In recent times fatwas have created great deal of controversies especially in India. The institution of fatwa is not new and as old as Islam itself though its institutional patterns have varied from time to time. However the institution of fatwa (called dar al-ifta') has been quite integral to Islam. We would like to throw light on the origin of this institution and also discuss some controversial fatwas issued recently in India.
Islam originated in Arabia where no state institution existed or was there any revealed or institutional religion. It was a tribal society driven with inter-tribal feuds. There were no written laws except oral traditions and established customs. Nothing, if it did not fit into their oral tradition was acceptable. But also due to international trade of which Mecca was an important centre, tribal structure was breaking down and new inter-tribal business corporations were developing.
This created certain social needs, which could go beyond oral traditions and established customs. Islam in fact, fulfilled this need. Islam was a religious as well as social movement. It provided written laws in the form of Qur'an. Qur'an of course did not contain laws drafted by human beings but based on revelation through the Prophet (PBUH). It had both moral as well as legal pronouncements. It was first time that Arabs got written law and could go beyond oral traditions, which were hardly adequate for developing socio-economic relations.
Many of the Qur'anic legal pronouncements were a result of questions put to the Prophet and Prophet received revelation in response to those questions. In fact this was beginning of the institution of fatwa. People ask questions and some authority answers it. During the life time of the Holy Prophet there was no authority greater than him and hence as was as he was alive people went to him and asked him only about various problems. Many of the Qur'anic verses begin with 'yasalunaka' i.e. they ask you.
For example the Qur'anic verse about moon begins with 'yasalunaka' as follows: "They ask you about the new moons. Say: They are times appointed for people, and (for) the pilgrimage." (2:189) Arabia being non-agricultural area had no systematic calendar as in India or Rome whose agricultural operations depended on fixed seasons and hence solar calendar was needed and their festivals were also connected with agricultural operations. However, in Arabia no such need had arisen and only practical method was to begin the month by sighting the moon and hence on asking the question about moon the Qur'an replied accordingly.
There are other problems too dealt with by Qur'an in response to such queries. When some people asked the Prophet (PBUH) about wine and gambling and what to spend in the way of Allah, the Qur'an provided the reply. This verse also begins with 'They ask you'. Thus the relevant verse is as follows: "They ask thee about intoxicants and games of chance. Say: In both of them is a great sin and (some) advantage, for people, and their sin is greater than their advantage. And they ask thee as to what should spend. Say: What you can spare. Thus does Allah make clear to you the messages that you may ponder." (2:219).
Many such other questions were asked and Prophet replied through the agency of revelation. Sometimes he himself replied without waiting for revelation. Such replies go under the category of the hadith. Also his companions observed what the Prophet did. Thus what the Prophet said and did came under the category of sunnah.
When the Prophet was alive people asked him and he replied either himself or through the agency of revelation. And after his death Qur'an and hadith or sunnah became the principle source of legislation and also answering questions raised by Muslims from time to time. Immediately after the death of the Prophet most of the questions were directed to either his successors (known as Caliphs) or his knowledgeable companions.
Since most of the Arabs had embraced Islam by the time of the death of the Prophet (PBUH) they felt need for knowing Islamic laws and matters permitted or prohibited. They were converted to Islam but hardly knew Qur'an and sunnah and hence when they faced some problem they went to these companions and asked questions. When they got replies they would act according to that.
Fatwa literally means legal decision and istifta' means asking for legal opinion. Thus came the institution of fatwa into existence. As we consult a lawyer when faced with some legal problem, Muslims used to consult mufti (one who issues fatwa) when faced with legal problems of halal or haram (i.e. permissible or prohibited). After the companions of the Prophet (PBUH), their followers used to answer these questions as they had acquired their knowledge from the companions.
When Islam spread outside the Arabia and many non-Arabs began to convert to Islam the need for asking questions became much more as these neo-Muslims hardly knew anything at all. Some of the companions had settled in other lands and many people from Persia ac soon acquired expertise in Islamic learning. Many eminent jurists were from Persia. Persia had old tradition of learning, which now was replaced by Islamic learning. The Arabs had no such tradition. Thus we find more scholars and jurists among non-Arabs.
Also the Qur'an was in Arabic and it was easy for Arabs to understand than non-Arab Muslims who spoke different languages and could not understand Qur'an or hadith. Thus these Muslims of non-Arab origin had more questions to ask. The knowledge of fiqh (jurisprudence) evolved by 3rd and 4th century hijra (Islamic calendar) and it was by then that the Shari'ah rules were finally compiled. Many of these rules came into existence as a result of such legal queries.
When such queries began to surface frequently need was felt for evolving systematic institution to answer those queries. This institution was called dar al-ifta (house of answering the legal questions). Thus issuing fatwa was a social and religious need and not a Qur'anic requirement. In fact in Islam there is no concept of priesthood at all. It is the duty of every Muslim to recite and understand Qur'an and hadith and intellectually engage with them and draw their own conclusion. Theoretically each Muslim is entitled to draw his/her own conclusions and not bund down by any school of law.
However, when Islam spread to almost every part of the world and Muslims of different religious, intellectual and cultural backgrounds embraced Islam and they wanted to know more and more about it the institution of fatwa could not be avoided. Every individual had neither talent, not training nor time to engage herself/himself in religio-legal matters. Also, over a time several schools of jurisprudence like Hanafi, Maliki, Shfi'i, Hanbali, Zahiri (Sunni) and Shi'ah Jafari, Ismaili, Zaidi (all Shi'ah) developed and each school of jurisprudence (also called madhhab) came into existence.
Sunnis and Shi'ahs followed one of these schools and Muslim belonging to a particular school (madhhab) will go to jurist of his /her own madhhab to ask the opinion about a problem facing that individual or someone on his/her behalf would put that question to the concerned jurist.
However, all these schools of madhaib were formed during first three to four hundred years of Islam i.e. 10th to 14th century of Christian Calendar. The religious and socio-cultural needs of people of the time were very different from those of our times. The problems facing people of those times were different from those of our times. Yet, our jurists trained in conventional schools of jurisprudence issue fatwas in the light of fatwas issued earlier.
In each school one gets fatwas compiled according to opinions of jurists of that school. On receiving a question (istifta') the jurists first consults the compilation whether he can get answer to the question. If he finds he issues the fatwa accordingly. If he does not, he tries to find the relevant verse from the Qur'an and hadith, if any and then issues fatwa accordingly. The entire process is mostly imitative, not reflective, much less creative. Even if new developments have taken place and new needs have arisen, he is not concerned. His whole training is to answer these questions in terms of halal and haram (permissible or prohibited) as opined by the early founders of the schools.
The hadith pertaining to Ma'adh bin Jabal, a companion of the Prophet (PBUH) who was appointed governor of the Yemen shows that the Prophet was very much in favour of struggling with new problems and finding their solution technically called ijtihad (intellectually asserting to find solution of newly arising problems in the light of Qur'an and hadith).
All Muslim 'Ulama accept the legitimacy of ijtihad which implies re-thinking issues in Islam and also accept the fact that early jurists or "Ulama had attempted ijtihad. They also accept the fact that ijtihad is permissible even today but find refuge under the pretext that none of us now are qualified to attempt ijtihad. Thus for all practical purposes gates of ijtihad have been closed by the 'ulama and they are forcing Muslims to resort to taqlid (i.e. imitation).
Some Muslim thinkers have divided ijtihad in two categories: 1) ijtihad-i-muqayyad i.e. restricted ijtihad (restricting ijtihad to ones own school of jurisprudence Hanafi, Maliki etc.) and ijtihad-i-mutlaq i.e. ijtihad in absolute sense, not restricting to ones school of jurisprudence. Let alone ijtihad-i-mutlaq the 'ulama do not permit even restricted ijtihad.
But liberal and reformist Muslim scholars very much favour ijtihad be it restricted or absolute. Number of 19th and 20th century 'ulama like Mohammad Abduh of Egypt, Sir Syed Ahmad Khan and Maulavi Chirag Ali, Maulavi Mumtaz Ali Khan, Mohammad Iqbal and several others boldly resorted to the institution of ijtihad and gave new creative legal opinions on various issues facing the Muslim ummah today.
Muhammad Abduh allowed interest on postal savings in Egypt. He even allowed statues of political and eminent social thinkers to be installed to honour them arguing that there is no danger of Muslims worshipping them. Traditional 'Ulama had banned such statues fearing Muslims might begin to worship them. Muhammad Abduh argued that world over such statues are installed and no one worships them. Thus he attempted ijtihad in absolute sense as jurists of all schools ban installing of statues.
Anyone attempting ijtihad has not only to have profound knowledge of Qur'an, hadith and all other traditional sources but also should have tremendous courage of conviction to stand against all. Very few people can combine both. Thus most of the fatwas issued become run of the mill affair.
Also, only a qualified mufti is entitled to issue a fatwa and the mufti is thoroughly trained for the job. Many Muslims, hardly aware of these requirements and specially in smaller towns or villages rush to the Imam of a nearby mosque and ask him about the problem and the imam with his limited knowledge of sources gives his opinion and this is dubbed as fatwa by some ignorant journalists.
Today media plays a very important role and media has its own biases. Anyone answering a problem is taken as a mufti and his answer as 'fatwa' and hen ridicule it. It then becomes matter of debate on T.V. channels as well as in print media. No one applies his/her mind as to who gave the opinion (media treating it as fatwa). Even if a qualified Maulavi or a mufti issues the fatwa, it will be treated as his opinion, not necessarily binding on all Muslims of that school (Hanafi, Shfi'i etc.) let alone Muslims of other schools.
It should be noted that a fatwa is a legal opinion issued by a mufti of a particular school of jurisprudence and is far from binding on all Muslims or even on the person asking for the fatwa. He/She can totally ignore the opinion and act according to ones own conscience. Fatwa is voluntary in that sense. Also, there can be contradictory fatwas as we often get contradictory medical opinions from doctors.
The fatwa might appear ridiculous to many people as it is issued according to ones own knowledge and approach. The mufti might be quite orthodox and could be following his school of jurisprudence rigidly without applying his own mind. For such fatwa the mufti should be blamed rather than Islam. As for the question why Muslims go to orthodox muftis for asking fatwas one can as well ask why tribals go to ojhas rather than a doctor? The reason is obvious. Tribals lived in backwardness and poverty and are not even aware of modern medical developments and cannot afford it, even if they want. Muslims too live in similar conditions and have no awareness of modern social and legal developments. Those Muslims who belong to middle or upper classes and are adequately educated normally do not ask for such fatwas.
Muslim countries are, for various reasons not to be discussed here, are generally socially and educationally comparatively backward and have not developed advanced intellectual culture. The Muslim society today though is not static, but is developing quite slowly whereas changes in political, legal and scientific fields are taking place very rapidly. Before they could absorb these changes, new developments take place. Many Muslim countries being authoritarian, Muslims in these countries do not have free access to many intellectual resources.
Because of this relative backwardness there is strong tendency of worship of the text among Muslims. They worship the text so blindly that they do not want to even understand the context of the text. A text torn from context can become a powerful block for change and progress. Muslims have almost overlooked the transcendence, which forms integral part of Islamic text.
It requires great vision to appreciate transcendental dimension of ones religion and value system. In all religions laws and rituals override values. Core values like truth, equality, justice, love, compassion, non-violence and human dignity are the essence of any religion. Any legal system, which does not take these values into account, can become a dead-wet for humanity.
A constant search for truth and passion for changing the world for the better are real qualities for a religious person. It is constant quest for truth, which makes ones thinking dynamic and meaningful. It also paves the way for social change. Our muftis mechanically worship the text and refuse to accept anything, which does not form part of their text. The media instead of ridiculing these fatwas should try to understand their social roots and static nature of Muslim society for various reasons.
Today a stimulating debate is needed in the Muslim society as to why intellectual culture necessary to respond to the problems of contemporary world has not developed. Why text is blindly worshipped by Muslims? Why intellectual freedom is so restricted despite the Qur'an permitting freedom of conscience? Why conformity has a high value? Conformity was never at a premium in early history of Islam. There were lively debates on every issue. When and why this intellectual culture was lost? Who is responsible for that?
Meek submission will not take Muslims very far. The traditional 'Ulama have acquired much greater authority than warranted in modern society. Traditional learning should be a part of history and new scholarship, more dynamic and vibrant and responsive to contemporary period should be developed. The Qur'an needs to be re-read and read at various levels to cultivate this new culture. The Qur'an is quite dynamic and encourages freedom of intellect.
However, our backward intellectual character and stagnant nature of our society have not allowed us to re-think and come out of feudal framework of thinking. The world has entered post-industrial, post-modern era and we still refuse to revise our opinions expressed by our ancestors. This does not speak ell of our Muslim society. We have rich heritage of intellectual culture from earliest time of Islam. The very first Qur'anic verse began with "Recite" and this came in the midst of a culture, which had not known learning nor had any such tradition. Later the Prophet (PBUH) also emphasised acquisition of learning and knowledge.
The Qur'an invited Muslims to use power of reasoning ('aql) gifted by Allah and repeatedly exhorted people why don't you think, why don't you reflect (2:76, 2:242, 3:65 etc.). Thus the Qur'an invited us to think and create and acquire more and more knowledge. The Qur'an, in fact exhorted people to reflect deeply on entire creation of Allah (88:17-22) and laid the foundation of inductive logic, which is so important for modern science. Modern science is entirely based on inductive, not on deductive logic and the Qur'an's whole approach is inductive.
The Prophet of Islam also asserted that a moment's reflection on creation of universe is more meritorious than praying whole night. He also said that ink of pen of a scholar is more important than blood of a martyr and a person travelling in search of knowledge is like walking in the path of God. An 'alim contributes to the world more than a person going for courting martyrdom.
Unfortunately the young of the community today are blasting themselves to pieces in suicide bombing than changing the face of the world by blasting ignorance and unravelling mysteries of the creation. The Muslim world indeed is passing through grave crisis and our backward looking and intolerant theologians are intensifying this crisis by issuing fatwas based on their knowledge of the medieval world. Unfortunately the knowledge created by medieval Islamic scholars is thought to be divine and our traditional theologians refuse to go beyond it and issue all their fatwas based on that knowledge.
This will certainly not help the Muslims and cause of Islam. New knowledge is being generated and communicated very fast in this era of Internet. We must remember that the Qur'anic values are permanent and everything else is liable to change and a living community would never hesitate to accept knowledge, which does not violate the Qur'anic values like justice, benevolence, compassion and wisdom.
The liberal Muslim intelligentsia should come forward and lay foundation for new knowledge in the Islamic world and make it vibrant once more as it was during the first four centuries of Islam when it produced great thinkers, philosophers and scientists which gave so much to the world as a whole. They must push the Islamic world out of the world of medieval fatwas.