Fatwas as a Weapon against Fanaticism

Last update: 2022-04-22 08:57:29

In a world where forms of extremism and radical preachers are spreading, governments cannot deal with the problem of religious violence solely through security measures. It is in states’ interests to have strong religious institutions capable of carrying out a profound reform and generating a new discourse on faith. Peace in society depends upon it.

 

How did fatwas come into being? As a response to certain questions regarding people’s everyday life, and how many of these questions there are! This is why the earliest fatwas were called answers, as in the case of “Jābir Ibn Zayd’s Answers” and “Qatāda’s Answers”. As for the aspects that went beyond everyday life, the ulama used to speak, rather, of “issues” and “treatises”. We have texts thus entitled dating to the second century of the Islamic era (the eighth century) and concerning problems that, naturally, have an impact on everyday life but, at the same time, require a sort of in-depth, theoretical consideration that has to do with the fundamentals of religion or life or with Qur’anic concepts. This is what the imam Abū Hanīfa[1] used to call The Greater Knowledge (al-fiqh al-akbar) and what, as is known, others passed on under the name of dialectic theology (‘ilm al-kalām).

 

At a later stage, fatwas relating to the questions about everyday life were gathered together and ordered according to subject. The books of the Traditions made their appearance, as did the standard works of jurisprudence, such as the Muwatta’ of imam Mālik [Ibn Anas][2]. Imam al-Shāfi‘ī’s epistle[3] constituted a watershed, both for the identification of the sources for fatwas and rules-derivation and for the jurists’ ways of operating. There resulted a methodological distinction between jurisprudence (fiqh) and theology.

 

It should be emphasised that those who followed the jurisprudential orientations that were to become schools of law during the course of the third and fourth centuries of the Islamic era (the ninth and tenth centuries), did not rely on the texts written by the schools’ founders. They referred, rather, to the compendia drawn up by the latters’ pupils, such as the compendium compiled by al-Muznī (al-Shafī‘ī’s pupil) or the compendia drawn up by Tahāwī and Kurkhī for the Hanafis, or by Ibn Abī Zayd for the Malikis, or those compiled by Khalīl Ibn Ishāq and Khurqī for the Hanbalites[4] etc. The compendia would become general teaching texts and the bases for drawing up fatwas, until a great jurist made his appearance in a school and wrote another great interpretative work. This, in its turn, did not immediately become a reference text: someone would make a compendium out of it and if this was successful, it became a text on which the teaching and fatwas were based, and so on. The tradition (taqlīd) went on forming precisely in this way.

 

This tradition was destabilized twice during the course of Islam’s classical era. In the Arab East, it was the jurisprudence of life[5] that was undermined. This was due to the weakness of Abbasid power, which was on the point of disappearing during the fifth and sixth centuries of the Islamic era (the eleventh and twelfth centuries). In the Islamic West, on the other hand, the religious law, too, was affected when Sicily fell into the hands of the Normans and ceased to be part of the territories governed under an Islamic legal system.

 

Traces of the first situation can be found in the book Ghiyāth al-umam (“Salvation of the Nations”) by the imām al-haramayn, al-Juwaynī. In order to prevent Islam’s authority being compromised, he proposed a change in the way of conceiving the relationship between religion and the caliphate: the state governs earthly matters and protects religion but since the caliphate was no longer capable of managing temporal politics or of protecting religion, it was necessary to change the form of government; were the jurists not to change their methods (something that they were not, in reality, capable of doing), the religion would be imperilled.[6]

 

The situation in the Islamic West was even more serious, insofar as it was linked to the religious law, rather than jurisprudence of life. Indeed, in the Levant the problem was solved by the appearance of strong powers that protected the people and freed them from the domination of the crusaders and the Mongols: and when the community is safe, religion is safe. In the second case, however, while Islam’s abode was under attack and – after Sicily – it was Andalusia’s turn to fall, the jurisprudence was challenged at a conceptual level: what are the religion’s unchanging elements that can be neither renounced nor neglected? How close is the tie between religion and the expansion or shrinking of the Muslims’ state? It was at that point that the expression “jurisprudence of momentous events” (fiqh al-nawāzil) appeared amongst the Malikis and questions linked to the jurisprudence regarding emigration made their appearance (they received inadequate treatment, most of the time). In both cases, in the upheaval in the Arab East and in that occurring in the Islamic West, the jurisprudence of necessity required two things: a ruling power that was strong and endowed with coercive capability and a closer connection between fatwas, religious law and the law dictated by reality. Thus the formulation of fatwas (which was a branch of the law, at that time) went back to being considered amongst the religion’s fundamentals and its unchanging elements. And so we see that all those who have written fatwas and nawāzil since the fifth century of the Islamic era, have also drawn up books on the fundamentals of the faith […].

 

 

The Task of the Ulama

 

Which are the unchanging elements of the religion and which are those of the jurisprudence of life that stem from them or depend on them? What is our task as ulama in the current circumstances? The unchanging elements of the religion in the Muslims’ credo are monotheism and the existence of the visible and invisible world that is indissolubly linked to it, the profession of faith (and thus the messengers, the prophecies and the [holy] books), worship and relations between men and, last but not least, the Last Day. In the discourse delivered during his farewell pilgrimage, God’s Messenger – may peace be upon Him – clarified the connection between Islam’s credo and the Muslim community’s life when he dwelled on the three inviolable things: blood, honour and property. Even if “Satan has by now given up hope of being adored in Arab lands”, people and their faith continue to be driven to violate both the order concerning inviolable things and the one concerning life.

 

And it is exactly this illness that the umma and the religion are suffering from today: the violation of inviolable things, of people’s lives, their dignity and their property. And in the name of what? Not just in the name of oppression and tyranny but also in the name of the religion i.e. blood is shed after pronouncing the anathema and people’s dignity, honour and property are attacked after declaring these things lawful on a satanic pretext. This is the inherent defect in the very religious law itself that has led to a defect in the jurisprudence of life. Should it persist, it could expose the Muslim community and Islam to even greater dangers.

 

What task do we religious scholars and fatwa experts have, in the face of this phenomenon? What is our mission? Al-Māwardī[7] states that the mission of religious scholars and rulers is to “protect religion both in its fundamentals and in its consolidated practices.” The tasks and prerogatives are clear. The task of the political authorities, on the other hand, is to “safeguard religion”, where “safeguarding” means protecting the religious freedoms of all categories of society – regardless of differences in religious faith or denominational affiliation – and this in three specific areas: belief, worship and teaching in accordance with the religion’s essentials and consolidated practices. It is the task of the religious scholars and devout men to define Islam’s fundamentals requiring protection, not through an exercise of power but through teaching, fatwas and a unity of belief and worship. This is the meaning of cooperation and harmony between religious institutions and political institutions in both the historical and the modern experience of our umma. We have carried out and we continue to carry out the tasks assigned us using four tools: the performance of acts of worship in their entirety and unity, religious teaching, the issue of fatwas and the provision of general guidance in its various aspects and activities. 

 

Two issues emerge at this point and they require investigation if we want to understand both the reality in which we find ourselves and the task that faces us. The first issue is the current situation regarding our spheres of action (i.e. doctrine and worship, teaching and fatwas), the challenges we must face and, consequently, the changes we ought to be making in preparation. The second regards our condition, both as individuals and as institutions, and the ways in which we should carry out a reform that will have to hit two levels: on the one hand, culture, consciousness and training, and, on the other, a rethinking of our relationship with the masses, so as to be able to perform effectively the task of protecting the religion.

 

Let us begin with the first issue. […] I would like to concentrate, in particular, on aspects of doctrine and worship because it is essentially in those areas that the evil weeds of the extremists and the preachers of violence have taken root. They have attacked the true religion and its unchanging elements, tearing the faith, the umma and the world to pieces with their accusations of unbelief (takfīr), their killing and their terror. […] From this point of view, the first aspect to emerge is the fanaticism colouring the accusations of unbelief hurled against states and society. […] This defect and this division have resulted in a fracturing first of the jurisprudence of doctrine and then of that of worship. At first, the terrorists spared those who prayed in the mosques. Then they began to blow up the mosques, along with the faithful inside them. Initially, they said they wanted to eliminate the secularists and the unbelieving or apostate rulers, but as of the last decade they have had no scruples about destroying mosques in which ordinary Muslims were praying.

 

For this reason, they present one problem from a doctrinal point of view and another as regards worship. There is, however, a third problem that is no less alarming; a moral problem, if one may put it like that. I am not only referring to what God prescribes we should guard and preserve, by ordering good and forbidding evil. I am referring to something more, to the words of the Most High: “Prayer preserves from depravity and evil” (Qur’an 29:45). What depravity is more atrocious than mosques exploding, women being seized and immorality being committed upon them, than the logic of the domination and tyranny to which Muslims and non-Muslims are being subjected, than heresy and people being hounded out of their own homes? These things are atrocities even according to the literalist logic that the terrorists declare they are applying in their reading of the texts. […]

 

This is what I mean when I say that the concept and the functions of the fatwa must be made to evolve, particularly as regards clarifying the unchanging elements of the religion and of the umma throughout its history and promoting a right understanding of the religion both in the relations within Islam and in relation to the other religions and cultures. Fatwas can no longer be limited to aspects of everyday life and its problems, although these remain one of their prerogatives. The essentials of Islam regarding doctrine, worship, values and ethics must be explicitly stated. […]

 

There is a need to go back to following the Sunni doctrine: not the exploitative interpretations in the neo-Salafi preaching but the doctrine taught by the imam Ibn Hanbal: “We cannot declare a believer to be an unbeliever on account of a sin […] We pray behind every imam and wage jihad at the side of every emir.” Such a restoration not only serves to solve the problem of the alleged polytheism or of loyalty to Islam and disavowal of idolatry (al-walā’ wa-l-barā’), but it also allows us to go back to recognising the vastness and plurality of our umma’s historical experience. Imam Abū al-Hasan al-Ash‘arī[8] wrote in the incipit to his Maqālāt al-Islāmiyyīn, “After the Prophet – may peace be upon him – people found themselves in disagreement over many things, pushing each other into error and refusing to acknowledge each other. Thus they have been divided into opposing factions and into parties that are being scattered. But Islam unites them and includes them all.” We must therefore restore the tradition of the Sunnis’ doctrinal teaching and take it into consideration when formulating fatwas, so as to free ourselves from takfirist excesses and from calls to apply sharia and impose religion on people through violence.

 

Eleven out of nineteen Lebanese and Jordanian imams have told me that people often ask them whether Islam has a system of government or why is it that Shia Islam has a system of government and Sunni Islam does not. And then again, whether sharia is applied nowadays and what are the tools with which it ought to be if it still is not.

 

Important conceptual modifications have occurred over the last decades, not only at the hands of the extremists but also, and primarily, in the figures and the parties that go by the name of political Islam. The most dangerous are the conceptual modifications regarding the need to apply sharia, which is currently considered as being disregarded. People are no longer considered to be Muslim because they would, allegedly, not be applying sharia and this is absurd, aberrant and unlawful. Legitimacy derives from the religion and the religion, as I said earlier, is composed of doctrines, forms of worship, ethics and relations between men. All that is already present in the lives of Muslims and no one denies it except those who want to grab power on the pretext of needing to enforce the religion in order to restore its lost legitimacy. And so, precisely through this revolution and mutation, we have reached the devastating argument that Islam would possess its own system of government: this would be a part of sharia and would need to be enforced by the state. The extremists have made a faith out of this understanding and ordinary people have begun to consider this faith perfect and virtuous. And yet all our ulama, right from the earliest times, have always stated that the imamate and political power are a purely administrative matter of public interest and not a question of religion, doctrine or worship. Such is the opinion of the Sunnis, the clear majority of Muslims. They do not preach the religious state, something impossible to achieve in any case […]

 

 

Religious Institutions and the Pressures from Those in Power

 

Having considered the tasks entrusted to the religious scholars and their new mission during this phase of travail and tension, I would now like to pass to the second aspect I wish to treat. This concerns the religious institutions that have these tasks and this mission: institutions that the revivalists and the jihadists have tried and are trying to take over.

 

Over the last few decades, the Arab world’s religious institutions have suffered from numerous problems. The first and most important has been the pressure they have come under from those holding power. With the exception of Egypt, Saudi Arabia and Morocco, the Arab countries’ religious institutions have grown so weak that they have almost dissolved. As emerged concretely with the attacks made by the political Islamists and the jihadists after 2011, there are even countries that no longer have any ulama. Once again with the exception of Egypt, Morocco and Saudi Arabia, the institutions and ulama have not played any role in the countries touched by the so-called Arab Spring. It is therefore necessary to fill this void and overcome this fragility by rebuilding the religious institutions. States cannot deal with the problem of religious violence solely through security measures. It is true that they must defend themselves and their own existence, on which the security of society depends. Nevertheless, religious peace and the trust that people place in religions and their ethics are highly important, both for us and for the state. States have every interest in having strong religious institutions capable of carrying out wide-reaching religious reforms and generating a new religious discourse that can restore peace and trust within society.

 

Conceptual confusion constitutes a second problem. It is true that the religious institutions in the great Arab countries have not suffered any major infiltration, in the sense that Islamist or jihadist ulama remain few and far between within them. However, room has been made in some books and fatwas for concepts such as the application of sharia and the need to create an Islamic system of government, whether it be a caliphate or some other system. I do not mean to say that texts or fatwas on this subject ought to be banned but the fact remains that there were no serious debates within the institutions or amongst the ulama when the tide of the [Islamist] reawakening began to rise, dragging a young public with it. Now that the horrors of politicization and jihadism have emerged, things have changed. But this distancing oneself must be supported by teaching and fatwas in the way I stated earlier. […] The real issue is the issue of civil government, which saves religion from falling into inter-party rivalry and the horrors of power struggles in its name. Constitutions and legislation have met the request for identity and specificity and there is therefore no need for other additions: otherwise, Islam will end up being seized by religious fundamentalist groups and exploited by those fighting political struggles.

 

The third problem is the problem of method and context. Indeed, fatwas are a fundamental part of the legal tradition and we are bound by that tradition’s methodology and tools. The tradition is a living one, however, and so much so that all the great twentieth-century interpretations have been realized by jurists who followed it. Even the revivalists producing a religious law worthy of that name have had to draw on the ancient tradition, despite the noisy campaign they have unleashed against it with their slogans regarding a renewal of fiqh and the religion’s fundamentals. Even in relation to the purposes of sharia, they have not added much to what al-Shātibī[9] said. Naturally, the tradition is not binding but it is not reprehensible either. Indeed, we have no tools other than those provided by the scholars of the law’s fundamentals and sharia’s rules and by the scholars of sharia’s purposes and the five necessities.

 

Then there is the question of the binding nature of fatwas for the ulama from the different schools of law. Now, no ulama would dream of asserting this binding nature. It is only a question of prevailing opinion: Muslims consult those whom they trust by virtue of their religiosity and knowledge and they usually follow their fatwas. Thus it is not necessary to make them binding. Otherwise we would fall into the jurisprudence being produced by ISIS and al-Qaeda. Even the Shi‘ite authorities, who have accepted the possibility of following the tradition of the dead [jurists] – something that was once forbidden – cannot do without the concept of living tradition!

 

The fourth problem is the weakened state from which the religious institutions are suffering both because of the conditions in which the state and society find themselves and because of the widespread sensation amongst the ulama that they are no longer interesting or useful. Loss of interest and the dwindling perception of our mission really constitute the gravest threat we are facing. It is true that the current circumstances have caught us unawares but zeal for religion and social peace must drive us to be adequately prepared and to take action in the field of teaching, fatwas and general guidance. We have responded with ardour to the West’s cultural and religious invasion and our sheikhs have produced an important heritage in this respect. However, the problem we are facing today is more serious because it has to do with fractures within religion and the use of violence against society and the state in the name of religion. Ours are institutions that are not imposed. They are, rather, voluntary ones that essentially rest on competence and make no claim to sacredness. If life were to go back to flowering in this spirit, it could still produce much fruit, insofar as such a spirit responds to deep desires, to the sentiment of a mission, to a social need and a divine vocation: “Let there be one nation of you, calling to good, and bidding to honour, and forbidding dishonour; those are the prosperers” (Qur’an 3:104).

 

Giving guidance and issuing fatwas are a vocation. Teaching the religion is a mission. We did not withdraw from this vocation or mission yesterday, we are not withdrawing from them today and, Deo volente, we will not withdraw from them tomorrow; because on our work depends the religion’s salvation and the restoration of interior peace for societies and states: “As for the scum, it vanishes as jetsam, and what profits men abides on the earth” (Qur’an 13:17). The word of God.

 

* Paper presented at the international conference “Fatwas: Current Problems and Future Prospects”, held in Cairo on 17-18 August 2015

 

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of the Oasis International Foundation

 

 

[1] Born in Kufa in 702, he died in Baghdad in 772. He is the jurist who gave his name to the Hanafi school of law.

[2] Born in Medina in 715, he died there in 796. He is the jurist who gave his name to the Malikite school of law. He is the author of the most ancient collection of legal hadīths, known as al-Muwatta’ [“The Well-trodden Path”].

[3] Born in Gaza in 767, he died in Fustat (currently old Cairo) in 820. He is the jurist who gave his name to the Shafi’ite school of law.

[4] The Hanbalites are the fourth Sunni school of law. They take their name from the hadīth scholar Ahmad Ibn Hanbal (Baghdad, 780-855).

[5] The jurisprudence of life, which the author contrasts with “religious jurisprudence”, refers to that part of the Islamic legal rules that does not derive directly from the religious sources and that regulates social life.

[6] See the “Classics” section in this edition of the Journal. Al-Juwaynī taught for several years in Mecca and Medina and, in recognition of this, received the honorary title of Imam of the Two Sanctuaries (imām al-haramayn in Arabic).

[7] Al-Mawardī (972-1058) was the caliphate’s great theorist in the field of Sunni jurisprudence.

[8] Founder of the most important school of Sunni theology, he died in Bagdad in 936.

[9] A Maliki imam from Andalusia, he died in Granada in 1388. First and foremost, he polished the doctrine of “sharia’s purposes”, according to which Islamic religious rules should be read in the light of the five general objectives.

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