A painful question following khutba

This Friday, I gave a khutba at our local mosque on the institution of fatwa and its abuse in Muslim communities. My main point was that fatwa plays different roles at the individual and collective levels, and we do not use it correctly. The argument went as follows:

• We all wish to apply hukm-ullah, and I seriously doubt that any of us transgress against indisputable Canonical Texts with indisputable import (نص قطعي الثبوت قطعي الدلالة), e.g. by eating pork despite the clear prohibition in the Qur'an. So, let us recognize that issues addressed by fatwas are by definition issues where there is no definitive knowledge, but only opinions.
  
• Choosing always to follow the strictest opinion on each issue is incorrect, since that would constitute (التنطع), which was explicitly forbidden by the Prophet (p) (هلك المتنطعون x 3), where (تنطع = الأخذ بالعزيمة في موقع الرخصة), and also contradicts the established sunnah of always taking the easier of any two options, as long as it's not a sin (ما خير صلعم بين أمرين إلا اختار أيسرهما ما لم يكن مأثما).
  
• Equally wrong would be going to the other extreme, and searching for the easiest opinion on each sup-issue, which can lead to permitting what was forbidden -- thus leading to the classical requirement to follow a single madhhab to avoid such violation of Islamic rules through what got to be called (تتبع رخص المذاهب).
  
• So, on all fatwa issues, we seek opinions with which we are comfortable, based on the proof from Qur'an and Sunnah (multiple quotations here from ibn Qayyim's A`lam al-Muwaqqi`in, regarding the impermissibility of seeking opinions without "knowledge" or proof from Qur'an and Sunnah, which Al-Shafi`i likened to collecting fire-wood at night, and carrying it without knowing if there is a snake therein that will bite). We should share knowledge, in the form of such proofs, but should not transmit fatwas blindly, as Abu Hanifa forbade transmission of his own fatwas without knowing the grounds upon which they were issued (which include the specific circumstances of the questioner, the Texts he used as proof, and the grounds for applying those Texts to this instance).
  
• As we share knowledge as part of mutual advice (تناصح), we should accept that on issues where there are differences in opinions (requiring fatwas), different people should be open to accepting different opinions that they find compelling based on circumstances and mufti-proof. We should not denounce one another based on issues of furu` (legal details) where we follow different opinions (citing Imam Malik's famous letter to the Abbasid Caliph, refusing to put his Muwatta' in side the ka`ba and enforcing its rulings throughout the empire, wherein he told the Caliph that the Prophet's own companions differed in opinion regarding furu`, went to different lands, and each thinks himself right).
  
• That applies on the individual level, where tolerance for informed differences in opinion should be the norm. However, there are many aspects of religion that are by definition social in nature (e.g. congregational prayers, time of commencement of Ramadan and Shawwal, etc.). In collective matters for which legal norms exist, we should simply follow the law of the land. On community issues in non-Islamic countries (such as the examples cited), our institutions may seek a fatwa, and we may try to influence the collective decision through consultation (shura), but in the end, we should follow one rule. As proof for this, I cited the Prophetic tradition that "you may join people who pray at the wrong time; so pray in your homes at the time you know to be right, and then pray with them, and consider it a super-erogatory prayer, قد تدركون قوما يصلون الصلاة لغير وقتها فصلوا في بيوتكم للوقت الذي تعرفونه ثم صلوا معهم و اجعلوها شفعة). Similarly, I cited the famous refusal of Abu Hanifa to issue a fatwa for the people of Madinah, while they had Malik as their mufti, and `Umar's insistance that the companion who returned from Damascus fast a 31st day in Madinah, despite having cited the hilal earlier in Damascus, and having already fasted 30 days based on that citing.
  
• Unfortunately, I argued, we have reversed the approach to fatwa: trying to impose our own accepted opinions on others on individual issues, and then partitioning the community on social issues (such as commmencement of ramadan, eid, etc.) by soliciting fatwas from different far away countries. (Those familiar with ISNA's problem a few years ago based on a fatwa by Justice Taqi Usmani -- that we need not align eid al-adha in the US with the day after Arafa -- would know what I mean, but I did not raise the issue explicitly in this khutba, since the point was not specific fatwas, but our use of those fatwas that relate to social issues, where we should settle on one opinion, even if we think that it is wrong).
  

After the khutba, someone came and asked me "I am studying to become a loan-officer, but people tell me that this is haram riba, and I shouldn't do it. They are right, aren't they, that on the issue of interest, there are no specific circumstances to consider, and this is haram. I mean, I have a mortgage, but I know that something is wrong with that, and I should repent..." I did what I had to do, by telling him that I am not qualified to issue fatwas, and that if he wants fatwas on what is Halal or Haram, he should ask someone who is. I was tempted to tell him: "what is forbidden is riba and not interest", or Abu Hanifa's opinion on dealing with riba in non-Islamic countries, etc. However, that would have violated my own assertion regarding such transmission of fatwas. Unfortunately, I also was present at the same mosque a few weeks prior, when another khateeb (who is also not qualified to issue fatwas) said that "if you took your house or car on interest, you should repent, and not argue -- for what was forbidden in Madina is also forbidden here -- so you should just ask Allah for forgiveness and promise to get out of this interest as soon as you can..." In other words, the misleading equation of riba with interest is so deeply entrenched in our (post Mawdudi) religious dialogue that it is impossible for the congregation to seek knowledge with an open mind...

I felt helpless in my helplessness regarding this community member being told that he shouldn't become a loan officer. I thought of telling him that the tools he would use as a loan officer at any bank would be the same, whether he works for an "Islamic" bank or otherwise. I thought of telling him that even if contemporary banking practice was a form of riba, it can't be equated to the riba so strongly condemned in the Qur'an (the Muhammad `Abduh statement quoted in a previous blog entry). I thought of telling him that even if this was riba, how can you find an alternative if Muslims would not become bankers to learn how credit extension is done, and to think of better alternatives... I thought of a million replies that I could have (and perhaps should have) given, but I was left mute, with only one answer: "brother, if you want a halal-or-haram statement, you should find a jurist".... I so wish that he had asked for an argument rather than a fatwa. I so wish that we can abolish the instution of fatwa altogether.