Who is Eligible to Explain the Shari’ah?

After the time of the Prophet Muhammad (Peace be upon him), from over 100,000 of his Companions (students who personally met him), fewer than thirty are recorded actually issuing fatwas on new issues in which Ijtihad, or juristic reasoning, was required.

Today the authority for Ijtihad is with the mufti, or Dar al-Ifta, Center of Rulings, which gives general rulings (fatwa, pl. fatawa) about an incident or legal question. As scholars, they are able to look at the entire package of Islam and issue a ruling on the question at hand.

The judge (qaļi) on the other hand issues a judgment (ray al-qaļa) on particular cases or incidents pertaining to an individual or groups, typically in cases involving two adversaries.

These two groups must work together – like two parties in which both seek the best understanding by applying their utmost efforts. The Center of Rulings and the mufti build the information model while the judge applies it to a particular case. Each case studied by the judge (qaļi) is an attempt to comprise a particular verdict based on the legal precedent given by the mufti which can be applied in the specific judgment.

A ruling by a mufti is not given force of law – it is only a response to an issue and it is up to individuals to follow the ruling or not. Law on the other hand, is enforced by individual judgments of the court – typically informed by a fatwa but in practical application taking into consideration circumstances and conditions of plaintiff and defendant. Alternatively, a ruling (fatwa) can be made into law by order of the executive office.

It is essential to understand that no one can issue a ruling without qualification, and no one can issue a judgment without qualification. Since rulings have a tremendous impact on the life of society and ruling on the individual, it is essential that those issuing them have excellent moral character, and most importantly that they are qualified.

Allah says: “Say: Tell me what Allah has sent down for you of sustenance, then you make (a part) of it unlawful and (a part) lawful. Say: Has Allah commanded you, or do you forge a lie against Allah?”[1]

This verse emphasizes that no one has the right to judge something right or wrong unless he has complete evidence from the pertinent information as found in the source texts, from deep discussion among the people who have a grasp of the issue at hand, and to seek all meaningful evidence. Otherwise one should remain silent for then one would be lying against Allah and against the religion.

Imam Shafi’i, founder of one of the four great schools of jurisprudence, said:

It is not allowed for anyone to give a Shari’ah explanation (fatwa), except one who knows the Holy Qur’an completely including what verses are abrogated and by which verses they were abrogated, and which verses resemble each other in the Qur’an and whether a chapter was revealed in Makkah or Madina. He must know the entire corpus of the Hadith of the Prophet (Peace be upon him), both those which are authentic and those which are false. He must know the Arabic language of the time of the Prophet (Peace be upon him) with its grammar and eloquence as well as know the poetry of the Arabs. Additionally he must know the culture of the various peoples who live in each different nation of the community. If a person has all such attributes combined in himself, he may speak on what is permitted (halal) and what is forbidden (haram). Otherwise he has no right to issue a fatwa.

It is related that one of the greatest scholars of Shari’ah, Abd al-Raħman ibn Abi Laila said:

I was able to meet with one hundred and twenty of the Companions of the Prophet (Peace be upon him). Every one of these companions was asked about specific Shari’ah issues, seeking a verdict, but they avoided rendering a decision instead pointing to another companion to issue the answer. They were afraid to give an answer that would be incorrect for which they would be responsible before Allah.

That shows that one can be deeply imbued with Islamic knowledge, as were all the Prophet’s Companions, and yet still feel unqualified to give a verdict. All one-hundred and twenty of the Prophet’s Companions with whom ibn Abi Laila met were hesitant to issue a fatwa.

Imam Nawawi, one of the greatest of Islam’s later scholars, related that Imam ash-Shubi and Hasan al-Basri and many others of the Successors [generation immediately succeeding the Companions of the Prophet (Peace be upon him)] said, “People of today are quick to issue a ruling based on their analysis concerning someone. If an answer had been sought for that same issue at the time of Umar ibn al-Khattab (second caliph of the Prophet (Peace be upon him)), he would have gathered all the participants of Badr [i.e. 313 of the foremost Companions of the Prophet] in pursuit of the answer.”

Historically, ijtihad has been perceived as a concern primarily of the individual scholar and mujtahid. But in modern times, ijtihad has become a collective endeavor that combines the skills and contributions not only of the scholars of Shari’ah, but of experts in various other disciplines, because acquiring a mastery of all the skills that are important to society is difficult for any one person. Ideally, independent reasoning should be combined with the Qur’anic principle of consultation (shura), making it a consultative process, preferably as an integral part of the workings of the modern legislative assembly. Ijtihad has also been seen in the past as a juristic concept, a preserve of the jurist to the exclusion of specialists in other disciplines. But as a method by which to find solutions to new issues, ijtihad should be exercised by the scholars of Shari’ah as well as by experts in other disciplines, provided that those who attempt this independent reasoning acquire mastery of the relevant data, the Quaran, and the Sunnah. There is thus no reason why experts in Islamic economics and medicine, for example, could not carry out ijtihad in their own fields[2].