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| | How to Read a Fatwa
Muhammad Khalid Masud Quite often people react to a fatwa without reading it critically, sometimes without even reading the actual text of the fatwa. A fatwa is a discourse and should be understood and analyzed accordingly. A Fatwa has a structure and a special theoretical framework which is necessary for reading a fatwa. In addition, there is a language structure and a social environment in which Fatwa is articulated and discussed. The following is a brief outline of the theoretical framework and the structure of a fatwa.
1. Fatwa: A fatwa is a considered opinion given by an expert, called Mufti on a question about any matter relating to religio-legal matters. This opinion is not legally binding. One can always go to another Mufti for another opinion.
2. Mufti, the person who issues the fatwa, his authority and the authority of the Fatwa lies in the respect for the expertise that a Mufti possesses. In some countries and Muslim societies, a Mufti is appointed by the government or by the community. In that case the Mufti also has an official authority. Still, this authority can be challenged if the Fatwa lacks or is weak in religio legal knowledge. Reading a Fatwa, the first thing is to find out who issued the fatwa? What is the nature and source of his authority?
3. Mustafti is the person who poses the question (Istifta). A Fatwa is given often in answer to a query. It is imperative to read the fatwa along with the Istifta (query). It is applicable only as far as it is answering to the question. Sometimes, the fatwa is also given on the Mufti’s own initiative, not in answer to a particular question. In that case, one has to look at how the Mufti has conceptualized and posed the question to which he is responding. Reading a fatwa, it is necessary to read it as an answer to a question. Every statement in the Fatwa text is not “Fatwa”.
4. Since the range of religio-legal matters is very wide in Islamic law, the religio-legal matters include more matters than the ordinary concept of law includes. However, it also excludes matters which are beyond the expertise of a Mufti. There, he has to consult and rely on the views of other experts. Hence the first thing to question in a fatwa is whether the Mufti has the required expertise in the matter on which Fatwa has been issued.
5. Technically, a fatwa is not comparable with a court judgment (called qada or hukm). It is more like the statement by expert evidence. It is an advice which helps you to make your own decision. In a court judgment, the court has seen and examined various aspects and facts of the case before giving the final judgment. At least theoretically and ideally it is so. In case of Fatwa, the Mufti is not aware of all the aspects and facts of the case. He replies only to the facts as presented to him. Theoretically, a Mufti gives his view only on a point of law, not in a specific case. For instance, he can only say that if such and such is the case, then the law is this. If a person says such and such words, he has committed blasphemy. But a Mufti cannot say specifically that so and so has committed blasphemy. That is only for a qadi and a judge to decide.
STRUCTURE OF THE FATWA
Theoretically, a fatwa consists of two parts: Fatwa and Istifta. In practice, Istifta part is often omitted. In printed collections of fatwas, Istifta is sometimes included, but most often some of its parts are omitted. The structure of the fatwa also varies in style and local practice. I am describing in a very general way the elements which are included in most of the fatwas.
1. ISTIFTA (The question to which fatwa is written)
The Istifta has usually the following structure. 1. Preliminaries: Mostly, it begins with formula phrases that confirm the inquirer’s belief in the religion and law of Islam.
2. Context of the query or facts of the case. It is necessarily inquirer’s side of the story, not totally objective. The inquirer of ten chooses the facts and the language to have av favorable fatwa. It is necessary to look at the Istifta and to examine how objective the query is. It also explains the difficulty of a Mufti, because he cannot go beyond the facts given in the question. Also, a Mufti cannot ignore the extra facts given by the inquirer, because of their social and political sensitivities.
3. Question: After the description of the facts, the inquirer poses the question. It may be short, long or may be multiple questions. It is necessary to focus on these questions to read the fatwa.
4. Concluding phrases. In conclusion again, formula phrases, asking the Mufti to answer according to the Divine law, requesting him to explain clearly with evidence from the revealed sources. The inquirer also stresses that it is a duty of the Mufti to answer the query and that he will be rewarded by God for that.
5. The name of the Mustafti and the date of the query. This portion is often omitted when a fatwa is printed and published. Theoretically, this was a necessary part of the query and the Mufti was careful not to answer to anonymous queries. However, in practice, often anonymous questions are answered because, they may be helpful for others. There is however need to distinguish between at least two types of queries. First, there are general queries about doctrinal aspects, for instance, how to make ablution. Here, the fatwa is very general and informative. Second type of queries is particular and related to some specific case or situation. Here it is helpful to know who the mustafti was and when was the question posed. It may be useful to contextualize the query.
Like Istifta, the structure of the fatwa also varies from Mufti to Mufti and fatwa to fatwa. Oral fatwas, and sometimes written ones are also very short, saying only yes or no, and allowed or not allowed. Media fatwas, e.g. TV fatwas are also sometimes very short. However, in modern times, fatwas, even media fatwas tend to be more elaborate. The following elements are commonly present in an elaborate fatwa.
1. Preliminary: This part contains Mufti’s general comments on the facts of the case, comments about Islamic law, Islam and the relevance of Shari’a.
2. Answer: After the preliminaries, the Mufti gives a brief answer to the query. This part is very carefully constructed. Most often, he will say that if this is so as the inquirer says, then the answer is such and such. In theory, the Mufti should not go beyond the fact given in the query. Even, the Mufti was advised to answer at the back of the paper on which query was written. It is therefore necessary to see the fatwa as an answer limited to the facts of the query.
3. Evidence: In this section, Mufti provides evidence to support his answer. Often, the evidence is limited to the texts of a particular law school, mostly the school to which the Mufti belongs. Theoretically, in the Sunni tradition there are four sources to which a Mufti must refer: The Qur’an, Hadith, and Ijma’ (consensus or the agreed views of the jurists) and Qiyas (argument analogy based on a precedent or text from the aforementioned three sources). Sometimes, extra evidence from history, science and medical sources is also provided. This part actually establishes also the authority of the Mufti and his fatwa. However, it is his selection of the evidence and his interpretation. Reading a fatwa, one must critically look at this part of the evidence. First, is it directly relevant to the question? Second, is it selective evidence? Third, is it biased toward a particular sect or school of law? Regarding the Qur’an, has the fatwa examined other relevant verses? Regarding Hadith, is the Hadith sound? Is there adverse criticism on the Hadith or its narrators in the Hadith books? Is the Hadith in conformity with the Qur’an?
4. Argument and Citations: If the point of law is controversial in Mufti’s view, i.e. where there can be more than one opinion, the Mufti develops his argument and cites from the texts. It is necessary to see how relevant Mufti’s argument is. Is it relevant? Is it rhetorical?
5. Conclusions: After the arguments, Mufti provides a conclusion which often reiterates the brief answer given in the beginning. Sometimes, the Mufti extends his answer to other matters beyond the query. This part of the fatwa is very crucial. One has to look at the language of the fatwa very carefully. Often, the Mufti does not give a clear answer. It uses a language that is vague and ambiguous. The reason may be that Mufti is also not clear or he is very careful. If he is not clear, his fatwa may require a second opinion. Often, Mufti uses extra legal language. For instance, instead of saying that something is valid or legal, he would use the phrases like “It is better…”, “Care should be taken …”, “One should better avoid …”, and “It is advisable …” Such phrases indicate that Mufti is not giving a clear fatwa.
6. Formula phrases: Often Muftis end fatwas with formula phrase like “And God knows the best”, “Only God knows what is right”, or “God supports the truth”. This formula affirms that the real authority belongs to God, and the Mufti admits the possibility that his opinion may be wrong, even though he has done best to state the true position of law on the point in question.
7. Name of the Mufti: An anonymous fatwa is not acceptable. This part must mention the name of the Mufti and his affiliation, if any.
8. Date of the fatwa
9. Seal or signature. Reading a fatwa, one must examine whether the fatwa is original and
authentic. What is the original language? Is it a translation? Who translated