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Fatwâ : Its Role in Sharî'ah and Contemporary Society with South Fatwen Its Role in Shari 'di and Contemporary Society with South African Case Studies BY NASIM MITHA DISSERTATION Submitted in fulfilment of the requirements for the degree MASTER OF ARTS in ISLAMIC STUDIES in the FACULTY OF ARTS at the RAND AFRIKAANS UNIVERSITY SUPERVISOR: PROF. A.R.I. DOI CO - SUPERVISOR: PROF. J.F.J.VAN RENSBURG MAY 1999 Acknowledgement Praise be to Allah who in his infinite mercy has endowed me with the ability to undertake and complete this work on fanvci, a topic which has hitherto been neglected. Confusion regarding the concepts of fatwci, agOya, mufti, qcich and exikim abounds in the South African Muslim community. In consequence the entire Shatfah is misunderstood and misrepresented. It is my fervent hope that this study redresses this problem to some extent and induces others to produce further work on this topic. The Prophet (may peace be upon him) has reported to have said, "He who does not thank man has not thanked Allah." It is with these words of our master in mind that I acknowledge the efforts of all those who made this task possible. Firstly, I deeply appreciate the effort made by my teachers, and principal Moulana Cassim Seema of Dar al-Vitim Newcastle, who had guided me in my quest for Islamic knowledge and also to my sheikh of tasawwuf Moulana Ibrahim Mia for being my spiritual mentor. I thank my supervisor Professor `Abd al-Ralunan Doi at whose insistence this particular topic was chosen, and for the innumerable advice, guidance, and support afforded whilst the research was being undertaken. I also thank my co- supervisor Professor J.F.J. Van Rensburg for all his technical input, his amiable disposition and humility that makes working with him pleasurable. I am also deeply indebted to the board members, principal and my colleagues at Central Islamic School who allowed me to allocate much of my time to this work during school hours. Two colleagues, Moulana Shuaib Jada and Moulana Yusuf Andiseni have to be mentioned in particular for their invaluable assistance in collating material and moral support. Special thanks to my friend Muhammad Vawda for painstakingly reading the work and offering helpful comments and suggestions. Lastly, but most significantly, I thank the immediate members of my family, my wife and children for having borne with me, during the many hours and nights I spent at the computer and neglected their rights. May Allah reward you greatly. ii Abstract Shari `ah the Islamic "legal system" has been studied and depicted in many ways. Schacht writes, "/s/cirnic law is the epitome of thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself." Shari'ah can be described as "law" or as a "legal system" in as far as it provides for the ordering of society. Laws however, do not state what 'is' but what rational human beings 'ought' or 'ought not' to do - 'norms' (from the Latin norma meaning yardstick or rule). Thus laws change and differ with the differing 'norms' or yardsticks of society. The Shari'ah differs from the variods -legal systems in that it provides a means of governance wherever it is correctly applied without changing in its essential fundamentals. This sound ordering of society that it provides, prevails over the Muslim community which consists of a vast multiplicity of diverse nations and cultures. The question that confounds scholars is how did a single body of law based on divine revelation, the Qur'an and Sunnah, deal with social contingencies and how does it remain relevant and effective in the twentieth century? The answer, to a large extent, lies in fatwd. These are non-binding opinionated legal rulings derived by an astute scholar of Islam, i.e. a mufti. Muffiyiin have received very little attention in both contemporary Islamic and Western scholarship, since their practice is far less institutionalised when compared to a judge in a Western court of law. The role of the jurisconsult is unfamiliar to the Western mind and inadequately presented by Muslim scholars. The rulings of a judge in a Shari'ah court are called aq chya. Fatawa and aqcfiya are similar in that the principles applied in deriving the Shari 'ah law in both instances are the same. They differ essentially in that aqchya are legally binding and are executed by the state whilst fatciwa are not. III This study examines the role played by faavci as the catalyst of iftihdd and the facilitator that infuses dynamism in the SharVah. Its role from the time of the Prophet and the righteously guided caliphs is established as a rebuttal to the assertion that /s/eimic legal rules were only established from the time of the Umayyads — the second century of Islam. The study then moves on to its role in contemporary society and thefutyci on gelatin issued by the various fatwei issuing bodies of South Africa demonstrates its articulation in a localised sense. My conclusions establish the dynamic nature of the Shari'ah as a dual natured "legal system" with interacting fixed and flexible conceptual spheres of the law and the pivotal role played by faidwa in enabling it to cope with social change. iv Fatwa: Its Role in Shari 'all and Contemporary Society with South African Case Studies Table of Contents Introduction Statement of the problem 9 1. Chapter One Fatwd: definition and practice 1. Introduction 16 2. Fatwd defined .18 2.1 Prerequisites of the mufti for issuing fatwei 20 2.1.1 Fiqh 20 2.1.2 Fiqh technically defined 21 2.1.3 Fahm and tafaqquh 23 3. An application offahm and tafaqquh: the fatwa of Solomon 4. Differentiation between fatwci and aqdiya 1 5. Mufti 28 5.1 Mufti defined 28 5.2 Mujtahid and mufti ic 5.3 Types of mufti 30 5.3.1 The independent (mustaqil) mufti. 31 5.3.2 The mufti who is not independent (g_hair mustaqil) 32 5.3.3 The restricted mufti (muqayyad) 3" 5.3.4 The mufti of contradistinction (tarjih) 34 5.3.5 The mufti of precedence (fuorci) 34 5.3.6 The muqallid 35 6.1 Faqih 6.2 QOOl 37 6.2.1 Prerequisites for appointment 37 6.2.2 Appointment and jurisdiction 40 6.3 Hakim 7.Regulations concerning the mufti in passing fattwi. 44 8.Fatwei: its format and discipline 52 9. Qualities and etiquette of the mustafti 57 10_ Fanvd as the vigorous application of OW 6C 10.1 ljtiluid 62 10.1.1 Literally 62 2 10.1.2 Terminology of the fugahci 62 10.1.3 Homogeneity between the preconditions of iftihdd and offatwii 65 10.1.4 Validity of using iftiluid when issuing fatwa or agdiya 68 Fatima and jurisprudence 71 Fatwei and agdiya: the interlink between Shari 'ah and din 74 Notes for chapter one 78 2.Chapter Two The role of fatwil and agdiya in the early first century of Islam 1. Legal activity of the Prophet (peace be upon him) and the Companions (May Allah be pleased with them) in the first century of Islam. 92 2. The Prophet Muhammad (peace be upon him) the first hcikim of /s/Om 94 2.1 Judgements of the Prophet before the advent of prophethood 95 2.2 Judicial activity of the Prophet 98 2.3 Committing of the fatciwa of the Prophet to writing 103 2.4 Appointment of quddat .108 3. The Prophet as a mufti 108 3.1 Fakiwa of the Prophet 10S 3.2 Fatdwa of the Companions 111 3 Judgements and fatdwa at the time of Abil Bakr 112 4.1 Fatwa of Abel Bakr at the time of the death of the Prophet 114 4.2 Abil Bakes methodology of fatwd and his iftilzad 117 4.3 Abu Bake sfatwei regarding war against those who refused to pay zakezt 118 4.4 Otherfatwei wherein Abii Bakr exercised if tihad: . 120 The role offatwci during the caliphate of 'Um& 125 5.1 The incidences in which `Umar's futyci were later confirmed by revelation 125 5.2 Portentous reliance of `Umar on Divine intervention when issuing a Amid 12-, 5.3 Role of Fatwci in the administration of the first Islamic State 129 5.4 Fatwa and The Consultative . Assembly 130 5.5 Appointment of the mufti as a state official 131 5.6 Differentiation offanva and aqtfiya into state departments by 'Umar 136 5.7 Institution of the Juris-consults (muftiyun) 139 Furya of `thlunin ibn 'Affan and 'Ali ibn Abi Tfilib 140 6.1 Somefate/Iva issued by Uthman 142 6.2 Fatciwa of ibn Abi Talib 149 Muftiyan amongst the followers 149 Famous collections offatenva. 150 4 8.1 Fatadwa of the early first century 15. 1 8.2 Chronology of the major works on fatwa from the early second century 152 9. Notes for chapter two 154 3.Chapter Three Fatwei: a manifestation of the principles of derivation of Shari 'ah Introduction 161 1.1 The interrelationship between fatwci and Qur 'On and Sunnah 162 1.2 Immutability and adaptability 165 1.3 The broad scope of applicability of Qur'dnic injunctions 166 Fatwci based on a verse that is mujtahid fihi, a fatwci on the permissible male dress code for prayer. 167 2.1 The doctrine "the original rule of everything is permissibility": Al-As] fi kulli shay' Al- 'Ma ah. 170 2.2 Fatwa based on a verse that is manses 'alayhi, a fatwci on inheritance 172 ./jnici- the collective concurrence offatwci 178 3.1 The effect of Lima' on fatwei 179 Fatwci and the usage of analogy (qtycis) 180 5 4.1 The role of qiycis 180 4.2 Qiyas: analogy subservient to textual law 182 5.
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