Fatwa

Fatwa as a practical aspect of Islamic Shari'a law is a nonbinding legal response that is sought by an individual questioner (mustafti) from a jurisconsult (mufti) who practices the act of “fatwa giving” (ifta). Made infamous by events such as those surrounding Ayatullah Khomeini's issuance in 1989 of a fatwa against the publication of the Satanic Verses, charging its author Salman Rushdie with blasphemy and pronouncing a death sentence against him, and the “Declaration of Jihad” (1996) and “Declaration of Jihad Against Jews and Crusaders” (1998), authored by Osama bin Laden (d. 2011) and Ayman al-Zawahiri, the fatwa is not limited to threats of punitive violence or warfare. Fatwas are used for confirming correct ritual practice and social behavior and are representative of the importance of continued ijtihād (independent interpretation of Islamic law and its sources) to the maintenance and construction of authority and practice within predominantly Muslim nation-states, minority Muslim diasporic communities, and discourses of formal schools (madhahib) of religious thought.

As an independent ruling, the fatwa is a synthetic result of the dialectical relationship between the questioner, the questioned, and the question itself. Any legal response by the mufti is delimited by the specificity of the presented question. A mufti is meant neither to investigate all aspects of the question nor to write lengthy disputations as a conclusion. When a question is presented, the mufti will use a process known as taswir al-mas'alah (the envisioning of the question) to bracket the particular elements necessitating a legal response. The mufti will then make an assumption (takyif al-masalah) about the act under question. This is a characterization of the action as permissible or impermissible without any biases toward legality or illegality. A ruling (hukm) completes the fatwa. The mufti is expected to express a ruling using clear, sometimes idiomatic, language that is germane to the situation and demands of the questioner. Once the fatwa is issued, the questioner will receive a copy of the question, and nowadays, the fatwa may be published as part of a redacted collection.

The term fatwa is derived from the trilateral Arabic root f-t-w, and in its 4th (afta) and 10th (istifta) derived verbal forms, it indicates the practice of asking and answering questions. Though the Qur'an does not contain specific reference to these terms as a legal enterprise, it does contain 500 verses of ascertainable legal proscriptions and sources for legislation. The Qur'an, intended as the final divine revelation of the will of God for [Page 393]humanity, along with the sunna (the sayings and actions) of Prophet Muhammad, is the foundational element of Islamic legal and theological discourses. Early legal principles, such as consensus (ijma) and analogy (qiyas), alongside other instruments, were formed by the ulema (religious scholars) as the foundations of Islamic legal theory (usul al-fiqh) so that all legal rulings (ahkam, singular Hukm) could be grounded within the two primary sources.

By the ninth century (the third century of the Islamic calendar), scholars discussing Islamic jurisprudential discourses were in open conflict about the utility of the concepts of ra'y (opinion) and ‘ilm (knowledge) for the practice of Islamic law. Fatwa rulings, as a form of ijtihād, were issued in response to rapidly changing social and political circumstances. The categories and boundaries necessary for authorizing the formation of legal opinions—and for determining those individuals permitted to issue fatwas—arose from debates between the partisans of ra'y and ‘ilm. The Risalah (thesis) of Abu ‘Abdullah Muhammad Ibn Idris al-Shafi'i (767–820 CE) was among the initial articulations of formal approaches for the production and interpretation of new legal rulings and opinions. Al-Shafi'i felt that to qualify as a mufti, an individual must be a mujtahid capable of exercising ijtihād and possessing a deep knowledge of the sources and instruments of law (usul al-fiqh).

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