Compiled and written By M.S Omar based on the Arabic Lecture Notes
of Justice Mufti Mohammad Taqi Usmani attended by the Writer
The Meaning Of Fatwa
In its original linguistic sense, the Word Fatwa means an answer to a question irrespective of whether such question relates to an issue of Shariah or not. Thereafter, the word acquired a technical meaning in the sense that it was confined to an answer given in response to a question relating to an issue of Shariah or the Deen.
The Salaf & the Immense Responsibility of Fatwa
The Salaf used to exercise great caution in matters of Fatwa. Imaam Hanbal [R.A.] used to frequently say : “I don’t know”. Imaam Malik is reported to have said that the Mufti must be conscious of accountability to Allah before responding to any question. According to Ibn Masud and Ibn Abbas, a person who answers every question is mad. Unfortunately there are many persons who claim the mantle of issuing Fatwa without proper training and without having acquired the necessary expertise, thereby causing confusion and misunderstanding amongst the lay public.
1. The First Principle-Expert Supervision to Acquire Expertise
It is not permissible to issue a Fatwa unless a person has studied fiqh in depth under the supervision and guidance of competent experts in the field. The classical literature of Islamic Law has its own style and terminology and requires careful analysis in context. For example, what appears to be an unqualified statement is limited in application by the context or by conditions referred to elsewhere in juristic literature. An expert jurist would point to the true meaning and purpose of a juristic text and its proper application to a factual situation, thereby avoiding the errors resulting from selfstudy or lack of guidance. A true perception can only be achieved under constant guidance, tutelage and supervision of distinguished experts recognised in the field.
2. The Second Principle-Development of Aptitude and perception
A person is not permitted to issue a Fatwa until and unless he develops an aptitude and a deep perception which enables him or her to distinguish between basic principles and their causes. The required level of aptitude and perception is attained when he or she is permitted by an expert to undertake the delicate and highly responsible trust of issuing Fatwa.
3. The Third Principle-Single juristic view Binding
It there is only one juristic view on a question amongst all the Hanafi jurists, then, that view is binding, unless there is cogent, textual evidence to the effect that such a view is based on an underlying cause which is absent in the particular case.
4. The Fourth Principle-Multiple Juristic Views
If there is more than one juristic view on a particular question, then it is obligatory to adopt that view which has been preferred by the scholars of Tarjeah [those classical jurists who have achieved distinction in the field by reason of their deep learning, piety and capacity to distinguish between competing arguments having regard to ever changing circumstances and new situations].
5. The Fifth Principle-Reliance upon Authentic Juristic Works Only
The Mufti is obliged to rely exclusively on the recognised and authentic works of Islamic Law. He is precluded from relying upon a work, which is not recognised, unless such refrence is in accordance with established principles. In any event, he cannot base his reference upon a classicaljurist who is not recorded to be amongst the preferred classical jurists of distinction [Ashab-ul-Tarjea]. It is imperative that the Mufti is able to distinguish between the works upon which reliance can be properly placed, and those which cannot be relied upon for various reasons including weak narrations.
6. The Sixth Principle-Priority to be given to the preferred view as expressed in the text
In the case where there is a difference of opinion amongst the classical jurists on a particular question, that view is selected which has been accorded express preference in the text by the use of clear and express words such as “The Fatwa accords with this view”. In the absence of express, clear prefrence in the text to the most preferred view, the particular text and juristic work must be examined in context to determine the authors prefrence for a particular viewpoint.
7. The Seventh Principle – Specific Words used to indicate Preference
The preferred jurists of distinction [Ashab-ul-Tarjea], in selecting the most preferred viewpoint, have used different words in the text to denote such preference. Certain words indicate a stronger degree of prefrence than others, as appears from various references.
8. The Eighth Principle – Conflict of Juristic Opinion
In the case of a conflict between competing juristic views, it is an extremely delicate and complex task to prefer one view over another. A number of guidelines have been laid down but ultimately the selection of the appropriate rule is based on the aptitude, skills, intuition, depth of learning of the particular Mufti having regard to Divine accountability and sincerity of purpose, devoid of ulterior motives.
9. The Ninth Principle – Adopting the View of Zahir-ul-Riwayah
In the event where the classical jurists of distinction [Ashab-ul-Tarijee] have not preferred any view at all, then it is obligatory to adopt the view expressed by the Zahir-ul-Riwaayah. If the latter itself expresses a difference of opinion, then the most recent view [i.e.the latest] should be adopted.
10. The Tenth Principle – Mafhum-Mukalif as a Principle of Interpretation of Juristic Text
Mafhum-Mukalif refers to the case where the contrary intent is interred from the ordinary meaning of an expression. For example, The Holy Prophet [S.A.W.] said that Zakah is payable in respect of camels that graze or their own. The contrary meaning [Mafhum-Mukalif] is that no zakah is payble on domesticated camels. The Mafhum-Mukalif is an acceptable principle of interpreting juristic text provided that the context permits such an interpretation.
11. The Eleventh Principle – Weak juristic Narrations Not to be Adopted
As a general rule, it is not permissible to issue a Fatwa which is based on a weak narration except in the case of necessity as interpreted by an extremely competent Mufti having a deep insight, perception, intuition, skills and having the capacity to distin-
guish between different arguments based on their strengths and weaknesses.
The aforegoing purports to be a brief summary. It is apparent that the subject is complex. It is permissible in the case of genuine need to adopt the rule of another mazhab in solving a problem, but identifying genuine need in the correct factual context is the function of an eminent jurist who has the requisite expertise.