[Excerpt from a conversation with Javed Ahmed Ghamidi]
The word ‘fatwa’ is used in two contexts: first, when a scholar expresses their opinion on a religious matter, and second, when a religious scholar issues a legal ruling concerning a specific incident. For some time now, our scholars have predominantly used the word in the second context. As a result, the use of the word in the sense of opinion or viewpoint has become almost obsolete. Consequently, fatwa is now understood to mean the issuance of a definitive ruling on a particular issue or incident by scholars. Scholars issue fatwas in this capacity, and the general public accepts them in this regard. In this situation, we perceive that several issues arise.
The first issue that arises is that the authority for legislation and administrative decisions related to religion and Sharia falls into the hands of those who are not legally authorized. In matters such as whether a divorce has occurred between a husband and wife, whether their marriage is still valid or annulled, or whether the moon for Ramadan or Eid has been sighted, these and many other matters that are entirely related to the judiciary and administration end up in the hands of unrelated individuals as a result of the issuance of fatwas by scholars.
The second issue that arises is that the concept of the supremacy of law is undermined, and tendencies towards lawlessness are strengthened among people. The reason for this is that law inherently demands enforcement. If it is deprived of enforcement, its status is reduced to merely an opinion or a viewpoint. A decree or law issued by an unauthorized individual lacks the enforcement power of the government. There is no fear of any punishment for violating it. Consequently, if a decree does not align with the preferences of the addressee, they often refuse to accept it. In this manner, the decree or law is rendered ineffective. In an environment like this, citizens tend to develop a disdain for the law, and as soon as they get the opportunity, they unabashedly violate it.
The third issue that arises is that if attempts are made to enforce decisions issued by unauthorized individuals, there is a severe risk of disorder and anarchy in the country. When efforts are made to implement legal decisions issued by unauthorized persons without governmental support, it practically announces that the source of law and authority has changed. For example, when a religious scholar issues a fatwa stating that it is the responsibility of Muslims to demolish cinemas and TV stations, or that jihad has become obligatory against a particular nation, or that a divorce given by one person is valid while another’s is not, or that a certain person or group has lost its Islamic identity, he is essentially issuing a legal verdict. In other words, he is announcing the formation of a separate state within the state. The result of this is nothing but chaos and anarchy. This is why in areas where the grip of the government is weak, such decisions are implemented, and the government remains helpless.
The fourth issue that arises is that different and contradictory religious edicts come to the forefront due to various religious sects concerning the same matter. It is a common occurrence in our daily lives that certain scholars of religion consider a particular group as infidels, while others regard them as Muslims. If a person utter the words of divorce thrice on one occasion, some scholars rule it as a single divorce, allowing for reconciliation, while others consider it as three divorces, rendering reconciliation invalid. This situation creates extreme difficulties for an ordinary person.
The fifth issue arises when rulers do not have a particular interest in religion and Shariah. In such a situation, they do not focus on legislation in the light of Shariah. They compromise with this method of law-making on the principle of ‘things are going on’. As a result, governmental institutions adopt a careless attitude toward necessary legislation, and laws remain deprived of their natural evolution.
The sixth issue that arises is the possibility of disrespect towards the prevailing law and the courts. When the courts deliver their verdict on a matter and the scholars deem it invalid and issue a contrary decision, it undermines the dignity of the courts. This means that a citizen has stood up to challenge the judiciary.
In the present era, a significant tragedy faced by the Muslim community is that its scholars are adamant about fulfilling responsibilities they are not obligated to, rather than their actual responsibilities. According to the Qur’an and Sunnah, the primary responsibility of scholars is to engage in dawah (calling to Islam), tableegh (preaching), warning and giving glad tidings, and education and research. Their role is not in politics but rather to inform politicians with guidance from the faith; their role is not governance but to strive for the rectification of rulers; their role is not jihad and combat but to teach about jihad and awaken the spirit of jihad. Similarly, their task is not legislation and issuing fatwas, but rather research and ijtihad (independent reasoning). In other words, they are to conduct research to understand the meaning of the Qur’anic text, determine the intent of the established Sunnah, and ascertain the purpose of the Prophet’s sayings. In matters where the Qur’an and Sunnah are silent, they should establish opinions based on independent reasoning through their intellect and insight. When the judiciary or parliament accepts any research or ijtihad of theirs, it will become law. Before this, its status will merely be that of an opinion, and thus it should be presented as such.
This means that no ruling will be made, no decision will be announced, no fatwa will be issued; rather, a student’s tone will be adopted, presenting one’s viewpoint purely based on knowledge and reasoning. It will not be said that a particular person is an infidel, but if necessary, it will be stated that a certain belief of a specific person is kufr. It will not be claimed that a certain person has exited the fold of Islam, but it will be stated that a particular viewpoint of a specific person does not fall within the boundaries of Islam. It will not be said that a person is a polytheist, but it will be specified that a certain idea or practice is shirk. It will not be asserted that the three divorces given at one time by a husband have taken effect; rather, it will be said that three divorces given at one time should be considered as taking effect.
Issuing judgments, pronouncing decisions, formulating laws, and issuing fatwas are, in truth, the work of the judiciary and the government. Any attempt by a religious scholar or any unauthorized individual to perform this task is a clear transgression. During the time of the Rightly Guided Caliphate, this principle was always observed.
Shah Waliullah writes in his book Izalat al-Khafa:
Until that time, sermons and fatwas were dependent on the opinion of the Caliph. Without the Caliph’s order, neither were sermons delivered nor fatwas issued. Later on, sermons began to be delivered and fatwas issued without the Caliph’s order, and the process of consultation with the council (Majlis-e-Shura) that previously existed in the matter of fatwas did not remain. (In those times) when a contentious issue arose, the matter was presented to the Caliph, who, after consulting with people of knowledge and piety, would establish an opinion, and that would become the collective opinion of all. After the martyrdom of Uthman (RA), every scholar began issuing fatwas independently, and in this way, differences arose among Muslims.
(Reference: Islami Riyasat Mein Fiqhi Ikhtilafat ka Hal, Maulana Amin Ahsan Islahi, pp. 32-33)