Brainstorm of an Ishmaelite

The Conditions for Issuing a Fatwa

Introduction

Fatwas should only be issued when necessary to solve a real problem that can’t be solved by any other means. The fatwa–and its necessity–should, moreover, receive the consensus of Alid sages. This is well illustrated by the example of chewing gum during Ramadan. I argued to some Alid sages that this should in principle be permissible. My argument, their response and my analysis and conclusion follow.

My Argument

I argued that it should in principle be permissible to chew cellulose gum that is calorie-free, and thus doesn’t supply any energy. I also made an argument from qiyas (analogical reasoning) that chewing gum is comparable to chewing miswak. The Prophet chewed miswak to soften it. He used it before every prayer, and so strongly recommended its use as to almost render it compulsory (Riyad as-Salihin 9:1196). The Prophet probably chewed on miswak before prayers during Ramadan. Therefore, chewing calorie-free cellulose gum during Ramadan should also be OK, right? Wrong.

The Dangers of Qiyas

Analogical reasoning isn’t systematic like deductive or inductive reasoning. While orthodox Islamic schools of law–notably Ash’aris and Maturidis–use it, they haven’t converged on a systematic method of analogical reasoning to my knowledge. Qiyas thus remains an arbitrary method of reasoning that is only modulated by the consensus of scholars. Developing an agreeable system of qiyas could be something 21st c. Muslim logicians can do.

It is noteworthy that the rejection of qiyas as an arbitrary method of reasoning is a rare point of consensus among Mu’tazilis and Atharis, such as Dhahiris, who categorically reject it as a legitimate method of legal reasoning, or logical reasoning in general. See my essay: Summary and Critique of the Classical Schools of Islamic Theology (‘Aqeeda). As I point out in the same essay, however, the Prophet used analogical reasoning. His method of reasoning could be inferred from a number of Hadith. For instance, in the case of a miscarriage caused by negligence, the defendant argues that the fetus is a nobody–or a person of no value–as it never laughed, cried, ate or drank. The Prophet compares this reasoning to poetry or divination, and rules that the fetus is rather like a slave–that is, a person who can’t command itself–for whom blood money is due (Tirmidhi 16:26 & Malik 43:1565). A clear rule respecting qiyas, at any rate, is that it should be based on public or objective knowledge and reason–not the private or subjective knowledge or inference of the judge, or hearsay–lest it should undermine public confidence in the administration of justice (Bukhari 93:34). 

The Discomfort of the Sages

A first sign that my theory of the permissibility of chewing calorie-free cellulose gum during Ramadan is ill-advised is that the sages weren’t comfortable with it. The discomfort of the sages is something to beware of. It can be a sufficient reason to decide a matter, after the sages consider the evidence. This is because the most authoritative decision consists of the balance of the Qur’an and the opinions of Alid sages, which are called the Two Weights of Islam (Riyad as-Salihin 1:346).

What Made the Sages Uncomfortable?

A number of things made the sages uncomfortable. For instance, it’s not clear that the Prophet chewed miswak during Ramadan based on his comment that the breath of a person who fasts is unpleasant (Muslim 13:214). Chewing gum also releases a stronger flavour than miswak. Part of the austerity of fasting is not to enjoy pleasant flavours. The Prophet euphemistically describes sex, for instance, as “tasting the sweetness” of one’s wife (an-Nasa’i 27:19). Sexual activity isn’t permissible while fasting, although it’s permissible to greet or bid farewell to one’s wife or child with a kiss, not as a sexual act; compare, for instance, Abu Dawud 14:1134 & al-Adab al-Mufrad 48:1133, which an unread person might otherwise mistake for a sexual act.

Another problem with chewing gum is that mastication looks like eating. Imam Malik, for instance, advised against breaking fast if one sees the new moon alone, without another witness, as it may cause people to suspect the person (Malik 18:636).

It’s Not a Real Issue

It’s a well accepted principle in Islamic jurisprudence that innovations should be avoided, as they carry many potential hazards (Ibn Majah 1:52). It’s therefore always better to err on the side of caution and to accept an innovation only once it is generally accepted by Alid sages and the rest of Quraysh (Bukhari 64:335). The principle of conservatism (against innovation) isn’t opposed to beneficial discoveries, which Islam promotes (Ibn Majah 34:17). Rather, it is based on the view that morality, like basic geography or anatomy, is largely a ‘dead science.’ As long as people don’t fundamentally change, lively virtues and mortal sins don’t either (Muslim 1:167). See my post: Scientific Morality Is Old Morality.

The principle of conservatism also connects to the Hadith of ‘Umar ibn ‘Abd al-‘Azeez (‘Umar II) who is considered to be the fifth righteous caliph (Abu Dawud 42:36). ‘Umar II explains–in what may be read as the prolegomenon of Sharia (Abu Dawud 42:17)–that the earliest sages thought of everything, and that the law is trustworthy and anticipates every possible scenario. This Hadith, which explains the basic premise of Sharia, is on a par with the famous Hadith of Gabriel where he explains Islam, Iman and Ihsan (Bukhari 2:43). The Hadith of ‘Umar II may be compared to the discourse of Portalis concerning the Napoleonic Code. See “Discours préliminaire du Code civil” (Paris: 1827). Thus, the last verse to be revealed, which says: “today I have perfected or completed (akmaltu) your law (deen) for you” (v. 5:3) literally means the Qur’an and Sunna are philanthropic and complete (Bukhari 64:429).

As in civil law–where all the answers are supposed to be found in the Civil Code–all the answers are supposed to be found in the Qur’an in Sharia. A judgment in Sharia the Qur’an doesn’t clearly support is invalid. As ‘Ali ibn Abi Talib says concerning the Qur’an: “The Qur’an contains news about the past, foretellings about the future and commandments for the present” (Nahjul Balagha, Hadith 313). More specifically, he relates from the Prophet:

In [the Book of God] is news of the past, prophecy of the future and judgement for what is in between. It is the Criterion, without jest. God will crush a tyrant who abandons it and misguide whoever seeks guidance beside it. It is the firm rope of God (v. 3:103) the “wise reminder” (v. 3:58) and the “Straight Path” (v. 1:6) desires can’t distort, tongues can’t twist, and scholars can’t get enough of. It doesn’t become dull from reading it much. Amazement of it doesn’t diminish. When demons hear it, they don’t hesitate to say: “Truly, we heard an amazing Qur’an. It guides to righteousness, and we believe it” (vv. 72:1-2). Whoever speaks by it speaks the truth, whoever acts by it is rewarded and whoever judges by it judges justly. Whoever calls to it guides to the Straight Path. (Tirmidhi 45:3153)

As a result, fatwas should only be issued by a legitimate authority when it’s absolutely necessary. A fatwa is only absolutely necessary when there is a real problem that can only be resolved by way of a fatwa. For instance, the Prophet appointed Mu’adh ibn Jabal as the governor of Yemen and asked him how he would judge. Mu’adh answered that he would judge by the Qur’an; failing that, he would judge by the Sunna; failing that, he would use his best judgment. This answer pleased the Prophet (Abu Dawud 25:22). In other words, there’s no use innovating law, unless the need or benefit outweighs the risk or cost. As the proverb states: “If it ain’t broken, don’t fix it.” It should be noted that Mu’adh was appointed by the Prophet himself and had the authority to issue fatwas for Yemen. Yet, he didn’t issue any original fatwas. The Prophet and his disciples took the law too seriously to risk inventing it.

The Qur’an also abounds with examples of innovators, like the Samaritan, who tend to rationalize their deviant actions (vv. 20:85-97). The devil, for instance, rationalizes his refusal to obey God’s command by arguing that he is superior to Adam because he’s made of fire and air, which are sublime elements, whereas Adam is made of earth and water, which are inferior elements. The devil also accuses God for his destiny, instead of repenting like Adam (v. 7:16 & Bukhari 82:20). The devil makes people’s misdeeds seem fair to them. The expression zuyinna lahum a’malahum literally means he “adorns” or “adulterates” their actions (v. 9:37). The Qur’an uses the same expression: “Do not approach (la taqrabu) this tree,” which represents intoxication (v. 2:35) when it says: “Do not approach fornication” (la taqrabuzzina) (v. 17:32). The Prophet calls intoxication the key to evil, including idolatry and adultery (Ibn Majah 30:3496, 30:3500 & an-Nasa’i 51:128).

Sharia is a conservative legal movement that goes back to the laws of Adam, Noah, Abraham, Moses and Jesus, who are called the ‘decisive ones’ (ulul-‘azm) (v. 42:13). It calls Israelites to observe the Torah (vv. 2:40, 46:12, Tirmidhi 42:46 & Abu Dawud 40:99). It calls all nations back to the primordial law of Adam, which forbids intoxicants (the forbidden fruit). It also gives women and gentiles rights and obligations, as Messianic and Marionic dispensations.

Conclusion

The foregoing discussion brings us back to the example of chewing calorie-free cellulose gum during Ramadan. The sages of Ahl al-Bayt–whose example and advice Muslims follow (vv. 11:73, 28:12 & 33:33)–have fasted before (v. 2:183) without issues, without chewing gum. There’s no reason not to fast the way they did, or to complicate things or create problems where there are none. Chewing gum is not a real issue. It’s not like anyone’s life or afterlife depends on it. Hence, there’s no need to create what the French call une tempête dans un verre d’eau, “a storm in a cup of water” over it. A fatwa should address a real problem that can only be solved by way of a fatwa.

The conditions for issuing a fatwa, in sum, are as follows:

1. the fatwa must address a real problem that can only be resolved by way of a fatwa

2. the problem and solution should receive the consensus of Alid sages; if that isn’t practical, it should receive it in principle

3. the Qur’an and Sunna or the example of superiors (an-Nasa’i 8:29) don’t provide a clear solution or precedent

4. the fatwa actually solves or dissolves the problem rather than complicates it

5. the fatwa is issued by a legitimate authority–namely, a delegate of a legitimate caliph–within its jurisdiction

People who issue fatwas out of their own volition, without authority or beyond their jurisdiction aren’t just enemies of Islam but of humanity, justice and the rule of law. It’s worse if they’re cultists who don’t act in their own name or their fathers’ in their ancestral territory, and thus assume their own responsibility.