What are the characteristics of a person who can give a fatwa? Can we act according to the fatwas given today?

The Details of the Question

- In what situations/states are fatwas given?
- What kind of characteristics should the person giving fatwas have?
- Should the person giving fatwa give it based on hadiths or other sources, or can he give the fatwa directly?

- Will you give brief information about fatwa?

The Answer

Dear Brother / Sister,

FATWA

Fatwa is the answer given by an authorized person to an Islamic question, a strong answer that indicates the decree on an issue or to resolve difficulties about an event. A person who gives fatwa is called mufti. In the methodology of Islamic law, mufti is used in the sense of mujtahid. A scholar who is not in a position to make ijtihad himself is called a mufti metaphorically because he quotes and conveys the words and fatwas of other mujtahids (Ö. Nasuhi Bilmen, Istılahat-ı Fıkhıyye Kamusu, I, 246). Fatwa has a more special meaning than ijtihad because ijtihad means to deduce fiqh decrees from sources, whether any question is asked or not while fatwa is the answer given to a real or imaginary question. A real fatwa is given by a mujtahid who has the conditions of ijtihad as well as other conditions.

A person gets the Islamic information he needs either from sources himself or, if he cannot do it, learns by asking those who know. The following is stated in the Quran,

“... If ye realize this not, ask of those who possess the Message.” (an-Nahl, 16/43)

Words such as “yastaftunaka = they are asking you” and “yuftikum = he is explaining to you” derived from the root of fatwa are used in the verses of the Quran.

Since interpreting a verse or hadith and solving a new problem necessitate some preliminary knowledge and special abilities, the people who will give fatwas need to have some qualifications. Ahmad b. Hanbal (d. 241/855) says that a person must have the following five qualities to be a mufti:

a) To have good intentions and to seek only the consent of Allah because bad intentions will lead to bad thoughts.

b) To have knowledge, gentleness, dignity and seriousness.

c) To be sure of himself and his knowledge,

d) To make people accept his authority,

e) To know people as individuals and as society.

As it can be understood from the conditions above, a mufti should take into consideration the psychological state of the person asking for a fatwa, have an esteem in the eye of the public, and have an opinion that will comprehend the effect of the fatwa he will give prudently on the individual and society (Muhammad Abu Zahra, İslam Hukuk Metodolojisi, Transl. Abdulkadir Şener, Ankara 1973, p. .391 ff.).

The tradition of fatwa emerged with the emergence of the religion of Islam. The Companions asked the Messenger of Allah (pbuh) about their problems personally, and he solved those problems with verses of the Quran or hadiths. The authority to give fatwa and make judgments belonged to the Prophet (pbuh). Muadh b. Jabal (d. 18/639), whom the Prophet (pbuh) sent to Yemen as the governor, and Attab b. Asid (d. 13/634), whom he sent to Makkah, had the authority to issue fatwas and judge the cases that came to them in those regions (Ahmad b. Hanbal, V, 230, 236, 242; Tirmidhi, Ahkam, 3; Imam ash-Shafii, al-Umm, VII / 273; as-Sarakhsi, al-Mabsut, XIV / 36).

The caliphs like Hz. Abu Bakr, Hz. Umar, Hz. Uthman, Hz. Ali and Umar b. Abdulaziz were heads of state and muftis as well as caliphs. Those three attributes belonged to one person. Afterwards, the functions of the head of state, and fatwa and jurisdiction were separated from each other.

In Hijri centuries II and III, when madhhabs were formed, Islamic law was compiled and transferred to sources (books) of fiqh by mujtahids, who generally did not have an official duty. In the era of the Companions, people referred to verses and hadiths directly, but fiqh sources began to function as law. However, it is sometimes difficult to deduce the judgment of a legal problem from fiqh books. Therefore, fatwa books were formed by collecting the ready answers (fatwas) that had been given before. They were compact information ready in the hands of qadis and eased practice. Considering that the number of fatwa books arranged and compiled during the Ottoman period was a few hundreds, it becomes clear how much Islamic legal doctrine was processed and the abundance of compact information (Kâtip Çelebi, Keşfüz-Zunûn, fetva kitabı niteliğindeki eserler; Bursalı Mehmet Tahir, Osmanlı Müellifleri, İstanbul 1333/1915, II / 61-64).

Being engaged in fatwa is a very important job because the mufti explains halal, haram, health, invalidity and similar decrees on behalf of Islam. Giving a fatwa based on one’s own view and without doing the necessary research regarding the issue necessitates responsibility. It is necessary to be more careful especially if the fatwa is about the rights of people. The duties of ijtihad and fatwa involve great knowledge and specialization. It is not permissible for people who can understand the meanings of verses and hadiths superficially and who have a limited number of hadiths in their memory to try to draw conclusions from religious evidence and to issue fatwas instead of being subject to a mujtahid (Ö. Nasuhi Bilmen, Hukûkî İslâmiyye ve Istılâhât-ı Fıkhiyye Kamusu, I. / 250).

If a mufti is in a position to make ijtihad and choose the strongest evidence, he can choose among the views of madhhabs. However, while doing so, he should act in compliance with three conditions: He should not choose the view that is weak in terms of evidence. The opinion he chooses should be for the benefit of the people and not lead them to either hardship or laxity. The view should be based on goodwill and should not be preferred just to please people and satisfy their arbitrary desires (Abu Zahra, ibid, p.392-393).

A mufti who can make ijtihad gains thawabs whether his fatwa is correct or wrong, after exerting all his attention, goodwill and effort. The following is stated in a hadith:

“If a judge makes a judgment by making ijtihad and is correct in it, there are two rewards for him. If he makes a judgment by making ijtihad and is wrong, there is one reward for him.” (Bukhari, al-I’tisam, 21; Muslim, al-Aqdiya, 15; Ahmad b. Hanbal, III / 187).

Some Fatwa Books:

a) Hindiyya: This famous fatwa book, named “al-Fatawal-Hindiyya wa al-Alamgiriyya”, was compiled by a committee of Indian scholars upon the order of Sultan Muhammad Aurangzeb Bahadir Alamgir (d. 1118/1706). It is in Arabic and belongs to Hanafi madhhab; its decrees do not include their evidences. The issues are arranged according to fiqh chapters. The work was published several times (Bulaq, I-VI, 1310/1892, al-Maymaniyya, 1323/1905).

b) Khaniyya: It was compiled by Fakhruddin Hasan b. Mansur of Fergana (d. 592/1196). It consists of fatwas given according to Hanafi madhhab. It includes very common and frequently occurring issues. It was printed in the margins of Hindiyya.

c) Bazzaziyya: It was compiled by Muhammad b Muhammad al-Kardari (d. 827/1424) and was printed in the margin of al-Fatawal-Hindiyya with the name “al-Jami’ul-Wajiz”.

d) Khulasatul-Ajwiba: It was compiled by Çeşmizade Muhammed Hâlis (d. 1298/1881) as a result of a fifteen-year work; it brought together fatwas of six fatwa books called Feyziyye, İbn Nüceym, Abdurrahim, Behce, Ali Efendi and Netice. This work, which means “summary of answers”, was published in two volumes.

e) Mahmud Shaltut, al-Fatawa: This work, which was compiled by Mahmud Shaltut, one of the contemporary scholars of Azhar, is in the form of a single volume and includes fatwas given to some contemporary problems.

(Prof. Dr. Hamdi DÖNDÜREN)

* * *

For detailed information regarding the issue, we recommend you to read the following explanations:

The Concept of Fatwa

According to the Quran, the purpose of man’s creation is to serve (worship) Allah. How to worship can be understood through the revelation that Allah sent through His prophets. Although the demands of the revelation are sometimes clear and detailed, they are mostly in the form of framework principles and main principles. That is the basic element that provides dynamism. Therefore, obtaining the necessary judgment from the main sources necessitates methodical knowledge and expertise. The complex problems of life, and the abilities and opportunities of a person do not allow him to obtain adequate equipment in all areas and to acquire knowledge at the level of expertise. This fact necessarily leads to division of labor. Therefore, it is a fundamental duty of every society to organize its individuals to specialize according to their abilities and to direct them to the areas they need.

Definition and Related Concepts

Fatwa lexically means a strong answer that explains the decree about an incident. Its plural form is “fatawa” or “fatawi” (fatwas). As a fiqh term, it is close to the lexical meaning and is used in the sense of an answer that explains the religious decree of an issue in writing or verbally. This work is called “ifta”. The one who explains the answer, that is, the one who gives (issues) a fatwa, is called a “mufti”, and the person who asks a question and demands an answer is called a “mustafti”. The view that is based on preference among many fatwas given on the same topic is called “mufta bih”, a concept that is generally used related to disagreements within a madhhab. The rules that must be followed while giving a fatwa are generally called “adabul-mufti” or “adabul-fatwa”. Accordingly, there are four elements in a fatwa: the one who gives (issues) a fatwa (mufti), the one who asks for a fatwa (mustafti), the question that is asked (masala: issue), and the answer (fatwa).

We should state that the use of the word fatwa in the Quran and hadiths is effective in the preference of the word fatwa for asking a question (fatwa) on a religious issue or giving an answer (fatwa) to a question. The word fatwa and its derivatives are used in nine verses in the Quran in the sense of asking for an opinion or giving an opinion (4:127, 4:176, 18:22, 27:32), asking a question (37:11, 37:149) and interpreting a dream (12:41, 12:43, 12:46) in parallel with its lexical meaning. The word is widely used with its derivatives in hadiths in the same sense; it was placed in a conceptual framework in later periods and became a term in the sense of the meaning given at the beginning.

Fatwa Responsibility

Giving a fatwa or enlightening a religious issue brings great thawabs for the qualified people but it is a sin, in fact a major sin and haram, for those who do not have sufficient knowledge to try to give fatwas. The Prophet (pbuh) warns us with the following hadiths:

“The one who gives a fatwa without having knowledge will bear its sin.” 2

“The most daring of you to give a fatwa is the most courageous of you to be thrown into Hell.” 3

Therefore, many great scholars said, “I don’t know” when they were asked issues that they did not know and they did not assume responsibility. In fact, the phrase “La adri nisful-’ilm / I don’t know is half of knowledge” became famous among scholars.

Qualifications Necessary for a Mufti

A mufti must be a Muslim, sane and must have reached the age of puberty, must be religiously sensitive, intelligent, be able to act according to objective criteria and free from the influence of his emotions, must be principled, and be able to explain his conclusions regardless of the identity of the other party. the fatwa of a non-Muslim, a mentally ill person and a child, and according to the majority of scholars, a fasiq (open sinner) is not valid because fatwa means informing people about a religious decree. The news given by a fasiq is not reliable.

If a fatwa is requested related to an issue about which there is a clear decree in the religion, it is given by quoting/declaring that decree, or by istinbat/ijtihad related to an issue about which is no clear decree. Accordingly, mufti, in its real sense, means a scholar who has the conditions of ijtihad. In other words, mufti and mujtahid mean the same thing. To put it briefly, ijtihad means reaching (deducing) a religious decree by establishing a connection with the issue and the basic principles of the Quran and Sunnah. Ijtihad is a scientific activity that has many conditions; those conditions are extensively listed in the books of fiqh methodology. Therefore, a person (muqallid) who does not have the knowledge of mujtahid and only conveys (quotes) existing fatwas or ijtihads can be called a mufti only metaphorically.

It is possible to summarize the conditions of ijtihad briefly as follows: Knowing Arabic, knowing the Quran and especially the verses of decree (law) and their interpretations, knowing the science of hadith, that is, the hadiths about decrees and hadith methodology, knowing the decrees agreed upon unanimously by Islamic scholars, knowing the aims and purposes of the religion, having a proper knowledge of the science of fiqh, which teaches the techniques of deducing judgments from the Quran, Sunnah and other evidences, and having the faculty/ability of ijtihad.

In addition, the following are also important for the mufti: The mufti must understand very well the question that is asked and think deeply. He must explain his answer clearly in a way that the mustafti can understand, cite his evidence if necessary, choose the middle path in the fatwas he gives, not answer questions about the issues he does not know, must research and consult those who know, or send the mustafti to them.

It is a fundamental duty and one of the good manners of the fatwa that the mufti should not reveal the private issues and secrets of the questioner.

It is essential to know very well the tradition and understanding of the region where the question comes from and the meaning they ascribe to the words related to the issues about which custom/tradition is effective; it is necessary to keep away from fatwas until one learns them. This issue is of great importance especially related to the issues such as oath and divorce. The decrees determined according to a certain custom may change in the environments where a different custom develops. For example, it is the custom that determines whether the obligation to deliver the goods to the recipient belongs to the seller or not. This may vary from region to region. If a disagreement occurs on this issue after the contract is completed and if the mufti is asked about it, his answer will be according to the local practice. For example, according to custom, if the seller is responsible for delivery in Erzurum and the buyer in Balıkesir, he will have to give opposite decrees in those regions.

“What is customarily known is as if it was stipulated by speaking.” 4;

“The custom/tradition is regarded as a judge.” 5;

“People’s use / practice is regarded as evidence; it is wajib to act accordingly.” 6

The rules above are decisive regarding the issue. Similarly, if there is a custom for standard objects to be found in the houses that are rented as furnished in a region, the lessor has to provide the missing objects even if it has not been discussed during the contract.

The mufti should be alert related to those who want to use the fatwa for other than its intended purpose or to situations where the fatwa he will give may lead to the emergence of situations beyond the intended purpose.

Mustafti’s State

The mustafti should be well-intentioned and the question to be answered or the problem to be solved should aim to learn and practice the religious decree. It is not a virtuous act to ask questions and ask for a fatwa in order to test someone’s knowledge, reveal their ignorance, defeat the person he is arguing with, and use the information that is obtained unfairly.

If there is more than one mufti, the mustafti can act according to the answer of the majority of the scholars he receives by asking whomever he wants, without having to research which one is more knowledgeable. The following verse of the Quran is evidence about it:

“... If ye realize this not, ask of those who possess the Message.” (an-Nahl, 16/43; al-Anbiya, 21/7)

The difference of madhhabs is not a very important issue in this regard.

“The madhhab of an ordinary person (who is not a mujtahid) is the fatwa of the mufti.” 7

The statement above is clearly included in our fiqh books because the decrees that are duly deduced about issues that are open to ijtihad have not been accepted as the absolute view of the religion, in other words, the definite will of Allah. This issue, which plays a decisive role in the views of Islamic scholars toward one another, is formulated as follows:

“The view of our madhhab is correct, but there is a possibility that it is wrong. The view of the madhhab of our opponent is wrong, but there is a possibility that it is correct.”

Accordingly, no ijtihad is the religion itself in the absolute sense, but every ijtihad made properly has a place in the religion and has a value in the eye of Allah. A muqallid who follows a mujtahid without knowing his evidence is regarded to have fulfilled his duty by asking him.

How should the mustafti act if he has asked more than one mufti and received different answers from them? Although there are many views regarding the issue, the mustafti follows the view of the mufti whose knowledge he trusts and his heart finds reasonable since the mustafti does not have enough knowledge to measure the competence of the mufti.

If the mustafti guides the mufti with a subjective attitude in his question and the mufti gives an answer accordingly and the answer he receives upsets his conscience, the mustafti should heed his conscience about whether or not to act according to the answer he received and should not cause injustice with such a fatwa. The mufti does not know the inside of the event; he gets acquainted with the subject only within the framework of the question he is asked and gives his answer according to what he listens. If the mustafti does not explain some issues or acts in a way to mislead the mufti, the answer he receives does not show the religious decree of that issue. The Prophet (pbuh) indicates it with the following hadith:

“Even if muftis give you a fatwa, take it from your heart.” 8

If the mufti’s fatwa has changed after the mustafti has acted according to the fatwa and a new decree contradicting the previous one has emerged, his action is valid. Hz. Umar (ra) put forward a different opinion on the same issue after about a year after his judgment on an incident, and when he was reminded of his previous judgment, he said,

“That was our judgment last year; this is our current judgment.” 9

The rule “An ijtihad is not contradicted by another ijtihad / an ijtihad does not invalidate another ijtihad” 10 expresses it. However, the mustafti cannot act according to the view of the mufti that he has given up.

Error in Fatwa

Error can occur in two ways. If someone who does not have the necessary equipment has given a fatwa saying “in my opinion” and his mistake has been revealed, that person is a sinner; he should repent; and if has caused a violation of one of Allah’s rights and if a compensation is in question for the error arising from the fatwa he has given, he should immediately warn the relevant person and remind him of his obligation. For example, if he has given a fatwa saying that zakah is not necessary for someone who has such and such wealth, and then realizes that it is a mistake originating from his ignorance, he should remind the person who is to pay zakah. If such a person has caused material damage or punishment, he is held responsible for the damage but it is a matter of discussion among fiqh scholars under what conditions he is liable for compensation. Some scholars put the blame on the person who asks an incompetent man a question and state that the fatwa issuer has no liability. If the mistake is in the ijtihad of the mujtahid, it is clearly stated in the hadiths that neither the one who gives the fatwa nor the one who receives it is responsible; and it is seen in the practice of the Companions. In that case, it is sufficient for the mufti to declare that he has given up his ijtihad in order to prevent others from acting according to that fatwa.

Fatwa-Qada (Jurisdiction) Relationship

Fatwa and qada become united in terms of function in explaining the decrees of Shari’ah. However, they differ from each other in some respects. Fatwa aims to explain the decrees of Shari’ah in all religious issues and comes to the fore as the product of a civil effort that develops only according to scientific criteria and away from external influences. Therefore, it is not monopolized by certain people. Since there is no clergy class acting in the name of God in Islam, anyone with sufficient scientific knowledge (scholar) can give a fatwa. All kinds of religious questions or problems faced by a Muslim in daily life concern that field and in this respect, it has a wider scope than qada. Although the answer given by the scholar to whom the question is asked is binding in terms of the scholar, the questioner does not have to comply with the answer he receives; it interests his conscience. As for qada, it is related to the field of jurisdiction; therefore, the decision of the qadi representing the state authority in the case at the court explains the decree of Shari’ah, but at the same time it is official and has a binding character for the parties. However, it is a known issue that qadis make use of fatwas and consult with muftis when making judgments. For example, one of the famous viziers and scholars of the Samanid period, Hakim al-Shahid al-Marwazi (d. 334/945), summarized as-Sarakhsi’s (d. 483/1089) al-Mabsut, one of the most reliable sources of Hanafi fiqh, and put it into service under the name of al-Kafi so that muftis would use it while giving fatwas, qadis would take it as a basis while making judgments and people would apply in their daily works. Similarly, Mulla Khusraw’s Durarul-Hukkam and Ibrahim al-Halali’s al-Multaqa served the same purpose during the Ottoman period.

One of the fundamental differences between fatwa and qada or a mufti and a qadi arises related to the necessity whether or not to accept the issue presented to them. The mufti does not have such a legal obligation but the qadi has to conclude the case. From the point of view of the mufti, the obligation arises only when there is no other scholar who can answer that question except himself if he is not officially assigned to give fatwas, which is a religious-moral obligation. In that case, the mufti is not obliged to answer if the question he is asked is not a matter of interest to the questioner or if it is a hypothetical issue.

One of the fundamental differences between ifta and qada is that the ifta institution is freer than the qada organization. The mufti has a more comfortable field of action according to scientific criteria but the qadi is dependent on the view of the madhhab determined by the state or the law enacted by the legislature in terms of ensuring unity and preventing confusion in the judiciary. The qadi has to make a judgment according to the determined rule even if it is against his own view or madhhab.

Change of Fatwa

Depending on various factors, there may be changes in judgments and fatwas based on ijtihad. Judgments/fatwas given according to a certain benefit or custom change with the change of that benefit or custom. Similarly, the decrees of the type of means foreseen to realize certain purposes also change with the emergence of more suitable means. For example:

- In the beginning, it was not regarded as permissible to charge a fee for duties related to worship such as teaching the Quran, leading prayers in congregation and being a muezzin but it was later regarded as permissible to pay a salary to those people due to necessity and to prevent those services from being hindered.

- In the beginning, the descendants of the Prophet (pbuh) did not receive zakah but it was regarded as permissible in later periods.

- In the beginning, when the goods were entrusted to someone were destroyed due to any reason, unless that person was at fault, the person to whom the goods were entrusted was not held responsible for compensation, but later on, paying compensation was decreed due to moral corruption.

- In the beginning, all believers were regarded as reliable and the witnesses of the cases were not investigated, but after a while it was decided that they should be investigated.

It is possible to mention some more decrees similar to the ones mentioned above. Majalla deals with the issue in article 39 with the following rule: “It cannot be denied that decrees change with the change of time.” There are views that were given up in fiqh books and decrees that were changed. In fact, Imam Shafii has two madhhabs: old and new. It is the topic of a separate research depending on what factors decrees and fatwas may change.

Click for additional information:

Can we practice the ijtihads made by the people living today? Can we act in accordance with the ijtihads made by the Islamic scholars of today?

Footnotes: 

1 see Wensinck, Concordance, “ftw” item.
2 Abu Dawud, Ilm, 8.
3 Darimi, Muqaddima, 20.
4 Majalla, article 43.
5 Majalla, article 36.
6 Majalla, article 37.
7 see Ibn Nujaym, al-Bahrur-Raiq, Beirut, nd. (Darul-Ma‘rifa), II, 316.
8 Ahmad b. Hanbal, I, 194.
9 Sarakhsi, al-Mabsut, Cairo 1324-31, XVI, 84.
10 Majalla, article 16.

(Prof. Dr. Saffet Köse)

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