Concerning Functional Fatwas & Dysfunctional Muftis
Do fatwas change with place and time; if so, how? Is Islamic fiqh fossilised? Do we require a new fiqh for the 21st century? Are classically-trained muftis fit for purpose in today’s world? Should the ‘ulema be trained in the core philosophical underpinnings of modernity? Does the new maqasid-based fiqh offer a better way forward than the older models? Should Western Muslims rely on scholars from outside the West? These are the core concerns explored in this latest blog. In the course of the discussion, there is a brief reflection about just how legitimate the notion of a modern Islamic ‘state’ is.
Understanding affairs dedicated to modern British Muslim life – its specifics, not only its generalities; its daily practices, not merely its theory – is a non-negotiable requisite for issuing fully functional fatwas for Britain’s rising Muslim population. The Qur’an says: وَمَا أَرْسَلْنَا مِنْ رَسُولٍ إِلاَّ بِلِسَانِ قَوْمِهِ – We did not send any Messenger, except with the language of his people. [14:4]
The language of his people, as Mufti Taqi Uthmani insists, isn’t only about speaking the same lingo as your countrymen. It’s also about understanding their joys, sorrows and vicissitudes; their deepest aspirations, hopes and fears; and their culture, conventions and history. In other words, it’s about knowing who they actually are and what makes them truly tick.
Without such a familiarity, nothing else will do and such fatwas will readily be seen for what they probably are: off-key, lamentable and, in some cases, socially destructive or spiritually calamitous.
Elsewhere, the Qur’an says: وَمَا أَرْسَلْنَا مِنْ قَبْلِكَ إِلاَّ رِجَالاً نُوحِي إِلَيْهِمْ مِنْ أَهْلِ الْقُرَى – We only sent before you men to whom We reveal, from the people of the towns. [12:109]
The significance of God’s Prophets being from the people of the towns and cities (ahl al-qura) is that they were not bedouins disconnected from the culture and customs of the people, or their day-to-day lives and struggles. Not only did they understand their peoples’ attitudes, outlook, history, fears, concerns and aspirations, they were deeply concerned for their welfare and guidance too; because they were their “people”. The Prophet once prayed for the Makkan idolaters: اللَّهُمَّ اغْفِرْ لِقَوْمِي فَإِنَّهُمْ لا يَعْلَمُونَ – ‘O Allah, forgive my people for they know not.’1
The task ahead isn’t to now discard or disavow “foreign” scholarship. That would be uncalled for, as it would be reckless. For the creme of traditional Islamic scholarship still lies outside of the West. Furthermore, fatwas about rules of prayer, pilgrimage or ablution; as an example, or core beliefs and ethics, aren’t tied to whether one is from the East or West. Such things are fixed and unchanging.
Fatwas where customs and societal norms play a significant part; or where context or socio-political realities must be factored in; or where social conventions, mentalities and idiosyncrasies simply cannot be overlooked – then yes, to hand over such fatwas to foreign scholarship is either the act of fools or of bigots. Outside scholarship may be consulted, and the wisdom it offers should be considered. But the end fatwa must be the preserve of homegrown muftis known, not just for their depth of learning, but also for their piety, measured temperament, and avoidance of pandering to populist public opinion or politicians. (Of course, it has been argued that if we explain these cultural scenarios to foreign muftis, they’d get it and could then give us a relevant fatwa. Such a stance is a hit and miss one, at best; and a dangerous gamble with the souls of God’s servants, at worst!)
In context of the above come Ibn al-Qayyim’s famous, though highly misused, words: ‘Thus it is vital that he [the jurist] be thoroughly aware of the peoples’ ploys, schemes, culture and customs.’ He then said: فَإِنَّ الْفَتْوَى تَتَغَيَّرُ بِتَغَيُّرِ الزَّمَانِ وَالْمَكَانِ وَالْعَوَائِدِ وَالْأَحْوَالِ – ‘For fatwas change with the changing of time, place, customs and circumstances.’2
This above notion is expressed by the legal maxim: تغيّرُ الأحكامِ بتغيُّرِ الأزمانِ – ‘Rulings change with the changing of time.’ But this maxim is not an absolute one. But rather than explain it in my own words, let’s get Ibn al-Qayyim to do his own explaining. He writes in another one of his works that:
‘Legal rulings are of two types: a type which admits of no change whatsoever; neither due to time, place nor scholarly ijtihad – like the requirement of the obligatory duties, the forbiddance of the prohibitions, the prescribed punishments (hudud) for criminal offences; and the like … The second type: what may change, according to the general interest necessitated by change in time, place, or circumstance – such as the amount, forms or types of discretionary punishments (ta‘zirat) [meted out].’3
Thus the rule which states that: taghayyur al-fatwa bi taghayyur al-azman – “Fatwas change with the changing of time” is not a free for all. Those fatwas that may change due to time, place or circumstance; the mutaghayyarat, as some call them (in contrast to rulings that remain fixed and unchanging: the thawabit), may do so because of the following reasons:  Changes in customs (‘urf, ‘adah) is the obvious one; as is  dire necessity (darurah).  An overriding public benefit (maslahah) is yet another.  Then there’s the deterioration or corruption of the times (fasad al-zaman), and also  when afflictions or problems become widespread throughout the community (ma ta‘ummu bihi al-balwah). Some of these juristic tools can even make clear-cut prohibitions halal or lawful for a short time, as per the dire necessity. Others will change a ruling pretty much permanently. Of course, knowing how and when to employ such complex legal devices is the art and craft of the jurist-mufti; and none other.
Examples of when one or more of the above juristic devices have been employed so as to meet the changes in time, place or circumstance include: Loosening the condition of two just male witnesses (shahiday ‘adl) for a marriage, to two male witnesses, out of an increasing difficulty of finding men who qualified as being ‘adl – possessing moral and religious uprightness – in any given town or district. Nothing has changed in our time on that score! Registration of marriages through the courts was stipulated for similar reasons of peoples’ untrustworthiness in terms of testimony.
Another change was the allowance given by some scholars of paying zakat al-fitr, not in wheat, grain or other staple food stuff, but in money. This, contended the Hanafis and others from our early salaf, best allowed the overall objective of zakat al-fitr to be met, in terms of the poor recipients.
Some jurists overlooking the nisab threshold of zakat on silver is another example of change in fatwa. During the Prophetic era, silver’s nisab of 595 grams was comparable to gold’s (87.5 grams), and was enough for a family to subsist on for a year. When the value between gold and silver became significantly large, and when it was no longer feasible for a family to annually live on the monetary equivalent of 595 grams of silver, only the gold nisab was considered.
A final example is Muslims being divided into different countries, of not living under a single caliphate. Stating the ideal, then supplying this dispensation on the matter, Ibn Taymiyyah asserts: ‘The Sunnah is for the Muslims to have a single ruler (imam), with others being his deputies. But if it happened that the ummah left this, due to sin from some and inability from others, so that it had multiple rulers, it would then become incumbent on each ruler to establish the prescribed punishments and protect peoples’ rights.’4
Adapting to the changing realities and seismic political shifts of the eighteenth and nineteenth century Muslim world, the jurist and murajjih, Imam al-Shawkani, stated: ‘However, as for after Islam became widespread and had reached many far away lands, then as is known, there arose in each province or territory a state with its own leader or ruler. This happened in all regions. The authority of each of them does not extend to the area of others, hence there is no harm in there being a number of leaders and rulers. Obedience to each of them, after the oath of allegiance, is obligatory upon the people of that area where his orders and prohibitions are operative. The same goes for the ruler of each area … So realise this.’5
In terms of the juristic techniques employed above, the first two are instances of fasad al-zaman – a deterioration of the times; the third is an issue of maslahah; the fourth, no doubt, is driven by change in ‘adah or societal customs; while the fifth is an example, at its core, of widespread calamity: umum al-balwah. That said, there’s an overlap in some of these legal predicaments and their utilisation.
What all these quotations, examples and discussions are aiming at is a singular reality concerning the nature and craft of fatwa and the mufti: that fatwas can and often do evolve and change with time. There simply is no such thing as fossilised fiqh! Ibn al-Qayyim said:
‘Whoever issues legal rulings to the people merely on the basis of what is transmitted in the [legal] compendia – despite differences in their customs, usages, times, places, conditions, or the particular circumstances of their situations – has strayed and leads others astray. His crime against the religion is far worse than the crime of a physician who gives people medical prescriptions without any regard for the differences in their climes, norms, the age they live in, or their physical natures; but merely in accordance with what he finds in some medical book about people with similar anatomies. He is an ignorant physician; but the other is an ignorant mufti and far more detrimental to peoples’ religion and physical welfare.’6
A century earlier, al-Qarafi offered a similar caution to the intellectually lazy muftis; those who become dysfunctional or unfit for purpose if they do not have a thorough grasp of the cultural milieu that they or the mustafti (the one seeking a fatwa) operate in. He wrote:
‘Whenever new customs are introduced, take heed of them; and whenever they are no longer practiced, disregard them. And do not blindly adhere to what is written in the books your entire life. Rather, if a man from another land came to you seeking for a fatwa, do not inform him of the customs of the people of your land. Instead, ask him about the customs of his people and hold him accountable for that; not your customs or what is in your legal compendia. This is the clear truth, and forever blindly clinging to [past] views is misguidance in religion and ignorance of the ultimate objectives of the Muslim scholars and the past predecessors.’7
The final issue I wish to deliberate upon concerns the mufti’s actual understanding of things, particularly 21st century modernity. But first let’s set the context with another citation from Imam Ibn al-Qayyim, rahimahullah:
لَا يَتَمَكَّنُ الْمُفْتِي وَلَا الْحَاكِمُ مِنْ الْفَتْوَى وَالْحُكْمِ بِالْحَقِّ إلَّا بِنَوْعَيْنِ مِنْ الْفَهْمِ أَحَدُهُمَا فَهْمُ الْوَاقِعِ … النَّوْعُ الثَّانِي فَهْمُ الْوَاجِبِ فِي الْوَاقِعِ وَهُوَ فَهْمُ حُكْمِ اللَّهِ الَّذِي حَكَمَ بِهِ فِي كِتَابِهِ أَوْ عَلَى لِسَانِ قَوْلِهِ فِي هَذَا الْوَاقِعِ
‘Neither a mufti nor a judge can issue a fatwa, in truth, without [possessing] two types of understanding. Firstly, understanding the actual reality … Secondly, understanding the obligation related to the reality; i.e. understanding Allah’s judgement as expressed in His Book or in his [the Prophet’s] words regarding this reality.’8
Thus, having a deep understanding (fiqh, fahm) of the actual reality, the waqi,‘ is critical to the whole enterprise of ifta: of giving fatwas. Having an appreciation and awareness about the nature of modernity – its philosophical cornerstones, and the nihilism, sense of uprootedness, ennui and political resentment that inevitably follow in its wake – is just as crucial too.9
One example, I hope, will suffice to show just how indispensable both types of fiqh are; and it concerns calling for an ‘Islamic state’. A modern ‘Islamic’ ‘state’ is something of a contradiction in terms. Whereas the all-invasive modern state monopolises legislation, the traditional Muslim state doesn’t legislate at all. Traditionally, legislation belongs to Allah; as understood and deciphered by the ‘ulema. How that may be squared with the modern state – in which to practice law making; to be part of the legislature, is to be an agent of the state – hasn’t been adequately tackled by Muslim legalists or Islamists. For there is no modern state sovereignty without state-manufactured law, which the state alone then wields so as to reengineer the social order. To make the state ‘Islamic’, then, we need to look for ways where law is not contaminated by state involvement. Sound fiqh concerning an ‘Islamic state’ is not only about the need for the political process in Muslim lands to reflect the dictates of mercy, justice and shari‘ah, and allow the Islamic potential of its subjects or citizens to flourish – of which there are a number of possible models which reflect what Islamic governance could be. But fiqh of our modern reality, our waqi‘, requires us to understand that ever since the Ottoman reforms of 1856, when the modern Muslim ‘state’ started to become master and legitimiser of legislation, the shari‘ah and its fiqh became subjected to a great deal of aberration and to an enormous process of politicisation. The question then is, can Islamic governance – whose moral, legal, social, political and metaphysical foundations are radically different to that of the modern state; and whose law is primarily a set of theological tenets and moral precepts underscored by legal principles – function independently of the state? Can there be a model of a modern state that divests itself of legislation? Is such an arrangement even possible as an integral facet in the modern patchwork of nation states is a question that needs serious thought and engagement (beyond our current Western-inspired Islamist or state totalitarianism solutions).
The modern world is radically different to anything and everything which went before. Defining modernity is elusive, even to philosophers and to those in the social sciences; but it does have certain traits. The modern world – this ‘brilliant series of distractions,’ as it’s been called – is the great leveller: Where once there was meaning, there is now anomie and meaninglessness. Where once there was optimism, there is now discontent and despair. Where there was religion and spiritual ambition, there is now a yawning gulf. And where there was direction, there is now a maelstrom of confusion and a lack of inner purpose. To mask this bleak reality; to anaesthetise us, modernity offers us a plethora of gadgets and technology so as to distract us like kids with their new toys. A basic religious insight is that sa‘adah – human ‘happiness’ is to do with the soul. It’s to do with hope, optimism, security, having a sense of direction, a sense of purpose and meaning. And this is something modernity simply cannot supply.
Another religious insight concerns fitrah, in that it regards some things as immutable. For modernity, though, all is up for grabs, nothing is constant or unyielding. ‘Forms of modern life may,’ writes Bauman, ‘differ in quite a few respects – but what unites them all is precisely their fragility, temporariness, vulnerability and inclination to constant change.’ He says that to be modern means to compulsively and obsessively modernise; not ‘just to be’, but forever ‘becoming.’ He then goes on to contend that what was not too long ago dubbed ‘post-modernity,’ which he calls ‘liquid modernity,’ is the growing belief that ‘change is the only permanence, and uncertainty the only certainty.’10
Of course, this does not mean that muftis now all have to dive, head first, into the sea of eighteenth-century tracts on the doctrine of natural rights, or a nineteenth-century discourse on liberty: although it could be useful. Nor is it required to grasp more recent obscurities like Derrida’s deconstructionism, or Sartre’s existentialism: although, again, an acquaintance could indeed prove fruitful. What must be done, however, is to avoid the 19th and 20th century naiveties of the Muslim modernist movements, whose love affair with the West’s alleged Enlightenment – as per the ideas of Kant, Hume, Voltaire, Rousseau, et al. – blinkered many of them from discerning true ishraq from ghaflah and zandaqah. Without some appreciation of the deeper structures of modernity, though, it is likely that we’ll continue to look at things too simplistically. So we either have those who, on the one extreme, reject the modern world on moral grounds, but are entirely smitten by its science and technology; welcoming them with uncritical acceptance. On the other extreme there’s the wholesale acceptance of modernity: those who think that the underlying logic, values and priorities of the secular modern world is where Islam ought to be; and that all we must do to modernity’s basic form is add Islamic content like hijab, halal meat and other such things. Islam’s usual rule in such matters is: khayr al-umur awsatuha – ‘The best of affairs is a middle one.’ And this requires a high degree of depth, deliberation and critical discernment – not only in terms of fiqh, but in terms of ihsan or being spiritually rooted too.11
To be perfectly clear, the intellectual and psychological challenges posed by modernity are probably the hardest and most complex the ummah has ever faced. This is why the capacity of the scholars for tamyiz – to correctly ‘discern’ and to ‘evaluate’ – needs to be stronger and sharper than ever before. There’ll be times, even, when the textual proofs may lend themselves to ambiguities; where the scholar is at a loss to decide as to what is the proper course. In such a case, spiritual inspiration (ilham) – as birthed from deep piety, worship and dhikr; and from purifying the soul from its ego, false pretension, and responses based on agitation, anger or over-admiration – can help decide the issue. Ibn Taymiyyah said: ‘If the seeker, after taking the clear shari‘ah proofs into consideration, fails to reach an answer, his ilham may be an argument to help him resolve the matter: providing he is pious and has right motives.’12
Currently, in terms of legal methods and hermeneutics, there are two competing legal models that form the basis for our contemporary fiqh and fatwa. There’s the traditional nazilah method and the more recent maqasid one. What’s meant by nazilah (pl. nawazil) is a momentous and highly problematic event, usually impacting on society as a whole. This fiqh al-nawazil which, let us not forget, has a long history of tackling momentous and unprecedented cases, assesses the nazilah within the classical juristic framework of ijtihad; of identifying features that the new case may have with earlier legal precedents; of isolating the ratio legis or legal causation (ta‘lil); of utilising juristic devices like ‘adah or darurah, and to then rule accordingly. And while greater scrutiny of the ta‘lil behind religious rulings is certainly warranted, and deeper appreciation of modernity required, claims about an epistemological crisis within the traditional juristic paradigms tend to be greatly exaggerated.
The maqasid approach pushes for something of an overhaul of the classical paradigms. It (like the fiqh al-aqaliyyat or “jurisprudence of [Muslim] minorities” that draws heavily from it) contends that the wholesale secularisation of societies, along with modernity’s other intrusions, require that we think anew how shari‘ah and legal judgements are to be [re]formulated and administered in today’s world. And that’s where the concept of maqasid-based ijtihad comes in. Now maqasid (sing. maqsad – “aim”, “goal”, “objective”, “purpose” of the shari‘ah) isn’t a new legal device, per se; what’s new is its utilisation and scope. Muslim jurists, as far back as al-Juwayni and al-Ghazali, identified certain higher objectives or aims of the shari‘ah ethics and laws. Via a process of istiqra’ or “induction”, whereby a universal rule is inferred from particular instances of the law, these legalists concluded that the maqasid al-shari‘ah; the overall aims of Islam’s Sacred Law, are five: preservation of religion, life, intellect, property and lineage (with some adding a sixth: honour). Three points must be kept in mind about the classical idea of maqasid. Firstly, it was seen as interchangeable with the idea of maslahah – public “welfare” or “utility”. Secondly, its scope was fairly limited. Thirdly, it couldn’t trump explicitly revealed texts or juristic consensus.13
Today’s maqasid approaches are being steadily freed from their historical shackles and, for all intents and purposes, have started taking on lives of their own. Critics of these new maqasid approaches point to a number of concerns. Probably the main objection is that it is too arbitrary; that in its bid to seek end objectives and purposefulness in law for modernity, it ends up allowing maslahah to override clear-cut textual stipulations. Other jurists are suspicious. They see it as nothing more than a Trojan horse galloping its way into the heart of Islamic law-making, fuelled by mindsets that are besotted with Western liberal ideals. The upshot is that it arms such maqasidites with power to alter and abrogate God’s word with their own subjective preferences.14 Some will say that this horse has already bolted.
Notions of public welfare are not just rooted in ease or lenience. Nor are they confined just to this world. Rather, human welfare concerns both this world and the next, and is rooted more so in mercy (rahmah) and reigning in the ego (dabt al-nafs), than in taysir, ease, for its own sake. The truly-taken ease that the shari‘ah permits, or even urges, will always help you to grow; even if only a little. The falsely-taken ease will diminish you; and will often do so rapidly.
Here, let me pause and offer this seldom asked question for consideration. What fatwas has this new maqasid-based ijtihad delivered to us that haven’t been duly addressed by traditional legal methods? What is the traditional method incapable of addressing so as to warrant a complete overhaul, or a radical quantum leap, in legal thought and fatwas? That the maqasid approach allows us to live in the monoculture with greater ease and satisfaction, or that it inches us closer to joining the table of the liberal West, is simply not a good enough response.
A final criticism is that the maqasid approach is too in awe of Western Enlightenment ideals, too readily mistaking them for universal ones. Abdal Hakim Murad notes that these theorists ‘propose reforms to God’s law on the basis of outmoded identifications of human utility, which always seem to be of Western inspiration. The public interest (maslaha, maqsad) always turns out to take the form of what is intelligible and desirable to those outside Islam.’15
To conclude: While some of its presumptions are flawed, some of the insights modern maqasid theory yields can and should be benefited from. Traditional fiqh methods can certainly benefit from a renewed engagement with maqasid theory. With its complex, multifaceted methods and axioms, traditional fiqh methods, rather than being found wanting, continue to demonstrate an authentic robustness and flexibility.16 Yet what is clear in this whole analysis is that we are still in need of highly-versed, pious, creative muftis with far-sightedness into “the language of the people” – especially the language and logic of modernity.
وصلّى اللهُ وسلّم على سيّدِنا محمّد و آلِهِ وصحبِهِ أجمعين
1. Al-Bukhari, no.3477; Muslim, no.1752.
2. I‘lam al-Muwaqqi‘in (Riyadh: Dar Ibn al-Jawzi, 2002), 6:113-14.
3. Ighathat al-Lahfan (Makkah: Dar ‘Alam al-Fawa’id, 2011), 570-71.
4. Majmu‘ Fatawa (Riyadh: Dar ‘Alam al-Kutub, 1991), 35:175-76.
5. Al-Sayl al-Jarrar (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1985), 4:512.
6. I‘lam al-Muwaqqi‘in, 4:470.
7. Al-Qarafi, al-Furuq (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1998), 1:322-23. Similar words from him can be found in his al-Ihkam fi Tamyiz al-Fatawa ‘an al-Ahkam (Beirut: Dar al-Basha’ir al-Islamiyyah, 1995), 232.
8. I‘lam al-Muwaqqi‘in, 2:165.
9. A disquieting account of modernity’s discontents can be read in Mishra, Age of Anger: A History of the Present (Great Britain: Allen Lane, 2017).
10. Bauman, Liquid Modernity (Cambridge: Polity Press, 2012), viii-ix.
11. A superb interrogation of a believer’s relationship to modernity is offered in Abdal Hakim Murad’s lecture: Crisis of Modern Consciousness,
12. Majmu‘ Fatawa, 10:473.
13. A good discussion on maslalah is given in Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), 351-368. For a more detailed and in-depth study, cf. Opwis, Maslaha and the Purpose of the Law (Leiden & Boston: Brill, 2010).
14. Such suspicions were fleshed out more than half a century ago by al-Buti as part of his clarification and critique of modern maslahah theorists, in Dawabit al-Maslahah fi Shar‘iyyah al-Islamiyyah (Damascus: Dar al-Fikr, 2009).
15. Commentary on The Eleventh Contentions (Cambridge: The Quilliam Press, 2012), 42.
16. For non-specialists, a useful discussion on the relevance of traditional fiqh and legal theory to contemporary issues can be read in: A. Mohammed, Muslims in Non-Muslim Lands: A Legal Study with Applications (Cambridge: The Islamic Texts Society, 2013). The study does much to disabuse us of the myth that traditional fiqh methods are outdated and inflexible.