The shifting moral universes of the Islamic Tradition of Iftā': A diachronic study of four Adab al-Fatwā Manuals

Muslim World

Volumn 96, Issue 4, 2006, Pages 661-685

  Caeiro, Alexandre ^a  

^a ISIM   (Netherlands)

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[No Author keywords available]

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EID: 61949189329     PISSN: 00274909     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1478-1913.2006.00152.x     Document Type: Review

References (130)

1. Ahmad Dallal, "FATWĀ: Modern Usage," in The Oxford Encyclopedia of the Modern Islamic World (Oxford: OUP, 1995), vol. 2, 14.
2. Jakob Skovgaard-Petersen, Defining Islam for the Egyptian State - Muftis and Eatwas of Dār al Iftā' (Leiden: Brill, 1997), 13.
3. Baber Johansen, Contingency in a Sacred Law (Leiden: Brill, 1999);
4. Wael Hallaq, "From Fatwās to Furū': Growth and Change in Islamic Substantive Law", Islamic Law and Society 1/1 (1994).
5. Brinkley Messick, The Calligraphic State (Berkeley: University of California Press, 1993).
6. 2.
7. This is arguably true even of many contributions to the seminal volume edited by Masud, Messick and Powers, Islamic Legal Interpretation (Leiden: Brill, 1996), starting point obligé for any study of fatwas today.
8. Talal Asad, The Idea of an Anthropology of Islam (Center for Contemporary Arab Studies - Georgetown University: March 1986), 7.
9. Alasdair Maclntyre, After Virtue - A Study of Moral Virtue (Notre Dame, Indiana: University of Notre Dame Press, 1981), 207.
10. Asad, "Reading a modern Classic: W. C. Smith's 'The Meaning and End of Religion'", in Religion and Media, eds. Hent de Vries and Samuel Weber (Stanford: Stanford University Press, 2001), 141.
11. In contrast to MacIntyre's use of the term, an Islamic discursive tradition presupposes, for Asad, a concept of religious orthodoxy. This is a relationship of power which lies in tension with the tradition's impetus to self-reform, an antagonism traceable to the conceptual opposition between MacIntyre's notion of tradition and Foucault's genealogy - see, on this point, David Scott, "The Tragic Sensibility of Talal Asad", in The Powers of the Secular Modern, eds. Scott and Hirschkind (Stanford: Stanford University Press, 2006). 134-153.
12. A different critique of Asad is articulated in C. C. Brittain, "The Secular as a 'Tragic' Category: On Talal Asad, Religion and Representation" , Method & Theory in the Study of Religion 17 (2005): 149-165.
13. For stimulating appropriation of the concept of tradition to the study of Europe's Muslims, see Schirin Amir-Moazami and Armando Salvatore, "Gender and the Reform of Tradition across Muslim Majority Societies and European Diasporas", in Muslim Networks, Transnational Communities and New Media, eds. Jørgen Nielsen and Stefano Allievi (Leiden, Brill, 2003), 52-77;
14. and Armando Salvatore, "Making Public Space: Opportunities and Limits of Collective Action Among Muslims in Europe," Journal of Ethnic and Migration Studies 30/5 (2004): 1013-1031.
15. Asad, Genealogies of Religion (Baltimore: The John Hopkins University Press, 1993), 210.
16. Charles Hirschkind, "Hearing Modernity: Egypt, Islam, and the Pious Ear." in Hearing Cultures: Sound, Listening, and Modernity, ed. Veit Erlmann (New York: Berg Publishers. 2004), 191-216;
17. "The Ethics of Listening: Cassette-Sermon Audition in Contemporary Egypt", American Ethnologist 28/2001: 623-649.
18. Adab al-fatwa is my generic term for this particular genre, including the conditions for the muftiship and the etiquette for petitioners. The similarities to other adab genres suggests that the opposition between literary adab and religious 'ilm is not as pronounced as sometimes implied. On the scarcity of guidelines for delivering the khutba, see Hirschkind, "Hearing Modernity", 139. See also Peter, this issue.
19. English-language scholarship which addresses the issue includes Khalid Masud, "Ādāb al-Muftī: The Muslim Understanding of Values, Characteristics, and Role of a Muftī," in Moral Conduct and Authority: The Place of Adab in South Asian Islam, ed. Barbara D. Metcalf (Berkeley: University of California Press, 1984), 124-151;
20. Brinkley Messick, "The Mufti, the Text and The World: Legal Interpretation in Yemen", Man 21/1 (1986): 102-119;
21. Sherman Jackson, "The Second Education of the Mufti: Reflections on Shihab al-Din al-Qarafi's Tips to the Jurisconsult'," The Muslim World 82/3-4 (July-October 1992): 201-17;
22. Kevin Reinhart, "Transcendence and Social Practice: Muftīs and Qādīs as Religious Interpreters," Annates Islamologiques XXVII (1993): 5-25;
23. Masud, Messick and Powers (eds.), Islamic Legal Interpretation (Leiden: Brill, 1996), especially chapters 1 and 6;
24. Skovgaard-Petersen, Defining Islam.
25. This is also partly the result of my own research bias: in my deliberate attempt to find contemporaneity I may have played down the extensive and explicit continuities in this literature, while amplifying its disagreements and developments.
26. Ibn al-Salāh al-Shahrazūrī, Adab al fatwā wa shurūt al-muftī wa sifat al-mustaftī wa ahkāmuhu wa kayfiyyat al-fatwā wa-l-istiftā' (The Etiquette of the Fatwa, the Conditions of the Mufti, the Attributes and Rules of the Questioner, and the Procedure of Fatwa-issuing and Fatwa-petition), ed. Rufi'at Fawzī 'Abd al-Mutalib (Cairo: Maktabat al-khānijī, 1992).
27. Jamāl al-Dīn al-Qāsimī, Al-fatwā fi-l-islām (The Fatwa in Islam) (Damascus: Majalat al-Muqtabas, 1329/1911).
28. Yūsuf al-Qaradāwī, Al-fatwa bayna al-indibāt wa-l-tasayyub (The Fatwa Between Discipline and Neglect) (Beirut, Damascus and Amman: Al-maktabu al-islamī, 1995).
29. Rufi'at Fawzī 'Abd al-Mutalib in Ibn al-Salāh, 8.
30. On Nawawī, see Norman Calder, "Al-Nawawī's Typology of Muftīs and its Significance for a General Theory of Islamic Law", Islamic Law and Society 3/2 (1996): 137-64.
31. Nawawī's work has been translated by a British Muslim publishing house: Al-Nawawī, Adab al-Fatwa wal Mufti wal Mustaftī - The Etiquette's and Qualifications of Issuing Islamic Judgement, Of a Mufti, and of the one seeking his opinion, tr. Shaykh Muhammad Bashir (Birmingham: Al-Fardani, non-dated).
32. 2.
33. See Michael Chamberlain, Knowledge and social practice in medieval Damascus, 1190-1350 (Cambridge: C.U.P., 1994), 133-151.
34. My discussion here draws on Wael Hallaq, "Ifta' and Ijtihad in Sunni Legal Theory: A Developmental Account", in Islamic legal Interpretation, 33-43.
35. Ibn Daqiq al-'Id (d. 1302), quoted in Hallaq, "Ifta' and Ijtihad", 38. It is because the capacity to perform ijtihād was dropped from the prerequisites of iftā' that a number of later authors argued the opinions issued as fatwas were actually no more than mere reports.
36. Ibn al-Salāh, 37-8;
37. Hallaq, "Ifta and Ijtihad", 36-7.
38. Ibn al-Salāh, 56.
39. On the importance of piety for ifta' see also Qāsitmī, 14 and Qaradāwī, Al-fatwa, 38-44.
40. Interestingly, Oubrou does not include any moral features as conditions for the muftiship in contemporary France. According to Messick, the insistence on piety for the mufti constitutes an important difference with the qādī, an office which even individuals lacking in moral standards were eligible to, though of course not ideal candidates: Messick, "The Mufti, the Text and the World," 109.
41. nd edition). 224.
42. th century onwards.
43. See also Masud, Messick and Powers, Islamic Legal Interpretation, 21.
44. Ibn al-Salāh, 152.
45. Ibn al-Salāh, 125. Interestingly, the two following pages (125-127) are consumed by a single footnote from Rufi'at Fawzī 'Abd al-Mutalib, the Egyptian editor of Ibn al-Salāh, who disagrees with the mediaeval Shafi'i jurist and maintains, on the authority of Ibn al-Qayyim al-Jawziyya (1292-1350), that it is best to explicitise the evidence at all times - see also my discussion below.
46. Ibn al-Salāh, 106-109.
47. See on this point Jackson, "The Second Education of the Mufti".
48. Ibn al-Salāh, 119-121. Likewise, Qāsimī, 26.
49. The flexibility of Islamic juristic discourses is underscored further by Ibn Hanbal: in a later footnote, the editor of Ibn al-Salāh's manual quotes a passage from Ibn Hamdan. It reports an incident where Imam Ahmad informed a mustaftī unhappy with his answer of the location of another mufti known for having a different - more sympathetic - view on the issue (Ibn al-Salāh, 148, ft. 3). It is therefore not surprisingly that Tareq Oubrou refers to Ahmad Ibn Hanbal as the example to emulate in France in his "La sharî'a de minorité: réflexions pour une intégration légale de l'islam," in Lectures contemporaines du droit islamique - Europe el monde arabe, ed. Franck Frégosi (Strasbourg: Presses universitaires de Strasbourg, 2004), 226-7.
50. One should not however overlook the fact that criticism of leading questions and petitioners can also be a kind of deontological practice allowing muftis to minimise overt conflict with respected or powerful colleagues.
51. Ibn al-Salāh, 146-8.
52. Al-Nawawi, Adab al-Fatwa wal Mufti wal Mustaftī, 41.
53. See also Qāsimī, 31-32.
54. David Commins, Islamic Reform - Politics and Social Change in Late Ottoman Syria (Oxford and New York: OUP, 1990), 34-48.
55. On Salafi reformism and Arab nationalism at the time of Qāsimī, see also Commins, "Religious Reformers and Arabists in Damascus, 1885-1914", International Journal of Middle East Studies 18/4 (1986): 405-425;
56. and Joseph Escovitz, "'He Was the Muhammad Abduh of Syria' - A Study of Tahir al-Jazairi and His Influence", International Journal of Middle East Studies 18/3 (1986): 293-310.
57. Qāsimī, Al-fatwa, 2.
58. Qāsimī, Al-fatwa, 2-3.
59. 2. The literature on Ottoman muftis, both in Istanbul and in the provinces, is extensive.
60. For Istanbul, see Uriel Heyd, "Some Aspects of the Ottoman Fetvā, BSOAS 32/1969: 35-56
61. and R. C. Repp, The Müfti of Istanbul (London: Ithaca Press, 1986).
62. In the Arab provinces, see Judith Tucker, In the House of the Law (California: University of California Press, 1998);
63. Haim Gerber, Islamic Law and Culture, 1600-1840 (Leiden: Brill, 1999).
64. For the remnants of this Ottoman system in the contemporary Middle-East, see Skovgaard-Petersen, "Levantine State Muftis - An Ottoman Legacy?" in Late Ottoman Society - The Intellectual Legacy, ed. Elisabeth Özdalga (London-New York: Routledge Curzon, 2005), 274-288.
65. Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001).
66. Qāsimī, 16, ft. 1.
67. Qāsimī, 11 and 42.
68. Qāsimī, 27.
69. Qāsimī, 27-8.
70. Qāsimī, 26, ft. 1.
71. The point is made in reference to the adoption of a legal system based exclusively on "rights", precluding an engagement with the spiritual needs of litigants.
72. Qāsimī, 66-67.
73. This list of insults must be placed in the context of their articulation. Although I have not had access to Arabic biographies of Qāsimī, Commins' work provides some important background. Given his open advocacy of ijtihād, Qāsimī's incorporation of "mujtahid" in the list of insults cannot be but an ironic acknowledgement of the word's social connotation in late Ottoman Damascus. It is also probably related to a painful moment in his early carrier, which became known as the "mujtahids incident" - see Commins, Islamic Reform, 50-55.
74. Abdulkader Tayob, "Reading Religion and the Religious in Modern Islam", ISIM Review 15 (Spring 2005), 56-57.
75. See M. Qasim Zaman, The Ulama in Contemporary Islam - Custodians of Change (Princeton: Princeton University Press, 2002).
76. MacIntyre, After Virtue.
77. Qaradāwī has been the object of a number of studies, including Anne-Sofie Roald, "The Wise Men: Democratization and Gender Equalization in the Islamic Message: Yūsuf al-Qaradāwī and Ahmad al-Kubaisi on the Air," Encounters 7/1 (2001): 29-55;
78. Ermete Mariani, "Youssef al-Qardawi: pouvoir médiatique, économique et symbolique," in Mondialisation et nouveanx médias dans l'espace arabe, ed. Franck Mermier (Lyon: Maisoneuve et Larose / Publications de la Maison de l'Orient, 2003), 195-204;
79. Jakob Skovgaard-Petersen, "The Global Mufti," in Globalization and the Muslim World: Culture, Religion, and Modernity, eds. Birgit Schaebler and Leif Stenberg (Syracuse: Syracuse University Press, 2004), 153-165;
80. M. Q. Zaman, "The 'Ulama of Contemporary Islam and their Conceptions of the common good," in Public Islam and the Common Good, eds. Dale Eickelman and Armando Salvatore (Brill: Leiden, 2004), 129-155.
81. This is the title of arguably his most famous book, Al-Sahwa al-islāmiyya bayna al-juhūd wa-l-taīarruf, translated into English as The Islamic Awakening between Rejection and Extremism (Herndon, VA: IIIT, 1992).
82. Qaradāwī's emphasis on the contemporaneous goes hand in hand with another one of his leitmotifs, the insistence on "reality" (al-waqa'), both of which can be traced to the legacy of Rashīd Ridā. The social constructions of "reality" in modern Muslim thought would undoubtedly merit further study.
83. Qaradāwi, Al-fatwā, 3-4.
84. Qaradāwī, Al-fatwa, 4.
85. For an overview of Islamic authority in contemporary Egypt, see inter alia Malika Zeghal, Gardiens de l'islam (Paris: Presses de Sciences-Po, 1996);
86. Skovgaard-Petersen, Defining Islam;
87. Elena Arigita Maza, El islam institucional en el Egipto contemporáneo (Granada: Universidad de Granada, 2005).
88. Qaradāwī, Al-fatwā, 52-56.
89. Max Weber, Economy and Society (Berkeley: University of California Press, 1978), 797
90. Qaradāwī, Al-fatwa, 108-112.
91. Ibn al-Salāh, 109.
92. This is the case in spite of the fact that the mudarris was almost always a mufti too (Tyan, Histoire de l'organisation judiciaire, 222).
93. Qaradāwī, Contemporary Fatawas, vol. 1 (New Jersey: Islamic Book Service, 1999), 27.
94. See Fikret Karčić, "Applying the Shari'ah in Modern Societies: Main Developments and Issues," Islamic Studies 40/2 (2001): 210;
95. The literal meaning is "leniency", a term which evokes largely positive connotations in the fiqh tradition, and should be contrasted to atasabūl, "facility", an attitude which muftis are severely warned against in the adab al-fatwa literature - for example, Qāsimĩ, 19-20.
96. Qaradāwī describes taysīr as being "more urgently needed at this lime than ever before. We live in an age which is immersed in materialism, lost in distractions, full of evils so overwhelming that the person who sticks to his religious principles faces a great deal of difficulty and stricture" - Qaradāwī, The Islamic Awakening, 157;
97. MacIntyre, Whose justice? Whose Rationality (Notre Dame: University of Notre Dame Press, 1998), 355, 364.
98. Masud, Messick and Powers, Islamic Legal Interpretation, 8-15.
99. By "myth" I do not intend to deny the translation of this principle into effective policies, but just to emphasise how secularism provides a cosmological explanation of European societies today, irrespective of the varieties of the arrangements and the open-endedness of the outcomes.
100. In reality, the religious freedom guaranteed by European laws involves a complex legal process of defining (legitimate) religious practices which is more complicated than sometimes assumed. Expert statements on Islamic law, whether called fatwas or not, are often solicited by European judges in their attempt to evaluate the religious claims of plaintiffs. Thus, in an interesting case, the German Administrative Court of Darmstadt upheld a decision based on a fatwa from the Islamic Religious Community of Hessen related to the ritual slaughter of meat - see Mathias Rohe, "Ifta in Europa", in Hans-Georg Ebert (ed.) Beiträge zum Islamischen Recht III (Frankfurt am Main: Peter Lang), 46.
101. These attempts have not been free of contradiction. In France, where the construction of a French Islam has become a state priority, the personal input of Interior Minister Nicolas Sarkozy made the establishment of the conseil françous du culte musulman possible in 2002. However, his widely-reported visit to Sheikh Al-Azhar in Cairo in December of the following year to discuss the sartorial obligations of Muslims in non-Muslim lands served to understanding the moral authority of the French Muslim body, unanimously opposed at the time to any ban on headscanves in French Public Schools.
102. Ziauddin Sardar, "My fatwa on the fanatics", The Observer, 23/9/2001.
103. Sardar's fatwa was echoed by Mansur Escudero's deeming Bin Laden an apostate - in both cases stirring debates within Muslim communities. Although Escudero, as the co-secretary general of the official Comisión Islámica de España (see Arigita in this volume), holds an important institutional position which differs from Sardar's sole status as an academic, both have been perceived by religious Muslims as lacking the necessary qualifications for the muftiship. The Spanish fatwa, issued on the first anniversary of the Madrid bombings, is available (with links to English, French and Arabic translations) at http://www.webislam.com/?idn=399#.
104. Farid Abdelkrim, La France des islams - Ils sont fous ces musulmans?!, 84-86.
105. See for example Yusuf Talal DeLorenzo, "Fiqh and the Fiqh Council of North America," Journal of Islamic Law (3/1998), 193.
106. "Profile: Dr Zaki", Emel, November/December 2003, p. 32-6.
107. Statement by the Founding Editor of Q-News Fuad Nahdi.
108. Le Monde, 26/05/1996.
109. The declaration from the Recteur of the Mosquée de Paris, who had proposed just one year earlier to establish a system of provincial muftis, does not make sense unless one takes into consideration the competing strategies pursued by rival Muslim actors throughout the 1990s in their search for State recognition. More recently, the Franco-Algerian intellectual Malek Chebel wrote that "one would have ideally to simply abolish the notion of fatwa, in any case that which consists ... in putting to death a thinker or other critic of Islam", and called for accepting the view that fatwas be "just an Enlightened opinion, like the expertise of a doctor, a psychologist or a policeman in charge of an investigation" - Manifesto pour un Islam des Lumières (Paris: Hachette, 2004), 45-6.
110. Chairman of the Conseil des imams, interview with author, Paris 2004. For a counter example, see my "An Anti-Riot Fatwa" in ISIM Review 17, Spring 2006.
111. In the last three years at least two conference-debates have taken place in Paris only, organised respectively by the Institut européen de sciences humaines (an imam-training institute close to the UOIF) and the Institut international de la pensee islamique. For a report of the latter, see http://www.islamonline.net/Arabic/news/2006-01/07/article12.shtml.
112. The French case does not seem to be unique: in the Anglophone World, for example, Khaled Abou El Fadl reacted to a controversial fatwa by publishing The Authoritative and the Authoritarian in Islamic Discourses (Alexandria, VA: University Press of America, 1997)
113. while Taha Jaber al-Alwani's attempts to develop a methodology for issuing contextual fatwas have yielded, in English, Towards a Fiqh for Minorities - Some Basic Reflections (London and Washington: IIIT, 2003).
114. "Introduction thé.orique à la chari'a de minorité," Islam de France (2/1998), 27-39;
115. "La chari'a et/dans la laïcité," Archives de philosophic du droit 48/2005, 157-167.
116. Here I draw on a piece entitled "An Imam in France: Tareq Oubrou" first published in the ISIM Review 15: 48-9.
117. All unreferenced quotations are from a series of interviews with the author carried out in Paris and Bordeaux in 2004 and 2005.
118. The use of French is remarkable and suggests that, beyond the producers of Islamic discourses, Oubrou is targeting also the wider non-Muslim strata of French society, particularly academics, interfaith activists, and perhaps even politicians.
119. See also Peter in this issue. For Oubrou's vision of Islam as faith and practice, see Oubrou and Babès, Loi d'Allah, loi des homes (Paris: Albin Michel, 2002). 86-93.
120. "La sharî'a de minorité," 210-220. Oubrou's proposition to incorporate French law into the metabolism and the economy of the sharī'a has been formulated theoretically: the full applications of such a move have yet to be spelt out.
121. The pun is lifted on John R. Bowen, "Does French Islam Have Borders? Dilemmas of Domestication in a Global Religious Field", American Anthropologist 106 (1), 43-55.
122. Oubrou, '"La shari'a de minorité", 221.
123. For a gender(ed) discussion of this aspect, see Amir-Moazami and Salvatore, "Gender, Generation, and the Reform of Tradition,"
124. Ramadan in Conseil européen des fatwas et de la recherche, Recueil de fatwas: Avis juridiques concemant les musulmans d'Europe (Lyon: Editions Tawhid, 2002), 17.
125. See inter alia W. Shadid and P. S. van Koningsveld. "Religious Authorities of Muslims in the West: Their Views on Political Participation", in Intercultural Relations and Religious Authorities: Muslims in the European Union, eds. Shadid and van Koningsveld (Leuven: Peeters, 2002), 149-168;
126. Werner Menski, "Muslim Law in Britain", Journal of Asia and Africa 62 (2001): 127-163;
127. Mathias Rohe, "Ifta in Europa";
128. Bowen, "Beyond Migration: Islam as a Transnational Public Spacer", Journal of Ethnic and Migration Studies 30/5 (2004), 879-894.
129. For an author who does just this, demonstrating how the adab al-fatwa manuals impact on a mufti's actual practice in the Mamluk period, see Nissreen Haram, "Uses and Abuses of the Law: A Mufti's Response", in Islamic Legal Interpretation, 72-86.
130. The expression is taken from Geertz, Islam Observed (Chicago: University of Chicago Press, 1971), 62.