PADANG PANJANG,
Indonesia - Indonesia's top Islamic body decided on Sunday not to ban smoking for Muslims in a country which is the world fifth-largest tobacco market and Southeast Asia's biggest economy.
It instead issued a fatwa placing more limited restrictions on tobacco use.
Officially secular Indonesia has the world's largest Muslim population and about 700 people, including Muslim clerics and theological experts, had gathered in West Sumatra for the National Edict Commission meeting, which could have issued fatwas on a range of areas from polygamy to doing yoga.
The debate over smoking revealed a split between those wanting to make it "haram", or not allowed, and others who favoured "makruh", an Arabic term whereby it would only be advised that smoking is bad and it is better to drop it.
In the end, after a heated debate at the meeting of the Ulema Council, known as MUI, the council said a decision could not be reached and only forbade smoking in public or smoking by council members of MUI, children and pregnant women.
Fauziah Fauzan, headmistress of the Diniyyah Putri Islamic girls' boarding school, where the meeting was held, said she regretted the decision.
"Makruh means something that God hates, so how come the ulemas still smoke? I am sure those men wouldn't have the heart to see their daughters and wife smoke, so why didn't they just make it forbidden?," she questioned.
The economic importance of the tobacco industry in Indonesia had played a role in the talks and ulemas, or religious councils, in central and east Java -- both areas where the industry is a big employer -- had argued against a ban.
"Haram has a relation to sin and so the mosques built by cigarette factories would also be haram, because they were funded by something haram," said Syafiq Nashan, the head of the ulema in the city of Kudus, a centre for the tobacco industry.
Some clerics also argued that there was no Islamic tenet that bans smoking.
At around $1 a pack, cigarettes in Indonesia are among the cheapest in the world. Some cities, including Jakarta, have banned smoking in public places, but the rules are widely flouted.
BIG INFLUENCE
The MUI has carved a key role for itself in Indonesia and its pronouncements on everything from Islamic banking to halal food can have a big influence. The fatwas are not legally binding but can influence government policy.
The meeting also discussed whether Muslims should avoid yoga because of a view it uses Hindu prayers that could erode Muslims' faith.
The council issued a fatwa, but stopped short of a ban and said Muslims could do yoga as long as it is was only for physical exercise and did not include chanting, mantras or meditation.
The meeting also decided that underage marriage was not forbidden, except if it was "disadvantageous", without elaborating.
Under Indonesian law, men can marry at 19 and women at 16, although under some Islamic laws there is no age limit, and marriage is allowed when the couple is ready for reproduction.
The council, established in 1975, also banned Muslims from abstaining from voting in elections, unless there were no eligible candidates who were deemed honest, faithful, devout, reliable and defended Islamic interests.
A ban on vasectomy remained in place and the council urged the government to implement sharia banking and pornography laws.
Thursday, February 05, 2009
Fatwa and its principles
Bismillaahirrahmaanirrahiim
In last couple of months number of controversial fatwas has been issued in Indonesia, (for example the issue of smoking and not going to vote))and media is strongly reacting to these fatwas. Some fatwas have been issued by well-known institutions like the Majlis Ulama of Indonesia (MUI= Majlis Ulama Indonesia) Darul Ifta' and some by individual 'Ulama's or Imams leading prayers in the mosques. Not only that the fatwas are controversial in themselves but also there is great deal of misunderstanding about the nature of these Fatwas. We would like to throw light on all these aspects.
First let us throw some light on the nature of fatwas and their significance for Muslims. First of all it is important to note that there is no concept of priesthood in Islam, much less church like hierarchy. No authority, howsoever eminent, can claim sole right to pronounce any binding opinion for all Muslims. Thus no fatwa issued by any eminent authority is binding on any Muslim, even on one who asks for it.
There is wrong conception that once a fatwa is issued, all Muslims automatically follow it. It is far from truth. Even among Sunni Islam there are four surviving schools of Jurisprudence (shari’ah), Hanafi, Maliki, Shafi’i and Hanbali and besides these there are other schools among Shi’ah Muslims like Ja’fari, Ismaili and Zadiyah. Even in every school there are differences of opinion on several matters.
Whenever any fatwa is issued it is issued according to the position in the particular school. Whatever fatwas are issued by Majlis Ulama of Indonesia, they are issued according to the Syafi' school of Shari’ah. The founders of these schools had no arrogance about absolute truth about their own position. For example, Imam Abu Hanifa used to say if my two disciples differ from me, listen to them as they are two and I am one. Imam Ibn Hanbal, founder of Hanbali School refused to allow the Abbasid Caliph to enforce his maslak (i.e. Shari’ah law according to his formulations) throughout his regime. He maintained it would deprive people of their freedom to follow an opinion different from him. He also refused to become chief Qadi in his establishment, as his maslak will reign supreme.
When these eminent imams founders of their respective schools never allowed their opinion to prevail on all thus depriving others of their freedom of opinion, how can lesser beings claim that their opinion is final and binding. Thus no fatwa should be taken as final and binding on all Muslims. In many respects opinions of different schools differ widely though principles (usul) do not differ. Each Imam derived different conclusions depending on which verse of the Qur’an or which hadith is being used by the mufti (one who issues the fatwa).
A fatwa usually is given for certain challenges that could be different if we go to another country. This is what happened the Imam Ashaf'i when he made different statements of fiqh because sometime he was in Egypt and sometimes he was in the Hijaz. Those differences in a fatwa because of differences in countries could be very minimal and countable. But in general, we should differentiate between a fatwa which is an opinion founded on Qur'an and Sunnah and other integtrities of Usul and the Qur'an or Hadith himself. They call the former what is understood or comprehended, but the latter is An-nus (the literal meaning of a verse of Qur'an or Hadith)
Let's look at the whole meaning of fatwas, and its principles to be able to understand fully on fatwas, their acceptability and their relevance
The Principles Of Fatwa
The Meaning Of Fatwa
In its original linguistic sense, the Word Fatwa means an answer to a question irrespective of whether such question relates to an issue of Shariah or not. Thereafter, the word acquired a technical meaning in the sense that it was confined to an answer given in response to a question relating to an issue of Shariah or the Deen.
The Salaf & the Immense Responsibility of Fatwa
The Salaf used to exercise great caution in matters of Fatwa. Imaam Hanbal [R.A.] used to frequently say : "I don't know". Imaam Malik is reported to have said that the Mufti must be conscious of accountability to Allah before responding to any question. According to Ibn Masud and Ibn Abbas, a person who answers every question is mad. Unfortunately there are many persons who claim the mantle of issuing Fatwa without proper training and without having acquired the necessary expertise, thereby causing confusion and misunderstanding amongst the lay public.
1. The First Principle-Expert Supervision to Acquire Expertise
It is not permissible to issue a Fatwa unless a person has studied fiqh in depth under the supervision and guidance of competent experts in the field. The classical literature of Islamic Law has its own style and terminology and requires careful analysis in context. For example, what appears to be an unqualified statement is limited in application by the context or by conditions referred to elsewhere in juristic literature. An expert jurist would point to the true meaning and purpose of a juristic text and its proper application to a factual situation, thereby avoiding the errors resulting from self study or lack of guidance. A true perception can only be achieved under constant guidance, tutelage and supervision of distinguished experts recognizsed in the field.
2. The Second Principle-Development of Aptitude and perception
A person is not permitted to issue a Fatwa until and unless he develops an aptitude and a deep perception which enables him or her to distinguish between basic principles and their causes. The required level of aptitude and perception is attained when he or she is permitted by an expert to undertake the delicate and highly responsible trust of issuing Fatwa.
3. The Third Principle-Single juristic view Binding
It there is only one juristic view on a question amongst all the Hanafi jurists, then, that view is binding, unless there is cogent, textual evidence to the effect that such a view is based on an underlying cause which is absent in the particular case.
4. The Fourth Principle-Multiple Juristic Views
If there is more than one juristic view on a particular question, then it is obligatory to adopt that view which has been preferred by the scholars of Tarjiih [those classical jurists who have achieved distinction in the field by reason of their deep learning, piety and capacity to distinguish between competing arguments having regard to ever changing circumstances and new situations].
5. The Fifth Principle-Reliance upon Authentic Juristic Works Only
The Mufti is obliged to rely exclusively on the recognized and authentic works of Islamic Law. He is precluded from relying upon a work, which is not recognized, unless such reference is in accordance with established principles. In any event, he cannot base his reference upon a classical jurist who is not recorded to be amongst the preferred classical jurists of distinction [Ashab-ul-Tarjiih]. It is imperative that the Mufti is able to distinguish between the works upon which reliance can be properly placed, and those which cannot be relied upon for various reasons including weak narrations.
6. The Sixth Principle-Priority to be given to the preferred view as expressed in the text
In the case where there is a difference of opinion amongst the classical jurists on a particular question, that view is selected which has been accorded express preference in the text by the use of clear and express words such as "The Fatwa accords with this view". In the absence of express, clear preference in the text to the most preferred view, the particular text and juristic work must be examined in context to determine the authors preference for a particular viewpoint.
7. The Seventh Principle - Specific Words used to indicate Preference
The preferred jurists of distinction [Ashab-ul-Tarjiih], in selecting the most preferred viewpoint, have used different words in the text to denote such preference. Certain words indicate a stronger degree of preference than others, as appears from various references.
8. The Eighth Principle - Conflict of Juristic Opinion
In the case of a conflict between competing juristic views, it is an extremely delicate and complex task to prefer one view over another. A number of guidelines have been laid down but ultimately the selection of the appropriate rule is based on the aptitude, skills, intuition, depth of learning of the particular Mufti having regard to Divine accountability and sincerity of purpose, devoid of ulterior motives.
9. The Ninth Principle - Adopting the View of Zahir-ul-Riwayah
In the event where the classical jurists of distinction [Ashab-ul-Tarijiih] have not preferred any view at all, then it is obligatory to adopt the view expressed by the Zahir-ul-Riwaayah. If the latter itself expresses a difference of opinion, then the most recent view [i.e.the latest] should be adopted.
10. The Tenth Principle - Mafhum-Mukallif as a Principle of Interpretation of Juristic Text
Mafhum-Mukallif refers to the case where the contrary intent is interred from the ordinary meaning of an expression. For example, The Holy Prophet S.A.W. said that Zakah is payable in respect of camels that graze or their own. The contrary meaning [Mafhum-Mukalif] is that no zakah is payble on domesticated camels. The Mafhum-Mukallif is an acceptable principle of interpreting juristic text provided that the context permits such an interpretation.
11. The Eleventh Principle - Weak juristic Narrations Not to be Adopted
As a general rule, it is not permissible to issue a Fatwa which is based on a weak narration except in the case of necessity as interpreted by an extremely competent Mufti having a deep insight, perception, intuition, skills and having the capacity to distinguish between different arguments based on their strengths and weaknesses.
Compiled and written By M.S Omar based on the Arabic Lecture Notes
of Justice Mufti Mohammad Taqi Usmani attended by the Writer
Long Island, February 5, 2009
In last couple of months number of controversial fatwas has been issued in Indonesia, (for example the issue of smoking and not going to vote))and media is strongly reacting to these fatwas. Some fatwas have been issued by well-known institutions like the Majlis Ulama of Indonesia (MUI= Majlis Ulama Indonesia) Darul Ifta' and some by individual 'Ulama's or Imams leading prayers in the mosques. Not only that the fatwas are controversial in themselves but also there is great deal of misunderstanding about the nature of these Fatwas. We would like to throw light on all these aspects.
First let us throw some light on the nature of fatwas and their significance for Muslims. First of all it is important to note that there is no concept of priesthood in Islam, much less church like hierarchy. No authority, howsoever eminent, can claim sole right to pronounce any binding opinion for all Muslims. Thus no fatwa issued by any eminent authority is binding on any Muslim, even on one who asks for it.
There is wrong conception that once a fatwa is issued, all Muslims automatically follow it. It is far from truth. Even among Sunni Islam there are four surviving schools of Jurisprudence (shari’ah), Hanafi, Maliki, Shafi’i and Hanbali and besides these there are other schools among Shi’ah Muslims like Ja’fari, Ismaili and Zadiyah. Even in every school there are differences of opinion on several matters.
Whenever any fatwa is issued it is issued according to the position in the particular school. Whatever fatwas are issued by Majlis Ulama of Indonesia, they are issued according to the Syafi' school of Shari’ah. The founders of these schools had no arrogance about absolute truth about their own position. For example, Imam Abu Hanifa used to say if my two disciples differ from me, listen to them as they are two and I am one. Imam Ibn Hanbal, founder of Hanbali School refused to allow the Abbasid Caliph to enforce his maslak (i.e. Shari’ah law according to his formulations) throughout his regime. He maintained it would deprive people of their freedom to follow an opinion different from him. He also refused to become chief Qadi in his establishment, as his maslak will reign supreme.
When these eminent imams founders of their respective schools never allowed their opinion to prevail on all thus depriving others of their freedom of opinion, how can lesser beings claim that their opinion is final and binding. Thus no fatwa should be taken as final and binding on all Muslims. In many respects opinions of different schools differ widely though principles (usul) do not differ. Each Imam derived different conclusions depending on which verse of the Qur’an or which hadith is being used by the mufti (one who issues the fatwa).
A fatwa usually is given for certain challenges that could be different if we go to another country. This is what happened the Imam Ashaf'i when he made different statements of fiqh because sometime he was in Egypt and sometimes he was in the Hijaz. Those differences in a fatwa because of differences in countries could be very minimal and countable. But in general, we should differentiate between a fatwa which is an opinion founded on Qur'an and Sunnah and other integtrities of Usul and the Qur'an or Hadith himself. They call the former what is understood or comprehended, but the latter is An-nus (the literal meaning of a verse of Qur'an or Hadith)
Let's look at the whole meaning of fatwas, and its principles to be able to understand fully on fatwas, their acceptability and their relevance
The Principles Of Fatwa
The Meaning Of Fatwa
In its original linguistic sense, the Word Fatwa means an answer to a question irrespective of whether such question relates to an issue of Shariah or not. Thereafter, the word acquired a technical meaning in the sense that it was confined to an answer given in response to a question relating to an issue of Shariah or the Deen.
The Salaf & the Immense Responsibility of Fatwa
The Salaf used to exercise great caution in matters of Fatwa. Imaam Hanbal [R.A.] used to frequently say : "I don't know". Imaam Malik is reported to have said that the Mufti must be conscious of accountability to Allah before responding to any question. According to Ibn Masud and Ibn Abbas, a person who answers every question is mad. Unfortunately there are many persons who claim the mantle of issuing Fatwa without proper training and without having acquired the necessary expertise, thereby causing confusion and misunderstanding amongst the lay public.
1. The First Principle-Expert Supervision to Acquire Expertise
It is not permissible to issue a Fatwa unless a person has studied fiqh in depth under the supervision and guidance of competent experts in the field. The classical literature of Islamic Law has its own style and terminology and requires careful analysis in context. For example, what appears to be an unqualified statement is limited in application by the context or by conditions referred to elsewhere in juristic literature. An expert jurist would point to the true meaning and purpose of a juristic text and its proper application to a factual situation, thereby avoiding the errors resulting from self study or lack of guidance. A true perception can only be achieved under constant guidance, tutelage and supervision of distinguished experts recognizsed in the field.
2. The Second Principle-Development of Aptitude and perception
A person is not permitted to issue a Fatwa until and unless he develops an aptitude and a deep perception which enables him or her to distinguish between basic principles and their causes. The required level of aptitude and perception is attained when he or she is permitted by an expert to undertake the delicate and highly responsible trust of issuing Fatwa.
3. The Third Principle-Single juristic view Binding
It there is only one juristic view on a question amongst all the Hanafi jurists, then, that view is binding, unless there is cogent, textual evidence to the effect that such a view is based on an underlying cause which is absent in the particular case.
4. The Fourth Principle-Multiple Juristic Views
If there is more than one juristic view on a particular question, then it is obligatory to adopt that view which has been preferred by the scholars of Tarjiih [those classical jurists who have achieved distinction in the field by reason of their deep learning, piety and capacity to distinguish between competing arguments having regard to ever changing circumstances and new situations].
5. The Fifth Principle-Reliance upon Authentic Juristic Works Only
The Mufti is obliged to rely exclusively on the recognized and authentic works of Islamic Law. He is precluded from relying upon a work, which is not recognized, unless such reference is in accordance with established principles. In any event, he cannot base his reference upon a classical jurist who is not recorded to be amongst the preferred classical jurists of distinction [Ashab-ul-Tarjiih]. It is imperative that the Mufti is able to distinguish between the works upon which reliance can be properly placed, and those which cannot be relied upon for various reasons including weak narrations.
6. The Sixth Principle-Priority to be given to the preferred view as expressed in the text
In the case where there is a difference of opinion amongst the classical jurists on a particular question, that view is selected which has been accorded express preference in the text by the use of clear and express words such as "The Fatwa accords with this view". In the absence of express, clear preference in the text to the most preferred view, the particular text and juristic work must be examined in context to determine the authors preference for a particular viewpoint.
7. The Seventh Principle - Specific Words used to indicate Preference
The preferred jurists of distinction [Ashab-ul-Tarjiih], in selecting the most preferred viewpoint, have used different words in the text to denote such preference. Certain words indicate a stronger degree of preference than others, as appears from various references.
8. The Eighth Principle - Conflict of Juristic Opinion
In the case of a conflict between competing juristic views, it is an extremely delicate and complex task to prefer one view over another. A number of guidelines have been laid down but ultimately the selection of the appropriate rule is based on the aptitude, skills, intuition, depth of learning of the particular Mufti having regard to Divine accountability and sincerity of purpose, devoid of ulterior motives.
9. The Ninth Principle - Adopting the View of Zahir-ul-Riwayah
In the event where the classical jurists of distinction [Ashab-ul-Tarijiih] have not preferred any view at all, then it is obligatory to adopt the view expressed by the Zahir-ul-Riwaayah. If the latter itself expresses a difference of opinion, then the most recent view [i.e.the latest] should be adopted.
10. The Tenth Principle - Mafhum-Mukallif as a Principle of Interpretation of Juristic Text
Mafhum-Mukallif refers to the case where the contrary intent is interred from the ordinary meaning of an expression. For example, The Holy Prophet S.A.W. said that Zakah is payable in respect of camels that graze or their own. The contrary meaning [Mafhum-Mukalif] is that no zakah is payble on domesticated camels. The Mafhum-Mukallif is an acceptable principle of interpreting juristic text provided that the context permits such an interpretation.
11. The Eleventh Principle - Weak juristic Narrations Not to be Adopted
As a general rule, it is not permissible to issue a Fatwa which is based on a weak narration except in the case of necessity as interpreted by an extremely competent Mufti having a deep insight, perception, intuition, skills and having the capacity to distinguish between different arguments based on their strengths and weaknesses.
Compiled and written By M.S Omar based on the Arabic Lecture Notes
of Justice Mufti Mohammad Taqi Usmani attended by the Writer
Long Island, February 5, 2009
Subscribe to:
Posts (Atom)