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

Friday, December 23, 2005

Terribly ashamed of myself -- Sheikh Ali Gum`a's opinions

A couple of months ago, I wrote a blog entry based on a newspaper report regarding one of the fatawa of Sheikh Ali Gum`a (current Mufti of Egypt). Regardless of the context of this claimed fatwa by the journalist (I have deleted my earlier post from the blog), I should have followed the order:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَإٍ
فَتَبَيَّنُوا أَنْ تُصِيبُوا قَوْمًا بِجَهَالَةٍ
فَتُصْبِحُوا عَلَى مَا فَعَلْتُمْ نادمين
O people of faith: if a wicked person brings you any news, ascertain the truth, lest you harm people unwittingly, and afterwards regret what you have done

After arriving in Cairo this week, I was surprised to find a coordinated series of attacks on Sh. Gum`a's fatawa on TV channels. Some of my relatives were furiously calling around after those programs, etc. I thought that this is very strange. So, I watched a program by Sh. Gum`a explaining the process of fatwa, and the actual texts of his fatawa, and was overwhelmed by the realization that this is a case of ignorant people attacking a genuine scholar.

Last night, I bought Sh. Gum`a's book of fatawa published in 2005. I couldn't sleep until I finished reading it. It is now very clear what happened: Sh. Gum`a has openly attacked "those who associate themselves [falsely] with the Salaf (early Muslims)". He makes extremely powerful arguments against their methodology and understanding of the Sunna of the Prophet (p) and his companions. He questions many of their strongest opinions regarding what they consider to be forbidden and condemened "innovations" (bida`), distinguishing between good and bad innovations. Many of his opinions openly contradict their views based on very compelling arguments.

I should have a chance to list and discuss some of his opinions on this blog (as I plan to take the book back with me to Houston). Given the nature of this blog, I should focus on opinions related to economics and finance. However, I should have a chance to translate some of his statements on general methodology, which impressed me to no end. It is obvious to me now that he is an accomplished scholar -- perhaps the best living faqih whose work I have had the chance to read -- and his attackers are either ignorant or misled people who are attempting to mobilize public opinion against him. I feel terribly ashamed to have fallen in the trap of slandering such a scholar based on ignorant and malicious attacks.

When I translate some of his writings on this blog, you will see what I mean!

Friday, December 16, 2005

Anti-rationalism and obediance

I have just returned from another khutba, where the khateeb could not resist denouncing rationalism in religion. The topic of the khutba was pilgrimage, Makka, the Ka`ba, etc. Then, towards the end, the khateeb digressed on the story of Abraham leaving his infant son Ismael and wife Hagar in the middle of arid desert. He said that this is the example we have to follow -- so that we may do what is asked of us by God, rather than subject everything to deductive analysis.

The question, again, is how one know what is asked of him! Indeed, the Qur'an contains the answer to those who claim that they were merely fulfilling God's command:

وَإِذَا فَعَلُوا فَاحِشَةً قَالُوا وَجَدْنَا عَلَيْهَا آبَاءَنَا وَاللَّهُ أَمَرَنَا بِهَا
قُلْ إِنَّ اللَّهَ لَا يَأْمُرُ بِالْفَحْشَاءِ أَتَقُولُونَ عَلَى اللَّهِ مَا لَا تَعْلَمُونَ

When they commit a blameworthy act, they say: "We found our fathers doing so"; and "Allah commanded us thus;" say: "Allah never commands what is blameworthy: Do you say of Allah what you know not?"

Were it not for the rational faculty, it would be impossible to know what is righteous and what is sinful. The basis of faith in Allah is:

إِنَّ اللَّهَ يَأْمُرُ بِالْعَدْلِ وَالْإِحْسَانِ وَإِيتَاءِ ذِي الْقُرْبَى
وَيَنْهَى عَنِ الْفَحْشَاءِ وَالْمُنْكَرِ وَالْبَغْيِ يَعِظُكُمْ لَعَلَّكُمْ تَذَكَّرُونَ

Allah commands justice, beautiful deeds, and generosity to kin,
and He forbids blameworthy deeds and transgression:
He instructs you, that ye may remember and reflect.

That is how we know that God's orders must be obeyed: so that we may do good and avoid evil. There is no substitute for the rational faculty in determining what is good and evil. Scripture helps us to train and refine our senses of good and evil, but in the end, it is out responsibility to make the inference -- both deductively and inductively -- to the best of our rational abilities.

Tuesday, December 06, 2005

The Wrong concept: Supreme fatwa council

According to news from Makkah, scholars are calling for the OIC Fiqh Academy to serve as an ultimate reference point for Muslims worldwide. In particular, the Assistant Secretary General `Ata'ullah Al-Mannan justified this view by saying that "jurisprudence and fatwa are playing a very important role at the current stage in the Islamic world" (citing in particular fatwas that incite violence and terrorism, and the need to counter with authoritative fatwas).

For those general topics, I doubt that terrorists will cease their activities because a decisive fatwa was issued. Just as twisted minds have twisted scripture to justify ungodly acts, they can twist fatwas and choose the muftis that issue opinions they like.

The solution may be in dismantling, rather than strengthening, the institution of fatwa.

Renewal of Religious Sciences (Al-Alwani on Al-Jazeera)

Last night, I watched the episode of Al-Shari`a wa Al-Hayah with Dr. Taha Jaber Al-Alwani. The episode was most interesting, focusing on the need to review the content and methodology of religious sciences. Dr. Al-Alwani's main aim was to show that the fields of knowledge known variously as religious sciences, Islamic sciences, or canon-based sciences (العلوم النقلية) are in-fact mostly man-made, and hence must be reviewed for authenticity in light of Qur'an and valid Sunnah.

The most important point that he made was that jurists' use of the Canon changed from approaching it as a source to explain, to using it as a tool to support their pre-conceived opinions. As an example, he cited Al-Shafi`i, who when confronted with challenges of his claim that consensus is a source of Islamic jurisprudence, said that he re-read the Qur'an three times until he found proof for the legislative power of consensus in the verse [Al-Nisaa;:115]
ومن يشاقق الرسول من بعد ما تبين له الهدى ويتبع غير سبيل المؤمنين نوله ما تولى ونصله جهنم وساءت مصيراً
He argued convincingly that - regardless of the validity of this proof, the very fact that Al-Shafi`i had to search for the proof post hoc shows that he had reached the conclusion independently, and then went looking for proof. Likewise, he argued, much of what is considered religious science from the First Century AH onwards was in-fact the product of the human minds of scholars, and they only used references to the Canon as post hoc support.

In my recent writings, e.g. my forthcoming book on Islamic Finance, I have argued similarly that Islamic jurisprudence is in fact a common-law system (based on precedent and analogy), despite pretending to be a canon-law system (that ostensibly obtains rulings for new situations only through analogies to Canonical rulings). Many others have noticed this similarity of Islamic jurisprudence to Anglo-American common law, both in methodology and in substance. I think that this is a point of strength not of weakness.

While Dr. Taha was arguing that we should go back to the Canon, and aim to rediscover Islamic law in its pure form, I think thhat this suggestion is disingenuous. If the best scholars only one century after the Prophet's death failed to do so, what hope do we have? The best we can do -- I believe -- is to admit the common-law feature of jurisprudence, and thus to admit that the bulk of our traditional jurisprudence is based on outdated legal and secular knowledge. Rather than maintaining the pietist view that scholars who were temporally closer to the source must be more knowledgeable (hence refusing, e.g. to reverse a ruling of Al-Shafi`i on a problem that he addressed directly), we can thus agree that religious sciences -- like all sciences -- accumulate knowledge, and later analysts are generally better positioned to provide better answers, based both on the benefit of hindsight, but also on the accumulated knowledge and experience in other sciences and other legal systems.