Performing Scholarly Research to Develop and Pass Religious Edicts and Rulings: The Process of Issuing a Fatwa (An Edict)

The law (Shari'aa) describes how Muslims should behave in every aspect of life, from private matters between the individual and God to relationships with others in the family and the wider community. Shari'aa is developed based on Fiqh, the detailed research work conducted by fuquahaa, the highly accomplished scholars who have a tested, proven, and recognized track record and body of accomplishments over many years. The body of detailed laws developed by these fuquahaa is called the Fiqh. Shari'aa is hence the referenced legal and canonical bar used by accomplished and recognized religious fuquahaa in developing detailed legal codes for different societies in different times, depending on local needs, problems, and circumstances, as well as on the time these needs arise.

It is also important to note that Shari'aa is applicable only to people who believe in the Islamic faith. Those who choose to not be believers in Islam are not required to abide by Shari'aa. That is why, for example, zakah, or alms giving, an Islamic ritual ordained by Shari'aa and one of the five pillars of Islam, is replaced by the act of tax collection from non- Muslims who live in a Muslim country; this tax is called jizyah, which means taxes.

The Ultimate Intent and Goals of the Law (Shani'aa): Maqasid Al Shari'aa

Accomplished and recognized fuquahaa have researched and developed over the years a set of goals that they use to guide believers on how to live comfortably while abiding by the law (Shari'aa.) They developed detailed sets of moral and legal rulings to guide those who are asked to issue an edict (fatwa). These rulings are all assembled in the books of Fiqh, which are similar to books of legal codes and are continually updated with the changes that evolve in a particular society.

To develop a legal canonical system of laws based on the Fiqh that leads to developing the law (Shari'aa) about what is halal (divinely allowed) and what is haram (divinely prohibited), the following fundamental rules must be followed:

Whatever is not prohibited by the Qur'aan and Sunnah is usually acceptable and is considered allowable (halal).

The main objective of the law (Shari'aa) is to push away what is harmful to all aspects of life, family, assets, and the faith, and to bring to bear what is good and beneficial to all (in Arabic, the rule is: Dafu'l Dbarar Wa Jalbul Manf'aa^[3]). Based on this important and basic rule, one cannot hurt himself, his family, his wealth, or his faith while attempting to apply the law.

If a person cannot live by the law in its entirety, he or she cannot be excused for not trying, in a step-by-step approach, until the goal is achieved. The rule states literally that if one cannot achieve the perfect goal of reaching perfect adherence to the law because of conditions and circumstances that are difficult to meet, that would not give that person an excuse for not trying to achieve at least a part of that goal, however small that is (in Arabic, the rule is: Mala Yudraku Kulluhu La Yutraku Julluhu).

As explained earlier, the legalistic expression of the law in a canonical fashion is called the Fiqh. Fiqh is changeable, depending on circumstances of places, people, specific experiences, and the accepted customs, which is known in the Islamic research and scholarly circles as urf. The science that organizes the process of generating edicts is called Usui Al Fiqh, or foundations of Fiqh. In general, Fiqh rulings that would lead to a set of canonical laws are concerned with achieving five basic goals. These goals are, in order of priority, concerned with the maintenance of:

1. Religion, faith, and the Islamic way of life called deen (meaning religion or a way of life)

2. Life

3. Family and offspring, including children, grandchildren, and relations of kin

4. Intellect

5. Wealth

By applying these goals in sequence, one would conclude that:

1. Wealth should be spent and invested in gaining knowledge.

2. Knowledge and advances in the field of intellectual accomplishment lead to better knowledge and the advancement of intellect.

3. Knowledge and intellect are used to serve the family.

4. The family is provided with a better, healthy, and honorable life.

5. The ultimate achievement will be a faith-based, capable community that upholds the faith and lives by the law (Shari'aa.) As a result, faith in the process of issuing a fatwa (edict) will be held in highest regard, will be made attractive to many, and will be accepted and followed by the community as the preferred religion, system, and a way of life.

For example, the solicitation of an edict or a question for an opinion of Shari'aa regarding wealth takes a second priority behind the benefits to the intellect, knowledge, and life. That is why the fuquahaa (learned scholars) permitted the use of alcohol-based antiseptics in surgical procedures to preserve and protect life, despite the fact that alcohol is divinely prohibited as haram. The reason it is allowed in surgical situations is that preserving life has a higher priority (priority 2) than preserving the capability of the mind and intellect (priority 4), which is needed by the faithful to know God and to exercise good judgment and is waived if alcohol is consumed.

Scholars indicated that they must not only classify and prioritize the aim of the law based on the different levels of importance, but they must also consider another dimension of prioritization, and that is levels of urgency of the matter in the following three levels:

1. Basic requirements and needs (dharuririyat) of those who need a ruling on a certain matter.

2. Complementary additions to further refine the basic requirements in priority (1), based on the need of the inquirer (hajjiyat).

3. Improvements, modifications, and further refinements of the complementary requirements defined in item 2 (tahsinaat).

Working in this two-dimensional domain, and combining the five levels of goals with the three levels of urgencies, one gets at least 15 combinations of priorities. In other words, the scholar (faqih), in his or her pursuit of an edict (fatwa or opinion), should meticulously consider the 15 possibilities and carefully analyze the situation at hand before reaching an edict. When competing rulings occur, the ruling that belongs to a higher block in the table displayed in Exhibit 4.1 takes precedent over a ruling from the lower block. In other words, any ruling that is classified as a refinement gives way to another, which is classified as complementary, and so on. However, it would be very useful to think in other dimensions and to develop algorithms that can be beneficial to all people. This is where a new generation of sophisticated, computer-oriented, and analytical scholars will contribute to the science of deriving fatwa (edicts) in the future. It is important to ponder on this approach when making a ruling or developing a model for RF finance in a certain country or region of the world, especially where Muslims are minorities, as in the case of the United States, Europe, and South Asia.

Dr. Riad Adhami included in an article the table of priorities shown in Exhibit 4.1 that is used by the qualified scholars (the issuer of the fatwa, called mufti) in making an edict (a religiously binding edict called fatwa). The table illustrates the concept of prioritization^[4] discussed earlier.

For example, ablution (wudu, washing to prepare for prayers) is a prerequisite for conducting prayers. However, if the person is ill and cannot use water on the body because it would hurt the health of his skin, the edict would call for allowing the person to do ablution symbolically (in a dry way) by applying what is known as tayammum procedure (instead of using the hands to carry the water to wash with, the person would wipe the hands on a dry, clean object like clean sand or surface). In this case, ablution is considered a refinement level in the category of maintaining the faith/religion (priority level B) while health and life are on the top row and are classified as required (priority level A). The same approach can be used when calling a stream of rent in an RF finance scheme by the name implied interest or using the word interest to satisfy the local laws in a non-Muslim land in order to uphold the laws of that land.

EXHIBIT 4.1 Table of Priorities

There has been a religious renaissance worldwide. Many people of all faiths are trying to discover the best way to live. They are searching deep within their faiths to find solutions to the many modern-day problems that they face in the twenty-first century and to achieve spiritual fulfillment. The believers who are not well educated in the faith and its rules or in the law (Shari'aa) want to live in a puritan way, conducting a true exemplary life as ordained by God in His books, the examples of the prophets of God, and according to the law. These puritans face many challenges that require a religious edict or ruling, but the resolutions to challenges become a religious opinion first in the public domain. With the advent of efficient means of communication and mass media outlets in the form of hundreds if not thousands of satellite TV channels, many programs have been devoted to answering questions about lifestyles, behavior, interpersonal relations, marital and family problems, financial and business dealings, and the like. This has generated a very high demand for learned religious scholars and leaders who are qualified to issue a religious opinion or edict (fatwa). The person who issues these fatwas, called a mufti, is an elected scholar (faqueeh) by a special board of highly qualified and accomplished muftis.

The private fatwa issued by a local scholar or imam (religious leader) becomes, later on, a binding, legal fatwa once it has stood the test of scholarly, legal, and public scrutiny. Al-Azhar Seminary in Cairo, Egypt, the oldest university in the world, is the only Islamic seminary in the Sunni Muslim domain that teaches the Fiqh according to the five schools listed earlier, including the Sunni and Shi'i schools of thought (madh'hab). The seminary contains specialized departments in different disciplines. One discipline is the law (Shari'aa) and Usui Ul Fiqh (the foundations of Fiqh). The graduates develop their skills as faqih through a continual process of supervised research and a long-term track record of interaction with leading and accomplished scholars and the public.

In Egypt, at Al-Azhar Seminary, as well as in other Muslim countries around the world, there is only one final and highest authority in authorizing a public religious edict, or fatwa. This highest authority has the title of the Grand Mufti, or the highest scholar in charge of legislation of fatwas after authenticating it by a Board of Supreme Scholars. He presides over this board of accomplished scholars who are classified as distinguished fuquahaa. This board holds hearings, conducts and critiques research, and makes recommendations for fatwas (edicts), which are then submitted for the approval of the Fatwa Committee of Al-Azhar Seminary and, eventually, of the Grand Mufti. Essentially the same process is followed in the Islamic republic of Iran (at the Hawza in Qum), in Iraq (at the Hawza in Najaf), and in Pakistan and India. It is important to note that in Pakistan and India, the elderly scholars, in an effort to train a new generation of Shari'aa legislators, started many colleges that graduate young scholars who carry the title of mufti. It is important to warn the reader here to not being misled by the title mufti as used by many of these Indo-Pakistani graduates, because their achievements in their fields after graduation must be first demonstrated. It is preferred to call them junior mufti, or mufti-inresidence trainees.

Obviously, people are free to choose whose opinions to follow, but it is important to share with the reader the parameters that should be used in recruiting and evaluating (for the fatwa issuing assignment) candidates to serve as advisers on Shari'aa in their institutions. The following is an abbreviated list of the basic qualifications that must be met before a person is qualified to issue a fatwa and act as a scholar in the law (Shari'aa):

■ Mastery of the Qur'aanic language, Arabic, as demonstrated by a certificate of graduation from an accredited seminary or university.

■ Mastery in the knowledge, meanings, and historic reasons of revelation of the verses of the Qur'aan, as demonstrated by graduation from a recognized institute.

■ Formal education in the law (Shari'aa) from a recognized theological seminary or a university that has a reputable department of religion.

■ Knowledge of the Jewish Bible and the Christian Bible; this is highly preferred, especially in the West and in Asian and African countries with diversified religious affiliations, but not necessarily required.

■ Proven analytical abilities, as witnessed by the guiding scholars, professors, and supervisors who were in charge of teaching; this includes the ability to methodically and scientifically analyze and properly articulate and document difficult issues and legal problems and to debate different opinions in recognized forums and in public.

■ Knowledge of computers, word processing, and the Microsoft Office suite (or the like) and of using the Internet.

■ Published research in respected media and trade magazines and other outlets, and documented research leading to the development of new legal codes.

■ Strong written, verbal, and communication skills, and the ability to speak in public.

■ Proven reputation in the community for public service, knowledge, counseling, caring, piety, and generosity.

■ Knowledge of family matters, which requires in most cases that the candidate is happily married and that his/her family presents a successful role model to the community.

Proven track record of issuing fatwas that have been recognized and agreed to by a learned body of scholars and seminary researchers, such as Al-Azhar University (Egypt), specialized universities and seminaries in Al-Madinah and Makkah (Saudi Arabia), Qum (Iran), Al-Najaf (Iraq), and universities (such as the International Islamic University) in Pakistan, Malaysia, Kuwait, and the United States (e.g., Princeton, Harvard, and Claremont) and Canada (e.g., McGill).

Proven expertise in one of the aspects of living (examples include advanced studies leading to a degree in business administration, economics, and/or finance, for a scholar who wants to practice in the field of RF banking and finance; or expertise in humanities, family law, and psychology, for a scholar who wants to concentrate on matters pertaining to family law).

Obviously, the above list of stringent requirements is what can be called the ideal. It will take time to achieve all these requirements. All students who aspire to become scholars are strongly urged to work hard to achieve a high level of qualification as scholars. This approach is believed to lead to the production of a new generation of scholars for the twenty-first century who will be well positioned to pave the way toward a happier lifestyle in all aspects of life for all people of all faiths, including the RF lifestyle advocated in this book.

• [1] Riad Adhami, “The Goals of Shari'ah.” Islamic Horizons Magazine (January/February 2006): 48-50; quoted here by permission.
• [2] Ibid.
• [3] As ruled by Imam Abu Hanifah.
• [4] See note 3.