TO understand what a fatwa is, we should keep in mind the whole substance of the preceding analysis, for a fatwa is a part, an element, and, more precisely, a legal instrument, which must be understood in the light of the corpus of Islamic law and jurisprudence.
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Fatwa (plural fatawa) means, literally, “legal decision,” “verdict,” or, following the definition of al-Shatibi, “a reply to a legal question given by an expert (mufti) in the form of words, action, or approval.”
A fatwa has two essential aspects: it must, first and above all, be founded on the sources and on the juridical inferences and extractions arrived at by the mujtahidin who practise ijtihad when the sources are not clear or explicit (that is, when they are zanni) or when there is no relevant text. It must also be formulated in the light of the context of life, the environment, and the specific situation that justifies its being made—and which is in fact its cause.
The place of the mujtahid and the mufti is of prime importance. As alShatibi said: “the mufti, within the community, plays the part of the prophet. Numerous evidence support his assertion. First, there is the proof of hadith: ‘truly the scholars are the heirs of the prophets, and what one inherits from prophets is not money [la dinaran wa-la dirham], but knowledge [ilm].’ Second, he [the mufti] is the source of transmitting rulings [ahkam] in conformity with the words of the Prophet: ‘Let the one among you who is witness transmit [that to which he is witness] to those who are absent’ and ‘Transmit from me, even if it is only one verse.’ If this is the case, it means that he [the mufti] stands in for the prophet.
In fact, the mufti is a kind of legislator, for the Sharia that he conveys is either taken [insofar as it has already been stipulated] from the lawgiver [by way of the Revelation and the Sunna] or inferred or extracted from the sources. In the first case, he is simply a transmitter, while in the second he stands in for the prophet in that he stipulates rulings. To formulate judgements is the function of the legislator. So, if the function of the mujtahid is to formulate judgements on the basis of his opinion and efforts, it is possible to say that he is therefore a legislator who should be respected and followed: we should act according to the rulings he formulates and this is vicegerency [Khilafa] in its genuine implementation.”
Al-Shatibi underlines the importance of the mujtahid who stands in for the prophet in the Muslim community after the death of Muhammad.
In this way, the mujtahid or the mufti represents the continuity of knowledge (ilm) guided by the two sources, so that it may be rightly applied throughout history. Al-Shatibi made a distinction between clear and explicit evidence (that stipulated in the sources) and that which requires the exercise of deduction and inference and puts the mujtahid in the position of legislator (even though he must seek the guidance of God, the supreme Legislator, and follow the example of the Prophet). The distinction drawn by al-Shatibi has the great advantage of setting out the two different levels of fatwa: when questioned on legal issues, the mujtahid will sometimes find a clear answer in the Qur’an and the Sunna because there is an explicit text. Then the fatwa consists of a quotation, and a restatement of the authoritative proof.
If there is a text that is open to interpretation, or if there is no relevant text, the mufti must give a specific response in the light of both the objectives of the Sharia and the situation of the questioner. AlShatibi underlines that the mufti really does play role of vicegerent who must come up with a legal judgment for the one who calls on him. The more the issue is related to an individual or a particular case, the more precise, clear, and specific it must be. Consequently, a fatwa is rarely transferable, because it is a legal judgment pronounced (in the light of the sources, of the maslaha, and of the context) in response to a clear question arising from a precise context. In the field of law, this is in fact the exact meaning of “jurisprudence.”
Many questions have been raised in the course of history about the diversity of fatawa. If Islam is one, how could there be differing legal judgments on the same legal question? The ulama have unanimously affirmed that if geographical or historical contexts differ, it is no longer the same question, for it must be considered in the light of a new environment. Thus, properly considered responses should naturally differ, as is shown by the example of al-Shafii, who modified some of his legal judgements after travelling from Baghdad to Cairo. So, though Islam is one, the fatawa, with all their diversity, and sometimes contradiction, still remain Islamic and authoritative.
This kind of diversity was understood, accepted, and respected, while the problem of disagreement between ulama faced with an identical legal question has given rise to endless debates. Is this possible in the area of religious affairs, and if so, how can Islam be a unifying force for Muslims? Two essential points have been emphasised by the vast majority of ulama.
There is no divergence of opinion on the principles, the fundamentals (usul) of Islamic law. There is a consensus among the jurists on the fact that these principles constitute the essence, the frame of reference, and the benchmark of the juridical corpus of Islamic law and jurisprudence (fiqh). However, it is impossible to avoid differences of opinion on points related to secondary issues (furu), for a legal judgment on these points is dependent on and influenced by many factors, such as the knowledge and understanding of the ulama and their ability to deduce and extrapolate judgements. The natural diversity in their levels of competence inevitably gives rise to divergent interpretations and opinions. This even happened among the Companions at the time of the Prophet, and, according to the ulama, such divergences should be recognised and respected, within their limits, as based upon the fundamentals of Islam.
A question naturally arises from this consensus: even if there are various “acceptable” legal opinions on one and the same problem (even a secondary problem [far]), does this mean that all the fatawa have the same value; in other words, are they all correct? If that were the case, it would lead to the conclusion that two divergent opinions could both be true at the same time, in the same place, and in respect of the same person, which is rationally unacceptable. The majority of ulama, including the four principal imams of the Sunni schools of law, are of the view that only one of the divergent opinions pronounced on a precise question can be considered correct.
This is indicated in the passage in the Qur’an that relates the story of David and Solomon, where it is clear that, although they had made judgements on the same case and although both of them had received the gift of judgement and knowledge, only Solomon’s opinion was correct: “We made it understood to Solomon.” This position is also confirmed by the hadith already cited about the mujtahid’s reward: he will receive two rewards if he is right but only one if he is wrong, because his effort and sincere research will be taken into account by God.
So, to accept that there may be a diversity of legal opinions on precise questions (formulated in the same context, at the same time, and for the same community or individual) does not in the least lead to the assumption that there are several “truths” and that all these opinions have the same value and correctness. There is only “one truth,” which all the ulama should try to discover, and they will be rewarded for the effort they make towards this. As long as there is no indisputable proof applicable to the problem in question, each Muslim should, after consideration and analysis, follow the opinion whose evidence and worth seem to him the clearest and most convincing.
Guided by the Qur’an and the example of the Prophet, which are for Muslims the sources of truth, the ulama should do their best to discover the truth when the texts are not clear or simply do not exist. In fact, the meaning and content of the delegation granted by God to mankind reaches its peak and is fulfilled when the ulama struggle constantly and tirelessly to arrive at the most correct judgement or that which is closest to what is correct and true.
So, these ulama, both mujtahids and muftis, must be determined, demanding and confident in their own judgements, while remaining humble and calm to face and accept the fact that there will necessarily and inevitably be a plurality of opinions. The imam alShafii aptly said, concerning the state of mind that should characterise the attitude of the ulama: “[As we see it] our opinion is right though it may turn out to be wrong, while we consider the opinion of our opponents to be wrong though it may turn out to be right.”
Source: IslamiCity – Tariq Ramadan
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