Wasatiyyah in the Formulation of Fatwas | Wasat No. 41 / October 2021

wasat

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Wasatiyyah in the Formulation of Fatwas

01 October 2021 12:02 am // Written by Mohammad Rizhan bin Leman

The task of formulating fatwas is indeed a heavy responsibility and a difficult task. Muslim scholars, past and present, have laid down strict conditions for those who wish to undertake this task. In Singapore, this great responsibility of issuing fatwas rests on the shoulders of the Fatwa Committee.

The prominent Shafii scholar, Imam Nawawi said, “Know that ifta’ is the gravest of serious matters, a great responsibility and entails numerous virtues. This is because a mufti is the heir of the Prophets (peace and blessings be upon them), and one who fulfills fard al-kifayah though he is liable to err. For this reason, scholars have said that a mufti is a signatory on behalf of God the Almighty.”[1]

A wasatiy approach in the formulation of fatwas requires muftis and scholars to follow the following four steps.[2]

 

First: Taswir

The first important step in the formulation of fatwas is the taswir stage. This refers to the correct conceptualization of the particular issue at hand as it actually occurs, that is, our view of the issue must correspond to its reality. Failure to do so will cause the fatwa to be dissociated from the truth of the matter.

 

The famous Hanbali scholar, Imam Ibn Al-Qayyim said:

“The mufti or judge is not able to issue a fatwa or verdict without understanding two things:

(i) Understanding and having a good grasp of reality; he should have a good understanding of what is happening, on the basis of circumstantial evidence and other signs, so that he has a full understanding of it.

(ii) Understanding what is required in the light of these circumstances, which means understanding the ruling of Allah that He issued in His Book or on the lips of His Messenger concerning this reality, then he should apply the one to the other.”[3]

For instance, before issuing a fatwa regarding the ruling of insurance, muftis and scholars should possess a deep and comprehensive knowledge regarding the different types of insurance schemes which are made available to people.

Some insurance falls under the category of takaful while others fall under national insurance schemes managed or supervised by the government. There are also other types of insurance which include cooperative insurance, compulsory insurance and conventional insurance schemes.

Each of these types of insurance requires an independent analysis and discussion in terms of its ruling. There is a very important principle in fiqh which states: “The ruling on a particular issue is based on the way it is perceived.”[4]

 

Second: Takyif

The second important step in the formulation of fatwas is the takyif stage. This refers to the categorisation of the issue being considered under the appropriate category in Islamic Jurisprudence. In other words, the issue requiring a juristic evaluation and verdict has to be subsumed to where it juristically belongs in general manner before a specific ruling is passed on it.

According to scholars, takyif can be divided into two categories.

The first is Al-Takyif Al-Basit. Issues whose original case (‘asl) can be easily identified falls under this category.

The second is Al-Takyif Al-Murakkab. Complex issues which resemble more than one established original rule fall under this category.[5]

One of the main reasons which leads to the differences of opinion amongst scholars is due to the differences in takyif.[6]

For instance, before issuing a fatwa regarding the ruling of insurance, muftis and scholars need to decide whether the insurance contract resembles any of the contracts discussed by past scholars or does it fall under the category of new transactions not known to our past scholars.

There are three main approaches amongst Muslims regarding the usage of takyif in dealing with modern contracts.

The first exaggerates the usage of takyif. This approach does not see the permissibility of new contracts if they do not resemble any of the nominate contracts (‘uqud al-musammah) as discussed in the books of Islamic Jurisprudence.[7]

As opposed to the first, the second totally neglects the usage of takyif when dealing with modern contracts and considers them as totally new contracts which were not discussed in books of Islamic Jurisprudence.[8]

The third analyses critically the true nature of new contracts. If they resemble the nominate contracts in terms of their pillars, objective of the contract, and the intention of the contracting parties, then these contracts will be given the same ruling as the nominate contracts. On the contrary, if they are fundamental differences between the essential characteristics of the two contracts, then these new contracts will be considered as new independent contracts. These contracts are considered as valid as long as there are no elements which contradict the principles of shari`ah.[9] This approach, in the lens of this writer, is the most just and closest to the truth.

 

Third:  Bayan Al-Hukm

The third important step in the formulation of fatwas is the elucidation of the specific ruling conforming to the issue at hand. It requires the muftis and scholars to have strong mastery of the Qur’an, Prophetic Traditions, consensus (ijma’), analogical deduction (qiyas) and other relevant knowledge as stipulated in Islamic legal theory (Usul Al-Fiqh).

 

Fourth: Ifta’

The fourth important step in the formulation of fatwas is the issuance or pronouncement of the ruling on the issue. In this final stage, the muftis and scholars must ensure that the verdict passed on the issue (fatwa) does not contradict or violate the objectives of the shari`ah, any explicit and definitive text of the Qur’an or the Prophetic traditions, the ascertained consensus of scholars, or a well-known and established Islamic legal maxim. Any violation of the above necessitates that the fatwa to be revised.

 

Conclusion

Formulating fatwas is not as easy as knowing a Quranic verse or hadith and then issuing fatwas based on that verse or hadith. Neither it is as simple as quoting a fiqh opinion from one of the classical books or the internet and then giving fatwas based on that fiqh opinion.

The renowned Maliki scholar, Imam Al-Qarafi said, “Don’t be frozen (rigid) in the rules written in books of the jurists for the rest of your life. If a person travels to you from another region, then do not issue a ruling to him as per your own circumstances, instead ask him about the circumstances in his region and issue a ruling in accordance to the circumstances of the region the person resides.”[10]

There are four important steps in the formulation of fatwas:

(1) Taswir (correct conceptualization of the particular issue at hand as it actually occurs)

(2) Takyif (categorization of the issue being considered under the appropriate category in Islamic Jurisprudence)

(3) Bayan Al-Hukm (elucidation of the specific ruling conforming to the issue at hand)

(4) Ifta’ (issuance or pronouncement of the ruling on the issue).

The failure to perform one of these four steps in the formulation of fatwas will result in the emergence of fatwas which are deviated from the truth.

 


Notes:

[1] Al-Nawawi (n.d.), Kitab Al-Majmu’ Sharh Al-Muhadhdhab, Beirut: Dar Ihya’ Al-Turath Al-`Arabiy, vol.1, pp. 92-3.

[2] The Craft of Issuing Fatwas (n.d.), available at http://dar-alifta.org/Foreign/ViewArticle.aspx?ID=77&text=takyif  (5 September 2021).

[3] Ibn Qayyim (n.d.), I`lam Al-Muwaqqi`in `An Rab Al-`Alamin, Dammam: Dar Ibn Al-Jawzi, vol.2, p.165.

[4] Al-Jizani, Muhammad bin Husayn (2008), Fiqh Al-Nawazil: Dirasah Ta’siliyyah Tatbiqiyyah, Dammam: Dar Ibn Al-Jawzi, p.39.

[5] Al-Jizani (2008), p.49.

[6] Shubair, Muḥammad Uthman (2014), Al-Takyif Al-Fiqhi Li Al-Waqa`i Al-Mustajiddah Wa Tatbiqatuh Al-Fiqhiyyah, Damascus: Dar Al-Qalam, p.43.

[7] Al-Qaradawi, Yusuf (2010), Al-Qawa`id Al-Hakimah Li Fiqh Al-Mu`amalat, Cairo: Dar Al-Shuruq, pp.22-3.

[8] Al-Qurashi, `Abd Allah bin Marzuq (2013), Al-Tafkir Al-Fiqhi Fi Al-Mu`amalat Al-Mu`asirah Bayn Mura`at Shakl Al-`Uqud Al-Maliyyah Wa Haqiqatuha, Riyadh: Markaz Nama’ Li Al-Buhuth Wa Al-Dirasat, p.67.

[9] Shubair, Muḥammad Uthman (2014), Al-Madkhal Ila Fiqh Al-Mu`amalat Al-Maliyyah, Amman: Dar Al-Nafa’is, p.208.

[10] Al-Qarafi (n.d.), Kitab Al-Furuq Anwar Al-Buruq Fi Anwa` Al-Furuq, Cairo: Dar Al-Salam, vol.1, p.314.

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