In the Name of Allah, the All-Merciful, the Ever-Merciful
All praise be to Allah; and may Allah's peace and blessings be upon our master, Muhammad, the Messenger of Allah; his family and companions.
Eminent Scholars and Respected Muftis,
Welcome to your second country; welcome to Egypt, land of al-Kennana; the country which is protected by the Mighty and Power of Allah; welcome to Al-Azhar Al-Sharif and to Egypt's Dar al-Ifta.
Respected scholars and eminent Muftis,
Welcome to this important conference on " Fatwa: Current Realities …. Future Prospects", whose title clearly indicates the necessity of watching and observing the reality of the fatwa issuance and its problems, which are still casting a lot of sufferance on the life of Muslims.
Respected Scholars and Eminent Muftis,
I assumed the office of Egypt's Grand Mufti for one year and half early this century; century which started full of difficulties and problems; century which goes straight for a while, but turns on heels for many others; century, which still up to our present day, gives indications of disasters and catastrophes whose initial indications are realized, but whose results awaiting for us from behind the unseen are still unknown.
Even though I did not seek the office of the Grand Mufti, it was the Will of Allah, the Almighty, to assume it. Indeed, I feared it a lot; I am not saying that I feared its juristic or scholarly aspects; for these two aspects shall be perfected by any Azharite from my generation; generation which studied Fiqh for nine years during which students studied this science five times a week, but I feared that I might (unintentionally) make lawful what is unlawful or make unlawful what is lawful, or make easy what is hard or even causes hardships when it necessitates ease … however, I used to overcome my fear by the Hadith narrated by the great Companion Abd al-Rahman ibn Samurah in which the Prophet (PBUH) said to him, "Abd al-Rahman b. Samura, don't solicit an office of authority [imarah], for if it is given to you for the asking, you will be left therein for to your own resources, while, if it is given to you without asking , you will be aided (by Allah) therein."
I was- still is, permanently reflecting on the secrets of this position which is of great importance to the life of people by dint of the fact that it occupies a high and privileged position in the hearts of Muslims, to the extent that they believe that the one word uttered by the Mufti on a question puts an end to any controversy or discussion or hesitation in this regard. As well, people are still receiving the fatwa issued by the accredited Muftis, believing that it represents the true position of religion which none is allowed to make a comment. That is why I believe that fatwa (legal verdict) and ifta' (issuance of fatwa) are a great trust and a heavy burden from which whoever fears Allah, His Accountability and Punishment shall feel afraid.
Upon reading the history of ifta' and the biographies of Muftis, I realized that feeling embarrassment and keeping away from committing mistakes were the tools and the source of content for all the fatwas issued by the Muftis and for all the answers they made to people's questions to them. As well, they represented a crossroad, in which the issuance of fatwa misguided the way between extravagance and laxity; swayed between restriction and fanaticism under the pretext of devoutness and the inability of exceeding the limits and fatwa of the old Muftis; and between expansion and (excessively) relying on concessions under the pretext of modernization and coping with today's development.
However, this fear has mostly led to refraining from the precise juristic consideration on the fatwa, and from adopting an easy approach that puts aside the suffering of searching about the how of the question, looking for its Shari’ ruling and proof, and applying this theoretical ruling to context (Tanzil al-Hukm). This could be clearly seen in some contemporary fatwas where the researcher does nothing but to refer back to their similar from among the fatwas issued by the earlier scholars; while doing so, the researcher has, in essence, no stand to rely on but the existence of some common features, or even some superficial aspects, which do not render the issue in question and the analogous one two identical issues, upon which the reasonable maxim, stating "Ruling of the identical issues as to permissibility and impermissibility is the same" may apply. A lot of fatwas that may possibly indicate ease and hardship are accustomed to be issued with hardship, for this is believed to be more devout, to block the means (to an expected evil) and to follow the footsteps of the pious ancestors. Nevertheless, such hardships viewed by the Mufti as discharging himself from liability before Allah, the Almighty, is, in fact, the real imposition of hardship prohibited and warned against by the Prophet (PBUH) in his Hadith, "Make things easy and do not make them difficult," furthermore, he (PBUH) warned those who treat his Ummah with harshness of woe and destruction to the extent that he supplicated to Allah, saying, as recorded in the authentic Hadith, " O Allah! Treat harshly those who rule over my Ummah with harshness, and treat gently those who rule over my Ummah with gentleness."
It is not true that the hardship against which the Prophetic Hadith has warned is restricted only to imposing hardships on people's practical life; rather, it strictly applies to those issued legal fatwas that cover them in their matters with difficulty, or even cause them to fall in embarrassment originally removed by the Shari'ah.
Undoubtedly, all those, who assumed the office of iftaa, keep by their hearts the rules and maxims taken for granted by jurists and theologians including "The rule goes with the effective cause ('Illah) wherever it exits; the rule exists if the effective cause exists and the rule does not exist if the effective cause does not exist" However, the issuance of fatwa is still swaying between permissibility and impermissibility in a manner that leaves the people perplexed and confused between reassurance and embarrassment.
For example, if we consider the case of keeping antiques and statues, or earning money from photography, in light of the destruction of historical monuments viewed valuable from the point of view of contemporary art; destruction broadcast by televisions and committed under the name of Islam and its Shari'ah; we did not hear about one juristic assembly that had ever held a conference to which today's jurists and senior Muftis in our Muslim world had been invited to give their opinions on this controversial issue which took place in light of this changing world and the existence of international norms and customs that agreed upon the establishment of the colleges of Archeology, Fine Arts and Tourism Industry; a matter that caused Muslims to be confused on the Shar'i ruling on this matter: are they just antiques that may be legally owned; or are they statues and idols which Muslims are prohibited from dealing with anyway?! … Rather, some of those concerned with the issuance of fatwa still believe in the absolute prohibition of such items even though the issue here requires scrutiny and searching for the effective cause; a matter that must originally precede the issuance of any rulings as acts of worship, or as commands of the Lawgiver, without even understanding their meanings or realizing that they are from among the rulings that go with the effective cause wherever it exists.
Making of statues was prohibited in the early period of Islam; more likely by dint of the fact that the cause was that the Arabs at that time were accustomed to worship them, and take them as Gods beside Allah. Accordingly, it was expected or inevitable that Islam must prohibit the making of statues in order to block the means (to an expected evil), to starve the sources of polytheism, and to protect the creed of the fledging Muslim state i.e. monotheism; if this is the case, what is reason now behind such prohibition after Islam had been settled; after monotheism had penetrated into the conscious and hearts of Muslims, and after the worship of idols had been vanished away!! In this regard, it is worth mentioning to say that we never heard or even read about a Muslim who took idols in worship besides Allah, fifteen centuries ago. Rather, it is impossible for any Muslim to do so; a matter that is supported by traditions. Before his death, Prophet Muhammad (PBUH) reassured us and swore by Allah on this matter in a miraculous statement narrated by al-Bukhaari and Muslim on the authority of Uqbah ibn Amer who stated that The Prophet (PBUH) once came out and offered the funeral prayer for the martyrs of Uhud, and proceeded to the pulpit and said, "I shall be your predecessor and a witness on you, and I am really looking at my sacred Fount now, and no doubt, I have been given the keys of the treasures of the world. By Allah, I am not afraid that you will worship others along with Allah, but I am afraid that you will envy and fight one another for worldly fortunes." Considering this Prophetic swearing, the claims raised by some extremists that they fear that Muslims turn to polytheism are considered total fallacies and levity where money, effort and time are spoiled, not to mention the very bad consequences represented in stirring up dissention, provoking division and scaling up disagreement among Muslims.
Your Eminence Dignified Scholars; I think that you owe Muslims an obligation to revisit such issues. If you find decisive evidence which cannot be interpreted in another way, then there is no room for discussion, consideration or renewal. In such a case, a Muslim has nothing to do but to willingly surrender to Allah and His Messenger (PBUH). However, if you do not find such decisive evidence, then our responsibility before Allah obliges us to make religious affairs easy for contemporary Muslims as long as this facilitation lies within the bounds of the higher objectives of Shari'ah and the Shar'i universal maxims. We should totally abstain from blind imitation and sticking to the explicit meanings of the religious texts without considering their inherent senses which calls for facilitation, removing hardships and consideration of the circumstances of the addressees. These inherent senses need to be investigated and applied to the real life of people.
Your Eminence Dignified Scholars who are entrusted with the mission of issuing fatwas (legal verdicts), you know well that issuing fatwas which impute kufr (disbelief), tafseeq (evildoing) to Muslims and accuse them of tabdee' (introducing innovation into the pure religion) and supporting these fatwas with strange narrations from our religious legacy has brought us to the status quo where protected lives are killed in the pretext of disbelief and apostasy.
Another important thing is that relating to "custom". In fact, it has a great impact on fatwa; whether to make it easier or harder. The dilemma here is that the shar'i maxim stating: "Fatwa changes according to custom" has been neglected or rarely applied. Moreover, when it is applied, the custom of a specific country- which is intended to be spread across another country where this specific customs does not prevail- is considered. This leads people to live in a state of chaos, confusion and perplexity as the scholars of a specific territory want to have their own independent fatwas which considers their custom and tradition. What makes matters worse is the sharp division where a group of people adopt the fatwa related to their country and another group adopts the fatwa of the other country. Had each group just adopted a different fatwa, there would be no harm. But each group hurries to mark the other group's fatwa as wrong and may accuse them of being faasiq (evildoer), mubtadi' (one who introduces innovation into the pure religion), extremist. The reason of this dilemma is applying a fatwa issued in response to certain custom of specific country to countries where this custom does not prevail.
In his unique book in which he presented his theory about Islamic legislation titled "Al-'Urf wa al-'Adah fi Ra'i al-Fuqahaa', or Scholars' Opinions on Custom and Tradition", the dignified scholar Ahmad Fahmy Abu Sinnah stated that custom is one of the principles of Shari'ah acknowledging that peoples customs and traditions change according to circumstances. This is an agreed upon premise. Sheikh Abu Sinnah adds a second premise by which he states the position of the Lawgiver on custom and tradition saying, "If the Lawgiver –according to the sheikh- establishes only one detailed ruling, then it will be harder for people to comply with it and this will be contradictory to the objective of Islam based on fulfilling the interests of people. Allah says: "And We have not sent you, [O Muhammad], except as a mercy to the worlds. (Al-Anbiyaa': 107)". And if He establishes many rulings, in response to different interests and circumstances, then people will be obliged to fulfill so many obligations and they will not be able to accurately and perfectly perform them. This will also be a violation to the Shari'ah which is based on a solid basis: "littleness of obligations". That is why the All-Wise and All-Knower has legislated for people general, and not detailed, rulings, regardless of change of circumstances and entrusted the scholars with profound knowledge to apply these general rulings to incidents and detail them (…) This is one of the great aspects of custom upon which a large part of rulings are built. It is admitted by all shar'i jurists and it is also a decisive and conclusive proof of the greatness and superiority of Shari'ah and that it is eligible for every time and place."
Sheikh Abu Sinnah adds a new aspect with regard to explaining the wisdom behind the Shari'ah interest in "Custom" which is that the Lawgiver pays attention to the good custom when He legislates in order to make it easier for people to accept and apply them in their daily lives and in order not to make their application harder on people. Accordingly, sound custom has a great impact on the process of codification of Islamic legislation.
Gentlemen, the aforementioned issue of the ownership of antiques shaped in the form of people is not the only issue relating to the life of Muslims in the fifth century AH, but rather there are many issues of variant importance: some of which are vital and some others are marginal. However, this issue was intended to be debatable as a result of extremist fatwas that hindered Muslims from occupying their deserved position among all nations. Is it logical for an issue such as appointing women judges, among many others, to remain debatable in a time where women became officers, pilots, university professors and ministers? Despite this change in custom relating to women, is it still appropriate to apply the same rulings applied where custom necessitated that the chaste women were those who confined themselves to their palaces, houses or tents?!
I do not want to keep you any longer, but the responsibility is heavy. Many of people's pains, family problems and social disintegration came as a result of the stereotyped fatwas and rulings issued based on customs suitable for an environment, but which is not suitable for another; or according to old customs that have been changed and altered many times. So, the fatwas issued accordingly are still typically circulated and taken for guarantee; as if life stopped at s specific date and specific geographic environment.
How far are these peculiar fatwas with regard to the place and time from the Saying of Allah we memorize by heart "God does not charge a soul with more than it can bear" (Al-Baqrah: 286); " God does not wish to place any burden on you" (Al-Maidah: 6(; "laid on you no burden in the matter of your religion" (Al-Hajj:78); and the Hadith which reads, "Whenever Allah's Messenger was given the choice of one of two matters, he would choose the easier of the two, as long as it was not sinful to do so". As well, how far are these fatwas from the understanding of jurists and theologians to the rules of making matters easy, as follows: -
1- Custom is the basis of judgment
2- Hardship begets facility
3- When there is difficulty, (then the Shari'ah) brings about ease
4- What is determined by custom is tantamount to a contractual stipulation
5- The judgment (fatwa) changes with the change of time, place, persons, and circumstances
The Egyptian Maliki philosopher Shihāb al-Dīn al-Qarāfī has valuable words to relief himself from the followers of Iftaa' and Muftis in his book "al-Iḥkām fī tamyīz al-fatāwá ʻan al-aḥkām wa-taṣarrufāt al-qāḍī wa-al-imām" which reads, "If someone came to ask for the Mufti for a fatwa; while the Mufti knows that he is not from his country, he must not issue the verdict without asking him about his country; does his country have a customary indication in terms of this lingual word? If the word has a customary indication; does the custom of this country is compatible with the custom of that country? This is an obligation which is agreed upon. If two customs were in two different countries, the rulings of both of them would be different.
In his "Al-Furooq", Al-Qrafi further added, "Anything becomes new in the custom, will be considered by the Shari'ah, and anything is overlooked, will be overlooked. Do not stick to words of the books throughout your life. If someone from another country asks for a fatwa, do not issue the fatwa based on your country; rather, ask him about the custom of his country and issue the fatwa accordingly, disregarding the custom of your country. This is the obvious right path; sticking to texts is deviation from Islam and ignorance of the purposes of Muslim scholars and ancient predecessors.
Respected Scholars and Eminent Muftis,
It is time to revive these treasures of our rich heritage, give them great importance and draw aspiration in all steps of issuing the fatwa. These treasures are only capable of encouraging people to adhere to the ruling of the Shari'ah and prevent jurists and Muftis from overburdening people. It also prevents from relying excessively on licenses that draws people nearer to prohibited matters and encouraging them to deviate from Islam.
Respected Scholars and Eminent Muftis,
I apologize for the prolongation and hope this conference becomes a new beginning for a new era of issuing fatwa in which priorities are arranged; customs and purposes are considered to be able to face the reality, its challenges and the developments of fatwa in a manner that helps building communities enjoying peace and safety under the umbrella of the tolerant Shari'ah of Islam which is valid and suitable for all times and places.
Thank you for your attention
Peace be upon you
Written in Mashiakhat Al-Azhar:
Dul Qe'ada 1, 1436 A.H.
August 16, 2015.C.E
Al-Azhar Grand Imam
Dr. Ahmad al-Tayyeb