8.1 Its definition.

a) Linguistically: Ibn Manthur said in his dictionary "The Tongue of the Arabs": “he gave him a legal opinion about a given matter” means he disclosed and answered him (the one who asks about a matter).

b) Its deepest meaning: To deliver a Fatwa means to demonstrate the legal (Islamic) stance of the matter exposed. Fatwa has four pillars:

1- The inquirer: he is the one who asks about a matter.

2- The Muftee: he is the person who answers the issue.

3- The action: it is the delivering of the legal opinion.

4- The content: it is the Fatwa itself.

The multitude of the Ulemas of Ussul among them Ibnu El Humâm who wrote "Reduction in Ussul El Fiqh" and Eshukâni" who wrote "Guiding the Eminent", See that there is no difference between the diligent and the Muftee. As far as the procedure is concerned, when the person resorts to the Noble Koran and the Sunna or to the other sources of legislation to deduce the rule or the stance of a given issue, he is a diligent, but after deducing the rule and delivering the legal opinion to the inquirer, he is a Muftee. 

8. 2 Its importance.

The importance of Fatawa appears in:

1- Demonstrating the legal stance of a given matter. The Almighty Allah said: «… And if you do not know that, ask the people of earlier Scriptures». [Surat An Nahl/The Bee, from the verse 43].

2- Acquitting oneself of responsibility (before people and God) after delivering the Fatwa.

3- Dealing with the new matters and removing embarrassment on people. Fatawa responds to the new issues and the needs of people, thus, it changes from time to time and from person to person. Ibnu Qaim El Djawzia said in his book Informing the Signers (the chapter entitled: the Changing and the Difference of Fatawa by the changing of Epochs, Statutes, Intentions and Customs): «This chapter (that of Fatawa) is of great benefit, and because of our ignorance of it, the Islamic Sharia was wronged and misunderstood. The fact that caused embarrassment and hardships and burdened people with what is not necessary…»

8. 3 Its position.

1- Fatwa is given the greatest and the most serious position. It is undertaken by the Almighty Allah who is the First to deliver a legal opinion. He said -high Exalted is He- in Surat An-Nissâ’/The Women: «And they consult concerning women, say, “Allah instructs you concerning them…». [From the verse 127]. He also said in the same Surat: «They consult you, say: “God instructs you…». [From the verse 176].

2- Fatwa is also undertaken by the prophet -may peace be upon him- being the messenger of Allah. Allah the Great said: «…And we have revealed to you Koran; that you may make it clear to mankind what we sent for them…». [Surat An Nahl/The Bee, from the verse 44].

3- The Muftee is the heir of prophecy. The prophet -may peace be upon him- said: «The Ulemas are the heirs of the prophets, and the prophets did not leave any Dinar or Dirham but they left a great knowledge…». [Reported by Abu Dawud].

·       Many Ulemas interpreted the saying: «Those entrusted in authority over you» in the Almighty Allah’ saying: «O you who believe! Obey God and the Messenger, and those entrusted with authority over you…». [Surat An-Nissâ’/The women, from the verse 59] as being the people of knowledge.

·       The Fatawa of the Ulemas are signatures on behalf of Allah the Almighty. Ibnu Qaim El Djawzia Said in his Ilam El-Muwaqiîn (Informing the Signers): "if signing on behalf of Kings is a position whom grace can not be denied, so what about that of signing on behalf of the Lord of the earth and heavens?". Thus, the Muftee is the informant or the reporter on behalf of Allah.

8. 4 The predecessors’ exhalation of Fatawa.

Omar bnu El khatab said: «The boldest of you enough to deliver a Fatwa risks more Fire». Eshaâbi was asked about a matter and he said: “I do not know”. They said: “Are not you ashamed of saying I do not know and you are the knowledgeable of Iraq? He replied: “But the Angles did not feel ashamed whey they said to the Almighty Allah: «… All praise be to you, we have no knowledge except what you have taught us, indeed you are the All knowing, the All wise». [Surat Al-Baqara/The Heifer, from the verse 32].

- Ibnu Abi Leila Said: "I lived with one hundred and twenty (120) of the prophet’s companions (The Ansar), and each time one of them was asked about a matter, he exposes it to another who, in return, exposes it to another. They keep doing this, until it comes back to the first (the one to whom it is exposed first), and none of them spoke about a matter or answered an issue but wished his brother do it instead of him".

- Aïsha, the Mother of the Faithful, was asked about wiping over the socks. She Said: “Ask Ali (who was travelling with her), he is more knowledgeable than me”.

- Imam Mâlik Said: “One must not answer a given matter until he exposes himself to paradise and Hell and sees how his reward will be in the Hereafter, and then he answers”.

- One of the Ulemas was asked and it was said to him: “it is an easy question”. He replied: Are you heedless of the Almighty Allah’ saying: «Soon we shall send down upon you a weighty message». [Surat Al-Muzammil/The Enwrapped, 05]. 

8. 5 The Muftee.

A) His requirements.

1- He must be a Muslim: Fatwa depends on Islam. So, the Muftee must be a Muslim because he signs on behalf of Allah the Great.

2- He must be responsible, adult and wise .The Fatwa that is delivered by a child, a mad or an idiot is not accepted.

3- He must be a knowledgeable for he is the transmitter of the injunctions of Islam .Thus, the Fatwa that is given by an ignorant person is not considered and the person who delivers a Fatwa without being eligible or apt is a sinful. In this respect, Imam Abu Hanifa ordered to ban the ignorant Muftee who plays with the instructions of Islam.

- It was said to Ibnu Taymia: did you put Fatwa under supervision? He answered: how can the cooks and the backers be supervised and not the Muftees?

4- He must be pious: In fact, piety makes him pure and prevents him from falling in suspicions.

5- He must be upright in his deeds and sayings. The Fatawa of a vicious person is not accepted.

6- He must consult the cognizant and the knowledgeable. The Almighty Allah said:

 « … So ask any knowledgeable one! ». [Surat Al-Furqân/The Criterion, from the verse 59].

«… Conduct them (matters) by mutual consultation». [Surat Ash-Shûra/The Consultation, from the verse 38].

7- He must be well mannered as Imam El Qarâfi affirmed.

8- He must be cognizant of the state of people, their customs and traditions.

B) The ethics of the Muftee.

1-The Muftee must care for his good appearance, he has to keep himself always clean and avoid wearing silk, gold and the clothes that makes of him a famous person.

2- He must be characterized by discretion, reverence and quietness. Discretion is the beauty of knowledge and reverence earns him constancy and quietness earns him calmness.

3- He must linger over issuing a Fatwa about a matter, he has to understand well the question and study its different concomitants.

4- He must act according to what he says (i.e. he must not give a legal opinion about a given matter and he himself behaves contrarily to what he said). The Almighty Allah said: «It is the most detestable in the sight of Allah, that you say what you do not do » [Surat Assaf/ The Ranks, 3].

5- He must deliver his Fatawa when he is in a good/natural state. While delivering a Fatwa, the Muftee must not be sleepy, hungry, suffering a pain, tired, sorrow, very happy or furious to guarantee the soundness of his thoughts and the rightness of the judgment. The prophet -may peace be upon him- said: «The judge must not judge between two persons while he is furious». [Reported by El-Boukhari and Muslim].

6- He can provide further information about the matter exposed to him for more benefits.

It was reported that some people asked the prophet -may peace be upon him: we were at the sea and we had but a little palatable water, shall we perform our ablution with the sea water? The prophet said: «Its water is pure and its dead animals are lawful».

C) The kinds of Muftees.

 There are two kinds of Muftees.

1- The dependent Muftee:  he is the one who follows a given doctrine or a Fiqh School.

2- The independent Muftee: he is the one who deduce the legal injunctions without imitating or being limited to a particular doctrine.

D) His obligation.

1- He has to demonstrate the arguments he used for his Fatwa and justify his judgments.

Ibnu Taymia said: "How am I going to know if the Muftee had not transgressed the saying of the Almighty Allah and His Messenger since he did not bring evidence. The Muftee did not allow the commoner to ask for an argument (the one on which the delivering of the Fatwa is based), and they prevented him from being at ease (concerning the judgment). They also consider his inquiry as audacity and ill mannered. No, by Allah! A saying with no argument can not be true and it is not possible for me to adopt or accept a saying whose truth is not revealed…"

It was ascribed to Imam En-Nawawi the saying that contradicts that of Ibn Taymia. The saying stipulates that the commoner is unable to perceive the meaning of the argument. It stipulates: "… The commoner should not ask for a proof about the judgment of the Muftee. If having the proof makes him feel at ease, he can ask for it in another meeting or in the same meeting after he accepts the Fatwa…"

2- The obligation of seeking the most appropriate opinion.

The fundamentalists agreed on the fact that it is indispensable to follow the Muftee who gives the strongest argument and the sound evidence whatever his doctrine is, and to shun fanaticism and longings. These arguments and evidences should be safe from aspersions.

Imam En-Nawawi said in the introduction of Sharh El-Muhadab (The Explanation of the Expurgated) "It is not up to the Muftee or those who select the most appropriate opinion to choose the opinion that pleases him but he has to work according to the most appropriate of them".

Imam En-Nawawi also said: It was confirmed that Esh-Shafiî said: "If you find in my book what disagrees with the Sunna of the prophet -may peace be upon him- so work according to the Sunna and shun my opinion".

It was reported that Esh-Shafiî also said: "If my opinion disagrees with a Hadith, so work according to the Hadith and shun my opinion, or he said: it is (the Hadith) my doctrine".

3- Avoid severity in the matters simplified by the religion. Sofiane Eth-Thawri said: "Indeed, knowledge for us is to know how to make permissions (by confidence). Concerning severity, it is mastered by every one".

Allah the Great said:

«… And has not imposed difficulty upon you in religion…». [Suart Al-Hajj/ The Pilgrimage, from the verse 78].

«God desires to make things easier for you, for mankind was created weak (to resist his lusts) ». [Suart An-Nissâ’/ The Women, 28].

The prophet -may peace be upon him- said: «Facilitates things for people and do not harden them, give them glad tidings and let them not have aversion». [Reported by Muslim].

He also said: «Perished are the fanatics». [Reported by Muslim].

4- The Muftee must limit himself to the question except in some cases, among them:

§       The possibility of being (the inquirer) involved on another offence rather than the matter he asked about. It was reported that Ibnu Omar said to an Iraqi who asked him about the blood of a gnat: "look at this one, he asks about the blood of a gnat and they have killed the son of the prophet -may peace be upon him".

§       Instead of answering the question, the Muftee can give some useful information that is related to the question. For example, in the following saying of the Almighty Allah: «They ask you about what they spend, say: “Whatever you spend of good is for your parents, near of kin, orphans, the needy and the traveller and whatever good you do surely God is aware it». [Suart Al-Baqara/ The Heifer, 215], the question was about what they spend and the answer was on what they have to spend. Another example is when people asked the prophet -may peace be upon him- about the moon. They said: "What is the matter with the moon, it appears as a thin crescent, then it increases until it becomes full and then it decreases until it becomes thin". The answer that was given to those people by the Almighty Allah was not about the causes of these changes but rather about their benefits and their utilities. The Almighty Allah said: «They ask you about the phases of the moon, say: "these are appointed times for the people and the pilgrimage". Righteousness is not to enter the house from the back, but righteousness is that you fear God and enter the houses from their doors and fear God that you may succeed». [Suart Al-Baqara/The Heifer, 189].         

5- The obligation of answering clearly and precisely. Imam Ali said: "Address people with what they understand. Do you want them to accuse the prophet and Allah of lie?"

8. 6 The Mustafti or the inquirer.

He is the person who does not reach the degree (of knowledge in religion) of the Muftee, and each person who asks about a given stance (of a given matter) is a Mustafti.

A) His conditions.

1- He has to resort to the one who is qualified for Fatwa. The latter can be known either through transmission (i.e. each one tells the other about him) or by his great knowledge or his confidence. Allah the Great said: «… So ask any knowledgeable one! ». [Surat Al-Furqân/The Criterion, from the verse 59].

«… And who on matters other than those God has decreed, conduct them by mutual consultation…». [Surat Ash-Shûra/The Consultation. Fro the verse 38].

2- He has to imitate the dead Muftee because:

a) The eligibility of a Muftee can not cease by his death.

b) The doctrine as well as the Fatawa vanishes not with the passing away of their people (it is the sound opinion).

3- The doctrine of the commoner is that of his Muftee since he has no doctrine.

4- In case two legal opinions are different, there will be two possibilities:

a) If it happens that one of the Muftees allowed a given thing (matter) and the other forbids it, the Mustafti should work according to the second opinion (i.e. forbiddance and not allowance).

b) The Mustafti adopts the easiest opinion because the prophet-may peace be upon him- was sent with a tolerant religion (Islam).

C) The Mustafti chooses the legal opinion of the most trustworthy Muftee for him. Thus, he works according to the Fatwa of the most pious and the most knowledgeable.

d) The Mustafti asks another Muftee and follows or works according to the opinion that is similar to this one.

e) The Mustafti chooses between the two Fatwa and work according to the one he chooses.

5- If the Mustafti is given a Fatwa about a matter and then the same matter reappears to him again, shall he ask for a Fatwa a second time?

This question has two possible answers: 

 a) He shall ask for a Fatwa because it may happen that the Muftee changes his opinion.

b) He shall not ask for another Fatwa (and it is the sound opinion) because he knew the stance. The rule stipulates the continuity of working according to the previous stance whenever the same matter reappears.

6- The Mustafti can ask for a Fatwa himself, as he can be substituted by another person who must be trustworthy.

7- The Mustafti must present the correct and the right information related to the question.

8- Religiously, the Mustafti must not reject the Fatwa if the matter is related to a fixed divine stance. If the Fatwa pleases him, he accept it (he will be happy) and if it does not suit him, he traduces in the Islamic Sharia. The Almighty Allah said: «By your Lord! They will not believe until they accept you to judge between them in their disputes, and accepts your decision with entire submission without feeling the least resentment in their hearts». [Surat An-Nissâ’/The Women, 65]. 

9- It is not allowed to seek only permissions

The Ulemas said: «All the evil is gathered in the one who searches only for permissions».

B) The ethics of the Mustafti.

The Mustafti has to:

1- Ask questions about the things that can be done i.e. persons should not ask about matters just for inquiry. The prophet Muhammad- may peace be upon him- was asked: When the Day of Judgment is coming? He said to the one who asked: «And what you have prepared for it? ».

2- Be kind and well disciplined when asking the question.

3- Be precise in asking the question.

4- Address the question to the aged or Muftee in case there are a lot of Muftees.

8. 7 The Fatwa.

A) Its ethics and conditions.

1- Demonstration and removal of the matter.

2- The Muftee must be lenient and patient with the Mustafti while explaining the Fatwa, and he has to consider the different mental abilities of the Mustaftis.

3- The Muftee has to write the Fatwa clearly and minutely.

4- The Muftee has to avoid the wearisome details or the improper shortening (concerning the matter).

B) Its rules.

1- To mention the proof and the argument, and since the Mustafti asks about the Islamic stance of a given matter, so the Muftee is obliged to refer to the Noble Koran and the Sunna of the prophet- may peace be upon him.

2- The obligation to respect the rules of inference:

¨     The Muftee has to respect the principle of legitimacy of the Fatwa i.e. his argument must be deduced first from the Noble Koran, then from the Sunna, then from what is agreed on by the Ulemas (Idjamaâ) and then by making Analogy (Qias).

¨         The Muftee is obliged to collect all the legal texts related to the subject of Fatwa with considering the degree of the argument (i.e. it is not permissible to work according to a Hadith if the stance of the matter is mentioned in the Noble Koran).

¨         The Muftee is obliged to compare between the texts and apply the rules of Ussul like "restraining what is absolute", "limiting what is general"…

¨         The Muftee too has to consider the changing of Fatawa according to the changes in epochs, places, people’ statutes, customs and intentions. He has also to differentiate between the Fatwa and the legal stance. Contrary to the Fatawa which can be subjected to change, the legal stance that is proved by a legal text can not be changed.

Ibnu Qaim El-Djawzia said: "This chapter (that of Fatawa) is of great benefit and because of our ignorance of it, the Islamic Sharia was wronged and misunderstood. The fact that caused embarrassment and hardships and burdened people with what is not necessary, and what the Islamic Sharia which achieved the highest degrees in preserving people’ interests did not bring. Indeed, the Islamic Sharia is built on rules and based on realizing people’s interests, either in their lives or in the Hereafter, and it is all justice, all mercy, all interests and all wisdom. Each matter that passes from justice to oppression, from mercy to hardness, from interest to mischief, and from wisdom to abuse, is undoubtedly not from the Islamic Sharia even if it included in it by an opinion. The Islamic Sharia is the justice of Allah set between His people, His mercy He bestowed on His creatures, His shadow He castes on His earth and His wisdom that shows His greatness and that points out the trueness of His prophet Muhammad- may peace be upon him. The Islamic Sharia is Allah’s light by which the sagacious/ cognizant see, His guidance in which there is a cure of all the sick and His right way that if one follows it, he is guided to the straight path". [Ilam El-Muwaqiîn (Informing the Signers), chapter: The Changing and the Difference of Fatawa according to Epochs, Statutes, Customs and Intentions, volume 03, page 03].

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