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FATWA. [To describe the role of fatwa as an instrument of religious law this entry comprises three articles.

  • Concepts of Fatwa
  • Process and Function
  • Modern Usage

The first article provides a general overview, with attention to variations in meaning of the term: the second describes how fatwas are generated and produced; and the third considers the history of use and the political utility of fatwas in the nineteenth and twentieth centuries. For related discussions, see Ijtihad, Law; Mufti; `Ulama’. ]

Concepts of Fatwa

An overview of the history of fatwa suggests three different concepts associated with the term: management of information about the religion of Islam in providing consulation to courts of law and interpretation of Islamic law. The first concept, which has been central through history, has reappeared  more prominently in modern times, as is evident from the contents as well as from the definitions given its modern collections of fatwas. For instance, fatwa Dar al-‘ deoband (Deoband, 1962) defines fatwa as “an issue about law and religion, explained in answer to questions received about it” by the muftis of Deoband a reformist school of religious learning established in 1867. The continuity of tradition in these modern developments cannot properly be appreciated without a look at the semantic growth of the concept in early Islam.

Literally, fatwa is derived from the root fata, which includes in its semantic field the meanings “youth, newness, clarification, explanation.” These connotations have survived in its various definition’. Its development as a technical term originated from the Qur’an,  the word is used in two verbal forms meaning “asking for a definitive answer” and “giving a definitive answer” (4.127, 176).

The concept of fatwa in early Islam   developed in framework of a question-and-answer process of communicating information about Islam. Its subject was ‘ilm( knowledge) without further specification. Later when ‘ilm was identified with hadith, fatwa came to he answer associated with ra’y (opinion) and fiqh (jurisprudence or law). The technical usage of the term was          further refined when, after the compilation of legal literature by the different schools, the term fatwa was used for cases covered in the fiqh (law) books.

The contrastive method of defining fatwa, ployed in the Islamic literature, in fact reflects the varying emphases in the concepts of fatwa. From the perspective of the scope of subjects covered, fatwa is contrasted with mutun (textbooks of Islam law); fatwa  covers a wider scope, including matter, of legal them theology, philosophy, and creeds, which are not included fiqh books. Thus the concept retains fatwa a broader concern about religion and society than reflected in the formal Islamic law defined by the schools (From the perspective of judicial authority, jurisdiction and enforceability, fatwa is contrasted with qada or court judgment. The jurisdiction of Fatwa is wider than qadd; matters such as `ibadat (religious duties or obligations) are excluded from the jurisdiction of the courts, even though they are essential parts of Islamic law and appear very prominently in fiqh books and fatwds. Note, however, that qada is binding and enforceable, but Fatwa is not. The concept of fatwa can therefore be seen as an indirect instrument for defining the formal concept of law as applied in courts. From the perspective of moral and religious obligation, Fatwa is contrasted with taqwa or piety. For instance, a fatwa may allow choice between a lenient (rukhsah) and a severe (`azimah) view about the permissibility of a certain matter, or it may resort to legal devices (hilah) to circumvent the strict implications of a law, but taqwa may not approve of such strategies. This last contrast is often referred to in literary and Sufi writings.

Fatwa functioned independent of the judicial system, although in some systems muftis were attached officially to the courts. Thus in Andalusian courts muftis sat as mushawar (jurisconsults), and in early British Indian courts they sat as mawlawis (men of learning). The jurists compiled volumes of fatwas stating, for the benefit of the judges, the consensual and authoritative views and doctrines of a particulate school.

The position of muftis in a Muslim political system was defined depending on the role and place of fiqh in the society. In Andalusia the jurists were indeed powerful; they were part of the Shura (council) of the amirs and caliphs. In the Ottoman and Mughal political systems the chief mufti was designated as shaykh al-Islam. Muftis were also appointed to various other positions including market inspectors, guardians of public morals, and advisors to governments on religious affairs.

Under colonial rule the madrasahs took over the role of muftis as religious guides. The madrasahs established the institution of dar al-ifta, a place to issue fatwas. The print and electronic media in the nineteenth and twentieth centuries reinforced the role and impact of fatwas. Muftis were faced with day-to-day changes in society in the fields of economics, politics, science, and technology. Not only did the scope of Fatwa widen, but because of its instant availability to a wider public, its language, presentation, and style also changed.

The ideological authority of the fatwa is invariably explained by saying that a mufti is the deputy and successor to the Prophet, the lawgiver. Legally, the authority of the mufti is derived from the doctrine of taghd (adherence to tradition), which demands consulting the learned, often those of a particular school of law, and following their opinions. Since a mufti has to cite authorities for his opinion, his authority is moral and institutional, not personal. For this reason the qualifications of a mufti and the rules for issuing a Fatwa have been developed in considerable detail. A mustaff (inquirer) should accept and obey the opinion of the mufti when he is satisfied that he is competent and that his opinion is based on earlier authorities. Theoretically, a mufti must be a mujtahid (an interpreter of law qualified to exercise legal reasoning independently of schools of law) yet a muqallid (an adherent to a school) is also allowed to issue a fatwa, as long as he mentions the source of his citation.

Modern scholars usually define fatwa as a formal legal opinion given by an expert on Islamic law. Smile Tyan (1960, p. 219) argues that this institutional came into being because no legislative power existed in Islam. He sees the role of the mufti in the Muslim political system in the perspective of shura (consultation) and legislation.

Muslim states, especially in the modern period, have tried to control fatwa by instituting organizations that provide consultation to the state and issue fatwds, such as the Council of Islamic Ideology in Pakistan or the Hay’ah Kibar al-`Ulama’ in Saudi Arabia. Their role is advisory, and they are part of the religious, not justice, ministries. In order to appreciate current trends and developments, fatwa today should be seen as a function of management and the communication of information.

[See also Law, article on Legal Thought and jurisprudence; and Mufti.]

BIBLIOGRAPHY

Hunter, W. W. The Indian Musalmans. London, 1871. Provides excellent insight into the colonial perception of the role of fatwa in a Muslim society in the early nineteenth century, especially its use by the British and Muslims during the 1857 uprising in India against the British.

Qaradawi, Yusuf al-. Al fatwa bayna al-indibat wa-al-tasayyub. Cairo, 1988. Modern restatement of traditional discussions about the rules and etiquette of writing a fatwa. The author provides a comprehensive summary of the legal theory of fatwa and a good introduction to some problems in its modern practice.

Qasimi, Muhammad Jamal al-Din al-. Al fatwa fi-al-Islam. Beirut, 1986. Excellent summary of the adab al-mufti literature dealing with the rules and regulations of writing a fatwa and qualifications of a mufti.

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. Concise introduction to the nature of the institution of fatwa (see pp. 73-75).

Tyan, Emile. “Fatwa.” In Encyclopaedia of Islam, new ed., vol. a, p. 866. Leiden, 1960-. Short discussion of the concept and history of the subject, particularly with reference to modern developments. Tyan, Emile. Histoire de l’organisation judiciare en pays d’Islam. 2d ed. Leiden, 1960. Excellent review of the history of the institution, and of the discussion of the qualifications, method, and technique of fatwa in the Islamic literature (see pp. 219-230).

MUHAMMAD KHALID MASUD

Process and Function

Issued by a mufti and taking the form of an answer to a question, a fatwa is a considered opinion embodying an interpretation of the shari`ah. A key legal-religious institution, the giving of fatwas has flourished across time and place in Muslim societies from early in the Islamic era to the present day, contributing fundamentally to the continuing dynamism of the law and to the regulation of local practices. As a category of legal specialization, however, the issuing of fatwas is less familiar than judging. Fatwas are similar to the opinions of Roman jurisconsults and to the responsa of Jewish scholars. Compared with the court judgments of their colleagues, the Muslim qadis, fatwas have a distinct type of authority. In terms of technical status, judgments are “creative” or performative acts while fatwas are “informational” or communicative ones; judgments thus are binding and enforceable while muftis’ opinions are advisory. But in the absence of a conception of precedent formation in connection with shari`ah court rulings, the authority of judgments tended to remain narrowly specific, pertaining only to particular cases; that of fatwas, by contrast, was general, potentially extending to all similar configurations of fact. Judgments were entered into court registers but were not otherwise reported or published, while fatwas by noted muftis were apt to be collected, circulated, and cited.

Judges always were public figures, appointed and salaried by the state; muftis, however, were likely to be private scholars, although in a number of historical settings, such as the Ottoman Empire, muftis also served as public officials. In the practical world of shari`ah application, especially before the rise of nation-state legal institutions, the work of muftis complemented that of the court judges, and in many instances there were formal ties between muftis and courts. The two roles were always distinct, however. Where judges heard opposed claims and evidence from pairs of adversaries and then handed down a ruling, the interpretive interchange that resulted in the delivery of a fatwa was of a different character. Muftis responded to individual questioners, who typically posed their questions voluntarily. Unlike court judges, who were investigators of evidential fact, muftis took the configurations of fact presented in questions as given. Both judges and muftis are shari’ah interpreters, but their interpretive acts have differing points of departure. While a judge’s interpretive work is directed to understanding evidential forms such as testimony, acknowledgment, and oath, that of the mufti seeks out indications in the textual sources of the law, including the Qur’an and the sunnah.

Muftis were identified with specific interpretive communities, such as the various schools (madhhabs) of legal thought that subdivide both the Sunni and Shi’i traditions, and sometimes also with the programs of particular instructional institutions, such as that at Deoband in India or al-Azhar University in Cairo. Especially in the twentieth century, however, many muftis began to assert their intellectual independence from all such interpretive traditions. Earlier, as is discussed in special treatises concerned with the muftiship (the adab al-mufti literature), levels of competence among muftis were specified; the highest was the “absolute” or “independent” interpreter. As a matter of principle, such muftis did not follow the opinions of other jurists or the positions of the schools, but directly interpreted the law through their personal analyses of its basic sources, the Qur’an and the sunnah of the Prophet. Below this highest category were “non-independent” or “affiliated” muftis of several levels, all technically classified as muqallids, followers to some degree of established doctrine. Fatwas of the highest caliber contain explicit exercises of ijtihad, or formal, reasoned interpretation, but even the most unpretentious opinion, which simply states the law in connection with an uncomplicated matter, is an interpretive act.

In theory, fatwas could be delivered orally, but aside from the existence of an office established for this specific purpose within the Ottoman fatwa administration, it is uncertain how frequently this occurred. Among written fatwas, many-perhaps the great majoritywere considered routine and as a consequence were dispersed directly to questioners, in some cases without leaving a documentary trace. For the Ottoman Empire and certain of the schools in India, for example, massive collections of such ordinary fatwas exist in archives. The early nineteenth-century Yemeni jurist al-Shawkani distinguished between his unrecorded “shorter” fatwas, which “could never be counted,” and his major fatwas, which were collected and preserved in book form. At the turn of the twentieth century Muhammad `Abduh, the grand mufti of Egypt, in addition to his official opinions on matters of state, also issued numerous ordinary fatwas to private individuals. The thousands of fatwas delivered over several decades by a mid-twentieth-century mufti in provincial Yemen, however, were neither collected nor preserved, even as copies, but were written directly on slips of paper containing the original queries, which were returned and carried away by the questioners.

Varying widely in scope, fatwas have comprised both the single-word responses (“yes,” “no ,” “permitted,” etc.) characteristic of some official Ottoman muftis and also virtual treatises approaching book length. Questioners have ranged up and down the social hierarchies, including both men and women of every status, from the ordinary populace to members of the elite, scholars, court judges, and even heads of state. The muftis themselves have included modest, local-level scholars who occasionally and informally replied to queries arising in their districts and, at the other extreme, the greatest legal minds of an era or powerful state officials at the apex of fatwaissuing bureaucracies. Fatwas tend to differ in content according to the level of the mufti and the status of the questioner addressed. In general, responses to the untutored are likely to be nontechnical, whereas those issued to scholars typically contain precise citations of sources and indicate the methods of reasoning employed.

The relationship between a mufti and an ordinary questioner was predicated on a differentiation of roles. Before the rise of modern school curricula and universal education, shari `ah knowledge was the centerpiece of advanced instruction in societies characterized by patterns of restricted literacy. As a consequence, a limited group of scholarly interpreters controlled an essential body of cultural capital, which included not only the many specific details concerning ritual provisions fundamental for the religious life, but also the precise rules of a wide variety of contracts, transactions, and dispositions that structured legal-economic relations. In such social settings it was considered incumbent on those who had acquired knowledge to communicate it, either through teaching or through acting as a mufti. Reciprocally, it was incumbent on the untutored to ask such knowledgeable individuals whenever the need to know a shari`ah principle arose. Ideally, muftis were meant to be exemplary moral individuals whose intellectual achievements were matched by appropriate personal decorum. In accord with the social honor vested in them, muftis were approached with respect and deference.

Although the mufti of a given locale was typically a well-known figure, some questioners had to make inquiries or travel to find a suitable scholar. Others had to choose among several available muftis. The adab al-mufti treatises suggest that a questioner should seek out public information about a muftis scholarly reputation, but it is acknowledged that such information would be difficult for an uneducated individual to evaluate. The basic recommendation is that the questioner follow the advice of a single just person or trust his or her own sense of the potential muftis piety. In some settings, questioners dissatisfied with a first mufti’s response could seek out a second for another fatwa, which they hoped would contain a different view. In other settings, opponents in a dispute approached different muftis to obtain competing fatwas to buttress their respective positions.

The interpretive exchange opened with the posing of the question. In their widely varying patterns and concerns, questions provide rich information about the concrete affairs of specific Muslim societies. Questions are of great significance to the interpretive process because they define the terms of the muftis engagement with the problem under consideration. At the same time, questions frequently were carefully constructed to highlight certain facts or to elicit a particular response. Since muftis are not examiners of the facts, these are taken as they are provided in the questions. Whereas judges are permitted to act on the basis of their own knowledge about cases, muftis are not, unless this information is provided in questions. For these reasons, the opinion to be contained in the fatwd is constrained at the outset by the formulation of the question. In addition, in the Ottoman Empire, questions were rewritten by functionaries to facilitate brief answers from the muftis. In theory, questions posed to muftis should pertain to actual events and should not be hypothetical or imaginary. In formulation, however, questions characteristically are presented in generic terms, leaving out details such as place names and using conventional substitutes for actual personal names (e.g., “Zayd” and “`Amr” in Ottoman fatwas) or simply “a man” or “a woman.” This standard feature in the design of questions underscores the directionality of the mufti’s attention, which led away from consideration of the contextual circumstances of a case and toward an assessment of an assumed set of facts in terms of the law.

Muftis responded to questions received according to their understanding of the contents. Such comprehension frequently depended on the mufti’s grasp of both local custom and colloquial expression. In most fatwa collections, the incidence of poorly formulated, ambiguous, or otherwise deficient queries has been masked by editorial redrafting of questions or by their omission altogether. According to the theory of the treatises, and also in Ottoman practice, when a question remained unclear, muftis could include explicit caveats in their responses, stating that the value of the answer depended on the information made available in the question. Muftis typically would handle questions touching on the full gamut of shari’ah subject matter, including areas such as contracts and punishments, which usually were also within the jurisdictions of the courts, and areas such as ritual issues, which generally were not. In some historical settings, muftis addressed issues well beyond these strictly legal topics, although some of the early theorists argued that muftis should not respond to questions in certain fields, such as Qur’anic exegesis or theology. Beyond their responses in matters covered by the shari `ah, Ottoman muftis commonly issued fatwas on issues regulated by secular state law. In the early decades of the twentieth century, responding in print to letters his journal received from around the world, Muhammad Rashid Rida gave fatwas on an extremely wide variety of legal, social, and political topics that confronted the Muslims of the day.

While sharing a common identity-as answers to questions-fatwas nevertheless took many regional forms depending on local legal cultures and their usages. Fatwas from different regions thus vary widely in language, conventional formulas, and rhetorical style. The theoretical treatises suggest proper wording for openings and closings and special terms of address; they also discuss Allahu a’lam, “God knows best,” and other related expressions, one of which appears at the end of most fatwas. The treatises also consider the physical organization of fatwa texts and recommend against such practices as the leaving of blank spaces or the use of more than one sheet of paper, so as to guard against additions or alterations. Unlike the question, which could be in the hand of the questioner or a secretary, the fatwa itself generally had to be written in the authoritative script of the mufti. Before actually delivering the fatwa, a mufti ideally would consult with scholarly colleagues present at the session about his finding. If upon receipt the questioner failed to understand the fatwa, he could turn to the mufti or individuals in the sitting room for assistance. In some places, further questions could be posed to explore implications or alternatives. If the response of a private mufti proved unacceptable, the questioner was free to consult a different mufti for another opinion.

Muftis often were powerful figures. Some “muftis,” such as the mid-twentieth-century Lebanese mufti of the republic, were actually important political leaders. Others, such as the grand muftis appointed in various states over the past century, have wielded considerable political influence through their official fatwas. The heads of the great fatwa-issuing bureaucracies, such as the Ottoman shaykh al-Islam, were among the highest-ranking state officials. [See Shaykh al-Islam.] For the scholarly, another form of influence was measured in reputational terms and expressed in estimations of juristic preeminence, which entailed leadership in such activities as writing, instruction, and fatwa-giving, and also control of certain tax and endowment revenues. In both political and scholarly communities, doctrinal struggles between opposed states or competing instructional centers have been played out in “fatwa wars.” Although the theory of private fatwa-giving held that fatwas should be given for free, gifts and various forms of pious support were common. Official muftis, however, were salaried or received set fees from their questioners, and many grew wealthy in their positions. In historical contexts where there were formal requirements to obtain fatwas as part of the litigation process, muftis issued opinions that had direct bearing on court outcomes; in other contexts, approaching a mufti amounted to a cheaper, less conflictual, and more efficient alternative means of dispute resolution.

The overall significance of the fatwa is twofold. Fatwas by leading, jurists articulated formal, legal-religious views of important doctrinal questions, societal issues, and political events. At this level, muftis employed their creative interpretations of the shad `ah to grapple with the major continuities and changes in Muslim life. The impact of such interpretations, however, depended on the overall place of the shad `ah in their respective societies. On the other hand, the mass of unremarkable fatwas issued by muftis official and unofficial, and of diverse schools and statures, has assisted Muslims from all walks of life in efforts to arrange their affairs in accord with the design of the shad `ah.

[See also Ijtihad; Law, article on Legal Thought and Jurisprudence; Mufti.]

 

BIBLIOGRAPHY

Heyd, Uriel. “Some Aspects of the Ottoman Fetva.” Bulletin of the School of Oriental and African Studies 32(1969): 35-55. The best examination of the textual features of a fatwd-issuing institution.

Ibn Khaldim. The Muqaddimah: An Introduction to History. 3 vols. Translated by Franz Rosenthal. New York, 1958. Contains an institutional view of official muftis, appointed by the imam.

Masud, Muhammad Khalid. “Adab al-Mufti: The Muslim Understanding of Values, Characteristics, and Role of a Mufti.” In Moral Conduct and Authority: The Place of Adab in South Asian Islam, edited by Barbara D. Metcalf, pp. 124-15o. Berkeley, 1984. Survey of theoretical manuals concerned with the muftiship.

Messick, Brinkley. The Calligraphic State: Textual Domination and . History in a Muslim Society. Berkeley, 1993. An anthropological and textual study of muftis in Yemen (see pp. 135-151).

Nawawi, Abu Zakariya Yahya al-. Adab al fatwa wa-al-mufti wa-almustafti. Damascus, 1988. Typical “adab al-mufti” treatise concerned with the muftiship, by a thirteenth-century author.

Qarafi, Ahmad ibn Idris al-. Al-Ihkdm ft tamyiz al fatawa can alahkam wa-tasarrufat al-qadi wa-al-imam. Cairo, 1989. Comparative analysis of the judge and the mufti by a thirteenth-century jurist. Weber, Max. Economy and Society. 2 vols. Berkeley, 1978. Compares muftis with Roman jurisconsults (see pp. 798-799, 812-821). Weiss, Bernard G. The Search for God’s Law: Islamic Jurisprudence in the Writings of Say( al-Din al-Amidi. Salt Lake City, 1992. On the theory of the interpretive interchange see pp. 717-728.

BRINKLEY MESSICK

Modern Usage

Fatwa emerged as an informal institution long before the formal establishment of the public office of the mufti, and its social and political potentials are discernible in the early theoretical discussions of ifta’ (the act of issuing fatwas). The subject of fatwa is usually treated in works on the principles of jurisprudence (usul al filth) following the section on ijtihad. Whereas ijtihad refers to the scholarly, intellectual effort of seeking an opinion regarding applied law, fatwa refers to the social role of a mujtahid as a consultant in matters of law, contrasted with the well-defined role of a qadi (judge). A fatwa is defined as an unbinding legal opinion issued in response to the question of a mustafti. Thus a mufti is inherently biased, because he responds to a question presented by only one party to a dispute. Conceding this bias, usul works distinguish between the unbinding opinion of a mufti and the binding ruling of a judge. Furthermore, it is up to a judge to verify whether a fatwa is applicable in a specific case. These differentiations conceptually situate the institution of fatwa in an intermediary plane between the theory of law as articulated by mujtahids and the practice of law as exercised by judges. As such, a mufti contributes both to the ongoing development of the legal doctrine of a school of law and to its practical application.

Before the eleventh century CE a mufti was simply someone who issued fatwas, knowledge and recognition by the scholarly community were the only prerequisites for a mufti. Beginning in the eleventh century a public office of mufti was affixed to the private vocation of ifta’. In eleventh-century Khurasan, the shaykh al-Islam of a city was the official head of its local `ulama’, and functioned as its chief mufti. Under the Mamlfiks, one mufti of each school was appointed as part of the appeal courts of provincial capitals. The Ottomans appointed a mufti in each city, integrated muftis into the bureaucratic system, and organized ifta’ as a routinized state procedure. Under Sultan Murad II (r. 1421-1444, 1446-1451), the once honorific title shaykh al-Islam was transformed into the official title of the chief mufti of the empire. By the time of Sulayman Kanuni (r. 1520-1566) the office had developed from a part-time occupation into a fully formalized one; Sulayman appointed the mufti of Istanbul to the office of shaykh al Islam and made him the head of the religious establishment of the whole empire. The Ottomans thus gave fatwa political sanction it had lacked earlier. The shaykh al-Islam was appointed and dismissed only by the sultan; the sultan in turn was confirmed or deposed by the shaykh’s fatwa. The shaykh al-Islam, however, still depended on the secular authority and the qadis to execute his judgments.

The ambiguity in the actual power of the Ottoman shaykh al-Islam gave rise to several theories on the origins of this office. One theory proposes that the office arose in imitation of the Patriarch of Constantinople, but this fails to account for the pre-Ottoman history of the office of the mufti in general and of the title shaykh al-Islam in particular. A more pertinent question is whether the office was founded to give religious legitimacy to secular authorities, or whether it was founded to coopt the religious institutions in an attempt to bring them under the control of the state. It is probable that the office was initially founded to confer Islamic legitimacy on the state and in recognition of Islam as the main source of social and political cohesion; however, as the Ottomans developed a secure tradition of ruling, the office was formalized and absorbed into the state bureaucracy, and the shaykh al-Islam was in effect demoted from a theoretical equal to a definite subordinate of the sultan. [See Shaykh al-Islam.]

Parallels to the office of shaykh al Islam existed outside the Ottoman Empire, although usually under different titles. In Mughal India, the sadr al-sudur was the head of the religious corporation, whereas the shaykh alIslam looked after the affairs of the Sufis. In Safavid Iran, the shaykh al-Islam was neither the grand mufti nor the head of the religious hierarchy. These functions were reserved for the sadr, who controlled the religious institutions on behalf of the state and who was in charge of the officially sponsored spread of Shiism. The sadr was appointed by the state, and was charged with appointing qadis, supervising waqfs, and functioning as the official head of the `ulama’ class. In addition to the sadr, shaykhs al-Islam were appointed by the state in the capital and several other provincial cities and towns. These shaykhs al-Islam functioned as the chief religious officials in their areas, and were under the general supervision of the sadr. They were also in charge of supervising the local qddis. The organization of the religious establishment under the Safavids presupposed the religious authority of the rulers as the descendants of the hidden imam (thus the title “shadows of God”). In time, this authority was challenged, and the role of representing the hidden imam was reclaimed by the mujtahids. These were independent scholars who filled no office, were not appointed by the state, and were not on its payroll. During the eighteenth century, a theological controversy between two Shi’i schools, the Usulis and the Akhbaris, was resolved in favor of the former. According to the Usulis, Muslims were under the obligation to choose and follow a living mujtahid known as a marja` al-taqlid. Under the Qajars, the body of mujtahids further articulated the claim of collective deputyship of the imam. On account of his knowledge and piety, a mujtahid or a marja` had the authority to interpret and explain the law to ordinary Muslims. Thus both the Sunni mufti and the ShN mujtahid shared the function of interpreting the law. There are, however, some important differences between the two offices. Whereas the fatwd of a Sunni mufti was not binding, that of a Shl’i mujtahid was. Moreover, with the passage of time, the Ottoman office of the mufti was successfully coopted into the state bureaucracy, while the Shi’i mujtahids gradually gained a greater measure of independence from the ideological and physical control of the state. [See Sadr; Marja` al-Taqlid.]

As a result of a gradual bureaucratization of religious institutions in the Islamic world in general, and of the office of the mufti in particular, the class of `ulama’ came to enjoy greater social prestige, higher and steadier in comes, and improved promotional opportunities. Official muftis, however, had no monopoly over issuing fatwas, and private muftis did not require government approval to engage in ifta’. Recognition of the semiprivate nature of the institution of ifta’ was even reflected in the official appointment of muftis. In the Ottoman Empire, for example, a mufti’s appointment was theoretically for life, and in any case was for a long duration; in contrast, the appointments of judges were for one year terms. Moreover, while a judge was a Hanafi Ottoman trained in the schools of Istanbul, muftis often belonged to the local non-Hanafi elites of the cities and towns in which they served. These local muftis had better knowledge of the conditions and customs of their cities and were often chosen by the local elites and simply confirmed in office by the central authorities in Istanbul.

Owing to its dual private and public traits, the institution of fatwa evinces a multitude of social manifestations. A formal fatwa in response to a formal inquiry may serve as a technical tool in the legal proceedings of a court, or as a scholarly endeavor through which a standard legal doctrine is expanded, modified, or developed. Alternatively, a fatwa may be issued at a scholar’s own initiative in the form of a treatise, proclamation, or lesson. In any of these forms a mufti, scholar, teacher, or preacher may give what amounts to a minor or a major fatwa. A minor fatwa usually involves one or more of the following: the practical application of the law; an explanation of the law in complicated cases or to people who have no direct access to its technical formulations; instructions on correct social behavior or lawful religious beliefs and practices; or suggestions for settling disputes without further recourse to courts. Such fatwds contributed to social stability by both providing formal administrative organization and informal networks for running the affairs of society.

A major fatwa, by contrast, involves a significant statement on public law and policy and may often lead to the expansion of the corpus of law. In the Ottoman Empire, for example, declarations of war and peace, as well as administrative and fiscal measures and reforms, were sanctioned by the fatwas of the shaykh al-Islam. Not only were fatwds used to justify extra-shari`ah laws (for example, Ottoman taxation and criminal laws) issued by the secular authorities, but the authority of the sultan was itself legitimized or denied on the basis of such fatwas; for example, Sultan Murad V was deposed by an 1876 fatwa on grounds of insanity. Fatwas were also used to legitimize new social and economic practices. In the Ottoman Empire, for example, a fatwa issued in 1727 authorized the printing of nonreligious books; vaccination was declared legitimate in an 1845 fatwa; and several fatwas were used to legitimize lowrate interest, selling on credit, and the practice of establishing cash waqf. Muftis also played a role in curbing the powers of judges and other secular functionaries. By giving voice to the complaints of the people and by providing authoritative articulations of their legal rights, fatwas often permitted individuals or groups to seek redress and justice in courts.

Parties to social and religious conflicts also solicited fatwas in support of their contentions. In the Ottoman Empire, for example, leaders and members of puritanical movements often approached muftis for fatwas condemning Sufi practices. Most of the responses, however, were intentionally moderate. Thus in a famous fatwa the great Ottoman shaykh al-Islam Ebiissu’fid Mehmet Efendi (Ar., Abfi al-Su’ud Afandi; 1545-1574) censored Sfifi excesses as well as the extreme intolerance of their critics; in the same fatwa he confirmed the legitimacy of Sufi music and rhythmic dancing, which were the intended targets of the solicitors of the fatwa.

Major transformations engulfed the Muslim world during the nineteenth and twentieth centuries. The decline in the centralized power of the Ottoman state and the corresponding increase in European domination over Muslim territory changed the sociopolitical significance of the institution of fatwa. The practical pertinence of formal fatwas diminished owing to the seizure of executive and judicial powers first by European colonial administrations and later by the nation-states that inherited the colonial legacies. During this period, however, fatwas became tools for mobilizing the population in both active and passive anticolonial resistance and in the struggle for national independence. Anticolonial fatwas focused on defining Islamic territory (dar al-Islam) and the territory of war or unbelief (dar al-harb, dar alkufr), and on the related question of whether it was obligatory for Muslims to wage war against or emigrate from dar al-harb.

The nineteenth century abounds with examples of such fatwas. In 1804 `Uthman ibn Fudi (Usuman Dan Fodio, d. 1817) declared jihad in West Africa (presentday northern Nigeria). Ibn Fudi justified his declaration of war by arguing that the land was ruled by unbelievers, making it dar al-,harb; he added that it was obligatory for Muslims to emigrate from lands ruled by unbelievers and to participate in the war against them. A year before, the Indian scholar Shah `Abd al-`Aziz (d. 1824), the son of the celebrated Indian scholar Shah Wali Allah (d. 1762), declared that India under British rule had become dar al-harb; his fawwd was also justified on the grounds that India was ruled by the laws of nonMuslims. Following his lead, the Mujahidin movement under Sayyid Ahmad Barelwi (d. 1831) declared most of India a land of unbelief and enjoined Muslims to emigrate to northern India and join the jihad against the Sikhs of the northwestern frontier. A similar logic was also employed during the 1857 mutiny, when a fatwa was issued by the `ulama’ of Delhi justifying jihad against British rule. Nonetheless, designating a territory as a land of unbelief did not always lead to the radical reactions of emigration and jihad. The Fara’izi (Ar., Fara’idi) movement of mid-nineteenth-century Bengal, for example, considered India dar al-kufr; rather than declaring jihad, however, it resorted to the symbolic posture of suspending public rituals (such as the Friday congregational prayers) which presuppose an Islamic political order.

The unrealistic demands of the radical choices of emigration and jihdd were soon widely recognized. For example, in 1870, the `ulama’ of northern India issued fatwas stating that the Muslims of India were not obliged to rebel against the British nor to emigrate from their homes. A similar tension is discernible in the Algerian anti-French rebellion led by `Abd al-Qadir al-jaza’iri (d. 1883). During the period of his leadership (1832-1847), `Abd al-Qadir solicited several fatwas from Maliki and Hanafi scholars residing in Algeria and elsewhere regarding the following questions: the obligation to emigrate from the French-controlled parts of Algeria and to join the jihad against the French; legitimate penalties against Muslims who stay under French rule and those who refuse to take part in the jihad against them; and legitimate punitive measures against collaborators and against the Moroccan sultan who, under French pressure, turned against `Abd al-Qadir. Although all responses were sympathetic to the Algerian struggle, they differed on the criteria for designating a land as enemy territory. The variance reflected the difference between the Maliki school, for which the status of the land followed the status of the ruler, and the Shafi’i and later Hanafi schools, for which the main criterion is the ability of individuals to practice Islam. Following the arrest of `Abd al-Qadir the active resistance against the French subsided, but many Algerians continued to emigrate to other Muslim countries. To appease the Muslims of Algeria and stop them from leaving the country, French authorities obtained fatwas from Shafi’i and Hanafi Meccan muftis; these stated that Muslims under the rule of unbelievers were not obliged either to fight or to emigrate, as long as they were free to practice Islam without danger to their lives and wellbeing. [See the biography of `Abd al-Qadir.]

As organized parties started to play a larger role in national politics, pamphlets and declarations often substituted for fatwas. In 1937, for example, the Muslim Brotherhood of Egypt published a pamphlet declaring that jihdd for Palestine became an individual obligation for every Muslim; in 1938 similar statements were issued in Syria and Iraq. The political utility of fatwas, however, was not restricted to the declaration of war. On numerous occasions, fatwas served as instrumental modes of intervention in the political process. For example, in 1904, the `ulama’ of Fez issued a fatwd demanding the dismissal of European (especially French) experts hired by the state. In 1907, the `ulama’ of Marrakesh issued a fatwd deposing the sultan of Morocco for failing to defend the state against French aggression. In both cases the demands were heeded. Equally effective was an 1891 fatwa by the Iranian mujtahid Mirza Hasan Shirazi, who prohibited smoking as long as the British tobacco monopoly continued. In the twentieth century several other fatwas were issued calling on Muslims to boycott un-Islamic pursuits; for example, a 1933 fatwd by the `ulama’ of Iraq called for boycotting Zionist products. Another famous example is the 1971 proclamation by Ayatollah Khomeini regarding the celebration of the 2,500th anniversary of monarchy in Iran. In this proclamation Khomeini called for boycotting the celebration and stated that “anyone who organizes or participates in these festivals is a traitor to Islam and the Iranian nation.” In addition to his call for passive resistance and for rebellion, Khomeini used proclamations and fatwas to introduce and legitimize institutions such as the Council for the Islamic Revolution and the parliament of the Islamic Republic of Iran. His mostpublicized fatwa however, was issued on 14 February 1989 regarding the book The Satanic Verses. In this fatwd Khomeini called for the execution of author Salmon Rushdie for blasphemy, apostasy, and scornful attack on Islam. The book was banned in most Muslim countries and was condemned by many religious scholars, including those of al-Azhar University in Cairo; the latter, however, added that Rushdie himself could not be condemned to death before having a trial and an opportunity to repent.

The social impact of a fatwa depends on the level of a self-imposed commitment by people who are able to abide by the prescriptions of the fatwd. This impact is also a function of the credibility and reputation of the mufti, the constraints for social and political action, and the responses of the authorities. Historically, fatwas have functioned as instruments for the regulation and reconstitution of society. Today, the institution of fatwa remains a viable tool through which a society can adjust itself to internal and external social, political, and economic change.

[See also Ijtihad; Mufti; Rushdie Affair.]

BIBLIOGRAPHY

Ahmad, Aziz. “The Role of the Ulema in Indo-Muslim History.” Studia Islamica 31 (1970): 2-13.

Antoun, Richard. Muslim Preacher in the Modern World: A,jordanian Case Study in Comparative Perspective. Princeton, 1989. Close examination of the role of preachers in contemporary Muslim society. Berkes, Niyazi. The Development of Secularism in Turkey. Montreal, 1964. Contains useful information on the role of the religious institution in the development of secularism.

Bulliet, Richard W. “The Shaikh al-Islam and the Evolution of Islamic Society.” Studio Islamica 35 (1972) 53-67. Summary of the earliest uses of the term shaykh al-Islam, beginning with eleventhcentury Khurasan.

cagatay, Nes’et. “Ribs and Interest Concept and Banking in the Ottoman Empire.” Studia Islamica 32 (1970): 53-68. Lists some fatwas and court rulings legalizing interest at low rates and the establishment of cash waqf.

Gibb, H. A. R., and Harold Bowen. Islamic Society and the West. Vol. i, part II. London, 1950. See especially pages 70-164. Contains a detailed description of the organization of the `ulama’ class in the Ottoman Empire, and on the position of Shaykh al-Islam within the religious and administrative hierarchy.

Hallaq, Wael B. “From Fatwas to Furu’: Growth and Change in Islamic Substantive Law.” Islamic Law and Society, Special Sample Issue (1993): 1-33. Makes a strong case for the responsibility of the mufti in the development of legal doctrine.

Heyd, Uriel. “Some Aspects of the Ottoman Fetva.” Bulletin of the School of Oriental and African Studies 32 (1969): 35-55. Classical study of fatwas in the Ottoman Empire.

Inalcik, Halil. The Ottoman Empire: The Classical Age, 1300-1600. London, 1973. The best social history of the Ottoman Empire for the period 1300-1600, with sections on the structure of Ottoman religious and bureaucratic hierarchies.

Jennings, R. C. “Kadi, Court, and Legal Procedure in SeventeenthCentury Ottoman Kayseri.” Studio Islamica 48 (1978): 133-172, and 50 (1979): 151-184. Contains detailed description of fatwas and their role in court proceedings and in the social life of an Ottoman city.

Keddie, Nikkie R., ed. Scholars, Saints, and Sufis. Berkeley, 1972. Contains several useful articles on the social and political role of the `ulama’ in various periods and regions. See, in particular, the articles by Richard L. Chambers, “The Ottoman Ulema and the Tanzimat”; Aziz Ahmad, “Activism of the Ulama in Pakistan”; Edmund Burke, III, “The Moroccan Ulama, 1860-1912”; and Hamid Algar, “The Oppositional Role of the Ulama in TwentiethCentury Iran.”

Khomeini, Ruhollah al-Musavi. Islam and Revolution: Writings and Declarations of Imam Khomeini. Translated and annotated by Hamid Algar. Berkeley, 1981.

Lambton, Ann K. S. “The Tobacco Regie: Prelude to Revolution.” Studia Islamica 22 (1965): 119-157, and 23 (1965): 71-90. Contains a detailed account of the 1891 fatwa outlawing smoking as long as the British tobacco monopoly remained.

Lambton, Ann K. S. “A Nineteenth-Century View of Jihad.” Studia Islamica 32 (1970): 181-192. Brief exposition of conceptual developments in Shi’i i political theory and the resulting change in the Shi’i concept of jihdd.

Lambton, Ann K. S. Theory and Practice in Medieval Persian Government. London, 1980. The second and third chapters in this book, entitled “Quis custoddet custodes: Some Reflections on the Persian Theory of Government,” are especially useful on the structure of Shi’i i religious hierarchy in Safavid Iran.

Peters, Rudolph. Islam and Colonialism: The Doctrine of jihad in Modern History. The Hague, 1979. Extremely useful reference work containing accounts of the major fatwas used for active or passive resistance in the nineteenth- and twentieth-century Sunni world.

Razi, Fakhr al-Din al-. AI-Mahsul ft `Ilm al-Usul. Edited by T. J. F. al-`Alwani. 2d ed. Beirut, 1992. Volume 2, part 3 contains a classical theoretical discussion of ijtihad (PP. 7-92) and fatwa, mufti, and mustafti (pp. 93-128).

Repp, R. C. The Mufti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy. London, 1986. Includes a summary and discussion of theories on the rise of the office of Shaykh alIslam.

Walsh, J. R. “Fatwa.” In Encyclopaedia of Islam, new ed., vol. 3, PP. 866-867. Leiden, 1960-.

Zilfi, Madeline C. The Politics of Piety: The Ottoman Ulema in the Postclassical Age, 1600-1800. Minneapolis, 1988.

AHMAD S. DALLAL

Azhar Niaz Article's Source: http://islamicus.org/fatwa/
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