Fatwa in Europe and Muslim World

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Blackwell Publishing LtdOxford, UKMUWOMuslim World0027-4909 © 2006 Hartford SeminaryOctober 2006964

ORIGINAL ARTICLE

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Ifta[*3][002]

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The Shifting Moral

Universes of the IslamicTradition of Ift

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: ADiachronic Study of Four

Adab al-Fatw

a

Manuals

Alexandre Caeiro

ISIM

Leiden, The Netherlands

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he importance of Islamic non-binding opinions, or fatwas, for scholarlyresearch is now well-established. Perceiving the fatwa as a meetingpoint between legal theory and social practice — an understanding

which is shared by many contemporary muftis — historians, legal scholars,and anthropologists have dressed a rich catalogue of the functions of fatwasin Muslim Societies. Although this literature is too extensive to be reviewedhere, there appear to be four interrelated thematic levels: fatwas as legal tools;

as social instruments; as political discourses; and as doctrinal-reform devices. As technical tools, fatwas were part of the litigation process, issued at therequest of the q

adi

(judge) and impacting court cases; fatwas were alsocheaper and less conflictual alternatives to legal proceedings. They are thusnot mere reflections of legal practice, but distinct contributions to therelationship between law and society. Fatwas routinely contributed to thesocial stability of Muslim communities by “providing formal administrativeorganization and informal networks for running the affairs of society.”

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They provided a sense of order and identity, circumscribing, in the elegant

formulation of Skovgaard-Petersen, “the mental and moral universe of theirday, always balancing around the boundaries of what is conceivable,



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— or rejecting as bid

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(innovation) — new and

old (i.e., customary)social, economic and technological practices.

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As a form of knowledge centralto Muslim societies, fatwas naturally generated power and control, permeatingsocial relations at many levels.

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They articulated doctrinal and politicalstruggles between competing factions through the notorious “fatwa wars,”one opinion creating the space in which a counter-fatwa contested theformer’s legitimacy. Fatwas intervened variously in political processes.Their use for condemning heterodox Muslims as apostates, largelyresponsible for the negative connotations the term evokes today, arecontested practices that function in situations of social upheaval asformidable mechanisms of repression of specific groups, such as

intellectuals or women.In 1965, one of the greatest scholars of Islamic law famously argued that

the practice of fatwas was falling into “disuse” and becoming “obsolescent.”

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Unfortunately, the reasons for the contemporary vitality of the genre do notseem to have sustained much interest from scholars. Drawing on the existingscholarship, a number of primary sources, and fieldwork with muftis basedin Western Europe, this article is an attempt to make sense of the historicalpermanency of fatwas by locating them within a specific tradition. It

constitutes a preliminary exploration of the moral economy underlying thefatwa that seeks to introduce more anthropological concerns into a fieldlargely dominated by legal and Islamic studies.

The Practice of Ift

a}

In many recent accounts muftis are perceived as typical actors and theiractivity of ift

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(fatwa-giving) is depicted in a de-historicized manner, with littleconsideration given to the (shifting) moral universes in which they operate.

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In order to correct this misleading representation, I argue, one shouldconceptualize ift

a’

as an Islamic discursive tradition, which, in the wordsof anthropologist Talal Asad, consists of “discourses that seek to instructpractitioners regarding the correct form and purpose of a given practice that,precisely because it is established, has a history.”

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Asad borrows the conceptfrom moral philosopher Alasdair MacIntyre, for whom a tradition is “anhistorical extended, socially embodied argument” sustained by “the exercise. . . of the relevant virtues.”

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These discourses connect between temporalities;they are conceptually related to a past and a future through

a present. Ift

a’

is

central to an Islamic tradition conceived not only as a “cognitive framework,”but also as “a practical mode of living, ( . . . ) techniques for teaching body



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procedures, but also tools for creating the emotional dispositions necessary tothe formation of pious Muslim selves.

Although tensions inherent in the concept have yet to be fully theorized,

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tradition fundamentally shifts our attention from Weberian ideal-types ofreligious authority toward a study of modes of reasoning and their relationto embodied practices. It provides a link between forms of religiosity and thestructures that (re)produce authority, conceived here following Asad as, “acollaborative achievement between narrator and audience [where] the formercannot speak in total freedom: there are conceptual and institutionalconditions that must be attended to if discourses are to be persuasive.”

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The specific normative criteria standards — Asad’s “conceptual and

institutional conditions” — that define the correct performance of ift

a”

providea historically situated context

in which one can start to understand Muslimreligiosities and conceptions of authority. In my attempt to describe thesecriteria and the way they have shifted over time, I am particularly indebtedto Charles Hirschkind’s gripping account of the interplay between sermons,media practices, and state formation in modern Egypt.

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Adab Al-Fatwa Treatises

The institutional conditions that regulate the practice of ift

a’

are spelledout in minute detail in the adab al-fatwa literature, suggesting a control andreflexivity of the fatwa genre greater than that of the khu

†

ba

(sermon).

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This vigorous regulation is partly a counterpoint to the openness and permeablecharacter of the activity, which has always to some extent eluded politicalattempts at institutionalization and monopolization, and stands as a testimonyto its symbolic importance. Although the existing research is not silent onthis,

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the relatively minor scholarly attention devoted to the adab al-fatwa

seems related to the notion that, as an idealized account, the genre would havelittle to reveal about the history and dynamics of ift

a’

. Usually located in theu

su

l al-fiqh

(roots of Muslim law), this literature is nevertheless an appositeplace to search, in diachronic fashion, for developments in the representationof religious authority and agency. Although traditionally directed at the literateelite, it gives advice for all the stages of the futy

a

(consultation), suggesting theprocess is conceived of as a type of (admittedly asymmetrical) dialogue.

The composition of an adab al-fatwa treatise is usually presented by itsauthor as a mere reiteration of a well established, though perhaps neglected,

Islamic discipline. The need to write it suggests a (real or perceived) crisis ofthe muftiship, hinting at possible transformations within Muslim institutions



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The adab al-fatwa usually starts with a discussion of the social and religiousrelevance of fatwas, and often includes a section on the role of muftis at thetime of its composition. The genre can thus be said to be animated by a senseof contemporaneity .15

To describe some continuities and changes in ifta’, I draw initially onthree texts. The treatise of Abu ‘ Amr ‘Uthman Ibn al-Salah al-Shahrazuri (1181–1245), known as Ibn al-Salah, constitutes an exposition of the adabal-fatwa that I treat as exemplary of the pre-modern modes of the genre.16 Written in Damascus, like Ibn al-Salah’s text, but in the late Ottoman Empire,is my second source: the 1911 treatise of Jamal al-Din al-Qasimi (1866–1914),Al-fatw a f i -l isl a m . This work represents an early attempt to respond to the

challenges posed by modern conditions within the new temporality and ethosof the Salafiyya movement.17 My third text is Y usuf al-Qarada wi’s (b. 1926)Al-fatw a bayna al-in d ib a† wa l-tasayyub , published at the end of the 20 th century in three capitals of the Middle East,18 and reading as a reassertion ofthe role fatwas can, or perhaps should, play in an age when they are no longerself-evident. Despite the somewhat arbitrary nature of the selection, my aimhere is to start an exploration of the contextual reformulations involved in thecomposition of adab al-fatwa manuals — and I hope to show in what follows

how the three texts considered here fittingly serve this purpose.

Ibn al-2al ah al-Shahraz ur i Ibn al-Salah al-Shahrazuri’s work has been a central formulation of the

adab al-fatwa of the Shafi‘i school for many centuries. Presented by its late20th century Egyptian publisher as a founding text,19 it provides the core of Al-Nawawi’s (1233–1277) later and perhaps more famous discussion of thetopic.20 Originally from Iraq, Ibn al-Salah studied in the Khurasan before

settling in Damascus, where he became a respected scholar with numerousstudents. Renowned for his fatwas and knowledge of hadith, his books arereported to have been “highly valued.”21 Ibn al-Salah’s text is conventionallydivided in three main sections: the shur u t al-muft i section sets out thequalifications for practitioners; the adab al-fatw a is a discourse on the verytechnology of fatwas; and the adab al-mustaft i instructs petitioners on theadequate manners and procedures. In medieval Damascus, manuals were written in order to be performed : the production of texts constituted a formof ritual practice in which students memorized books for the sake of both

knowledge and baraka.22 Ibn al-Salah’s literary style reflects such functions inways that modern authors do not.



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practitioners — “no real mujtahids exist today” — and in an effort to sustainthe social relevance of ifta’. Abu al-Husayn al-Basri (d. 1044) argued thatallowing a muqallid (follower) to issue fatwas would logically (and dangerously)amount to permitting laymen to act as muftis. The insistence on ijtih a d wasthus implicated in a wider attempt at regulating religious authority and limitingifta’ to a restricted body of specialists. If the conditions required for themuftiship were eased in the following centuries, it was at least partly in orderto prevent people unable to find a mufti fulfilling all the required conditionsfrom, as one scholar put it, “indulg[ing] themselves in their own pleasures.”24

Ibn al-Salah represented an important link in this chain of reform, assertingthe legitimacy of muftis below the rank of mujtahid.25 If he discusses in

his treatise the formal criteria for the muftiship, distinguishing betweenindependent and school-bound muftis, Ibn al-Salah is also careful to point outthat knowledge in the Islamic tradition of ifta’ is socially-embodied: a corruptscholar is thus not entitled to issue fatwas.26 In addition to the mastery ofthe relevant disciplines (including fiqh, hadith, tafsir, Arabic, ‘urf, arithmetic),piety, both apparent and otherwise, is an essential criterion. The mustaft i (questioner) must ideally base the choice of mufti according to the tworequirements of formal scientific qualifications and piety.27

Muslim writers varied greatly in the weight given to each set of qualities.Some authors provided lengthy enumerations of the different moral featuresrequired from the mufti, including intelligence, humility, serenity, softness ofspeech, emotional control, magnanimity, staidness, self-reliance, cheerfulness,manliness, pleasant face, and a sense of responsibility.28 Most writers weremore succinct, sometimes subduing moral qualities under the generalcondition of “ ad a la (justice).

The etiquette of the fatwa, as revealed by Ibn al-Salah, categorically

assumes the written form to be the norm for issuing fatwas. The rulesfurthermore imply a context where the social encounter between the mufti andthe mustafti echoes a wider distinction between the literate and the illiterateclasses.29 The difference in symbolic capital underlies a number ofspecifications, which are maintained in Qasimi’s 1911 treatise but virtuallydisappear in Qarada wi’s text: the mufti is told to correct spelling mistakes onthe sheet of paper (ruq “ a ) submitted by the petitioner, to be attentive to thedialectal meanings of words, to make sure the answer was properlyunderstood. Ibn al-Salah carefully explains that the mustafti must not be seen

as openly contesting the authority of the mufti, even if he is compelled to askfor the reasoning underlying the fatwa.30 The mufti should not however



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textual proof.31 Contextual considerations permeate Ibn al-Salah’s discussion:the mufti for example should no longer sign the fatwa with a disclaimer againsterror lest it further confuse the petitioner ‘in this already troubled world’.32

Ibn al-Salah’s account raises a number of questions regarding the usesof fatwas in pre-modern Muslim societies. Comprehensive explanation ofthe exact location where the first mufti should write his answer reveals aseemingly common practice of asking different muftis for advice — a featurethat fits rather well with modern ideas of religious individualization and thatobviously created a number of pitfalls for the muftis consulted.33 There is alsoa tacit understanding, and even legitimacy, that the petitioner’s social practicesmay differ from the fiqh rules — for example, Ibn al-Salah advises the mufti

not to write down the answer on the piece of paper submitted by thefatwa-seeker if he thinks his answer will be contrary to the latter’s objectives.34 Underlying the claim that this would spare the petitioner the effort of writingthe question on another piece of paper is more than an economic concern: acertain idea of tolerance and individual responsibility is clearly at play here.35 It suggests the use of fatwas for purposes other than transmitting formal rulesand indicates that private fatwas may have differed significantly from publicexpressions of Islamic normativity. The downside of this private-public tension

of fatwas is the constant threat of misuse. The mufti is urged to be wary ofill-intentioned petitioners bringing leading questions to his attention. He is thus well advised to look very carefully at the piece of paper, cross any suspiciouslyempty spaces, and write his answer on a single sheet.36

In Ibn al-Salah’s discussion, the aptitude to issue fatwas (ahlan li-l-fatw a )is assumed to be generally known and non-partisan. This assumption isperhaps most vividly demonstrated in the situation where the mustaft i facesconflicting advice. Ibn al-Salah starts by enumerating the answers given

in his juristic tradition: the petitioner could choose the strictest fatwa, orchoose the easiest, or ascertain the relative knowledge and piety of the twomuftis, or ask a third, or select the opinion he or she wishes. Of these fivepossibilities, Ibn al-Salah prefers the third.37 Later jurists such as al-Nawawi will disagree with him on this point, precisely because one should notexpect a commoner to be capable of evaluating the respective competencesof Muslim scholars.38

Jam a l al-D i n al-Qa sim i At the heart of the discipline of ifta’ lies a tension between two

competing forces: the impetus for self-regulation and the drive toward state




tendencies and their respective limits, which seem predicated upon two kindsof legitimacy: the social legitimacy given by the community ensures thatauthentic scholars continue to issue fatwas even when they have fallen out ofgrace with the political regimes, but at the same time it offers little regulatorycontrol over non-qualified muftis, allowing them to lead the gullible massesastray, a measure often seen as necessitating correction in the form of politicalintervention. The political legitimacy of the muftiship, however, is profoundlyambivalent, as it serves to comfort the authority of its holder as well as todiscredit it. The Islamic tradition is thus vulnerable to irruptions of charisma, which must have been common enough to sustain a continuing discussion.The tradition’s integrity seemingly depends upon the ability to contain the

appearance of charismatic figures from outside its normative standards. In thissense, the function of the adab al-fatwa genre can be understood as an attemptto control such irruptions.

The Damascene reformist Jamal al-Din al-Qasimi was a scholar greatlyconcerned with the question of the institutionalization of ifta’. Born into anewly established family of ‘ulama, Jamal al-Din followed a conventionaleducation for children of Muslim scholars. He studied and received ij a z a t (teaching licenses) in various Islamic disciplines, joining the Naqshbandi tariqa

for a brief period. He eventually broke with family tradition to become one ofthe leading exponents of the Salafiyya in Damascus during his life, forging tiesof friendship with Rashid Rida (1865–1935) in Egypt and publishing articlesand fatwas in the leading Reformist journal al-Man a r . Qasimi was critical ofthe religious and political establishment and its failure to reverse the fortunesof the ummah. His critique was socially-situated: as a member of middle ‘ulama with modest revenues and only local posts, Qasimi had at least two reasonsto be discontent with the official and long-established ‘ulama: the latter

monopolized the important religious positions, barring him and others fromthe wealth and prestige associated with such offices. Furthermore, given theirpre-eminence, these religious figures could be held responsible for the loss of‘ulama status and other contemporary shortcomings.39 But Qasimi’s critique was also religiously motivated: his aim was to move the sacred texts from themargins of society where they were used for ritual purposes toward the centerof social and political life. His interiorization of the idea of progress, which heincorporates into his description of the shari‘a,40 is typical. Qasimi’s oppositionto traditional ‘ulama is also reflected in his interest in the social sciences,

which he does not fail to praise in his treatise. In his introduction to Al-fatw a

fi-l-islam, Qasimi blames the scientific policies of the Muslim states for the



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the Ottoman bureaucratization of ifta’.41 The latter was a particularlyhierarchical system of religious authority emanating from the Sheikhulislam inIstanbul, where the fatwa provided the binding interpretation of Islamic law,but which Qasimi seemingly perceived as failing to uphold the normativestandards of the discipline. The impact of this bureaucratization in theprovinces seems to have been mitigated. While the qadi was sent from Istanbuland barely spoke the local language, the muftiship fell to local notables andrespected elderly figures of the community, but whose connection with actualifta’ seems to have been tenuous — another reason perhaps for Qasimi to set therecord straight.42 Perhaps the most pervasive impact of this bureaucratization inthe Late Ottoman Empire concerns the mufti’s “attachment to a single authority

or book.” It is precisely in the respective places accorded to madhhab andijtihad that the most obvious difference between Qasimi and Ibn al-Salah resides: while the latter was a member of the Shafi‘i school, drawing on its methodologiesand authorities even to evince change,43 Qasimi is a Salafi reformist whopreaches the use of independent reasoning and tries to break with the ‘ulama’spropensity to “exaggerate” the contemporary state of decadence. In typicalreformist fashion, Qasimi makes the important statement that “ijtihad hasactually never been so easy, now that all the relevant books are available.”44

The main body of the text is a compilation of relevant passages fromdifferent authorities, spanning many centuries and including prominent juristsfrom the four Sunni schools. Their opinions are not always consistent,sometimes even contradictory, but al-Qasimi, as was common among the‘ulama, often does not seek to harmonize them. For Jamal al-Din al-Qasimi,the authority of the mufti is well established. He acts in the place of theProphet and speaks in God’s name.45 Looming behind this idealized pictureof the mufti is the threat posed by non-qualified arrivistes issuing fatwas —

usurpers of the title, using false credentials, often supported by external forces,sometimes commanding large popular followings.46 When the authenticscholar is asked to add his opinion to a question already answered by anillegitimate mufti, he should cross the previous answer. Nevertheless, if he wants to avoid a confrontation with the false mufti he may refrain from doingit, unless the usurper commands such a following that unmasking himbecomes more important than preventing the fitna that would arise from aconfrontation.47 Petitioners, on the other hand, have diverse motivations. Theirintention (niyya ) is crucial in determining the response of the mufti. Instead

of providing derogations, the latter should inquire about the petitioner’s moralstate in order to assess the required religious remedy: this, Qasimi argues in a




The clearest sign that the moral universe in which Qasimi was writingdiffered from that of the pre-modern authors he extensively quotes is anunusual passage on the verbal abuse thrown at Islamic scholars.49 In a contextof political and religious effervescence, Qasimi enumerates — not withoutirony — the insults that must have been common enough to elicit a responsein print from the Salafi scholar. A mufti is accused of acting as a “mujtahid” ifhe attempts to perform his duty by searching for the textual proofs himself; heis charged with being a “naturalist / scientist” († ab i “i ) should he show aninterest in science (“ ul u m al- h ikma ) and mathematics; a “socialist” when thescholar calls on the rich to spend — for the Grace of God — to help themiserable; and a “Wahhabi” when he condemns saint-worshipping practices

and outlines the different types of idolatry occurring in visits to holy shrines.50

Y usuf al-Qara da w i Fatwas provided both religious guidance and legal expertise well into the

20th century, after which time they gradually lost juridical importance as thelegal systems of Muslim countries were progressively codified and secularized.Since the two offices are relational, the transformation of the qadi’s role hashad a distinctive impact on its complementary function of the mufti, shifting

the burden of standing for Islam to the latter. Abdulkader Tayob has arguedthat the ‘ulama of Al-Azhar compensated for the loss of power to secularinstitutions by becoming society’s “moral guardians,” embracing an idea ofmorality that was both “pervasive and limited” and investing symbolic issues with “an excessive religiosity.”51 Generalizing his argument, one can maintainthat fatwas found a place to flourish in this new configuration, becoming aprivileged instrument for carving out new spaces and roles for the ‘ulama and assuring their continuing relevance in Muslim societies.52 Central to these

transformations were also the powers and ambitions of the modern state, which vested fatwas with a new kind of authority; and the publicity madepossible by the development of mass literacy.53

If the shari‘a constituted a distinctive discursive tradition, the assumptionof incommensurability , a concept derived from the work of MacIntyre,54 seemsto collapse as new institutional spaces emerge in the Muslim world and createspecific pressures on fatwas. These transformations are not usually related todevelopments in the adab al-fatwa literature but — so I would like to argue —can also be traced there. Y usuf al-Qarada wi, arguably the most influential

contemporary Islamic scholar, is exemplary in this respect.55 Trained in thetraditional Al-Azhar, he briefly joined the Muslim Brotherhood before opting



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postcolonial challenges: the secularization of the Muslim world, theauthoritarianism of Arab regimes, and the rise of Islamist movements. Posingas the theoretician of the Islamic Awakening, steering its course away fromboth “extremism” and “neglect,”56 Qarada wi has tried to accomplish a synthesisbetween political Islam and the religious establishment, incorporating the ideaof an Islamic state into the discourse of the shari‘a secured by the ‘ulama alone.If Muslim scholars often wrote with a sense of contemporaneity, as I havesuggested, Qarada wi has made this his personal trademark: his collections ofrulings, already published in three volumes, are entitled Fat a w a Mu “as ira (Contemporary Fatwas), marketing himself as a modern scholar whiledisqualifying the work of his (conservative) opponents as anachronistic.57

Al-fatw a bayna al-in d ib a† wa-l-tasayyub is almost the natural outcome ofQarada wi’s lifelong thought and practice as “the global mufti” and should beplaced in Qarada wi’s broader literary production on the issue of authorityand ijtihad. Conceived as an introduction to his collected fatwas, it wassubsequently expanded into book form in order to reach a wider readership.58 Whereas Ibn al-Salah was engaging the methodology of the Shafi‘i school, andQasimi was trying to convince fellow ‘ulama of the importance of ijtihad,Qarada wi addresses not only the religious elite but the literate masses of the

Arab and Islamic worlds. The book is, as Qarada wi acknowledges in theintroduction, a response to the fragmentation of religious authority during theIslamic Awakening. Specifically targeted by the Egyptian shaykh are Islamist youth affecting to be muftis without proper credentials.59 The book thusparticipates in his struggle to reassert the monopoly of interpretation of the‘ulama and to re-establish their centrality in the Islamic Revival. It testifiesto the perceived importance of regulating ifta’ in contemporary Egypt (andbeyond) — an importance that seems justified in light of current developments

in the religious landscape, including the co-optation of the‘ulama by theEgyptian state, the rise of terrorist Islamist groups, etc.60 The book should also

be seen in the context of the Islamic Revival, which has given rise to anenthusiastic market for Islamic media and literature. The publication of sucha treatise is nevertheless somewhat paradoxical in that by disconnecting thediscipline from the institutions of learning that traditionally sustain(ed) it, itends up disseminating a ready-to-use manual for an expanded readership of would-be muftis not formally trained in the classical Islamic disciplines, furthercontributing to the fragmentation of religious authority that the author sought

to counter in the first place.Qaradawi’s book is divided into four chapters: “Introduction”; “The




made sense in societies dominated by oral traditions have symptomaticallygiven way to a discussion of the pitfalls involved in addressing a diversifiedaudience of “listeners” and “viewers.” Instead of detailed hierarchical advice,Qarada wi exhorts petitioners to search for and acquire knowledge: a fittingillustration of the Salafiyya’s emphasis on individual conscience.61

Pre-modern fatwas were sometimes long if the question was of specialsocietal concern or controversial among the ‘ulama. Short texts, however,represented the norm, prompting Max Weber to call fatwas “oracles.”62 Thesystematic inclusion of the reasoning and objective of the fatwa seems linkedto developments in mass literacy and concurs with the rise of the reformistmovement. Although Qarada wi traces this practice to Rashid Rida, and further

to Ibn al-Qayyim, he clearly inscribes it in a deliberate attempt to tune into the nature of the times. Thus, in his exposition of a “contemporary fatwamethodology,” Qarada wi stresses that a mufti must speak in the “language ofhis times”:

By the language of the times I do not mean merely the words employedby a group in order to achieve its objectives. Language is more broadlyrelated to the characteristics of thought and communication. Ourcontemporary language demands that the mufti pay attention to a

number of considerations:The mufti must be rational and employ logic, rather than rhetorical

exaggerations, in order to capture people’s attentions . . . The muftishould avoid speaking in sophisticated jargon, for among the viewersand listeners are people of highly differentiated intellect and culture:alongside the great professor lies the small student, the businessman andthe worker, all of which must be able to understand the answer. Tomake oneself understood by people of different backgrounds is not aneasy task, but it is one which I have always strived for . . . The mufti

must accompany his fatwa by its finality (hikma) and evidence (‘illa),linking it to the general philosophy of Islam . . . This is because of tworeasons: it is the way of the Qur’an and Sunna . . . and secondly, it is(necessary) because the sceptics and those who encourage scepticismare very numerous today. Most people no longer accept the judgement

without knowing the source and finality, especially if it is not related tothe field of “ ib a d a t .63

This passage indicates the mufti’s responsiveness to the social conditionsof his society. Facing a different kind of moral subject, Qarada wi’s answer to

the postcolonial predicament seems to be to turn the mufti into an ideologue,embracing a conception of the fatwa that is broader than that conceived by



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is simultaneously “a mufti, teacher, advisor, doctor, and guide” — a move which often requires extending his textual arguments, “so that the ignorantmay learn, the neglectful may be informed, the doubter may gain confidence,the rejecter may be convinced, the arrogant may be defeated, the apprenticescholar may increase his knowledge, and the believer his faith.”65 Modern ifta’ thus incorporates the traditional functions of tarbiyya , da “ wa , and irsh a d 66 andpresupposes a public sphere. Geared to mass consumption, fatwas no longerseem to be a form of expert religious guidance given to a specific individual,but rather a tool for the dissemination of a specific missionary zeal — and, inthe case of Qarada wi, the spread of tays i r : a minimalist conception of Islamicnormativity based on pragmatism.67 Based on these insights, one could suggest

that modern transformations have induced not so much a crisis of authority asa shift in the authority arrangements. The classical mufti, invested with theinstitutional authority of the madhhab, issued straight-to-the-point fatwasto the mustafti, who as an uneducated individual had a moral obligationto comply with them. Under the new regime, the mufti issues long and well-argued fatwas in order to persuade a wider public, which is then free toadopt or reject the advice. The change then seems to be from the institutionalauthority of the affiliated mufti to the textual authority of the independent

scholar’s arguments. As a consequence of these discursive shifts, theboundaries between fatwas and other Islamic discourses have becomeincreasingly blurred, upsetting perhaps the normative standards developedin the adab al-fatwa literature.

Ift a} in the West The contemporary presence of Muslims in Western Europe provides us

with an opportunity to explore how specific Islamic traditions fare when they

are displaced and re-settled in new contexts. Theory predicts that migrationand an encounter with a rival tradition — especially if that tradition ishegemonic, such as Western liberalism — may lead to renewed internalargument, even to an “epistemological crisis.”68 How does migration thendisplace the social knowledges that ground Islamic traditions? How have theinstitutions of European nation-states, intergenerational change, and genderdynamics, among other things, impacted upon ifta’? If understandings of thefatwa have shown levels of regional variation across Muslim societies,69 to what extent can one speak of an emerging European perception of the

genre? While these questions cannot be fully answered here, a number oftransformations and range of Muslim responses will be suggested.




myth of separation between religion and politics70 — would suggest a decreasein the (public) relevance of such technologies. Excluded from the legalsystems and from the self-definition of European societies, fatwas would tendto be reduced to the private sphere of Muslim transactions.71 However, theincreasing tendency from the 1980s onward to view “immigrants” as “Muslims”and to attribute integration failures to religious causes has made fatwassignificantly more attractive — not so much in the fight against potentialterrorist groups, but more generally to ensure that European Muslimsassimilate smoothly. Many European states have thus placed the structures ofMuslim religious authority at the center of their incorporation policies and various initiatives have explicitly considered centralizing (in order to better

control?) ifta’, even if none have so far really succeeded.72

These discursive and institutional developments translate a certainambivalence towards the genre of fatwas. While the word continues to be usedinterchangeably with a death threat, the legalistic character of such texts seemsto liberal minds both obscure and undemocratic. At the same time, however,the recurrent calls for an Islamic aggiornamento in Europe prefigure theuse of fatwas in their traditional function of adapting Islamic norms to socialrealities. This configuration has created specific constraints of publicity ,

leading to contrasted Muslim responses. Some Muslim intellectuals are timidlystarting to contest the ‘ulama’s monopoly by issuing (liberal) fatwas of theirown — a move requiring and invariably attracting a good deal of publicity inthe mainstream media. Ziauddin Sardar’s “Fatwa on the fanatics,” published inThe Observer in the wake of 9/11, condemned terrorism and spoke of an Islam“beset with the fatwa culture.”73 The potential negative impact of fatwas onMuslim religiosity has been the object of critiques voiced across the Muslimspectrum. French youth calling far away shaykhs on the telephone to request

fatwas have become the subjects of some sarcastic comments by a leadingMuslim writer, who claims the youths failed to follow their own consciencesinstead.74 Similarly, muftis in the Muslim world are rebuked for offeringreligious advice too easily to Muslims living in different, Western contexts.75 The late Zaki Badawi (1922–2006), chairman of the Muslim Law (Shariah)Council in the UK, often presented as the “unofficial mufti of Britain,” criticized“the fatwa-happy sections of the [British Muslim] community” in the media.76 Yet clearly fatwas were important to him: as one particularly laudatory obituaryran, Badawi was known as “a high calibre well-rounded scholar who never

allowed circumstances to colour his edicts.”77 In France, when the HautConseil des musulmans de France issued a fatwa in 1996 condemning the



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reacted to the ban of the Muslim headscarf from public schools in 2004 byissuing a press statement that “follows the method of a fatwa” but is not calledso “in regard to the sensitivities of the French public sphere.”79 The beginningof a scholarly intra-Muslim debate on the uses, tendencies, and prospectsof fatwas in France testifies to the increasing level of self-reflexivity amongMuslim practitioners.80 This wide range of attitudes towards fatwas raisesdoubts about the extent to which the genre can still be said to circumscribethe moral universes of Muslim communities.

Tareq Oubrou (b. 1959), the French-Moroccan imam of Bordeaux,has devised a theory of Islamic normativity adapted to French laïcité, the“shari‘a de minorité,” first printed in 1998 and expanded in two subsequent

essays,81 which he has described as a contribution to the training of muftis —self-declared or “implicit.” Since his is a construct predicated on the use offatwas, it will be considered here as my fourth case-study of the adab al-fatwagenre.82

Tareq OubrouBorn in Agadir in a not particularly religious family, Oubrou discovered

“the intensity of faith” at 18 years of age and came to France soon afterward

to study medicine and biology. The charismatic young man started officiatingas an imam at an early age, becoming full-time imam of Bordeaux’s El-HudaMosque in 1991. Increasingly solicited by journalists, social scientistsand politicians, Oubrou regularly delivers the Friday sermon, organizesimam-training seminars, and engages in interfaith dialogue. Often presentedas the leading thinker of the Union des organisations islamiques de France, animportant player in French Islam, Oubrou’s lack of formal religious training,iconoclast writings, and use of the French language nevertheless make him an

unorthodox figure among the UOIF’s religious leadership.

83

Oubrou clearly engages both the Islamic fiqh tradition and widernon-Muslim debate in his work. If his emphasis on the dialectics of text andcontext belongs to a history and tension of the Reformist movement, Oubroualso speaks directly to French societal debates and fears, often employing thecategories of social scientists researching Islam in France84. The starting pointof his “shari‘a de minorité” is the same as most French observers: since Islamis not meaningful without the norms that sustain belief, how should Muslimsbe “integrated” in France? Is Islam compatible with French laïcité? Oubrou’s

answer seems to be a conditional yes: as long as Islamic normativity isrelativized. The “shari‘a de minorité” could thus also be called “shari‘a relative,”




Given the wide French expectation of an Islamic aggiornamento , it isinteresting to note that “reform” is a word virtually absent from Oubrou’s writings. As a mufti, he seems to reflect within the political and sociologicallimits imposed by his tradition: he is concerned with adapting Islam to theFrench context as much as with maintaining the boundaries of legitimatereligious authority — a problem he has recognized as “intractable,” partlyperhaps because he no longer appeals to the state for supervising Islamicdiscourses.

It is the disconnection of Islam from the state along with the minoritycondition that places the fatwa at the center of Muslim practice as “the onlyuseful mechanism in dealing with Islamic normativity in Europe.” If Islam

and the Republic are sometimes thought of as two abstract universals incompetition, Oubrou, it would seem, sets about constructing the borders of adistinctive French Islam.86 The shari‘a de minorité is part of the larger projectof rooting Islam in the nation-state: fatwas must tie the individual to his(French) culture, however that is defined, rather than act as a “homogenizingfactor” under global conditions.

In principle, for Oubrou, the fatwa is auto-biodégradable , in that “itcontains in its very formulation the ingredients and time-space criteria of its

validity and life-length.”87

This normative mobility is rendered necessary by thefragility of Muslim religiosities. Oubrou acknowledges a movement withinMuslim youth raised in France from living Islam (as their parents supposedlydid) to constructing it. This intergenerational shift often leads to a self-reflexiveattempt to differentiate between cultural and religious forms which, despite itsroots in the Reformist critique of ‘urf, is exacerbated in Europe by a numberof factors, including the heterogeneity of Muslim populations and theencounter with the hegemonic Western traditions. Fatwas are sustained by

these “politics of authenticity.”

88

The shari‘a de minorité constitutes an attemptby Oubrou to respond to the fluidity of youth identities.

The fatwa adapts Islamic normativity to the legal, social, and culturalfoundations of French society. In contrast to some earlier descriptions ofthe muftiship that emphasized retreat from the mundane world, according toOubrou the mufti needs to be geographically and sociologically implicated inhis environment in order to mobilize the appropriate “normative subjectivity” — an idea that resonates with Tariq Ramadan’s notion of a “fatwa psychology,” which Ramadan opposes, to its “spirit” (i.e., its methodology), in that it can

only be acquired from experiencing life within a given society.89 Among theadditional criteria a mufti must fulfil beyond Islamic scholarship, Oubrou cites



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Muftis have always taken into consideration the media impact of their work, choosing between targeting a specific individual and aiming at widerconsumption. Oubrou partly echoes this distinction between private/individualand public/collective fatwas, but goes a step further, establishing an originaltypology of Muslim normative opinions. Oubrian fatwas are of two types:“positive by articulation” or “negative by omission.” Positive fatwas may bedirected at a community, in which case they relate to an average level ofreligiosity — a community that Oubrou defines nationally: French Muslims,and the French [Muslim] national average religious practice (preferably,according to Oubrou, based on a scientific survey!). Or, alternatively, positivefatwas may be “situational,” enunciating a norm that takes into consideration

not only legal but also social constraints, and is individual in scope. Oubrouelaborates this distinction between legal and social constraints in relation tothe problems caused by the visibility of Islam when discussing the building ofminarets (legally allowed but sometimes socially rejected). Writing before theadoption of the law banning religious signs from public schools in March 2004, hemust also have had in mind the question of Muslim headscarves in public schools.

Negative fatwas, on the other hand, should be seen as Oubrou’s attemptto counter the proliferation of conflicting fatwas in the European market.

Driven by fierce competition between domestic and transnational producersand enabled by mass media, this market has created the conditions for productdiversification, with muftis marketing their — and each other’s — work as“authentic,” “moderate,” “easy,” “European.” Tareq Oubrou is worried theresulting fatwa wars may lead to a normative saturation and erode all formsof religious authority, including “sincere and benign ones.” Negative fatwasseek to break the spiral by refusing to materialize under the pressure ofdemand, or by articulating “anti-fatwas,” suspending norms in order to

avoid burdening a community of believers already made fragile by itssocio-economic condition. This is Oubrou’s final degree of relativity of shari‘a.Fatwas are thus Oubrou’s theoretical tools for the elaboration of a

minimalist orthodoxy (a “spiritual minimum wage,” as Oubrou puts it) thatis sensitive to “the moral state of the local Muslim communities.” Hence, toa non-practicing Muslim, Oubrou recommends one prayer a day, while to a youngster who spends the day in worship at the mosque, Oubrou adviseshe find a job. The “shari‘a de minorité” allows the imam of Bordeaux toprovide an Islamic cover for new and unorthodox Muslim practices, forging

a “legal Islam” adapted to the current situation. This reordering of knowledge inevitably constructs a relation of normative dominance: here, as in other




distrust of the personalized — and therefore unmonitored and uncontrolled —religious practices of the Muslim individual.

Conclusion Social scientists working on Muslim societies and communities have

often refrained from engaging with Islamic texts. Positioning themselvesagainst the logo-centrism of Islamic studies, they have searched instead forthe ways in which Muslims practice, live and understand religion in diversecontexts. Even when providing sophisticated accounts of social structureand legal dynamics in Muslim societies, social scientists thus often seem tohave interiorized an idea of Islamic doctrine as rigid and unchangeable. The

study of Muslims in Europe, while increasingly varied and multidisciplinary,has not yet further encouraged contextual studies of the sites of productionof Islamic knowledge. In the rare instances when social scientists there havepaid attention to the spaces of Muslim normative reference and debate, theyhave converged with Islamicists in providing valuable but somewhatessentializing accounts of these.90

This article has suggested, on the contrary, that doctrinal texts arearticulated in and responsive to particular social conditions. The manuals of

adab al-fatwa, as idealized accounts of a crucial practice in Muslim societies,are not mere reflections of the timeless concerns of religious interpreters, butrather, studied diachronically, speak of transformations in conceptualizationsof religious authority, subjectivity, and agency. They inform us of the shiftingnormative criteria that have defined the correct performance of a specificreligious act and, in so doing, tell a history of changes in the moral economyof Muslim societies. If the study of Ibn al-Salah, Jamal al-Din al-Qasimi and Y usuf al-Qarada wi, taken as three paradigmatic cases, highlights evolutions in

the moral universes that sustain fatwas, a comparison between the latter andTareq Oubrou, two contemporaries, reveals some of the tensions arising fromdifferent conceptions of Islamic technologies, media practices, and nation-stateprojects. Qarada wi is a global mufti who disseminates a disembodied tays i r toaudiences worldwide from his adopted base in Qatar. Although Oubrou hasfound inspiration in his work, he is in many ways Qarada wi’s opposite: a localscholar invested in a very specific national process of integration of a minorityreligious community. Uncomfortable with the media practices associated withfatwas, Oubrou seeks to recuperate a tradition of ifta’ that is sensitive to the

contingent moral state of the petitioner and is geared towards the developmentof contextual Islamic virtues.



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quite varied, not to mention the responses fatwas elicit in petitioners. Clearlymuftis have not always followed all the instructions scrupulously: theyhave not consistently been beautiful, moved slowly, read the question aloud,paused, meditated, and trembled in fear of God before offering an answer.Likewise, petitioners have not been invariably acquiescent and polite towardsthe scholar, as al-Qasimi (and others) instructed them, otherwise he wouldnot have commented on the abuse commonly thrown at him. Nevertheless,these bodily dispositions and states of mind corresponded to the standardsof excellence that were transmitted and studied by generations of Muslimscholars and thus defined the discipline.

The concept of discursive tradition, as formulated by Talal Asad,

has been useful in directing our attention toward the levels of subjectivityand reflexivity that are inherent in Islamic practices. It allowed us to focuson the impetus toward self-reform inherent in traditional modes ofreasoning without neglecting their translation into bodily practices. Areading of the adab al-fatwa manuals suggests that fatwas provide morethan information on religious and legal matters. Ibn al-Salah’s discussion oforal versus written advice hints at the use of fatwas for purposes other thantransmitting formal rules. Qarada wi’s fatwa methodology is inseparable

from his taysir , which is less a hermeneutical tool than an assessment ofthe contemporary requirements for the formation of pious Muslim selves.Oubrou’s “negative fatwas” are theoretical constructs that epitomize his ownmisgivings towards the production of fatwas: circulated via the mass media,fatwas have seemingly become “badges of piety”92 rather than tools for itscultivation .

A study of the shifting moral universes of ifta’ is, to be sure, an exercisethat deserves to be undertaken with greater depth and more systematic

contextualization than I have been able to provide here. The adab al-fatwamanuals require deeper scrutiny and need to be crossed with other sources tofully reveal their intertextuality. The main aim of this article has been to openthis field of research to the sensibilities of social scientists. The questions itraises about reflexivity, agency, and authority in Islamic traditions are topicalissues; if the article succeeds in stimulating and re-directing further interest, it will have fulfilled its purpose.

AcknowledgementsI wish to thank Elena Arigita and Frank Peter for their sustained critical

engagement with this piece and, more generally, my research. I am also




Endnotes

1. Ahmad Dallal, “FATW A: Modern Usage,” in The Oxford Encyclopedia of the

Modern Islamic World (Oxford: OUP, 1995), vol. 2, 14.2. Jakob Skovgaard-Petersen, Defining Islam for the Egyptian State — Muftis and

Fatwas of D a r al Ift a” (Leiden: Brill, 1997), 13.3. Baber Johansen, Contingency in a Sacred Law (Leiden: Brill, 1999); Wael Hallaq,

“From Fatw a s to Fur u “ : Growth and Change in Islamic Substantive Law”, Islamic Law and

Society 1/1 (1994).4. Brinkley Messick, The Calligraphic State (Berkeley: University of California Press,

1993).5. Emile Tyan, “Fatwa”, EI 2 .6. This is arguably true even of many contributions to the seminal volume edited by

Masud, Messick and Powers, Islamic Legal Interpretation (Leiden: Brill, 1996), starting pointobligé for any study of fatwas today.

7. Talal Asad, The Idea of an Anthropology of Islam (Center for Contemporary ArabStudies — Georgetown University: March 1986), 7.

8. Alasdair MacIntyre, After Virtue — A Study of Moral Virtue (Notre Dame, Indiana:University of Notre Dame Press, 1981), 207.

9. Asad, “Reading a modern Classic: W. C. Smith’s ‘The Meaning and End ofReligion’”, in Religion and Media , eds. Hent de Vries and Samuel Weber (Stanford: StanfordUniversity Press, 2001), 141.

10. In contrast to MacIntyre’s use of the term, an Islamic discursive tradition

presupposes, for Asad, a concept of religious orthodoxy . This is a relationship of power which lies in tension with the tradition’s impetus to self-reform, an antagonism traceable tothe conceptual opposition between MacIntyre’s notion of tradition and Foucault’s genealogy — see, on this point, David Scott, “The Tragic Sensibility of Talal Asad”, in The Powers of

the Secular Modern , eds. Scott and Hirschkind (Stanford: Stanford University Press, 2006),134–153. A different critique of Asad is articulated in C. C. Brittain, “The Secular as a ‘Tragic’Category: On Talal Asad, Religion and Representation”, Method & Theory in the Study of

Religion 17 (2005): 149–165. For stimulating appropriation of the concept of tradition to thestudy of Europe’s Muslims, see Schirin Amir-Moazami and Armando Salvatore, “Gender andthe Reform of Tradition across Muslim Majority Societies and European Diasporas”, inMuslim Networks, Transnational Communities and New Media , eds. Jørgen Nielsen andStefano Allievi (Leiden, Brill, 2003), 52–77; and Armando Salvatore, “Making Public Space:Opportunities and Limits of Collective Action Among Muslims in Europe,” Journal of Ethnic

and Migration Studies 30/5 (2004): 1013–1031.11. Asad, Genealogies of Religion (Baltimore: The John Hopkins University Press,

1993), 210.12. Charles Hirschkind, “Hearing Modernity: Egypt, Islam, and the Pious Ear.” in

Hearing Cultures: Sound, Listening, and Modernity , ed. Veit Erlmann (New York:Berg Publishers, 2004), 191–216; “The Ethics of Listening: Cassette-Sermon Audition inContemporary Egypt”, American Ethnologist 28/2001: 623–649.

13. Adab al-fatwa is my generic term for this particular genre, including the conditions

for the muftiship and the etiquette for petitioners. The similarities to other adab genressuggests that the opposition between literary adab and religious “ ilm is not as pronounced



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in Moral Conduct and Authority: The Place of Adab in South Asian Islam , ed. Barbara D.Metcalf (Berkeley: University of California Press, 1984), 124–151; Brinkley Messick, “TheMufti, the Text and The World: Legal Interpretation in Yemen”, Man 21/1 (1986): 102–119;

Sherman Jackson, “The Second Education of the Mufti: Reflections on Shihab al-Dinal-Qarafi’s ‘Tips to the Jurisconsult’,” The Muslim World 82/3–4 (July-October 1992):201–17; Kevin Reinhart, “Transcendence and Social Practice: Muft i s and Q adi s as ReligiousInterpreters,” Annales Islamologiques XXVII (1993): 5–25; Masud, Messick and Powers(eds.), Islamic Legal Interpretation (Leiden: Brill, 1996), especially chapters 1 and 6;Skovgaard-Petersen, Defining Islam .

15. This is also partly the result of my own research bias: in my deliberate attempt tofind contemporaneity I may have played down the extensive and explicit continuities in thisliterature, while amplifying its disagreements and developments.

16. Ibn al-Salah al-Shahrazuri, Adab al fatw a wa shur u t al-muft i wa s ifat al-mustaft i

wa a h k a muhu wa kayfiyyat al-fatw a wa-l-istift a” (The Etiquette of the Fatwa, theConditions of the Mufti, the Attributes and Rules of the Questioner, and the Procedureof Fatwa-issuing and Fatwa-petition), ed. Rufi‘at Fawzi ‘ Abd al-Mu†alib (Cairo: Maktabatal-khaniji, 1992).

17. Jamal al-Din al-Qasimi, Al-fatw a f i -l-isl a m (The Fatwa in Islam) (Damascus:Majalat al-Muqtabas, 1329/1911).

18. Y usuf al-Qarada wi, Al-fatwa bayna al-in d ib a† wa-l-tasayyub (The FatwaBetween Discipline and Neglect) (Beirut, Damascus and Amman: Al-maktabu al-islami,1995).

19. Rufi‘at Fawzi ‘ Abd al-Mu†alib in Ibn al-Salah, 8.20. On Nawawi, see Norman Calder, “Al-Nawawi’s Typology of Muft i s and its

Significance for a General Theory of Islamic Law”, Islamic Law and Society 3/2 (1996):137–64. Nawawi’s work has been translated by a British Muslim publishing house: Al-Nawawi, Adab al-Fatwa wal Mufti wal Mustaft i — The Etiquette’s and Qualifications

of Issuing Islamic Judgement, Of a Mufti, and of the one seeking his opinion , tr. ShaykhMuhammad Bashir (Birmingham: Al-Fardani, non-dated).

21. J. Robson, “Ibn al-Salah”, EI2.22. See Michael Chamberlain, Knowledge and social practice in medieval Damascus,

1190–1350 (Cambridge: C.U.P., 1994), 133–151.23. My discussion here draws on Wael Hallaq, “Ifta’ and Ijtihad in Sunni Legal Theory:

A Developmental Account”, in Islamic Legal Interpretation , 33–43.

24. Ibn Daqiq al-‘ Id (d. 1302), quoted in Hallaq, “Ifta’ and Ijtihad”, 38. It is becausethe capacity to perform ijtihad was dropped from the prerequisites of ifta’ that a number oflater authors argued the opinions issued as fatwas were actually no more than mere reports.

25. Ibn al-Salah, 37–8; Hallaq, “Ifta and Ijtihad”, 36–7.26. Ibn al-Salah, 56.27. On the importance of piety for ifta’ see also Qasimi, 14 and Qarada wi, Al-fatwa ,

38–44. Interestingly, Oubrou does not include any moral features as conditions for themuftiship in contemporary France. According to Messick, the insistence on piety for themufti constitutes an important difference with the q adi , an office which even individualslacking in moral standards were eligible to, though of course not ideal candidates: Messick,

“The Mufti, the Text and the World,” 109. The importance of moral qualities for the exerciseof the muftiship is underscored by Ibn Khaldun, who, on being nominated Supreme Judge( d l d ) h th f b d f h f f




incapable of ijtihad: themes that seem to go in crescendo until the Reformist movementof the salafiyya.

28. See Masud, “ Adab al-Mufti,” 130–132. Interestingly, Masud suggests that the

emphasis on moral qualities increases steadily from the 17th

century onwards.29. See also Masud, Messick and Powers, Islamic Legal Interpretation, 21.30. Ibn al-Salah, 152.31. Ibn al-Salah, 125. Interestingly, the two following pages (125–127) are consumed

by a single footnote from Rufi‘at Fawzi ‘ Abd al-Mu†alib, the Egyptian editor of Ibn al-Salah, who disagrees with the mediaeval Shafi‘i jurist and maintains, on the authority of Ibnal-Qayyim al-Jawziyya (1292–1350), that it is best to explicitise the evidence at all times —see also my discussion below.

32. Ibn al-Salah, 106–109.33. See on this point Jackson, “The Second Education of the Mufti”.

34. Ibn al-Salah, 119–121. Likewise, Qasimi, 26.35. The flexibility of Islamic juristic discourses is underscored further by Ibn Hanbal:in a later footnote, the editor of Ibn al-Salah’s manual quotes a passage from Ibn Hamdan.It reports an incident where Imam Ahmad informed a mustafti unhappy with his answer ofthe location of another mufti known for having a different — more sympathetic — view onthe issue (Ibn al-Salah, 148, ft. 3). It is therefore not surprisingly that Tareq Oubrou refersto Ahmad Ibn Hanbal as the example to emulate in France in his “La sharî ‘a de minorité:réflexions pour une intégration légale de l’islam,” in Lectures contemporaines du droit

islamique — Europe et monde arabe , ed. Franck Frégosi (Strasbourg: Presses universitairesde Strasbourg, 2004), 226–7.

36. One should not however overlook the fact that criticism of leading questions andpetitioners can also be a kind of deontological practice allowing muftis to minimise overtconflict with respected or powerful colleagues.

37. Ibn al-Salah, 146– 8.38. Al-Nawawi, Adab al-Fatwa wal Mufti wal Mustaft i , 41. See also Qasimi, 31–32.39. David Commins, Islamic Reform — Politics and Social Change in Late

Ottoman Syria (Oxford and New York: OUP, 1990), 34–48. On Salafi reformism and Arab nationalism at the time of Qasimi, see also Commins, “Religious Reformers and Arabistsin Damascus, 1885–1914”, International Journal of Middle East Studies 18/4 (1986):405–425; and Joseph Escovitz, “‘He Was the Muhammad ‘ Abduh of Syria’ — A Study ofTahir al-Jazairi and His Influence”, International Journal of Middle East Studies 18/3 (1986):

293–310.40. Qasimi, Al-fatwa, 2.41. Qasimi, Al-fatwa, 2–3.42. J. R. Walsh, “FATW A ii) — Ottoman Empire”, E.I.2. The literature on Ottoman

muftis, both in Istanbul and in the provinces, is extensive. For Istanbul, see Uriel Heyd,“Some Aspects of the Ottoman Fetv a , BSOAS 32/1969: 35–56 and R. C. Repp, The Müfti of

Istanbul (London: Ithaca Press, 1986). In the Arab provinces, see Judith Tucker, In the House

of the Law (California: University of California Press, 1998); Haim Gerber, Islamic Law and

Culture, 1600 –1840 (Leiden: Brill, 1999). For the remnants of this Ottoman system in thecontemporary Middle-East, see Skovgaard-Petersen, “Levantine State Muftis — An Ottoman

Legacy?” in Late Ottoman Society — The Intellectual Legacy , ed. Elisabeth Özdalga(London-New York: Routledge Curzon, 2005), 274–288.

4 l ll A h C d Ch l ( b d



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46. Qasimi, 27.47. Qasimi, 27–8.48. Qasimi, 26, ft. 1. The point is made in reference to the adoption of a legal system

based exclusively on “rights”, precluding an engagement with the spiritual needs of litigants.49. Qasimi, 66–67.50. This list of insults must be placed in the context of their articulation.

Although I have not had access to Arabic biographies of Qasimi, Commins’ workprovides some important background. Given his open advocacy of ijtihad, Qasimi’sincorporation of “mujtahid” in the list of insults cannot be but an ironic acknowledgementof the word’s social connotation in late Ottoman Damascus. It is also probably relatedto a painful moment in his early carrier, which became known as the “mujtahidsincident” — see Commins, Islamic Reform , 50–55. For the derogatory meaning givento the wahhabiyya — which Qasimi describes in a footnote as a minor sect (t a “ ifa ) —

see ibid., Islamic Reform, 21–24. A reference to Qasimi’s distaste of wealthy families whodisregard the poor, and his even harsher criticism of those jurists who provided them with juridical fictions relieving them from the duty of charity, is found in ibid., Islamic

Reform , 45.51. Abdulkader Tayob, “Reading Religion and the Religious in Modern Islam”, ISIM

Review 15 (Spring 2005), 56–57.52. See M. Qasim Zaman, The Ulama in Contemporary Islam — Custodians of

Change (Princeton: Princeton University Press, 2002).53. Skovgaard-Petersen, Defining Islam .54. MacIntyre, After Virtue .55. Qarada wi has been the object of a number of studies, including Anne-Sofie Roald,

“The Wise Men: Democratization and Gender Equalization in the Islamic Message: Y usufal-Qarada wi and Ahmad al-Kubaisi on the Air,” Encounters 7/1 (2001): 29–55; ErmeteMariani, “Youssef al-Qardawi: pouvoir médiatique, économique et symbolique,” inMondialisation et nouveaux médias dans l’espace arabe , ed. Franck Mermier (Lyon:Maisoneuve et Larose / Publications de la Maison de l ’Orient, 2003), 195–204; JakobSkovgaard-Petersen, “The Global Mufti,” in Globalization and the Muslim World: Culture,

Religion, and Modernity , eds. Birgit Schaebler and Leif Stenberg (Syracuse: SyracuseUniversity Press, 2004), 153–165; M. Q. Zaman, “The ‘Ulama of Contemporary Islamand their Conceptions of the common good,” in Public Islam and the Common Good , eds.Dale Eickelman and Armando Salvatore (Brill: Leiden, 2004), 129–155.

56. This is the title of arguably his most famous book, Al- S a h wa al-isl a miyya bayna

al-juh u d wa-l-ta t arruf , translated into English as The Islamic Awakening between Rejection

and Extremism (Herndon, VA: IIIT, 1992).57. Qarada wi’s emphasis on the contemporaneous goes hand in hand with another

one of his leitmotifs, the insistence on “reality” (al-waqa‘), both of which can be traced tothe legacy of Rashid Rida. The social constructions of “reality” in modern Muslim thought would undoubtedly merit further study.

58. Qarada wi, Al-fatwa, 3–4.59. Qarada wi, Al-fatwa, 4.60. For an overview of Islamic authority in contemporary Egypt, see inter alia Malika

Zeghal, Gardiens de l ” islam (Paris: Presses de Sciences-Po, 1996); Skovgaard-Petersen,Defining Islam ; Elena Arigita Maza, El islam institucional en el Egipto contemporáneo ( d d d d d 5)




63. Qarada wi, Al-fatwa , 108–112.64. Ibn al-Salah, 109. This is the case in spite of the fact that the mudarris was almost

always a mufti too (Tyan, Histoire de l ” organisation judiciaire , 222).

65. Qarada wi, Contemporary Fatawas , vol. 1 (New Jersey: Islamic Book Service,1999), 27.66. See Fikret Kar:ic, “Applying the Shari’ah in Modern Societies: Main Developments

and Issues,” Islamic Studies 40/2 (2001): 210; Masud, Messick and Powers, Islamic Legal

Interpretation , 27.67. The literal meaning is “leniency”, a term which evokes largely positive

connotations in the fiqh tradition, and should be contrasted to atasah u l , “facility”, anattitude which muftis are severely warned against in the adab al-fatwa literature — forexample, Qasimi, 19–20. Qarada wi describes tays i r as being “more urgently needed at thistime than ever before. We live in an age which is immersed in materialism, lost in

distractions, full of evils so overwhelming that the person who sticks to his religiousprinciples faces a great deal of difficulty and stricture” — Qarada wi, The Islamic Awakening ,157; see also ibid., Al-fatwa , 103–8.

68. MacIntyre, Whose Justice? Whose Rationality (Notre Dame: University of NotreDame Press, 1998), 355, 364.

69. Masud, Messick and Powers, Islamic Legal Interpretation, 8–15.70. By “myth” I do not intend to deny the translation of this principle into effective

policies, but just to emphasise how secularism provides a cosmological explanation ofEuropean societies today, irrespective of the varieties of the arrangements and theopen-endedness of the outcomes.

71. In reality, the religious freedom guaranteed by European laws involves acomplex legal process of defining (legitimate) religious practices which is more complicatedthan sometimes assumed. Expert statements on Islamic law, whether called fatwas ornot, are often solicited by European judges in their attempt to evaluate the religiousclaims of plaintiffs. Thus, in an interesting case, the German Administrative Court ofDarmstadt upheld a decision based on a fatwa from the Islamic Religious Communityof Hessen related to the ritual slaughter of meat — see Mathias Rohe, “Ifta in Europa”,in Hans-Georg Ebert (ed.) Beiträge zum Islamischen Recht III (Frankfurt am Main:Peter Lang), 46.

72. These attempts have not been free of contradiction. In France, where theconstruction of a French Islam has become a state priority, the personal input of Interior

Minister Nicolas Sarkozy made the establishment of the conseil françous du culte musulmanpossible in 2002. However, his widely-reported visit to Sheikh Al-Azhar in Cairo inDecember of the following year to discuss the sartorial obligations of Muslims in non-Muslim lands served to understanding the moral authority of the French Muslim body,unanimously opposed at the time to any ban on headscanves in French Public Schools.

73. Ziauddin Sardar, “My fatwa on the fanatics”, The Observer , 23/9/2001. Sardar’sfatwa was echoed by Mansur Escudero’s deeming Bin Laden an apostate — in bothcases stirring debates within Muslim communities. Although Escudero, as the co-secretarygeneral of the official Comisión Islámica de España (see Arigita in this volume), holdsan important institutional position which differs from Sardar’s sole status as an academic,

both have been perceived by religious Muslims as lacking the necessary qualificationsfor the muftiship. The Spanish fatwa, issued on the first anniversary of the Madrid bombings,

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75. See for example Yusuf Talal DeLorenzo, “Fiqh and the Fiqh Council of North America,” Journal of Islamic Law (3/1998), 193.

76. “Profile: Dr Zaki”, Emel , November/December 2003, p. 32–6.

77. Statement by the Founding Editor of Q-News Fuad Nahdi.78. Le Monde , 26/05/1996. The declaration from the Recteur of the Mosquée deParis, who had proposed just one year earlier to establish a system of provincial muftis,does not make sense unless one takes into consideration the competing strategies pursuedby rival Muslim actors throughout the 1990s in their search for State recognition. Morerecently, the Franco-Algerian intellectual Malek Chebel wrote that “one would haveideally to simply abolish the notion of fatwa, in any case that which consists . . . in puttingto death a thinker or other critic of Islam”, and called for accepting the view that fatwasbe “just an Enlightened opinion, like the expertise of a doctor, a psychologist or apoliceman in charge of an investigation” — Manifeste pour un Islam des Lumières

(Paris: Hachette, 2004), 45–6.79. Chairman of the Conseil des imams, interview with author, Paris 2004. For acounter example, see my “An Anti-Riot Fatwa” in ISIM Review 17, Spring 2006.

80. In the last three years at least two conference-debates have taken place inParis only, organised respectively by the Institut européen de sciences humaines (animam-training institute close to the UOIF) and the Institut international de la penséeislamique. For a report of the latter, see http://www.islamonline.net/Arabic/news/2006-01/07/article12.shtml. The French case does not seem to be unique: in the Anglophone World,for example, Khaled Abou El Fadl reacted to a controversial fatwa by publishing The

Authoritative and the Authoritarian in Islamic Discourses (Alexandria, VA: University Pressof America, 1997), while Taha Jaber al-Alwani’s attempts to develop a methodology forissuing contextual fatwas have yielded, in English, Towards a Fiqh for Minorities — Some

Basic Reflections (London and Washington: IIIT, 2003).81. “Introduction théorique à la chari’a de minorité,” Islam de France (2/1998),

27–39; “La sharî ‘a de minorité: réflexions pour une intégration légale de l’islam,” inLectures contemporaines du droit islamique — Europe et monde arabe , ed. Franck Frégosi(Strasbourg: Presses universitaires de Strasbourg, 2004), 205–230; “La chari‘a et/dans lalaïcité,” Archives de philosophie du droit 48/2005, 157–167.

82. Here I draw on a piece entitled “An Imam in France: Tareq Oubrou” firstpublished in the ISIM Review 15: 48–9. All unreferenced quotations are from a series ofinterviews with the author carried out in Paris and Bordeaux in 2004 and 2005.

83. The use of French is remarkable and suggests that, beyond the producers ofIslamic discourses, Oubrou is targeting also the wider non-Muslim strata of French society,particularly academics, interfaith activists, and perhaps even politicians.

84. See also Peter in this issue. For Oubrou’s vision of Islam as faith and practice, seeOubrou and Babès, Loi d ” Allah, loi des homes (Paris: Albin Michel, 2002), 86–93.

85. “La sharî ‘a de minorité,” 210–220. Oubrou’s proposition to incorporate French lawinto the metabolism and the economy of the shari‘a has been formulated theoretically: thefull applications of such a move have yet to be spelt out.

86. The pun is lifted on John R. Bowen, “Does French Islam Have Borders?Dilemmas of Domestication in a Global Religious Field”, American Anthropologist 106 (1),

43–55.87. Oubrou, “La shari‘a de minorité”, 221.

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90. See inter alia W. Shadid and P. S. van Koningsveld, “Religious Authorities ofMuslims in the West: Their Views on Political Participation”, in Intercultural Relations and

Religious Authorities: Muslims in the European Union , eds. Shadid and van Koningsveld

(Leuven: Peeters, 2002), 149–168; Werner Menski, “Muslim Law in Britain”, Journal of Asiaand Africa 62 (2001): 127–163; Mathias Rohe, “Ifta in Europa”; Bowen, “Beyond Migration:Islam as a Transnational Public Space”, Journal of Ethnic and Migration Studies 30/5 (2004),879–894.

91. For an author who does just this, demonstrating how the adab al-fatwa manualsimpact on a mufti’s actual practice in the Mamluk period, see Nissreen Haram, “Uses and Abuses of the Law: A Mufti’s Response”, in Islamic Legal Interpretation , 72–86.

92. The expression is taken from Geertz, Islam Observed (Chicago: University ofChicago Press, 1971), 62.

Fatwa in Europe and Muslim World

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