Introduction
- The Islamic Message
- The Principle Of Fatwa
The Islamic
Message
M.S.Omar
Islam means to surrender absolutely to the Divine Will, as manifested
and expressed in the Holy Qur'an and the Prophetic life model known as
the Sunnah.
This absolute surrender to the Divine will in all possible lifeexperiences,
and in all facts of life, is based on a fundamental premise Allah, whose
essence and attributes are perfect, and who is the source of all good,
represents absolute wisdom. Allah is therefore the supreme legislator.
Allah (whose essence and attributes cannot be fully perceived by man)
has prescribed through the Holy Qur'an and prophetic life-model ("Sunnah"),
a comprehensive and all-encompassing code of life to enable man to recognize
and perceive his creator, and to enable man to follow the Divine will.
The true test is the recognition of Allah in the unity of his essence,
and in the perfection of his essence and attributes, and as the true cause
of all actions and omissions, which flow from His absolute wisdom.
Allah, in his infinite Wisdom, and to enable man to undergo this true
test, has endowed man with the special inner cognitive capacity known
as the soul which directly connects the human being to his creator. The
soul is exposed, at the same time, to the inner impulse to do good or
bad, and here lies the true test : the person who resists and controls
the inner impulse to do bad, and at the same time, acts on the impulse
to do good, has passed the test : his or her soul is like a irror which
reflects the Divine light, and which has truly become connected with his
or her creator. That soul, purified of the lower bad qualities, both inner
and outer, has truly recognised Allah.
This world is but a means for the soul's onward time-less journey into
the hereafter where it will return to its Lord and Creator.
Once it is accepted that Allah is the supreme Legislator, because He is
Absolute Wisdom, then, the human intellect is his gift : it must be used
productively for the benefit of mankind, but, at the same time, the intellect,
in weighing benefits and harm, must surrender to the Divine will as manifested
in the Holy Qur'an and the Prophetic life-model.
The essence of the Islamic teaching is that all the Divine Commands and
prohibitions are based on benefits to the individual and to society. What
appears to be outwardly harmful ("SHARR") to an individual is,
on closer analysis, beneficial to society as a whole. Hence, capital punishment
for murder, althought harmful to the perpetrator, is beneficial to society
in protecting and preserving it, and in preventing it from descending
into chaos. Similarly, the prohibition against drinking alcoholic beverages
is directed at protecting a greater sociaetal interest, as apposed to
individual benefit in the form, for example, of commercial gain through
trade therein. Allah alone, Absolutely Wise, and Absolutely free of limitations
and needs, and absolutely meciful and Compassionate, decides for man what
is truly beneficial and what is truly harmful. In weighing benefits and
Harm, Allah is the ultimate arbitor as to whether the social interest,
in a specific case, outweighs the individual benefit.
Because Allah is perfect in his essence and attributes, He alone is the
true Giver and source of all the bounties and blessings in every from,
and he alone fulfills, and has the capacity to fulfill, all the needs
of creation (whether humankind, animals, plants or otherwise). The logical
corollaryof this, is that Allah alone is worthy of worship. ("Ibadah")
The Ibadah, which is an aggregate of duties and responsibilities, ordained
by Allah, are simply means to achieve the pleasure of Allah, and are not
ends in themselves. Man's status, in his relationship with Allah, is that
of a slave whose only function is to obey the divine commands (the "faraid")
as embodied in the Holy Qur'an and Sunnah, in absolute humility and absolute
submission.
The true question for a Muslim, therefore, is: What is the Ibadah that
is required of him at the particular point of time? The Ibadah, as the
great scholar Ibn Qayyim states, in his well-known work, Madaarigh-us-Saalikeen,
constantly changes from one point of time to another, based on the demands
of the time. In other words, the Ibadah has priorities, and it is the
function of the individual to identify the Ibadah that Allah requires
of him or her at a particular point of time, and discharge that Ibadah
exclusively for the pleasure of Allah. For example, a companion came to
the Holy Prophet (S.A.W.) and sought this permiss-
ion to participate in jihad, the highest level of self sacrifice. In response,
the Holy Prophet (S.A.W.) instructed him instead of participating in jihad,
to return and serve his aged parents becuase his Ibadah, at that point
of time, was to devote his time in the service of his parents who required
his affection and care. Ibadah, viewed in this way, will establish a true
connection with Allah.
At the same time, the individual is enjoined to constantly seek the Tawfiq
of Allah to discharge the Ibadah itself. Tawfiq, which is the mainspring
of Ibadah, comes from Allah only. Hence, we are instructed in the Surah
Al Fatihah, "Thee alone we worship, and thee alone, we seek help".
Without such Divine assistance, no individual would be able to discharge
the Ibadah required of him in all fields of human activity.
The individual must also understand that his deeds alone are not sufficient
for attaining the Divine pleasure. Whilst the good deeds are necessary
means to attain the Divine pleasure, the ultimate acceptability thereof
before Allah is based on his mercy and Fadl, as appears from the Holy
Qur'an and the Hadis.
Finally, the great jurist, Imam Muhammad (R.A), the student of Imam Abu
Hanifah, has summarized the Islamic teachings by reference to four cardinal
principles. He states that a person can reach the highest levels of earthly
excellence, without restriction, if he or she adheres to the following
:
1. Abstention from the major transgressions, whether flowing from
the physical limbs, or the inner self.
2. The fulfilment of the fard obligations, the constancy in their
fulfilment, at their appointed times.
3. Abstention from all sources of haram acquisition and illegitimate
economic gains.
4. Abstention from oppression in any form, whether against a Muslim
or non-Muslim.
See : Kitab-ul-Kasb (concluding portion)
Finally, the scholars have emphasized that the discharge of the Faraaid
(the Fard obligations) must always assume priority over the Nawaafil.
The Faraaid are the capital of a business, the Nawaafil being the profits.
As the great companion Abu Bakr (R.A) Advised the great Companion Umer
(R.A.), the Nawaafil will not be accepted until the Faraaid are first
discharged.
M. S. Omar
31/12/98
The
Principles Of Fatwa ( Top )
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.
NOTE :
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.
EDITOR
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