Appendix 12:

The Change of Fatwa

Glossary

Appendix 12: The Change of Fatwa

This discussion is part of a wider discussion about the renewal of the religion. The default status in the religion is that it remains unchanging, and most of what is meant by ‘renewal of the deen’ ¹⁸⁴⁹ is actually restoration achieved simply through reviving that which is original, and cleansing that which is unoriginal, such as innovations and customs that conflict with the revelation. It is also about restoration of the values and principles that were upheld by earlier generations in a completely different world environment; in other words, it is restoration with adaptation, or a meaningful restoration. However, aside from that, there is still another type of renewal: ijtihâd-based renewal, which is what the scholars refer to when they say, “The change in rulings due to the change in times is not to be denounced.” ¹⁸⁵⁰ One example of this was when ‘Umar (RA) prevented al-mu’allafati quloobuhum ¹⁸⁵¹ from receiving their share of zakat. He saw that, during his blessed caliphate, Allah had empowered Islam and the Muslims, and he felt that he no longer needed to repel their evil or earn their loyalty by giving them money from the zakat funds. In another instance, ‘Uthmân (ra) commanded during his caliphate that the stray camel be taken, sold, and its price kept in escrow for its owner. This was contrary to the original ruling, which prohibited taking stray camels, but he resorted to this because of the moral deterioration that had occurred since the time of the Prophet (SA). ‘Ali (ra) made craftsmen liable for the materials they received from clients, when he feared that they may otherwise become negligent or reckless in safeguarding people’s property. Similarly, it was undisputed among the early Ḥanafi scholars that taking a wage for teaching the Qur’an was unlawful, but when volunteers became few in number and they feared that knowledge of the Qur’an would be lost, they allowed Qur’an

1849. The Messenger (sa) said:

“Indeed, Allah sends for this Ummah, at the onset of every century, those who renew the religion for it.” [Collected by Abu Dâwood and al-Ḥâkim, who authenticated it on the authority of Abu Hurayrah. Sunan Abi Dâwood, verified by Muhammad Muḥyi ad-Deen ‘Abdul-Ḥameed. Beirut: Dâr al-Fikr, 4/109.]

إِنَّ اللَّهَ تَعَالَى يَبْعَثُ لِهَذِهِ الأُمَّةِ عَلَى رَأْسِ كُلِّ مِائَةِ سَنَةٍ مَنْ يُجَدِّدُ لَهَا دِينَهَا

1850. Majallat al-Aḥkâm al-‘Adliyah, Article 39. This was also stipulated in different wordings by some of the most erudite scholars of uṣool, such as Ibn al-Qayyim, ash-Shâṭibi, ash-Shawkâni, and others.

1851. al-mu’allafati quloobuhum (at-Tawbah 9:60) are new or non-Muslims whose hearts the Muslims hope to win over.

teachers to receive payment. In fact, the collection of the Qur’an itself was initiated by ‘Umar’s ijtihâd, and Abu Bakr and Zayd (RAHUM) objected at first, asking, “How can we do something the Messenger of Allah (SA) did not do?” ‘Umar (ra) convinced them of wujood al-muqtadi )the presence of indication), since many of those who had memorized the Qur’an had been killed in the wars of apostasy, and of intifâ’ al-mâni‘ (the absence of hindrances), since this was not explicitly prohibited and it did not conflict with the objectives of Sharia or the maxims of the law.

Did these noble scholars change the legislated ruling? Never, for the legislation of Allah is not subject to change. Allah, the Most High, said of the followers of previous religions:

{They took their scholars and monks as lords besides Allah…} (at-Tawbah 9: 31)

اتَّخَذُوا أَحْبَارَهُمْ وَرُهْبَانَهُمْ أَرْبَابًا مِّن دُونِ اللَّه

The Messenger of Allah (SA) explained to ‘Adiy ibn Ḥâtim (RA) that this verse referred to their making permissible that which was unlawful and making unlawful that which was permissible, ¹⁸⁵² which was exactly what the Messenger of Allah (SA) prohibited when he said:

If anyone introduces into this matter of ours what is not from it, it will be rejected. ¹⁸⁵³

مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ مِنْهُ فَهُوَ رَدٌّ

1852. Sunan al-Bayhaqi al-Kubrâ, 10/116, in the chapter ‘The Manners of the Judge, and What the Judge Rules By’, Makkah: Dâr al-Bâz, 1414 AH.

1853. Ṣaḥeeḥ al-Bukhâri, 2/959, in the chapter ‘Treaties: Agreeing upon Unfair Terms Nullifies the Treaty,’ Beirut: Dâr Ibn Katheer wal-Yamâmah, 3rd ed., 1407 AH; and Ṣaḥeeḥ Muslim, 3/1343, in the chapter ‘Verdicts: Nullifying False Rulings and Rejecting Innovations,’ Beirut: Dâr Iḥyâ’ at-Turâth al-‘Arabi.

Therefore, it is impossible that they changed the ḥukm (ruling – as it refers to the Divine khiṭâb, or instruction), and if some scholars used that term, they only meant the fatwa (religious edict) and not the actual ruling in Sharia. A single act can have two different fatwas depending on the circumstances and context.
To clarify further, let us look again at the example of receiving wages for teaching the Qur’an. The early Ḥanafi scholars agreed that the practice was prohibited, but they later permitted it. The question is: were the prohibition and permission actually in regard to the same thing? They appear to be, but a closer look makes clear that we cannot equate 1) accepting a wage for teaching the Qur’an during an era when many were enthusiastic about teaching it as an act of devotion to Allah, and were supported financially from the state treasury, and 2) the same action at a time when teachers were no longer sustained by the state treasury. In the latter situation, if they devoted themselves to teaching, their families would be lost, and if they devoted themselves to earning a livelihood, their students would be lost.
Thus, different scenarios may call for different sets of rulings, and the mujtahid chooses the most suitable of these rulings. If the matter falls between two rulings or two principles, he or she should attribute the matter to the closer of the two. Obviously, this is pertinent only to rulings whose manâṭâṭ (effective causes) are affected by people’s customs and interests. Imam ash-Shâṭibi (may Allah have mercy on him) explained:
Rulings that differ whenever customs differ are not a [reflection of] any difference in the Divine instruction itself, for the Sharia was revealed to be permanent and eternal. Hypothetically, were this world to remain without end, and the people remained liable [to uphold the Sharia] as well, the Sharia would not need any additions. In other words, whenever customs

changed, they would fall under another [different] principle of Sharia that would govern them… ¹⁸⁵⁴

مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ مِنْهُ فَهُوَ رَدٌّ

In the example of wages for teaching the Qur’an, there were two principles involved: 1) that there was no intention in acts of devotion other than pleasing Allah – and this supported the earlier view of impermissibility, and 2) to preserve the Qur’an by teaching it to youngsters – and this supported the later view of permissibility. The ijtihâd-based renewal considers changes in time and place, not because they themselves are consequential to the rulings but because they are receptacles of different circumstances that may be consequential to those rulings.

To cite a modern example, the jurist must carefully investigate the reason behind the prohibition of making a ṣoorah (translated as ‘picture’) of any being that can be said to have a soul. Is the same prohibition applicable to a photograph, simply because the two things (picture and photograph) share a name in Arabic? Not likely, although this does not mean that they could not share the same ruling. The prohibition of photographs (if one is inclined to do so) must be reached through analogy, and only if it meets the requirements. Also, was war during the time of the Prophet (SA) like war today? Lexically speaking, yes, but we must ask ourselves whether the one-on-one confrontation of thousands of individual soldiers sparring in a battlefield is equivalent to the indiscriminate mass devastation that ensues from modern war. If Imam Ibn Taymiyah ruled that a catapult could not be used except for the necessary jihad (to repel the enemy), ¹⁸⁵⁵ what would he say about modern weapons of war?

مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ مِنْهُ فَهُوَ رَدٌّ

1854. ash-Shâṭibi. Al-Muwâfaqât. Verified by ‘Abdullâh Darâz. Beirut: Dâr al-Ma‘rifah, 2/217.

1855. Majmoo‘ al-Fatâwâ, 24/69.

Should the difference be consequential? Should it make war even more remote as a last resort? Didn’t the early Muslims fight to liberate humanity from tyranny and to afford them the right to worship their Lord? If so, is it consequential that most nations today allow their subjects freedom of religion?
When the Prophet (SA) prohibited women from travelling alone, was the travel the same as travel is now? Would a difference be consequential? It would, according to the scholars who accept women’s travelling if they are with safe company; these scholars must have understood that there is some identifiable ‘illah for the prohibition. As mentioned previously, erudite scholars sometimes even make the well-defined ḥikmah (wisdom) consequential to the rulings. Some might claim that this same rationale could also be used to dispense with the need for hijab or rules of proper conduct between men and women, arguing that the human community has matured and it is safer for women to go out in whichever attire they please. This, however, would be in defiance of the clear texts as well as the unchanging human nature. The Islamic rules of modesty protect women, men, and entire societies from the avalanche of evil that results from a failure to observe them. It must be also observed that modern and ‘civilized’ societies of the twenty-first century, when compared to societies of earlier eras, do not experience lower rates of infidelity, family breakdown, rape, or psychological disorders related to sex. There is no level of education or cultural sophistication that has been found to be protective against any of these ills.
We sometimes find conflicting scholarly positions, some of which may be indispensable in our times, even if they are counter to the majority position. When there is nothing definitive in the Qur’an and the Sunnah to prevent us from choosing an opinion that solves a contemporary problem, we ought to do that. For example, jurists in the past differed over the methods of establishing claims in the Islamic judiciary. Some limited it to what has been explicitly

stated in, or extracted from, the revealed texts, while others widened the circle of evidence to include whatever reveals the truth and paves the way for justice. For this reason, basing rulings on qarâ’in (corroborative evidence) was a matter of debate among the jurists. Today, forensic science has evolved to such a degree that judicial systems throughout the world rely on it. So where should the Islamic judiciary stand regarding forensic science? Should it benefit from it? Should this benefit be limited to guiding the criminal investigator and enlightening the judge with important details of the crime? Or should these evidences be used by the judge whenever they qualify, even in the absence of the customary types of evidences known to Islamic jurisprudence, such as eyewitness testimony, confessions, oaths, and nukool (refusal to take an oath)? I believe that a reasoned incorporation of tangible evidence in what counts as admissible proofs is entirely warranted. This was the position of luminaries like Ibn al-Qayyim, ¹⁸⁵⁶ Ibn Taymiyah, ¹⁸⁵⁷ and Ibn Farḥoon ¹⁸⁵⁸ of the Mâlikis, in addition to Ibn al-Ghars ¹⁸⁵⁹ of the Ḥanafis, and some Ḥanbalis. ¹⁸⁶⁰
“Customs are binding” is a legal maxim of Sharia, so ‘urf (norms) which do not oppose the Sharia are given authority and recognized as evidence. In

مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ مِنْهُ فَهُوَ رَدٌّ

1856. See his books I‘lâm al-Muwaqqi‘een and aṭ-Ṭuruq al-Ḥukmiyah.

1857. See the two previous books, in addition to al-Inṣâf by al-Mardâwi, Cairo: Dâr Ḥajar, 1995, 10/233; Ibn Mufliḥ’s al-Furoo‘, (6/85); and Ibn Taymiyah’s as-Siyâsat ash-Shar‘iyah, p. 136. The last two sources were retrieved from Shâmilah [computer software].

1858. See his book Tabṣirat al-Ḥukkâm fee Uṣool al-‘Aqḍiyah wa Manâhij al-Aḥkâm: 2nd section, regarding the types of evidences.

1859. See Ḥâshiyat Ibn ‘Âbideen, 5/354.

1860. These are mentioned in order of the strength of their support for the use of qarâ’in and the scope of its use in their ijtihâd.

other words, the Law-Giver considers customs a determining factor in rulings on interpersonal dealings, not usually as a stand-alone source of law but as a secondary one that will ensure the proper application of the naṣṣ (text of revelation). Imam al-Qarâfi stated:

Whenever the customs change, take that into consideration, and whenever they die out, drop them (out of the equation). Do not be rigidly bound your entire life by what is written in books. Similarly, when someone from outside your region comes to seek your fatwa, do not apply to him the norms of your town. Instead, ask him about the norms of his town, and base your fatwa on them, not on the norms of your town or that which is established in your books. This is the plain truth; rigidity in applying the transmitted edicts is misguidance in the religion and ignorance of the objectives of the Muslim scholars and the pious predecessors. ¹⁸⁶¹

Imam Ibn al-Qayyim wrote:
He who issues fatwas to people based only on what is transmitted in books, despite the differences in their norms, customs, times, and places, and their own conditions, has gone astray and led others astray. His crime against the religion is greater than that of one who treats all people, regardless of their countries, customs, times, and personal inclinations, by that which is in the books of medicine. These ignorant muftis and physicians are the most damaging to the people’s religion and bodies. And Allah alone is the one sought for assistance. ¹⁸⁶²

1861. Shihâb ad-Deen al-Qarâfi. Al-Furooq. ‘Âlam al-Kutub, 1/191.

1862. I‘lâm al-Muwaqqi‘een, 3/66.

Through this maxim, the Sharia recognizes people’s varying norms, customs and traditions, and preserves the cultural identities of diverse nations. This also applies to people of different times, accommodating the changes that humans of different generations are bound to experience.
While ijtihâd is always necessary in all fields to correct our understanding, the following are matters that are not subject to change, whether due to changes in customs, world conditions, technological advancements, or any circumstantial variables:
· All matters of creed. These are not subject to new ijtihâd in the sense of forming new positions compatible with new realities, but we do need ijtihâd to correct our own understanding of some of these concepts. For example, the misunderstanding of qadr (predestination) and zuhd (asceticism, or renunciation of worldly matters) has been detrimental to the wellbeing of the Ummah and can impede any prospects for progress. Simply put, we need to reset our collective understanding of these concepts – back to that of the Messenger (SA) and his Companions (RAHUM), whose teachings and lives will always be the brightest beacon of light and the unfailing benchmark.
· The pillars of Islam.

· Rulings in the sphere of worship whose causes we do not understand, such as the times of the different prayers and their composition, the rituals of Hajj and fasting, and the like.

· Quantified injunctions of the Sharia (muqaddarât) that were fixed by the text of revelation, such as expiations (kaffârât), duration of the waiting period (‘iddah), and entitlements to inheritance.
· Matters about which there is an explicit text with a definitive implication, a certain transmission, and their effective cause is still operative.

· Matters on which there is a clear and genuine consensus that is not based on circumstantial variables such as in cases where the common interest (or weighing harm vs. benefit) is the deciding factor. · Basic rulings of morality and those that define the Islamic value system, such as the prohibition of arrogance, prejudice, murder, fornication, usury, gossip, slander, and so on; the obligation of mutual agreement in contracts; and the protection of basic human rights such as the sanctity of life, property, and reputation. Regarding these issues, change may only be related to the means of preserving those values and rights.
After excluding those spheres, it seems that the renewal of ijtihâd is most needed in the areas of governance, public policy, international relations, financial transactions, employment, corporate ethics, admissible proofs, judiciary proceedings, and to some extent interpersonal relations and relations with people of different theological orientations and religious affiliations.
In all these areas, ijtihâd-based renewal is necessary to maintain the vitality and relevance of the laws and Divine teachings. A seasoned Azhari scholar of the fourteenth century, Shaykh ‘Abdul-Wahhâb Khallâf, traces the stagnation in ijtihâd to four reasons:
1- Political division and infighting within the Muslim state, which derailed scholars in all fields from developing their respective disciplines

2- Madh-hab-based partisanship, which kept many scholars preoccupied with a keen interest in supporting their own madh-hab and proving it correct, precluding an impartial inquiry into the body of evidences, particularly the Qur’an and the Sunnah

3- The “fatwa chaos” that the scholars had failed to control during that time; ¹⁸⁶³ out of an abundance of caution, they preemptively closed the door of ijtihâd, which resulted in considerable stagnation

4- Moral decay that affected many scholars, causing them to envy and disparage anyone who attempted independent ijtihâd ¹⁸⁶⁴

Finally, it must be noted that this ijtihâd-based renewal can only be exercised by the most distinguished mujtahid scholars of each era. If the matter is left to those who have not reached this degree of ijtihâd, the religion will fall into peril and be subject to distortion, and the enormity committed by non-scholars who engage in this is beyond needing to be mentioned. This involves the greatest calamity: forging lies about Allah – the Mighty and Majestic – and speaking about Him without knowledge.
Allah (st) says:

{And do not pursue that of which you have no knowledge. Indeed, the hearing, the sight and the heart – about all those [a person] will be questioned.} (al-Isrâ’ 17: 36)

وَلَا تَقْفُ مَا لَيْسَ لَكَ بِهِ عِلْمٌ إِنَّ السَّمْعَ وَالْبَصَرَ وَالْفُؤَادَ كُلُّ أُولَٰئِكَ كَانَ عَنْهُ مَسْئُولًا

1863. The “fatwa chaos” resulted in many odd and esoteric fatwas and teachings; many scholars attempted to regain control of the situation by shutting down independent ijtihâd (ijtihâd muṭlaq) and decreeing that it was allowed only for the scholars of the past.

Therefore, what is required is the reunion of theory and practice, in light of the ijtihâd that preserves the constants but accommodates the changing variables. This is what existed during the days of the Rightly-Guided Caliphate, and it is what enabled the Ummah to accommodate the Persian, Roman,

1864. ‘Abdul-Wahhâb Khallâf, ‘Ilm Uṣool al-Fiqh, p. 260. Retrieved from Shâmilah [computer software].

Nabataean, Kurdish, Coptic, Berber, and other cultures, leading to a degree of civilizational, technological, and cultural development that has never been matched in the history of this world. All of that occurred without the religion itself being tainted with any distortion. But when this vigilant ijtihâd vanished, around the middle of the Abbasid era, the gap between theory and practice began widening until Muslim society became divided into groups: people of extravagance who had no care for religion, Sufis who mostly fled the trials of life by escaping into spirituality and monasticism (and some into mysticism) in search of what would satisfy their souls’ longing for truth, scholars who withdrew to fixate upon serving the texts and literature, and the masses who became lost as their leaders lost their compass. At the same time, there remained small numbers of God-fearing scholars who were committed to the spirit and letter of the deen, to purifying the interior (actions of the heart) and to upholding the law. They were true beacons of light that – by Allah’s bounty – no era in the life of this Ummah will be void of. They are those who continued fighting to revive the true teachings of Islam, despite their having been subverted by heedlessness and corrupted customs, and to make these teachings guide the life of the Ummah once again, thus contributing to the wellbeing of humankind.

The Change of Fatwa

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Appendix 12:

The Change of Fatwa

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

The Change of Fatwa