Monday, December 26, 2005

On Jurist Composition: Sheikh Ali Gum`a -- Part I

As promised, I shall translate some parts of Sheikh Ali Gum`a's (the Grand Mufti of Egypt) Good Words: Contemporary Fatwas (الكلم الطيب: فتاوى عصرية), Cairo: Dar Al-Salam, 2005. The first installment comes from a section labeled "Component's of the Jurist's Mind" (مكونات عقل الفقيه), starting on page 229.



Question: How is a jurist formed, and what makes a person a jurist?

Answer: We shall go together on a journey through the mind of a jurist. Our objective is to discover how a jurist thinks, so that we may succeed in talking to him, and benefiting from his work.


First, we state that a jurist's thought process goes through four stages:

1. Understanding or forumlating the question (التصوير).
2. Juristic formulation of the question (التكييف).
3. Legal ruling (الحكم).
4. Juristic response to question (fatwa, فتوى).

In the stage of formulation, the jurist must exert effort to ensure that the ruling is correct. Moreover, he must exert effort to understand his surrounding reality, so that the juristic response (fatwa) is also correct. Otherwise, if he does not exert sufficient effort, his fatwa may be deemed incorrect. Thus, we may say that it is not permissible, due to difference in location, difference in social norms (اختلاف العرف), or difference in condition.

More precisely: [we may void a fatwa due to] differences in time, place, individuals, and conditions.

Those four affect the fatwa, thus prompting the mufti to declare something as permissible or forbidden. In some circumstances, those factors may prompt a mufti to order the questioner not to do something that is permissible, in order to prevent violating the intent of the Law (سدا للذريعة).

In this context, the following question arises: When does the permissible become forbidden, or the forbidden become permissible?

We say: This occurs when time, place individuals or conditions prevent me from reaching the Objectives of the Law (مقاصد الشرع). In this case, the ruling is altered to reach the Legal Objectives.

Now, a clarification is required as to who [is qualified to] undertake this task?

We say: This is the task fulfilled by the jurist (الفقيه), so do not attempt to play that role yourself -- It is a role specifically restricted to [the qualified] jurist.

Thus, there are four stages that distinguish the special thought process of the [qualified] jurist: The stages of formulation or understanding, then juristic reformulation, then finding the legal ruling, and finally issuing the fatwa. If there is an error in any of the four stages, the fatwa will be erroneous.

For instance, if the question is posed erroneously to the jurist, he will only be able to issue the fatwa based on what he heard. Thus, if the information or formulation given to the mufti was false, then the questioner thus misleads the jurist to reach a wrong answer that suits his benefit and desires.


Translator note: Please re-read the last paragraph and the next one. They clearly identify some of the greatest diseases in Muslim societies today.


Likewise, if the questioner posed his question correctly, but the jurist made a mistake in reformulating it juristically, then the juristic ruling is faulty, and the fault in this case rests with the jurist.


Translator note: In the next paragraph, the only way I can make sense of the sentence is to add "not". I wonder if the publisher or editor read part of the paragraph, and decided to remove that لا in
"...لا ينبغي علي أن أجيبه بأنها حرام - حرمة قاطعة، بل الواجب علي أن أكيف السؤال ... ".

In this regard, the juristic reformulation of a question is important. Thus, if a man came and asked me about my fatwa on wine, then I am [not] obliged to answer him by saying that it is unequivocally forbidden. Rather, I am obliged to reformulate the question juristically, to know what exactly is being asked about so that I may issue a valid fatwa. This is the case, since wine would be permissible in one case, which is the case of necessity. Thus, if a person needs to drink it due to disease or coercion, then it is permissible based on verse [2:173] "whoever is coerced without willfully disobeying or transgressing, then he has not sinned".

And we tell the coerced to drink it, since committing the lesser of two harms is required.

Therefore: The legal ruling is one thing, and the fatwa is another. The legal ruling of wine (khamr) is prohibition. However, to issue a fatwa requires knowing the reason for the question.
إذا: الحكم شيء، و الفتوى شيء آخر، فالحكم في الخمر: أنها حرام
.أما الفتوى فيها فلابد من معرفة السبب في السؤال

2 Comments:

Blogger heraish said...

Peace,

The problem in the Ummah today is that only a handful of top level jurists are truly independent.

The OIC fiqh academy that is being developed may offer a solution. But again if KSA has a heavy hand in it then this would be another wasted excercise.

Qaradawi established something based out of Dublin. But I believe a lack of resources and other restrictions will make it difficult for this body to flourish.

God Knows Best.

7:34 AM  
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