Stipulations and Ethics of Fatwa in the Institutional Framework - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (29): Stipulations and Ethics of Fatwa in the Institutional Framework Appendix (B) The Shari’ah Basis for the Standard ■ Fatwa is considered as a collective duty that can be discharged of by any one of those who are able to do it, because it is one of the religious functions that serve public interest. Therefore, what is required is to have someone in the Muslim community who can issue Fatwa, rather than to have each and every individual of the community able to do so. Fatwa would become the duty of a specific individual or a group only if that individual or group is the only one who can issue it. If Fatwa were to become the duty of every member of the society, things would be more complicated.(2) ■ It is the duty of the institutions to seek Fatwa because otherwise they would not be able to meet their commitments to observe the rules of the Islamic Shari’ah. Therefore, Institutions should approach the boards for obtaining Fatwa. Similarly, it is the duty of the board to issue Fatwa to the Institution due to the relationship that binds the two by virtue of the decision of the general assembly (equity owners) of the Institution. ■ Acceptance of the Fatwa of a Shari’ah scholar whose knowledge is confined to only one branch of Fiqh, such as financial transactions in institutions, is based on the viewpoint that Ijtihad (reasoning) and Fatwa may be made partially.(3) ■ Preventing the Institution to adopt the Fatwas of other boards, except when allowed by its own board to do so, stems from the need to bar the way to any tendency of fabrication or attempt to pursue Shari’ah exemptions without observing their relevant controls or their context and circumstances, an act which leads to adoption of irrelevant Fatwas. ■ Permissibility of referring the Fatwa to a higher Shari’ah board or to a Fiqh forum for reconsideration, or making use of collective Fatwa, rests on the (2) “Sifat Al-Fatwa Wa Al-Mufti Wa Al-Mustafti”, Al-Mustafti”, Ibn Hamdan Al-Hanbali (P. 52) (3) ibid. (P. 28). 749
2. Shari ’ah Standard No. (29): Stipulations and Ethics of Fatwa in the Institutional Framework ■ ■ ■ ■ ■ fact that an opinion that gains support from a large group of eligible scholars is likely to be more reliable. Moreover, collective Fatwa may facilitate more coordination, and avoidance of discrepancies in the Fatwas of the different boards on the same subject. Withdrawal or refraining from dissemination of a certain Fatwa for fear of being misused is based on the principle of Sadd al-Zara`i’ which advocates the prohibition of a permissible act if it would (certainly or probably) lead to blight. Pursuing Shari’ah exemptions is prohibited because it leads to relaxation of the rules of the Islamic Shari’ah and induce loss of keenness to observe them. Therefore, some Fuqaha hold that pursuing Shari’ah exemptions amounts to Fisq (rebellion against Allah’s Obedience).(4) Choosing the easier ruling when two alternative options are available is supported by the Qur`an in Allah’s Saying: {“Allah intends for you ease, and He does not want to make things difficult for you”},(5) and by the Sunnah in the Prophetic Hadith stating: “Make things easier not harder...”.(6) All these directives are to be considered after reviewing the specific proofs.(7) The controls relating to the text of the Fatwa are meant to ensure that the Fatwa would achieve its goal without deviating to an invalid meaning. As indicted by Ibn Hamdan(8) in his book “Sifat Al-Fatwa” Al-Fatwa”,, drawing attention to these controls and what the ancestor Fuqaha had said about them is meant to ensure the appropriateness of the Fatwa. Permissibility of offering additional information with the Fatwa is shown by the statement of the Prophet (peace be upon him) when he was asked about using seawater for Wudu` (ablution): “Seawater is pure and sea carcasses are permissible”.(9) (4) “I’lam Al-Muwaqqi`in” by Ibn Al-Qayyim [1: 222]; and “Sifat Al-Fatwa Wa Al-Mufti Wa Al-Mustafti” by Ibn Hamdan (P. 32). (5) [Al-Baqarah (The Cow): 185] (6) “Sahih Al-Bukhari” (H: 69); and “Sahih Muslim” (H: 1734). (7) “Rasm Al-Mufti” by Ibn Abidin (P. 11). (8) “Sifat Al-Fatwa Wa Al-Mufti Wa Al-Mustafti” by Ibn Hamdan (pp. 58–66). (9) “Sunan Ibn Majah” (H: 386 and 388). 750
3. Shari ’ah Standard No. (29): Stipulations and Ethics of Fatwa in the Institutional Framework ■ The controls on the Fatwa document aim to preserve Fatwa from being misused.(10) ■ The ruling that a wrong Fatwa should be rectified is supported by the incident when the Caliphate Umar in one case issued a Fatwa that denied some of the brothers the right of inheritance, and later on he issued another Fatwa that granted such brothers the inheritance right. Having done so he said: the former case was subject to my previous Fatwa, and the new one is subject to the new Fatwa.(11) ■ Avoidance of hasty Fatwa should be observed because it was the practice of the Sahabah (Companions of the Prophet) and the other leading Fuqaha who succeeded them. In issuing Fatwa, one should not feel shy to say: I do not know, or to postpone the Fatwa until he is in a position to answer it properly.(12) (10) See more elaborations on “Sifat Al-Fatwa Wa Al-Mufti Wa Al-Mustafti” by Ibn Hamdan (P. 63). (11) “Jama’ Al-Jawami’” by Al-Subki (with elaborations by Al-Mahalli) [2: 391]. (12) “Sifat Al-Fatwa Wa Al-Mufti Wa Al-Mustafti” by Ibn Hamdan (pp. 6-11). 751