Uses and Abuses of Fatwas

Mohammad Maroof Shah

Faqeehae harm sae mey ka jawaz kya poochae

Ye loag chandni ko bi haram kahtae haein -Faiz

 

(Why ask a jurist fatwa on permissibility of wine

They forbid even basking in moonlight)

“Law killeth and the spirit gives life” declares the  Bible. All spiritual movements emphasize this point. Scientific revolutions were possible by recognizing that one must transcend the letter of previous dogmas.  All great movements are based on rejection of legalism and creative appropriation of law. The problem with any kind of fundamentalism is worship of the latter. Those who invoke law as formulated by ancients or predecessors in matters that are changing and never predictable are  called fundamentalists; cursed by history and rejected as fundamentalists by newer generations. The Quran’s and Jesus’ charge against Jews was that they worshipped  human interpretation of law. The malaise of modern Muslims consists in failure to maintain the subtle distinction between din and sha’ria, faith and belief and  God’s word and human interpretation of the same. Science inspired secularism also has failed to  perceive the difference between human and thus fallible element of scientific enterprise and the unachievable ideal of objective Truth.   However this week let me analyze the rule of fatwas that legalism and fundamentalism invoke.

What makes the fatwa important for legal authorities or masses if it is not binding and is merely an opinion? Fatwas in a given case can vary and even be mutually contradictory. What is the method of adjudicating between varying fatwas? Iqbal suggested that only a constitutional assembly can take the important step from fatwa to law after considering various options in a given case. Personal opinions of any jurist may still be sought by interested persons but they can’t be allowed to determine State policy or intervene in judiciary. Fatwas are personal opinions that can be contested by other informed opinions. And great scholars like Ghazzali argued against using fatwas recklessly for declaring people unbelievers. Fatwas may help discipline will but can’t replace need of rational argument while appraising doctrinal issue. One can’t issue a fatwa against Sufi doctrine and then proceed to action, for instance. Fatwa rule, however, takes them to be divine edicts that are sacrosanct even though it may confound Sunna and hadith, bracket off contested genealogy of Muslim legal institutions or authorities, commit category mistakes by applying juristic-theological tools to the questions that deal with transcendental domain of mysticism and metaphysics and sacrifices spirit to latter as it often relegates the underlying principles of law making to the background.

The jurist’s misreading of the Quran or what is taken to be the Nass, his recourse to certain Prophetic traditions that don’t pass the historical or other tests  and which could in principle be in need of further authentication from scholars of hadith, faulty application of principle of analogy of which many examples can be readily cited, anxiety to be more loyal to the latter or historical precedents and not to sound heretical or failure to stand to the pressure to conform to the legalistic paradigm shared by contemporaries and skewed understanding of modern social, economic and political institutions as can be easily shown – all these points necessitate fresh look at the whole power-knowledge nexus in the institution of fatwa and critical appraisal of the role of fatwa in modern Islamic state. There is much that is delimited as unthinkable in Islam’s legal thought but which could be thought and rethought to contest those interpretations that failed to fully address the concerns of minorities and less privileged or otherwise discriminated sections of people. The institution of fatwa as an instrument of power, exclusion and marginalization needs to be rethought.  With Iqbal we need to ask teri tarze ada faqeehana ho toa kya kahyae.

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