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Fatwa Making and Minority Jurisprudence

 

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Abdullah Bin Mahfud Bin Bayya

Synopsis:

At the time of the revelation, people used to receive religious rulings from their sources – the Prophet himself. As well as delivering the clear divine message, he guided them with his Hadiths and actions. When he died, the best among his Companions took over, following his straight path.

They had to face a number of novel issues in the different domains of life which neither the Koran nor the Sunna had dealt with. They issued solutions based on their perspicacious, rational reasoning, and based their rulings on solid religious legal evidence.

The Tabi’un generation, i.e. those who came after the Companions, and then the next generation, followed suit in their endeavor. In due course, the legal tradition grew firm for subsequent generations: any time there was a new issue, the specialists, e.g. scholars and judges, tackled it as best they could, both orally and in written works.

These days, new issues have arisen, and Muslims are now cohabiting with non-Muslims in the latter’s communities. Accordingly, the need for new fatwas is growing more and more pressing. Hence the need for scholars to carry out ijtihad to bring jurisprudence up to date on the basis of religious foundations, general rules, and intents.

As a result, there appeared a number of studies, treatises, and books, such as the volume at hand, titled Sina’at al-Fatwa wa Fiqh al-Aqalliat (Fatwa Making and Minority Jurisprudence), by Abdullah Bin Mahfud Bin Bayya.

This book is characterized by its profundity, brilliant methodology, and style. It is greatly rewarding scientifically, and abounds in legal, Ussul, and intent rules, which testify to the fact that it closely draws on the Koran and Sunna as well as on the methodology of the guided generations. Its methodological characteristics are clear to whoever wants to exploit it for present-day issues and novelties in different areas, particularly relative to the life of Muslims living in Western environments.

This book falls in two interconnected parts. The first part tackles the science of Fatwa making. In its introduction, the author presents an interesting discussion on the notion of the issue and the Fatwa, its hazardous character, its legal and social values, as well as the responsibility of the one who issues it.

Then the author goes on to present in coherently synchronized sections the bases of fatwa among the Companions and the Imams of the four Madhhabs (legal schools of Islam), and their methodologies.

As to the second part of the book, it deals with the legal matters of minorities. The author starts it with the definition of the concept per se, explaining that it is established in its essence on special bases and intents. For the sake of illustration, he presents a number of real life cases which concern Muslim minorities living in the West.

 

The Vice President of the International Union of Muslim Scholars, Dr. Abdullah bin Bayyah stressed that there are several solutions which can be suggested to fight terrorism, and they can represent a multifaceted strategy based on security, cultural and psychological procedures in addition to the political, economic, and even media means. He said, “We can define a set of controls for the Islamic project proposed to fight terrorism.

These controls are summarised in some points, including: defining the concept of terrorism and terrorist behavior; distinguishing between defending the land and honor and terrorism; highlighting the culture of Islamic tolerance; correcting the misconceptions in the cognitive and educational system, especially the concept of jihad, so as not to be confused with the concept of terrorism; emphasising transparency in the case of the accusation against individuals or countries; respecting human rights; stressing the sovereignty of countries in this area in order for the war on terrorism to be more effective; addressing the problem of poverty and respecting the rights of poor countries to self-growth; respecting civilisational, religious and cultural diversity of humanity as being a factor of enrichment and harmony not a factor of clash and distinction; acquitting all religions from the stigma of terrorism, especially Islam; advocating an in-depth civilised dialogue; addressing injustice in the world, especially the injustices practised against the Palestinians; identifying the internationally and locally desired reform which should be comprehensive; and creating mechanisms for security cooperation through which information are exchanged between countries.”

Bin Bayyah defined the causes of the outbreak of terrorism by saying: “The verbal meaning of this term in the Qur’anic verses is that the word ‘rahaba’ and its derivatives are mentioned in the Qur’an in twelve positions mostly related to fear and dread of Allah, the Creator, Exalted be He, although the verse mentioned in the Sura of Al-Anfal (related to the preparation of force to terrorise the enemy) may suggest meanings that some may relate to the terrorism of today. However, conscious contemplation indicates otherwise; that is, the ‘terrorism’ in the Sura of Al-Anfal is used as a deterrent or what is known nowadays as the strategy of ‘prepared force to protect peace’. In addition, this word as appeared in that Sura is directed to the Muslim country not the individuals or groups.

As for the currently used term ‘terrorism’, a careful search should be made to define it according to its Western original source in particular. The term ‘terrorism’ first appeared in a supplement to the large Dictionary of the French Academy in 1798 to describe the Government of the French Revolution, which was terrorizing the people in the name of freedom and revolution. Thus, the term ‘terrorism’ was a description of the regime; however, since the end of the eighteenth century it has become a term referring to violence by individuals and groups acting against the law. It was internationally known for the first time by the League of Nations in 1934 as a criminal act intended to create terror and fear.”

 

His Eminence Sheikh Abdullah Bin Bayyah, member of the International Islamic Fiqh Academy, asserted that fatwa-giving is an industry and not a simple task done by anyone without adequate knowledge or insight.

Bin Bayyah said, “Fatwa-giving seems problematic to some. When my book Industry of Fatwawas published, many found it ambiguous. In fact, industry is a highly sophisticated endeavor that requires expertise and skill, not something simple or haphazard. It involves input, processing, and output”.

According to him, fatwa is the “make” or product of several components, including evidence, reality, and the linkage between the two.

“When a question is asked to a mufti, he first examines reality to find out everything about the case at hand. For example, if it is about a modern-style contract, such as insurance, lease purchase, or inflation-caused debts, it is considered in terms of how it evolved and what its components are. Having scrutinized the nature and components of the contract, he looks for the Shar`i ruling that applies exactly to it (if it is simple) or to its components (if it is compound), surveying proofs from express religious texts and evident facts, if any. Otherwise, he uses other discretionary techniques, such as Qiyas (analogical reasoning), Istislah (deeming proper), Istihsan (juristic preference), etc.,” the Sheikh explained.

 

[audio:https://binbayyah.net/english/wp-content/uploads/2011/12/BiBayyahFromProtesttoEngagement.mp3|titles=Bin Bayyah From Protest to Engagement]

 

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Hajj (i.e., pilgrimage) is one of the five pillars of Islam, as stated in the Sahih hadith: “Islam is built on five pillars… and Hajj to the Sacred House of Allah (i.e., the Kaaba) for those who can afford it”.

It is a religious obligation according to the Qur’an and Sunnah. Allah says, {And Hajj to the House (i.e., the Kaaba) is a duty that humankind owes to Allah, only those who can afford its expenses}. The Prophet (peace be upon him) said, “O people, Hajj is prescribed for you, so perform Hajj”.

Hajj is one of the most sublime acts of worship, and it is the legacy of Ibrahim (peace be upon him), Father of the Prophets and the Khalil (i.e., close friend) of Allah. Allah says to Ibrahim,{And proclaim to people Hajj. They will come to you afoot and on every lean camel, coming from every distant pass}.

The nation of Prophet Muhammad has inherited this act as the fifth pillar of its faith. It was prescribed in the fifth year of Hegira, as stated by Ibn Sa’d in his compilation At-Tabaqat (The Classes). He wrote that Dimam Ibn Tha`labah came to the Prophet in the fifth year of Hegira and was taught the obligations of religion, including “performing Hajj to the House if you can afford it”.

Hajj is a basic ceremony and obligation in Islam, and whoever denies its being a religious duty on Muslims, when its conditions are met, shall be deemed out of the fold of Islam, as unanimously held by Muslim scholars.

Allah, Exalted be He, has promised a great reward for those who perform Hajj duly and observe its rituals and instructions. One of the best benefits of Hajj is abolition of the pilgrim’s sins, according to the Prophet’s words: “Whoever performs Hajj to this House and does not have sexual intercourse (with his wife) or commit evil (during Hajj) will come out sinless just like he was when his mother gave birth to him”.

It is not our purpose here to elaborate on the rituals of Hajj or to explain its four pillars without which it shall be rendered invalid: Ihram, stay at Mount Arafa, Ifadah Circumambulation, and going between Safa and Marwa (which is controversial). Nor is it intended to dwell on the rulings pertaining to Hajj; its duties that, when missed, are compensated for with sacrifice; things prohibited, undesirable, desirable, or supererogatory during the state of Ihram

 

We will limit our discussion exclusively to trying to throw light on some spiritual implications that would draw the attention of whoever contemplates this ceremony.

The season of Hajj is a great and unique Islamic event that has no equivalent in any other nation throughout history. It is like a grand world conference. Actually, Hajj can be considered as one of the main characteristics of this nation and a ceremony in which it stands matchless.

The first and most striking thing in Hajj is the universality that manifests itself in the perfect way, with millions of pilgrims of all nationalities, languages, cultures, and colors associated only by the bond of faith. It is a voluntary globalization that is not imposed by any world power.

Another magnificent aspect is such unity that transcends all nationalistic, sectarian, and political differences, embodying common feelings, common symbols, common rituals, and common holy places. What does this mean? And how what does it have to do with Hajj?

– Feelings: All pilgrims have the same feelings of need for and submission to the Almighty Lord.

– Slogans: All pilgrims wear the same white clothing and utter the same Talbiyah.

– Rituals: All pilgrims perform the same practices in the same manner, including Ihram, staying at Mount Arafa, stay at Mina, pebble-throwing, circumambulation, etc.

– Holy Places: All pilgrims visit the same places, such as Mount Arafa, Muzdalifah, Mina, and Mecca.

The third characteristic of Hajj is equality that removes all distinctions and advantages, leaving no difference between the rich and the poor, a king and a riffraff, a leader and a subordinate. All pilgrims wear a few riyals’ worth of clothes, have the same tents for accommodation at Mina, receive the same provision, and pick up the same pebbles from Muzdalifah to throw them at Mina.

All such aspects strengthen within pilgrims a sense of solidarity, cooperation, and true human brotherhood, filling them with a spirit of faith, modesty, and benevolence. Such a great congregation requires exceptional arrangements to be able to perform the rituals in an atmosphere of serenity, peace of mind, and spiritual and physical wellbeing.

In this respect, we highly appreciate the great responsibility undertaken by the King and government of Saudi Arabia, as Hajj is an act of worship that can be exercised only under a lawful and respected authority. It is an occasion where people from all over the world gather, some of whom seek to perform worship, and some others seek to commit evils. There will always be good people and bad people, and without such regulating authority, good people will fall victim to bad people and the ceremony of Hajj will lose its essence. There cannot be peace of mind amid fear or devotion amid insecurity. The Prophet (peace be upon him) urged for peacefulness and security. In a long hadith describing Prophetic Hajj, Jabir said that the Prophet gestured the people to get quiet and at ease (Reported by Muslim).

Therefore, security of pilgrims is hugely important. And we are bound to commend the efforts made by Saudi government to secure comfortable and smooth settings for pilgrims, which has been a tradition of Saudi Arabia ever since the time of King Abdul-Aziz, as documented by historians. In his Ar-Rihlah Al-Hijaziyyah (Journey to Hejaz), Shakib Arslan wrote, “Security prevailed in the time of Ibn Saud to an extent that no one would look forward to more but would rather hope that this blessing will last”. This is the first norm in Saudi Arabia’s policy in service of the Two Sacred Mosques: security.

The second norm is the infrastructural development that has exceeded all expectations. The latest Mecca Sacred Mosque expansion project, executed under the auspices of the Guardian of the Two Sacred Mosques, was the largest of its kind. The expanded sanctuary is now around 328,000 sq m in area, to ensure more capacity for the growing numbers of pilgrims. Also, the Prophet’s Mosque in Medina has been redoubled several times in area and equipped with modern electronic facilities.

The list of achievements continues to include the fireproof tent project, which utilizes the most state-of-the-art technologies to serve pilgrims, as well as a cluster of hotels around the Two Sacred Mosques and everywhere in Mecca and Medina.

These are just examples of the great work done in Saudi Arabia, and we ask Allah to grant that country permanent prosperity and abundant blessings, to guide its leaders to good, and to reward them with the best.