram’.”
The Mufti is entrusted upon the religion of Allah and His law, and he is filling the role of the Prophet ﷺ; he is the inheritor of the Prophet ﷺ and his vicegerent for later generations.
The Prophet ﷺ said,
“The scholars are the heirs of the Prophets. The Prophets have not bequeathed a dinar or dirham; they only bequeathed knowledge, and he who acquires it, has in fact acquired an abundant portion.”
وَمَا كَانَ الْمُؤْمِنُونَ لِيَنفِرُوا كَافَّةً ۚ فَلَوْلَا نَفَرَ مِن كُلِّ فِرْقَةٍ مِّنْهُمْ طَائِفَةٌ لِّيَتَفَقَّهُوا فِي الدِّينِ وَلِيُنذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ
And it is not for the believers to go forth [to battle] all at once. For there should separate from every division of them a group [remaining] to obtain understanding in the religion and warn their people when they return to them that they might be cautious. (9:122)
It is incumbent upon the Mufti to have forbearance; he should never hasten to issue a Fatwa. Verification entails that the Mufti does not respond until after examining and researching the issue, classifying its components, weighing its factors and comparing its evidences. He should not issue the Fatwa until he confirms his conclusions.
It is required upon the one seeking Fatwa to observe proper etiquette in presenting the question and seeking knowledge. Some of these etiquettes are as follows:
- The questioner should not undermine the process of Fatwa, and he should observe precaution for his religion.
- The questioner should confirm the credibility of the Mufti. He should ask the one he presumes is most knowledgeable and most pious. The best indicator of this would be prevalence of reputation.
- The questioner should be vigilant of his intention. The intention should be focused on learning the ruling of Islamic law and adhering to it.
- The questioner should be trustworthy in presenting the issue and should remove any notion of whim.
- He should avoid questions that are fruitless and unactionable.
- He should be respectful to the Mufti and should observe reverence for the knowledge he carries.
- He should be wary of raising his voice or arguing.
- It is prudent for the questioner to also be considerate of the condition of the Mufti, taking note of his illness, exhaustion or ill-temperament. Accordingly, he should select the best time to present his question.
- He should pray for the one he’s seeking a Fatwa from before and after, praying that Allah grants him Tawfeeq and precision.
- When multiple Muftis give him varying rulings regarding one issue, it is incumbent upon the questioner to follow the Fatwa of the most knowledgeable and credible.
- If – for some reason – he is uncomfortable with the Fatwa that he received, it is incumbent upon him to search for other answers for the sake of his faith.
- He should not accept a Fatwa that he knows to be aberrant because a Fatwa or judicial verdict does not allow what Allah has prohibited.
The Prophet ﷺ said,
“So he whom I, by my judgment, (give the undue share) out of the right of a Muslim, I give him a portion of hellfire, so he may burden himself with it or abandon it.”
- It is prudent that the questioner presents the question himself. He can choose to send someone reliable who will accurately convey the issue and the response.
There are several requisites that must be present in the Mufti. Some of them are as follows:
- He must be upright (‘Adl), God-conscious, void of any elements that would lead to Fisq and free of any characteristics tainting chivalry (Khawarim al-Muru’a).
- The Mufti needs to know the criteria for Ijtihad and have the ability to derive legal rulings from the recognized evidences.
- The Mufti needs to have an abundance of intelligence and shrewdness.
- He needs to be alert, emotionally intelligent and clear-headed.
- He should be a person of intentions, knowledge, character, reverence and tranquility.
- It is incumbent that he is also strong in his area of focus, independent and that he has a deep understanding of people.
- He should also be willing to consult other scholars and experts in any need that may arise.
Islamic law is based on a clear and transparent methodology that is known to specialists and to the general public. This methodology is regulated by principles, maxims and axioms expounded by erudite scholarship throughout the history of the Islamic legal tradition.
Allah has preserved the Ummah from unifying in error or unifying upon falsehood. This blessing has not been given to any other Ummah or system of law. The Muslim Ummah is protected from collective deviance; made upon a straight path, a balanced methodology void of deviance and extremism.
This methodology is affirmed and inspired by Allah’s words,
وَكَذَٰلِكَ جَعَلْنَاكُمْ أُمَّةً وَسَطًا
And thus we have made you a just (Wasat) community (2:143)
The term “Wasat” mentioned in the verse, linguistically refers to the goodness of a person or people. In Arabic, it is said ‘He is from the Wasat of his people’, meaning, among the most noble, just and shrewd.
The Qur’an uses the term in the same manner. Allah says,
The most just, noble and shrewd among them said…(68:28)
Allah also says,
حَافِظُوا عَلَى الصَّلَوَاتِ وَالصَّلَاةِ الْوُسْطَىٰ وَقُومُوا لِلَّهِ قَانِتِينَ
Maintain with care the [obligatory] prayers and [in particular] the middle prayer (2:238)
A balanced methodology in understanding and practicing Islam comprises the following:
- Believing that the Qur’an & authentic Sunnah are the sources of legislation and guidance.
- Understanding the comprehensive and timeless nature of Islam’s guidance.
- Understanding the merit of actions and rulings and giving every matter its proper status in accordance with the Fiqh of Priorities.
- Believing that Shari’ah has come to achieve worldly and otherworldly interests (Masalih) and believing that it came to establish justice and mercy between people.
- Balancing between commitment to Islamic tradition (Asala) and relevance to modern day dynamics (Mu’asara) and believing in the concept of reviving Fiqh (Tajdeed) and Islamic legal discretion (Ijtihad) in accordance with the principles of Source Methodology (Usool al-Fiqh).
- Balancing between the constants (Thawabit) and the variables (Mutaghayyirat) of the modern day.
- Believing in Islam’s moral corpus and its fundamental values.
- Adopting the methodology of ease (Tayseer) in Fiqh and Fatwa.
- Developing religious discourse in accordance with the universal nature of the message.
- Believing in the Fiqh of gradual presentation of the message in Da’wah, education, Fatwa and change.
- Affirming the call to balance between materialism and spiritualism, religious devotion (rabbaniyya) and care for humanity and emotion and reason.
- Calling to peace alongside likeminded individuals, while upholding the rights of individuals and groups to enjoin good and forbid evil, and to support truth and stand against oppression by all means allowed by Islam and by law.
- Recognizing the rights of religious and ethnic minorities and dealing with them according to Islam’s requirements.
- Respecting intellect and critical thought; calling to observation and reflection; solidly gathering between text and reason.
- Calling to fundamental human and social values like justice, consultation (Shura), freedom, dignity, human rights and impeccable dealings with all human beings.
- Emphasizing the dignity, the status and the rights that Islam has established for women.
- Focusing on the family unit in regard to it being the first pillar in establishing a righteous society.
- Respecting the right of nations to self-determination and the right of the masses to appoint strong and trustworthy leaders without their will being defrauded.
- Strengthening the economy of the Ummah and working toward its financial independence.
- Believing in the concept of the “Muslim Ummah” and believing in the obligation of unity and camaraderie between believers regardless of varying ideologies and schools.
- Assuming the best of all who annunciate the testimony of faith and pray to the Qiblah (Direction of prayer) as long as they do not do something in clear contradiction.
- Giving special attention to Muslim Minorities across the globe and considering them a part of the Muslim Ummah while recognizing the Ummah’s responsibility to assist them to live according to Islam in their societies.
- Believing in religious and ethnic identity and cultural and political pluralism and the necessity of coexistence between different civilizations and working together for the best interest of humanity and its future.
- Giving special attention to establishing civilization and affirming comprehensive development of human and material capital and caring for the environment.
- Encouraging the agents of positive change to stand against backwardness and corruption with wisdom and good advice.
- Working toward unifying the efforts of scholars and religious leaders.
- Respecting legitimate scholarly disagreement (Ikhtilaf) and opening the channels of communication with people while respecting their beliefs and opinions.
- Benefiting from our great Islamic legal tradition[xii] while recognizing that it isn’t infallible; valuing it, not sanctifying it; taking from it or rejecting in accordance with the established principles, while honoring religious scholarship and assuming the best and praying for them.
The previous section highlighted the hallmarks of a balanced methodology to understanding and practicing Islam. This section highlights the guidelines to a balanced methodology in Fatwa:
- Adopting the methodologies of the rightly-guided erudite scholars of the past whom the Ummah – by consensus – has recognized for their scholarship in Fiqh, Source Methodology and deriving rulings. Additionally, analyzing their legal discretion (Ijtihad) and opinions according to the rules of weighing evidences (Tarjeeh). Finally, aberrant (Shadh) opinions must be avoided, and the definition of aberrance (Shudhoodh) must be delineated.
- Regarding the Qur’an and Sunnah as the two main sources of legislation for Fiqh and Fatwa. Additionally, Qur’anic Sciences, Hadith Sciences, the Principles of Qur’anic Exegesis (Tafseer), the Sciences of Arabic Language and Arabic Rhetoric must all be regarded in accordance with the principles of each science. Finally, it is essential to analyze the opinions of the commentators of Qur’an Exegesis and Hadith and the Jurists (Fuqaha) and select what bears greatest resemblance to the spirit of legislation and the Greater Objectives of Shari’ah.
- Adopting the Principles and Greater Objectives that the scholars have agreed upon and selecting the most authentic of what they’ve said about the rules of weighing evidences (Tarjeeh) and adopting that in Fatwa and Tarjeeh.
- Adopting the methodology of ease (Tayseer) in Fatwa and employing the principle of “Removing Hardship” (Raf’ al-Haraj) with regard to it being a greater objective of Shari’ah.
- Requiring that the Fatwa is in accordance with the Principles and Greater Objectives of Islamic Law.
- Adopting the principles of Ijtihad that are agreed upon or upheld by the majority of Jurists (Fuqaha) and scholars of Source Methodology (Usool al-Fiqh). These principles are as follows:
- Consensus (Ijma’) must be followed and cannot ignored. The well-known principle states: “Their consensus is definite proof, and their disagreement is a source of great mercy”. That being said, it is necessary to confirm the claim of consensus and to investigate whether the legal cause (‘Illa) for consensus is a constant or a variable.
- Following the secondary evidences, whether agreed upon or disputed, to issue rulings on matters that haven’t been addressed by a clear text. The most significant of these secondary evidences is Analogical Deduction (Qiyas) – which is agreed upon – and Societal Customs (‘Urf), Public Interest (Istislah), Juristic Preference (Istihsan) and Blocking/Opening the Means (Sadd adh-Dhara’i or Fath adh-Dhara’i). Additionally, there are other sources used to derive rulings that must be considered.
- Employing the Fiqh of Maqasid when issuing or applying a Fatwa.
- Employing the Fiqh of Context (Fiqh al-Waqi’) before issuing a ruling with regard to it being necessary in properly characterizing and classifying a case. In this regard, experts must be consulted in assessing the context.
- Employing Fiqh at-Tanzeel, which refers to a mode of legal reasoning known as Tahqiq al-Manat. This would be used as a means to confirm the correct application of the ruling to the context.
- Employing Fiqh al-Muwazanat, which refers to the legal comparison of interests (Masalih) and harms (Mafasid) when issuing a Fatwa.
- Examining the Fiqh of Outcomes (Ma’alat) in recognition that the issuance of rulings is interconnected with the outcomes.
- Employing the Fiqh of Siyasa Shar’iyyah, which refers to matters of governance in Islamic law, the consideration of public interest and the separation of roles in terms of Islamic governance and the functions of the head of state and a Mufti and a Judge.
- Employing the Fiqh of Exceptions.
- Employing the Fiqh of Gradual Application and considering the conditions of legally responsible individuals when issuing a Fatwa.
- Renewing a Fatwa whenever its causes change and following the Fiqh of Constants and Variables.
- Adopting the Principles and etiquettes of the Fiqh of Disagreement
- Adopting a balanced methodology in change and in the Fiqh of Enjoining Good and Forbidding Evil and the Fiqh of Jihad and the Fiqh of Da’wah.
- Setting the foundation for the Fiqh of Minorities and the Fiqh of Coexistence and Dialogue and working toward cooperation between civilizations. The unique circumstance of Muslims in the West necessitates new Islamic legal discretion (Ijtihad) on many issues and constant review of changing circumstances.
- Engaging our inherited legal tradition in a healthy way that entails critical examination, not blind following.
- Avoiding extremism to the schools of jurisprudence (Madhahib)
- It is necessary when issuing a Fatwa to differentiate between established principles and variables and special circumstances. It is also necessary to clarify if the Fatwa is based on a changeable legal cause (‘Illa) such as a viable interest (Maslaha), societal custom (‘Urf) or changeable circumstance that is subject to time, place and individuals. It must also be emphasized that the Fatwa must change if its legal cause has changed.
- The scholars have listed the following reasons as causes for changing a Fatwa:
- Change of time
- Change of circumstance
- Change of location
- Change of societal customs
- General Hardship (‘Umoom al-Balwa)
- Necessity (Daroora)
These are the most important guidelines in Fatwa Methodology. For more detail, the original research paper can be consulted as well as the known works of the scholars in this field.
I pray Allah confers upon us His love, pleasure and acceptance
 Reference “Hashiyat ibn ‘Abideen”, “Ash-Sharh al-Kabeer”, “Sharh Mukhtasar Khaleel” and “Tuhfat al-Hukkam” by Muhammad ibn Ahmed Manara al-Maliki.
 “Irshad al-Fuhool” pg. 6; “Minhaj al-Wusool” pg. 4; “Mukhtasar ibn al-Hajib” pg. 33.
 The Arabic word used for command is “Iqtida’”, which means ‘to make a request’. This request is either a request to do or to abstain, and in both cases, it is either augmented or not. Thus, the word “Iqtida’” (i.e. command) includes four categories.
 The word “Declaration” refers to al-Hukm al-wad’i. This relates to the rulings that are causes, requisites or preventers or describing a ruling as valid, invalid, a dispensation (rukhsa) or original ruling (‘azeema).
 Reported by Imam Ahmad and Ibn Majah.
 “Al-Muwafaqat” by Imam ash-Shatibi 5/252
 Reported in “Sunan Abu Dawud”, “Sahih ibn Hibban”, “Sunan ad-Darimi” and “Sunan at-Tirmidhi”. Imam al-Bukhari made it a title of a subsection in his compendium, stating, “And the scholars are the heirs of the Prophets”.
 Bukhari and Muslim
 Fisq generally refers to non-adherence to Allah’s commands, and it is the opposite of uprightness (‘Adala). The scholars of Fiqh specifically define it as committing major sins or insistence upon minor sins while sinfulness being more apparent in the person’s conduct than obedience.
 Characteristics that taint chivalry (khawarim al-Muru’a) refer to issues that are socially unbecoming and reprehensible that are not necessarily sinful but would degrade the doer in the eyes of society.
 Reference “I’lam al-Muwaqi’in” by Ibn al-Qayyim 4/153. Also reference “Sifat al-Fatwa wal-Mufti wal-Mustafti” by Ibn Hamdan and “Adab al-Mufti wal-Mustafti” by Ibn as-Salah and “Al-Faqeeh wal-Mutafaqqih” by al-Khateeb al-Baghdadi.
[xii] There’s a difference between Shari’ah and Fiqh. Shari’ah is from Allah, and it is infallible along with its texts and rulings. It remains fixed and its teachings are timeless; they remain relevant in every time and place. As for Fiqh, it is the product of a human effort that is derived from the texts, teachings and principles of Shari’ah. The product of Fiqh may be different from one Mujtahid to another. There are correct conclusions, but there are also mistakes. The Mujtahid gains reward in any case; if he is correct, his reward will be double, and if he’s in error, he will get rewarded. Not sanctifying Fiqh doesn’t mean undermining it. The individual cannot reach the status of Ijihad until he becomes acquainted with the Ijithad of other scholars. When performing Ijtihad he must maintain reverence for those he disagrees with and give them excuses for their conclusions.